NOTES LAW 033

INTRODUCTION TO MALAYSIAN LEGAL SYSTEM

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LAW 033 legal system - guarantees the
right to a fair trial
CHP 1 - LEGAL SYSTEM and the
presumption of
DEFINITION: A procedure or process for interpreting innocence
and enforcing the law. Trial by Jury Give accused Trial by jury is
people the less common;
Three main types of legal systems in the world
option of trial by except in very
- Common law their peers selective
- Civil law circumstances
- Religious law Countries; Malaysia, Netherlands,
Australia, New Italy, Spain…
Zealand, India…
FEATURES Common law Civil law
Meaning Derived from Derived from ADVANTAGES & DISADVANTAGES OF CIVIL LEGAL
English law Roman law SYSTEM AND COMMON LEGAL SYSTEM
Sources of Rules of law Refer statutes as
law derived from the primary
Civil law legal system
judicial decisions source of law Advantages Disadvantages
rather than - Codified - Rigid & difficult to
statute (Anthony - Written in a simple change
et. all) manner - Give more power to
Reliance on Strong The binding - Easy to read the legislature
precedent doctrine of - Lack of flexibility
precedent does -Time-consuming
not apply
Role of - Makes rulings - Establish the
Judges - interpret the facts of the case Common law legal system
law - Apply the Advantages Disadvantages
- Sets precedent provisions of the - Specificity: Judges - Perpetuation to bad
- referee applicable code play a role by ruling; the bad decision
between lawyers examining facts in each will remain law until
Type of Adversarial; two Inquisitorial; case, administering the the court overrules the
argument sides in a case Role of the court law, interpreting decision
have the chance to uncover the relevant legislation
to present their truth - In the absence of
arguments - Consistency – binding precedent; The court
equally before of judicial precedent has to make a ruling
neutral judges or works effectively when no previous law
juries for a existed
decision - Unforeseen case
Presumption - An accused - Not usually - Need for records;
of person is stated - Speed & reliability Lengthy, detailed
Innocence innocent until records have to be
proven guilty - Most European maint.
- Political
- The accused countries ratified independence
person does not the European
have to prove Convention on
innocence; Human Rights
already Religious Law
presumed
- Explicitly stated Refers to the law that derives its authority from religious
in the common sources, i.e. holy books, traditions.

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- Code of ethics and morality which is upheld and required DEFINITION: The system of law used to administer justice
by God. due to any person especially to preserve his or her rights
as guaranteed by the Constitution.
- A legal system that stems from sacred texts of religious
traditions. Adversarial & Inquisitorial Legal System

- Islamic law is one of the most widely used religious laws Adversarial system:
and is one of the three most common legal systems in the
world. - A competitive process to determine the facts and
application of law accurately between two people of
- i.e. Iran, Saudi Arabia, Malaysia, Pakistan, Sudan, Yemen. conflicting interests, e.g. in a criminal case, it involves a
public prosecutor and an accused person whereas in a
- Shariah (Islam), Halakha (Judaism), Canon Law (Christian). The civil case, a plaintiff and a defendant.
DIFFERENCES BETWEEN RELIGIOUS & MAN-MADE LEGAL
SYSTEM - Fearlessly uphold the client’s interest without regard to
unpleasant consequences either to himself or others.
Religious Man-made
Source God or Prophets Human Being - Applied in common law countries i.e. UK, Malaysia, most
Nature Perceive to be Can be changed Commonwealth countries and US.
eternal & by the maker at
cannot be any time - In Malaysia, the core concept of litigation is the
change according to the adversarial system, whether civil or criminal.
demand
Dispute Settle by an Settle by an Inquisitorial system:
officer of appointed judge
religion such as - Basically, used in civil law countries, i.e. France
Priest, Ustaz
Punishment May include Punishment – - Judge will conduct the summary process – conducting an
punishment in imprisonment,
investigation and examining witnesses and documents
this world and fine, whipping…
after world
- The Prosecutor merely assists the court in certain
circumstances

