TUTORIAL CHAPTER : MALAYSIAN LEGAL SYSTEM. Q1) The Federal Court is the highest court in Malaysia. The Federal Court may hear appeals of civil decisions of the Court of Appeal where the Federal Court grants leave to do so. The Federal Court also hears criminal appeals from the Court of Appeal, but only in respect of matters heard by the High Court in its original jurisdiction i. e. where the case has not been appealed from the Subordinate Courts. The Court of Appeal generally hears all civil appeals against decisions of the High Courts except where against judgment or orders made by consent.
In cases where the claim is less than RM250,000, the judgment or order relates to costs only, and the appeal is against a decision of a judge in chambers on an interpleaded summons on undisputed facts, the leave of the Court of Appeal must first be obtained. The Court of Appeal also hears appeals of criminal decisions of the High Court. It is the court of final jurisdiction for cases which began in any subordinate courts. Somewhat like the former Quarter Sessions in England, the Sessions Courts have jurisdiction to try offences which are not punishable by death.
They are presided over by Sessions Court judges (formerly Sessions Court Presidents). The Sessions Courts also hear all civil matters of which the claim exceeds RM25,000 but does not exceed RM250,000, except in matters relating to motor vehicle accidents, landlord and tenant and distress, where the Sessions Courts have unlimited jurisdiction. The doctrine of Judicial Precedent works in two ways, vertically and horizontally. Doctrine of judicial precedents works in vertically with the superior courts bind all courts subordinate to it.
In horizontally, it works with the courts that usually an appellate court is bound by its own previous decision. First,vertical doctrine shows the Superior Courts which include Federal Court, Court of Appeal and High Court. It also contains the subordinate courts which are Sessions Court, Magistrates’ Court, Juvenile Court and Penghulu’s Court. Horizontal doctrine shows the flow from High Court which is Federal Court to the lower court that is Penghulu’s Court. It is bound by its own previous decision, of its predecessors and coordinate jurisdiction.
Second, judicial Decisions can be found in the High Court, Court of Appeal and the Federal Court and the then Supreme Council, Federal Court and the Judicial Committee of the Privacy Council. Decisions of these courts are still being made, systematically by the use of what is called the ‘doctrine of binding judicial precedent’. Judges do not decide cases randomly. They follow certain accepted principles commonly known as precedents. Precedents are basically decision made by judges previously in similar situations.
For example The Federal Court (Superior Court in Malaysia) have decided that a minor or those who below 18 years of age, is not liable under a contract. If a minor is sued in High Court for not fulfilling his obligation in a contract, the High Court will follow previous decisions made by the Federal Court. If a judge applies existing rules without extending it, his decision may be called a declaratory precedent; whereas if the case before him is without precedent, then the decisions made by him are called an original precedent.
Because of the way the judging is done, judges are constantly contributing to the growth of unwritten law in this country. Q2) Written law refers to the laws contained in the Federal and State Constitutions and in a code or a statute. The written laws are much influenced by English laws as the Malaysian legal system retains many characteristics of the English legal system.. The “Written law” includes the Federal and State Constitution, Legislation and Subsidiary Legislation. Malaysia is a federation of 13 states with a Federal Constitution and 13 State Constitution.
The Federation Constitution is the supreme law of the country. The Federal Constitution also provides for the “Yang di-Pertuan Agong” who owes his position to the Constitution and act accordance with it. The Constitution can only be changed by a two-thirds majority of the total number of members of the legislature. The Federal Constitution comprises many Articles concerning the religion of the federation and many other related subjects. Besides the Federal Constitution, there is a state constitution where each state has their own constitution regulating the government of that state.
Legislations refers to the laws that are established by the Parliaments at federal level and by the State Legislative Assemblies at the state level. The Parliament and State Legislatures are not supreme and so they have to enact laws subject to the provisions set out in the Federal and State Constitution. In the Federal Constitution, Article 74, it states that parliament may make law with referring to matters provided in the List I of the Ninth Schedule while the state legislatives may make law with referring to matter provided in List II.
