The Malaysian Legal

System
Topic 1

Copyright lecture notes prepared by,

Mr Ravi Nagarathanam

Activity:
Brainstorm
What comes
to
your mind
when you
heard the
word
Law?

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Nagarathanam

Oxford Dictionary:
The system of rules
which a particular
country or
community
recognizes as
regulating the
actions of its
members and which
it may enforce by
the imposition
penalties.

Article 160(2),
Federal Consituition
1957:
Written law;
common law in so
far as it is in
operation in the
Federation or any
part thereof; any
custom or usage
having the force of
law in the
Federation or in any
part-theoreof.

Law

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Sir John
Salmond

(1862-1924):
The body of
principles
recognized and
applied by the
state in the
administration
of justice.

Art 4- The supreme law of the land; any laws

passed after Merdeka Day which is
inconsistent with this Constitution shall to the
extend of inconsistency, be void.

The FC enshrines the basic or the

fundamental rights of individuals. These
rights written in the Constitution can only be
changed by a two-thirds majority of the total
number of members of the legislature. This is
in contrast to normal laws which can be
amended by a simple majority.

The Federal Constituition

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Facts:
Plaintiff sought a declaration that an Act of

Parliament

namely S31 & S42 of Employees Social Security Act

1969 (SOCSO) were ultra vires the Federal Constitution
Art d8(1) that provided equal protection of the law for all.
He alleged that the act precluded employees from suing the
employer.

Held:
Court dismissed plaintiff claim as classification by SOCSO
was fair & reasonable.

R Rethana v The Government of

Malaysia & Anor (1988)
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Facts:
Applicant

was

charged

by

infringing Security Industry

Security

Commission

for

Act 1983 & Security

Commission Act 1993.

Applicant claimed that the 2 Sections infringe Art 145
(3) of the Federal Constitution.

Held:
Court held that both Sections to be unconstitutional, null &
void.

Repco Holdings Bhd v Public

Prosecutor (1997)

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The Role of Parliament

Enacts law at Federal level
Within limits prescribed by Federal
Constitution
Law enacted before 31.08.1957 are
called Ordinance
Law enacted after 31.08.1957 are
called Acts
Parliament can enact laws in matters
listed in list I of the Nine Schedule
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Classification of Law

Public law
(individual+state)

Constitutional
law

Criminal
law

International law
(state+state)

Public
international
law

Private law
(individual+individual)

Private
International
law

e.g. Law of
contract

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e.g. Law
Of trust

Public Law
The law which governs
individuals and the state.

the

relationship

between

Public law may be further subdivided into two categories

i.e. constitutional law and criminal law.
Constitutional law lays down the rights of individuals in
the state. It deals with questions such as supremacy of
Parliament and rights of citizens. It also covers areas
dealing with state and federal powers.
Criminal law codifies the various offences committed by
individuals against the state. A crime is a wrong against
the state for which punishment is inflicted by the state

Cont

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International Law
The law which governs the relationship between state
and state.
It may be subdivided into two categories:
1. Public international law
2. Private international law.

Cont

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Private Law
Private law concerned with matters that affect
the rights and duties of individuals amongst
themselves.

Cont

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Written Law
Federal
Constitution
State
Constitution
Legislation
Subsidiary
legislation

Unwritten
Law
English law
Judicial
decision
Customary
law

Islamic Law
Syariah
Courts
Only for
Muslims

Sources of Malaysian
Law

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Supreme law
of Malaysia

Federal
Constitution
Provides
fundamental
rights of
individual

Written Law

Provides the
powers of the
Federal &
State
Governments

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State Constitution
Regulates State Governments
Contains provisions derived from 8th schedule of
the Federal Constitution

Legislation
Enacted by Parliament and the state assemblies
Act: laws made after 1957
Ordinances:
laws made 1946-1957
laws in Sarawak

Written Law

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Very important because

specify the laws in more
detail and for everyday
matters

Laws made under any

Acts, Enactments or
Ordinances

Subsidiary
legislation
Example:
Parent Act (main law) :
Hire-Purchase Act 1957
Subsidiary Legislation :
Hire-Purchase
(Repossession) Regulation

Written Law

Subsidiary legislation
made in contravention of
either a parent Act or the
Constitution is void.

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English law:
- Applicable in the absence of local laws
- Suitable to local circumstances
English Commercial Law?

Section 5(2) of the Civil Law Act 1956, English commercial law
applies to Penang, Malacca, Sabah & Sarawak

If no local laws applicable

Today, many local laws dealing with commercial matters

e.g. Contracts Act 1950, Partnership Act 1961, Companies Act
1965

Unwritten Law

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Judicial decisions:
- Judges decision
- Doctrine of binding precedent : Not decide
cases

arbitrarily

(previous decisions

must
of

follow
similar

precedents
situations).