CHP 2 – SYSTEM OF JUSTICE

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 FEATURES & DIFFERENCES OF ADVERSARIAL AND by opposing counsels to the search
INQUISITORIAL LEGAL SYSTEM check, or discredit or warrant,
impeach the witness examination of
Adversarial Inquisitorial testimony/credibility the evidence) to
Control - Party-controlled - Court control - Re-examination: discover
- Case - Control lies evidence
organized/developed by more in the hand ~ conducted by a lawyer ~Lawyers
sole initiatives of the of judges; who presents the monitor the
parties reduces witness in examination investigation
- Each side to a dispute disturbance of in chief; must revolve (may make
presents its best the attorneys around matters brought certain requests)
evidence and motions up in the cross- ~the way
Role of the - passive - Active examination. investigation is
judge - Act more like a referee - Truth finder handled, remain
-make sure rules of - Controls the to the judge.
~except allowed by the
evidence and correct execution of judge
procedure are followed every motion - If the judge
-clear up any ambiguities - Exercising the recommends a
~opponent is allowed to
- ensure trial follow the power by asking trial, then only a
cross
principles of fairness and supplemental trial will be
equality evidence conducted.
- must always remain - Often ~ purpose is to enable - only be made
neutral conducting a the witnesses to clarify when the judge
- not interfere too much primary which may be weakened convince there is
in the trial examination of during the cross. sufficient
witnesses. evidence of guilt
Role of - Active - Passive against the
lawyers - Success of the defendant
- Success of a case is case strongly - The defendant
strongly based on the depends on the will have to
skill of the lawyers quality of the prove his case
presenting the case investigation against this
- Decide how and what done by established guilt
evidence will be used collaboration by the judge.
between lawyers
& judges.
- Discovering, presenting ADVANTAGES & DISADVANTAGES OF ADVERSARIAL AND
- Merely assist
evidence for their clients
the judge in the INQUISITORIAL SYSTEMS:
/ challenging evidence
investigation
presented by the Adversarial Inquisitorial
opposition
Advantages - Any evidence - Decision rests in the
Verdict - Declare by the jury - Declare by a
brought into hand of crime expertise
based on the question of judge based on
court is tested - All evidence will be
facts the evidence &
for its accuracy checked
- *if there is no jury, codified law.
by the - No chance of being
then the judge will
examinations swayed by fancy
declare the based on the
- Judge cannot arguments
question of facts, as well
comment until
as the question of law.
both sides are
Process - Examination in chief: - Pre-trial
heard
~Direct investigation will
- Dispute is
questioning/examination be conducted by
decided by an
of party’s witness under the judge
independent
oath - The judge will
judge; give the
- Cross-examination: conduct an
public
~ Process where a inquiry (involves
confidence
witness who already the questioning
Disadvantages - Expensive - Slow because judge do
testified in examination of witnesses and
- Much majority of the
in chief to be questioned suspects, issue of
emphasis is investigation
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 placed on legal -Bias (one judge) To punish the wrongdoer To compensate the
argument plaintiff for injuries or
damage suffered

TYPES OF LITIGATIONS
PRELIMINARY MATTERS
Civil Litigation
There are 5 preliminary matters:
- To settle disputes between individuals in organized
manners either in claiming or defending. 1) Parties to the suit

- Govern by Civil Procedure 2) Locus Standi

3) Cause of action
- Sources:
4) Limitation period
1) Statutes: Court of Judicature Act 1964, Subordinate
Court Act 1948 5) Remedies
2) Case law Parties to the suit
3) Practice Notes/Directions (issued by Chief Registrar to Civil Litigation Criminal Litigation
smooth the procedure in Court. First instance: Plaintiff v PP v Accused person
Defendant
On appeal: Appellant v Respondent
Criminal Litigation

- To govern the criminal offences (wrong against the Plaintiff: the party that initiated the lawsuit
states) done by the criminals
Defendant: the party that must defend the claim by the
- Initiated by P.Prosecutor/DPP/Police inspector & above plaintiff against him.
in court.
2 Conditions must be fulfilled to be parties to the suit:
- Preserve the Fundamental Liberties (Art.5) of F.
Constitution. 1) Sui Juris – 18 and above, according to the Age of
Majority Act 1971
- Governed by the Criminal Procedure 2) Compos Mentis – Sound mind; able to understand
and form rational judgement to the effect of
- Sources: litigation on him.
1) Statutes: C.O.J Act 1964, Subordinate Courts Act 1948
Locus Standi
2) Criminal Procedure Code

3) Case Law - Literally, a place to stand

4) Practice notes/Direction. - Right to appear or bring an action or to be heard in

court or to address the court on a matter before it.

- determines the competence of a plaintiff to initiate civil

DIFFERENCES proceedings in a court of law against the defendant

Criminal Litigation Civil Litigation - to ensure the system is not abused by people who have
Wrong against the state Govern disputes between no interest
for any unlawful act that individual
is unacceptable in the Case: Malaysian Trades Union Congress V Government
eyes of the public of Malaysia [2014] 2 CLJ 525
Matters like murder, Matters such as contracts,
rape, theft, hurt. partnership agreements, - Plaintiff need to prove at least a genuine interest
marriage, wills, sales of in an issue
property, and tort.
E.g:
Prosecuted by the state; Lawyer represents clients
- you want to sue a restaurant for giving poisonous food
Prosecutor / Attorney
as a “customer”
General

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- you involved in an accident, so you want to sue another
party as “a road driver”

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Cause of action Case: Pirelli Cable Works Ltd V Oscar Faber & Partners
[1983] 2 AC 1

- Cook v Gill (1873) LR 8 CP 107: “A cause of action is - Cause of action started when the crack on the
every fact which is material to be proved to entitle the chimney occurred, NOT when the plaintiff
plaintiff to succeed” discovered it.
- Action was time-barred because discovered after
time-barred.
- Plaintiff must have a cause of action that is “complete”
Remedies