As for matters on List III which is the Concurrent list, are in the authority of both parliament and state legislatives. Matters that are not in the lists are within the authority of the States. Subsidiary Legislations are made by the people or bodies who are authorized by the legislatures. The Interpretation Act 1967 defines subsidiary legislation as rules, regulations, by laws, order, notifications made under legislations. The Legislatures provide basic law, so subsidiary legislation is very important is unsufficient to govern day-to-day matters. That is why the authority is delegated to delegate their legislative powers.
In Article 150 of Federal Constitution, Parliament can pass the power to legislate any subsidiary legislation during emergency, even if there are any contradictions with the Federal Constitutions involved. The people or bodies who are authorized by the legislatures are the Yang di-Pertuan Agong who is the nominal head of the executive and the Prime Minister and cabinet is the real executive. The Cabinet is answerable to the Yang di-Pertuan Agong as the nominal head of the executive in the country. However, according to the democratic ruling system, the Chief Executive is the Prime Minister.
This does not mean that the Yang di-Pertuan Agong is unable to voice any opinion, but rather that he must act on government advice, whatever his personal view might be. The Yang di-Pertuan Agong appoints a Cabinet to advise him on country’s matter. The Cabinet consists of the Prime Minister and a number of Ministers who must all be members of Parliament. Besides that, the Government has set up various agencies to ensure the smooth enforcement of the law. It comprised of three main components, namely ministries, departments and statutory bodies.
Lastly, Islamic law is also a major source of Malaysian law which is enacted under the Federal Constitution. It is only applicable to Muslims and is administered by a separate court system, the Syariah Courts. The State legislature has authority over the constitution, organization and procedure of the Syariah Courts and is also allowed to make Islamic laws pertaining to persons professing the religion of Islam. Q3) The Unwritten law does not mean that the law is literally unwritten. It refers to the laws which are not enacted by the Legislature and which are ot found in the Federal and State constitutions. This category of law comes from cases decided by the Courts and the local customs, which is otherwise known as common law. The unwritten law mainly comprised of the English law, judicial decisions and custom law. The English Law can be divided into two which are the English Commercial Law and English Land Law. In section 5(1) of the Civil Law Act 1956 provides that The English Commercial Law is applicable in Peninsular Malaysia except Penang and Malacca as it stood on 7 April 1956 in the absence of local legislation.
On the other hand, Section 5(2) of the same act, applies in Penang, Malacca, Sabah and Sarawak as the law administered in these states will be the same as law administered in England, in the like case at corresponding period. As for the English Land Law, none of the English Land Law concerning the tenure, conveyance, assurance of or succession to any immovable property or any estate, right or interest therein applies in Malaysia. In Malaysia, National Land Code is the law that governs the land matters.
There is no any allowance for English land law, except in so far the National Land Code might expressly provide. Approaching the judicial decision, judges do not decide arbitrarily. Instead, they are bound to follow certain accepted principles known as precedents. Precedents are defined as ‘a judgment or decision of a court of law cited as an authority for the legal principle embodied in its decision”. The system of binding judicial precedent is called stare decisis. It is created by the English judges and introduced into Malaysia upon colonization.
The Malaysian Court system is similar and in fact, influenced by the English Court system which is divided into the Superior and Subordinate Courts. Under the Subordinate Courts, the Penghulu Court is the lowest level and the state government will appoint a headman to preside the court for the specific district. Relating Sabah and Sarawak, both are equally related to the Native Courts that relates to the indigenous people’s customs. A level above is the Magistrate’s Courts which deals with minor criminal and civil cases and at the highest level are the Sessions Courts.
However, the Superior Courts are made up of the High Court, Court of Appeal and Federal Court (which is the highest court in the land). Customs are another important source of unwritten law. Every race has its own customs. Hindu and Chinese customary law applied to the Hindus and Chinese respectively. Besides that, natives in Sabah and Sarawak have their own customary law which relates to the land and family matters. In Malaysia, there are two types of Adat which is the Adat Perpateh and Adat Temenggung.
Adat Perpateh is practiced among the Malays in Negeri Sembilan and Nanning in Malacca. It uses the matrilineal system which belongs to mother’s lineage, meaning to say it involves the inheritance of property, names or titles from mother to daughters. It also concerns with matters such as land tenure, lineage, inheritance and election of members of lembaga and Yang di-Pertuan Besar. As for Adat Temenggung, it is practiced in other states and it uses the patrilineal system which belongs to father’s lineage.