Each court is bound by the decisions of courts of

the same level or higher than it in the same
hierarchy of courts, whether or not it believes a

decision is correct

Unwritten Law

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Customary law:

Customs practiced by local people

Generally, customs relating to family law

are

given

legal

force

by

courts

in

Malaysia-marriage, divorce, inheritance

Unwritten Law

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CUSTOMS

MALAY

ADAT
PERPATIH

ADAT
TEMENGGUNG

CHINESE

INDIAN

CHINESE
CUSTOMARY
LAW

INDIAN
CUSTOMARY
LAW

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Applicable to Muslims only, does not apply

to non Muslims

family matters (marriage and divorce)

estate matters (inheritance, wasiat)

Islamic Law

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The system of courts and administration of justice

FEDERAL COURT
COURT OF APPEAL
High Court in
Sabah & Swak

High Court in Malaya

Syariah Court

Native Court
Sessions Court

Juvenile Court
Magistrates Court

Penghulus Court

Syariah Court
Session Court

Juvenile Court
Magistrates Court
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COURT SYSTEM

Courts are divided into two categories:

(i)

Superior Courts:
-

Federal Court

Court of Appeal

High Court

(ii) Subordinate Courts:

-

Sessions Court

Magistrates Court

Magistrates Court for Children

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Federal Court (FCt)

FCt replaced the Supreme Court in mid1994 as the highest court.

FCt is the highest court in Malaysia.

Instituted by Article 121 of the Federal

Constitution.

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2. Court of Appeal (COA)

The COA was established under Article 121 of the Federal

Constitution.

On 24.06.1994, the COA was created to act as an intermediate

appeal chamber before proceeding straight to the FC.

The composition of its judicial personnel is prescribed in Article

122A of the Constitution.

Proceedings is heard and disposed of three judges or such

greater uneven number of judges as the President may in any
particular case determine i.e. three judges at any one time OR
more (but must be of uneven numbers i.e. 5, 7, 9,11) Decisions
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are made by majority i.e. 2:1 (2 to 1), 3:2, 4:3,
5:4.
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Court of Appeal

Section 50 and 67 of the Courts of Judicature Act 1964

The court can hear both Civil and Criminal appeal cases.

Civil Appeal Cases

Has jurisdiction to hear and determine civil appeals for cases
where the amount or value of the subject matter of the claim is
more than RM 250,000.
If the amount is less than RM250,000 the parties must get the
permission from the Court of Appeal.

Criminal Appeal Cases

Has jurisdiction to hear and determine any appeal against the
decision of the High Court.
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3.

High Court (HC)

Established under Article 121(1) of the Federal

Constitution.
There are 2 High Courts of co-ordinate jurisdiction in
Malaysia:
(i) High Court for West Malaysia
(ii) High Court in Sabah and Sarawak

Each of the two High Courts is headed by a Chief Judge.

Sections 22, 23 and 24 of Courts of Judicature Act 1964 lay down the
criminal and civil jurisdiction of the High Court.
Deals with offences punishable with death.

The general jurisdictional rule in relation to criminal matters is

reflected in Section 22(1)(a) of the Courts of Judicature Act 1964.

Has unlimited jurisdiction to try all civil proceedings within the local
jurisdiction of the court.

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4. Sessions Court (SC)

A SC is under the charge of a SC judge.

Under Section 54 of the Subordinate Courts Act, the SC

assumes a limited supervisory role over the Magistrates
and Penghulus courts.

The purpose for such action is to ensure the correctness,

legality or propriety of the decision recorded or arrived at,
and the regularity of the proceedings.
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Session Court

Civil cases

All suits where the amount in dispute or the subject matter

does not exceed RM250,000.

May entertain cases above RM250,000 if it concerns motor
vehicles accident, landlord and tenant.
May not entertain even if its below RM250,000 if it concerns;
divorce,

bankruptcy,

enforcement

of

trust,

specific

performance, injunction. (determined by the High Court)

Criminal cases

All offences other than offences punishable with death. May

impose any sentence allowed except sentence of death.
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Magistrates Court (MC)

Familiar

to

most

urban

people

as

it

is

established in all major towns and sometimes

goes on circuit to regional areas.

This court has the jurisdiction to hear civil cases

and criminal cases

This court has the jurisdiction to hear civil cases and criminal cases. There
are two (2) types of classes of magistrate i.e. First Class and Second Class
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First Class Court

Criminal To try all offences punishable with up to 10 years
imprisonment or with fine only and offences related to punishment for
robbery and house breaking by night.
Civil - To try all litigations where the matter in dispute or subject
matter does not exceed RM25,000.

Second Class Court:

Civil - Performs minor function i.e. granting bail, mentioning cases.
Criminal Only to deal with cases where the maximum punishment
imposed is no more than 12 months imprisonment or which is

punishable with a fine only.

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Magistrates Court for Children (MCC)

Established under the Child Act 2001 (Act 611).

The court has the jurisdiction to hear cases regarding offenders between the
age of 10 18 years.

It can try all offences except those punishable by death and it is presided by
a First Class Magistrate and 2 advisors.

The philosophy of creating a special court is that children need care and
attention and offenders should be treated differently from adult ones and
with compassion.

When a juvenile is found guilty, they are sent to corrective school i.e. Henry
Gurney School, Melaka.

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7. Penghulus Court

At the lowest level of the court hierarchy in West

Malaysia

Presided by a Penghulu or Headman appointed by

the state government for a mukim which is an

administrative district

To try civil disputes where the subject-matter does

not exceed RM50 in value and in criminal cases, to
impose a fine not exceeding RM25.
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Form a group of three (3) peoples.

Browse the internet and look for any cases related to

business

law

(e.g.

contract/

sale

of

goods/

partnership/ agency) that tried in court either in side

or out side of Malaysia.

Read the facts and held of the case carefully.

Analyze the case held and give your opinion.

Present your case study on the next class.

You may present either in English or Malay.

Tutorial 1 (Case Study)

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