Case: Sio Koon Lin V SB Mehra [1981] 1 MLJ 225

- refers to any method available under the law to obtain
- The plaintiff commenced an action for recovery
redress for the infringements of rights
of arrears that were not yet due at the time of
the claim Damages - Money compensate for any loss or
- The Court held the plaintiff has no cause of damage resulting from the wrongful
action since the debt was not yet due. act
Rescission of contract - Plaintiffs ask for the contract to be
Breach of Contract: - Contract cancelled
- Breach of Contract - Especially if the breach goes to the
- Loss root of the agreement
- Under certain circumstances
Tort & Negligence: - Duty of care Specific performance - Order of the court for certain
- Breach of duty of care actions to be performed specifically
- Damages according to the agreement
Injunction - Order of the court for a party to or
Limitation period
not do something
Quantum Meruit - Award in ‘proportion of the work
- Refers to the period within which the suit must be done.
brought to the court - Party who has performed his side
of the bargain before the breach,
- Plaintiff must initiate action within the specified period, must be awarded adequately.
otherwise, the suit will be statute-barred

- The countdown begins once the cause of action is

complete.

Action for Tort and - Section 6 of Limitation

Negligence Act 1953
- Action must be taken 6
years from the cause of
action completes.
- It must start from
wrongful act happen, not
when the plaintiff
discovered it.
Dependency Claim - Section 7(5) of Civil
Law Act 1956
- Within 3 years after the
death of the person
Action against Public - Section 2 of Public
Authorities (Fed/State) in Authorities Protection
discharging their public Act (PAPA) 1948
duties. - Action must be brought
within 3 years after the
wrongful act complained

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CHP 3 - CLASSIFICATIONS OF LAW Enactment – contracts, - Diplomatic treatises
marriage, wills, etc - Trade regulations
- All laws passed & - other international
- Refers to different categories of law that can be collated practised in Malaysia are agreements
under an issue/area of law. National law
Divided into: Divided into:
PURPOSE - Public Law - Public International law
- Private Law - Private International law
- To determine types of the procedure involves if action is
to be taken
Public International Law Private International
- To determine types of remedies available
Law
- To explain our rights and obligations under certain - Governs relations of - Rules to determine
classifications of law states inter se which law prevails when
- Concerns with a dispute a case involves parties
Common law Equity between countries from different countries
Developed by common - Developed by - a.k.a conflicts of laws
law judges that apply the chancellors I.e; I.e;
principle of ‘stare - dealing with petitions - the issue of Pulau - Dispute between a
decision. addressed to the King Sipadan & Pulau Batu Malaysian & American
A.K.A case from citizens Putih; to determine to arising from breach of
law/precedent - complained about the which country the island contract
rigidity of common law belongs; rules of war - Family matters; parents
- Means ‘fairness’ of different nationalities
A complete system of Complements to claim custody of their
law common law, where children.
their application would
operate harshly, to
achieve what is Public Law Private Law
sometimes referred to as Law that governs the Law that governs the
‘natural justice’ relationship between relationship between
Remedies available as of Discretionary remedies individuals & the States individuals
right To protect the public To protect the individual
The only remedy The remedies are interest interest
available is an award of equitable, including Subdivided into criminal - Contracts
damages injunction, specific law, constitutional law, - Torts
performance, & and administrative law - Property
rescission of the contract - Family
- Partnership
- etc
National law International law
- Consist of rules and - Consist of rules and
principles, which govern principles, which govern
the relationship between the relations and dealings
the citizens in a country of nations with each other
- operative within a - Only work if the other
particular state nation-states accept and
-a.k.a municipal / abide by those rules.
domestic law / state law
Regulates the conduct of Regulates the conduct of
persons within a sovereign states
sovereign state
Concerned with: - Promote the welfare of
- running a particular the entire international
country community
- promoting the interests - Has to respect the
of its people sovereignty of states
For example Acts of For example:
Parliament, State - Military agreements

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 Criminal law Civil law Substantive Law Procedural Law
- Body of law dealing - Body of law dealing with Law that governs rights, Law that governs the
with crimes and their disputes between duties and liabilities procedures in the
punishment people / between the among citizens and enforcement of rights
government & its citizens government and duties under
- Concerned public rights - Concerned with private substantive law
& remedies towards the rights and remedies Defines the legal rules and Includes how to file a
wrongs against the - Duties that exist among principles, which guide case, in civil and Syariah
society and between persons, the courts in decision- courts etc.
organizations and making
government For example, Theft is an
The party bringing the The party bringing the offence
case in the States (i.e case is the Plaintiff For example; For example;
Prosecutor) - Contracts Act 1950 - Subordinate Court Act
- To punish the - To compensate the - Penal Code 1948
wrongdoer innocent party for the - Rules of Court 2012
- To give him / others a damage done - Criminal Procedure
lesson not to commit Code
similar crimes
Standard proof: Beyond Standard proof: Balance
reasonable doubts of probabilities
Theft, robbery, murder, Contracts, divorce, child, Criminal case: Public law – Criminal law – National -
rape, etc… custody, etc… Substantive law – Procedural law – Written law

Civil Case: Private law – Civil law – National/International law

– (if international) Private/Public International law -
Substantive law – Procedural Law – Written/Unwritten – (if
unwritten) Common Law
Written Law Unwritten Law
Refers to the law that has Refers to the law that has
been enacted by the not been formally
Parliament / State enacted
Legislative Assemblies
(SLA)
In Malaysia, it comprises In Malaysia, it comprises
of: of:
- Federal Constitution - English common law &
- State Constitution equity
- Legislation - Judicial precedent
- Subsidiary legislation - Local customs

Syariah/Islamic Law

- Govern the Muslims

- Covering matters such as morality, inheritance, marriage and

divorce

- Syariah Courts have jurisdiction to try the civil cases (Mal) and
criminal cases

- Syariah Civil Law; have jurisdiction in personal matters (i.e family

law and inheritance)

- Syariah Criminal Law; With regards to criminal cases, drinking or

eating on Ramadan are examples of offences that may carry a jail
term of up to one year.

- Sources: Primary- Quran & Sunnah

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CHP 4 – SOURCES OF LAW [2] Amendments requiring a simple majority

DEFINITION: The authority from which the laws derive - Simple majority means, any majority – more than 50%
their force
- Art. 159(4), Certain provisions can be amended if
SOURCES OF MALAYSIAN LAW supported by a simple majority of members present and
voting in each dewan.

For examples:

- Art. 121 (1); The creation of inferior courts, jurisdictions

and powers of the H.C and inferior courts

- Art. 45(4); The composition of Senate, rules concerning

the admission & retirement of its member

- Article 9(2), 9(3), 10(2), 10(3); Restriction of freedom of

movement within the federation, and freedom of speech,
assembly, and association.

WRITTEN LAW [3] Amendments requiring the consent of Conference of

Rulers
- Refers to the law enacted by legislative bodies or
delegated authorities - Some amendments need both of the two-thirds majority
and the consent of the Conference of Rulers
1) Federal Constitution
- Art.159(5); main concerned with ‘sensitive issues’
- Art.4(1) of F.C; It is the Supreme law of federation. Any
law passed after Merdeka Day which is inconsistent with For examples:
this constitution, shall be void
- Art. 153; Reservation of quotas in respect of services,
- Provides basic framework or organized structure of the permits, etc, for Malays and natives of any of the States of
state Sabah & Sarawak

- Consist 183 Articles, 15 Parts, 13 Schedules - Art. 10(4); Freedom of Speech

- Part 1 of Article 1 (1) name of this country until - Art. 152; National language
Proceedings against the YDPA & Rulers in Part 15 Article
183
[4] Amendments requiring the consent of the Yang Di-
- Lays down the power of federal and state governments
Pertua Negeri (Governor) Sabah & Sarawak
and the fundamental rights of individual citizens
- Art. 161E; require in addition of 2/3 majority, and
- Applies to all states of Malaysia
consent of the Yang di-Pertua Negeri.
Modes of amendment: - affecting special ‘safeguard’ for Sabah and Sarawak
- Article 159 & 161E; Provides modes of the amendment, For examples:
that can be amended during emergency time
- Art. 161E (2)(b); constitution & jurisdiction of the H.C in
[1] Amendments requiring a two-thirds majority Sabah & Sarawak, appointment, removal, suspension of
- Considered as a common method of amendment judges of that court

- Need at least 148/222 members of House Representative -Art. 161E (2)(d); Religion of the state
+ 47/70 members of Senate voting for the bill

- Most provisions in F.C can be amended by a bill, not less

than 2/3 majority of the total number of members from
each House on its Second & Third reading (Article 159(3))

Examples; Art. 119 (Qualification for election), Art. 11

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2) State Constitution Federal Legislation State Legislation
Passed by Parliament Passed by State
- Each state of Malaysia has its constitution Legislative Assemblies
- Contains provision pertaining in the 8th Schedule of F.C Applicable to the whole Applicable to that
country particular state only
- Include matters of the Ruler, executive council, land May contain matters May contain matters
matters, agriculture, forestry and Islamic law. listed in List I of 9th listed in List II of 9th
Schedule of F.C Schedule of F.C
Laws enacted are called Laws enacted are called
Act Enactment or Ordinance
3) Legislation (Federal & State)
in Sarawak
Legislation: Laws enacted by a body constituted for this
purpose
COMPOSITION OF PARLIAMENT
- Federal level: Parliament (List I of the 9th Schedule)

- State-level: State Legislative Assemblies (List II of the 9th

Schedule)

- Both authorities: List III of the 9th Schedule, the

Concurrent List

Acts: Laws made by the Parliament after 1957/Merdeka

Ordinance: Laws enacted by the Parliament after 1946, but

before Independence

Enactment: Laws made by the State Legislative Assemblies

(except Sarawak, they use ‘Ordinance’)

TYPES OF BILL

Types of Bill Explanations

Public Bill Concerns with public
matters, i.e;
- Taxation
- Public order
- National defence
Introduced by the
relevant Minister
Private Member’s Bill Introduced by MPs who is - Before any law can be called an Act, they are known as
not a Minister or Deputy ‘Bill’.
Minister
- The bill may be originated either House (Art. 68(2) except
Private Bill - Deals with matters
for matters mentioned in Art. 67)
concerning local or
private
- Usually introduced by a
private person, not LEGISLATIVE PROCESS
necessarily members of
Parliament There are 2 main stages of the legislative process in
Malaysia:
Hybrid Bill - Bill of public matters
which also adversely a) Pre- Parliamentary Stage
affect private bodies or
persons. b) Parliamentary Stage
- Introduced by members
of Parliament (MPs)

DIFFERENCES BETWEEN FEDERAL & STATE LEGISLATION

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a) Pre-parliamentary Stage 4) SUBSIDIARY LEGISLATION

- Proposal; may come from the election manifesto of - Also known as delegated or subordinate legislation
winning political party, policy decision, etc..) made by persons or bodies under powers conferred on
them by Acts of Parliament or Enactments of State
- Consultation; Meeting with relevant authorities, Assemblies
interested parties, and experts
- Section 3 of Interpretation Act 1948 and 1967; defined it
- Drafting; The proposal sent to the parliamentary as “any proclamation, rule, regulation, order, notification,
draftsperson in the AG’s chamber to be put into legal by-law or other made under any Act, Ordinance, or other
language and form. The proposal then becomes Bill. lawful authority and having a legislative effect”
b) Parliamentary Stage - Lays down the basic laws and main laws

- For example:

Section 107(1) of the Private Healthcare Facilities &

Services Act 1998; Provides that Minister has the power to
make such regulations as he thinks necessary or
expedient.

- Examples of Subsidiary legislation:

- Company Regulations 1966

-Private Healthcare & Facilities and Services (Private

Medical Clinics or Private Dental Clinics) Regulations
2006,

REASONS FOR SUBSIDIARY LEGISLATION

1) To save time to discuss other important matters

2) Legislature lacks expertise and the technical know-how

to enact a law on every detail

3) Easily rescinded if it becomes impractical or outdated

without going through the process in parliament

4) Flexible; especially in emergencies, unforeseen at the

time making the law.

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 Section 58(4) of the Trade Union Act 1959; requires
subsidiary legislation to be laid before Dewan Rakyat only.
MODES OF CONTROL OF SUBSIDIARY LEGISLATION

- Subsidiary legislation is made by the executive, and 3) Consultation

executive law-making = inconsistent with the doctrine of
S.O.P. - Prior consultation with relevant body and interest groups
- Vulnerable to abuse, i.e. lack of prior discussion and are often required to be had before subsidiary legislation is
consultation and excess of power delegated. made.
- Sometimes the parent legislation makes such
1) Judicial control consultation compulsory.
- I.e. Minister will consult other organized interest groups
- Court has control over subsidiary legislation. or advisory body
- Section 23(1) and 87(d) of the Interpretation Act 1948 For example:
and 1967 provides that: Section 36(1) of the Financial Procedure Act 1957
- Can declare it as void if conflicts/inconsistent with - Authorizes the YDPA to make regulations after consulting
the parent Act or constitution. the Commodities Trading Commission

4) Publication
- Can be declared void on the ground of ultra vires (beyond
one’s legal power or authority) the parent Act.
- Subsidiary legislation must be published in 2 parts of the
gazette:
Two grounds where subsidiary legislation is void under the
1) Legislative Supplement ‘A’; rules, regulations,
ultra vires:
2) Legislative Supplement ‘B’; all other subsidiary
1) Substantive; The recipient of the delegated power has
legislation
made the law beyond the limit of the power conferred
2) Procedural; The recipient of the delegated power has
- Will become effective only from the date of such
failed to follow the mandatory procedure laid down in the
publication.
enabling statute.
- Section 19(1) of Interpretation Act 1948 and 1967;
Subsidiary legislation commences on the date prescribed,
- Case: Low Leng Huat v PP. Appellant was convicted by
or where no date is prescribed the date immediately
the magistrate on the charge of failing to comply with a
following the date of its publication in the Gazette
notice directing him to enlarge the open area of some of
Supplement.
his houses. The notice board was issued by the Sanitary
Board by a by-law. The appellant challenged it as being
- If subsidiary legislation is not gazette = invalid
more than power as conferred by Sanitary Board
Enactment 1907. Held: The by-law was ultra vires and
therefore void.

2) Legislative control

- The making of the subsidiary legislation is authorized by

the Act which was enacted by the legislative body
(Parliament).
- Because of this, the body can always exercise control
over the subsidiary legislation.
- The legislature may repeal the structure or repeal or vary
the delegated power.
- The Parent Act may also require legislation made under it
to be laid before the legislature; for information or
confirmation

-For example:

Section 83(3) of the Trade Mark Act 1976; requires

subsidiary legislation to be laid before both Dewan

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UNWRITTEN LAW - Subsection (2); Penang, Malacca, Sabah, Sarawak can use
relevant and applicable English Commercial Law
continuously.

C) ENGLISH LAND LAW

- Section 6 of the Civil law Act 1956 excludes the

application of English law concerning land tenure

- Section 6 of Civil Law Act 1956;

- “Nothing in this part shall be taken to introduce into

Malaysia any part of the English Common Law relating to
tenure or conveyance or assurance or succession to any
estate, right or interest therein.

Case: United Malayan Banking Corp. Bhd v Pemungut

- Law which is not being enacted by the Parliament or Hasil Tanah Kota Tinggi [1984] 2 MLJ 87
State Assemblies
- The National Land Code is a complete and
- Found in cases decided by the court, local customs. comprehensive code of law governing the tenure of land in
Malaysia

- There is no room for the importance of any rules of

1) ENGLISH LAW English law in that field except in so far as the Code itself
may expressly provide for this.
- Comprises of common law and equity.

- The extent of application of English law is prescribed in

S.3, S.5, and S.6 of the Civil Law Act 1956. D) LIMITATIONS OF THE APPLICATION OF ENGLISH LAW
IN MALAYSIA

A) ENGLISH COMMON LAW & EQUITY

- English Common Law; Is a body of rules that developed

by decisions based essentially on custom throughout
England

- English law of equity; is a body of rules developed by the

Lord Chancellor and Court of Chancery

- It is a supplement to the common law; to correct its

defect and mitigate its harshness
Absence of local legislation
- Section 3 of Civil Law Act 1956; the court shall apply the
English Common law and rules of equity on: - Section 3(1) of Civil Law Act 1956; ‘..in absence of
written law, the courts of Malaysia shall apply the
- West Malaysia; 7 April 1956 common law and rules of equity existing in England

- Sabah; Together with statutes of general application, - To fill lacunae in the local law
2 December 1951
Case: Attorney-General v Manjeet Singh Dillon [1991] 1
- Sarawak; Together with statutes of general application, MLJ 167
12 December 1949
- The court held that in absence of any specific local
B) ENGLISH COMMERCIAL LAW legislation on contempt of court, the English common law
system as stated in R v Gray [1900] 2 QB 36 should be
- Section 5(1)(2) of Civil Law Act 1956 applied under section 3 of the Act
- Subsection (1); all states except Penang, Malacca, Sabah,
Sarawak apply English Commercial Law as administered in
England on 7 April 1956

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Cut-off dates 2) Customary law

- Only common law and rules of equity (and in Sabah & - Regular pattern of social behaviour accepted by a given
Sarawak. English statutes of general application) existing in society as binding upon itself.
England on the ‘dates’ specified can be applied to fill in
lacunae in local law. - Proved through repeated acts practised over a long
period, leading to the conclusion that by common
- Refer to Section 3, 5 and 6 Civil Law Act 1956 consent, they have become accepted as norms.

- After the cut-off dates, English law does not become law - Art.160 FC – customs and usages having the force of
in Malaysia law.

Cases: - In Malaysia, it refers to the customs of the local

inhabitants which have been accepted as law by courts
- Lee Kee Cheong v Empat Nombor Ekor Sdn. Bhd. [1976] in Malaysia, i.e. Adat Perpatih, Adat Temenggung, native
2 MLJ 93 customary law of Sabah & Sarawak
- Jamil Bin Harun v Yang Kamsiah Anor [1984] 1 MLJ 217

- Modern English authorities may be persuasive, but not 3) Judicial Precedent

binding
- Precedents are decisions made by judges of Superior
Courts previously in similar situations
Local circumstances - Also known as ‘Stare Decisis’ (to stand by cases already
decided) or doctrine of binding judicial precedent
- English law applies only to the extent permitted by
local circumstance (suitable or not) - Courts are bounds not only by decisions of the higher
court but also by its own previous decisions
- Subject to qualifications necessitated by local
circumstance - Case must be decided the same way when their
material facts are the same
- Contained in Section 3 of the Civil Law Act 1956
- Only ‘Ratio Decidendi’ binding on later courts but not
- Commonly referred to as ‘local circumstances proviso’
the whole case.
Case: Syarikat Batu Sinar v UMBC Finance [1990] 2 CLJ
- Ratio Decidendi; rationale for a decision
691
- Obiter Dictum; comment/opinion made by the judges
which do not form part of the reasoning, therefore not
part of the precedent, only persuasive, not binding.

Two ways of binding judicial precedent work:

14
Three types of precedent: Position of Islamic law in Malaysia

- FC provides that the states have the power to administer

Islamic law.

- Art. 3 of F.C; Islam is a religion of Federation

- Par 1 List II of the 9th Schedule; permits state power to

create and punish offences related to Islam

- Art. 160; Islamic law is not included in the definition of

law in the F.C

- Art. 4 of F.C stated that F.C is the Supreme Law

Case (Original): Mah Kah Yew v Public Prosecutor [1971] - But still, civil courts need to acknowledge the importance
1 MLJ 1 of Islamic Law i.e. Ramah v Laton [1927] 6 FMSLR 128

- The judge stressed that the doctrine must be applied by - The one applied in Malaysia is of the Syafi’e school of
the court to ensure finality in the law jurisprudence, as modified by Malay customary law.

Case (Declaratory): Public Prosecutor v Datuk Tan Cheng - Only applies to Muslims and is administered at state
Swee & Anor [1980] 2 MLJ 117 levels by a separate system of courts, called Shariah
Courts.
- Reaffirm
- Matters include marriage, divorce, adoption, legitimacy
and certain religious offences.

- Art. 121(1A); “the High Courts and inferior courts

established by federal law shall have no jurisdiction in
respect of any matter within the jurisdiction of Syariah
Court”

- Case: Lina Joy v Majlis Agama Islam Wilayah

Persekutuan & Anor
4) Islamic law or Syariah Law
- Federal Court dismissed her appeal
Means the path to be followed.
- made it clear that the matter apostate (converting from
Primary sources Islam to Christian) is within the ambits power of Syariah
Court
1) Al-Quran: words of Allah revealed to and transmitted by
Prophet Muhammad. - It is up to the Syariah Court to settle the issue.

2) Sunnah: utterance, action or indirect approval by

Prophet Muhammad.

Secondary sources

1) Ijmak: unanimous agreement of the mujtahid of the

Muslim community of any period following the demise of
Prophet Muhammad.

2) Qiyas: analogy, reasoning, and legal precedent to decide

new case law.

3) Maslahah mursalah: unrestricted public interest.

4) Urf: customs and practices of a given society.

5) Istihsan: a juristic preference.

15
CHP 5 – LEGAL INSTITUTION QUESTION OF FACT AND QUESTION OF LAW

DEFINITION AND COURT SYSTEM Question of Fact:

Court: - A place to administer justice - Must be answered by reference to facts and evidence,
and inferences arising from those facts
- A platform to settle disputes between individuals
or other parties - I.e. Did Mr and Mrs Jones leave their 10-year-old child
home alone with their baby for 4-days?
Jurisdiction: The power of the court to hear and decide a
case or make a particular order Question of Law:

Court system: - Must be answered by applying relevant legal principles,

by an interpretation of the law

- I.e. Does leave a baby with a 10-year old child for 4

days fit the legal definition of child neglect?

COMPOSITION AND JURISDICTION OF COURT

1) SUPERIOR COURT

- Courts of Judicature Act 1964 (CJA 1964)

- Provides jurisdictions of Superior Courts

Federal Court

- The highest court in the hierarchy of the court system

- Last court of appeal in Malaysia

- Located at Palace of Justice, Putrajaya

TYPES OF JURISDICTION
Composition:
Original Jurisdiction
- Established; Art. 121(2) Federal Constitution
- The power of the court to hear the case in the first
- Art. 122(1); shall consist of: -
instance
- Chief of Justice of the Federal Court
Appellate Jurisdiction
- President Court of Appeal
- The power of the court to hear and determine appeal
cases from the lower court - 2 Chief Judges of the H.C
Referral Jurisdiction - 11 other judges and such additional judges may be
appointed - Art. 122(1A)
- The power of the court to interpret/confirm on the
application of law/effect of any provision of the Federal - Appointment: Art. 122B (1); must be made by YDPA
Constitution with the advice of PM after consulting the Con. Of Rulers
Advisory Jurisdiction - Qualification: Art. 123; citizen, 10 years experiences as
advocates of H.C or members of judicial and legal service
- Art. 130 of F.C; YDPA may refer to the Federal Court for
of Federal or State
its opinion regarding the effect of any provision in the
F.C which has arisen/is likely to arise - Trial Process: Section 74 of CJA 1964; Every proceeding
is heard and disposed of by 3 judges or any odd number
of judges

16
Jurisdiction: Court of Appeal

Original - Art. 128(1) F.C - Before 1985 = Privy Council

- Has an exclusive jurisdiction of any other court - Abolished and replaced by Supreme Court

(a)Determine the validity of a law passed by Parliament - 1994 = Establishment of C.O.A

or Legislature
- The principal registry has been in the Palace of Justice,
(b)Decide disputes on any question between States and Putrajaya
Federation or vice-versa
Composition
Appellate – Art. 128(3) F.C
- Establish Art. 121(1B) F.C
- Federal Court have appellate jurisdiction in both
criminal and civil matters from C.O.A and H.C - Art. 122A; it shall consist of: -

(i) Criminal Appeals (Sec. 87 of COJ Act 1964); - President of the C.O.A

- To hear and determine any appeal from any decision of - 32 other judges ordered by the YDPA
the C.O.A in its appellate jurisdiction concerning any
- Appointment: Art 122B (1); must be made by YDPA
criminal matter decided at the first instance by the H.C
with the advice of PM after consulting the Con. Of Rulers
- Public Prosecutor may appeal against acquittal
- Qualifications: Art 123; citizen, 10 years experience as
(ii) Civil Appeals (Sec. 96 of COJ Act 1964); advocates of H.C or members of judicial and legal service
of Federal or State
- To determine any appeal against the decision from the
C.O.A concerning any civil cause or matter decided in H.C - Trial Process: Section 38 of CJA 1964; Every proceeding
in the exercise of its original jurisdiction shall be heard and disposed of by 3 judges or any greater
odd number of judges as the President may determine.
- To order a new trial or any case or matter tried by the
H.C in the exercise of its original jurisdiction Jurisdiction:

* Sec. 90 of CJA 1964; Appellate

- The Federal Court may dismiss an appeal that comes (i) Civil Appeals (Sec 67 of CJA 1964);
before it.
- To hear or determine appeals of any judgement or
- It may also confirm, reverse, or vary the decision of the order made by any H.C in any civil cause, whether in
C.O.A their original or appellate jurisdiction

- To order retrial the matter with its opinion to the H.C *Non-appealable matters (Sec 68 of CJA 1964);
or make such other order as may seem just.
- When the amount/value of the subject matter of the
Referral Jurisdiction – Art. 128 F.C claim ≤ RM250K, except with leave of the C.O.A
(depends on the court)
- Federal court has the jurisdiction to decide a question
which has arisen in another court concerning the; - Where the judgement is made by consent of both
interpretation of law or effect of any provision of the F.C parties (i.e. at H.C, both parties agreed on some kind of
which is referred to in the form of ‘special case’ solution in front of the judge)

- When the Federal Court has decided, it set aside the - Where judgement relates cost only, except with leave
case to the trial court to be disposed of by that decision of the C.O.A (depends on the court)

- Pending a decision by Federal Court, the trial court may - Whereby any written law in force for the time being,
stay proceedings. the judgement of the H.C expressly declared to be final.

Advisory Jurisdiction – Art.130 F.C

- YDPA may refer to the Federal Court for its opinion if

there is any question of the provision in the F.C

- It will be announcing its opinion in the open court in

the form of declaratory judgement

17
(ii) Criminal Appeals (Sec 50(1) of CJA 1964) Sec 22(2) of CJA 1964; The H.C may pass any sentence
allowed by law
- C.O.A may hear and determine any criminal appeal
against any decision made by; (ii) Civil Jurisdiction

- H.C in the exercise of its original jurisdiction; and - Sec 23 of CJA 1964; provides the general civil
jurisdiction of the H.C.
- Appellate and Revisionary jurisdiction in respect of any
criminal matters decided by Session Court - The H.C shall have jurisdiction to try all civil
proceedings
*except magistrate (last appeal at H.C)
- Sec 24 of CJA 1964; Specific jurisdiction on matters
- Sec 50(4) CJA 1964; An appeal may lie on a question of including:
fact or question of law or a question of mixed fact and
law - divorce & matrimonial causes (non-muslim)

- C.O.A must hear the appellant or his advocate, may - matters of admiralty; i.e. ships, maritime
confirm, reverse or vary the decision H.C.
- matters relating to bankruptcy or companies;
- Court also may dismiss the appeal.
- matters relating to appointment & control of guardians
of infants & over the person & property of infants; Will

High Court - appointment and controls of guardians and keepers of

the person;
Composition
- to grant, alter or revoke probates or wills and
- Establish Art. 121(1) F.C testaments, letter of administration of the estates of
deceased persons over property within the territorial
- 2 High Courts having to co-ordinate jurisdiction: -
jurisdiction of the court
- H.C in Malaya

- H.C in Sabah & Sarawak

Appellate
- Art 122AA; Each of the H.C shall consist of: -
-The H.C may hear an appeal from subordinate courts in
- a Chief Judge (head) both Civil & Criminal matters.

- 4 ≤ 60 other judges in H.C of Malaya (i) Criminal Jurisdiction

- 4 ≤ 13 in H.C Sabah & Sarawak Sec 26 of CJA 1964; The H.C can hear appeals from
subordinate courts according to any law for the time
- Sec 18(1) of CJA 1964; Every proceeding in the H.C will being in force within the territorial jurisdiction of the
be heard and disposed of before a single judge. H.C. (i.e. Session Court in Selangor → H.C Shah Alam)
Jurisdiction (ii) Civil Jurisdiction

Original Sec 27 of CJA 1964; The H.C may hear an appeal from
subordinate court
- The H.C has unlimited jurisdiction in both criminal &
civil matters Sec 28 of CJA 1964; No appeal to be made to H.C if the
amount in dispute < RM10K, except for question in law
(i) Criminal jurisdiction
Sec 28(2) of CJA 1964; This monetary limit does not
Section 22 of CJA 1964; The H.C shall have jurisdiction to apply to decisions of a subordinate court in proceedings
hear: concerning the maintenance of wives and children. (i.e.
- all criminal cases over citizen or permanent resident less than 10K can also appeal)

- all offences committed: within its local jurisdiction, on

high seas on board of any ship or aircraft registered in
Malaysia

- offences under Part IV of the Penal Code; any offences

certified by AG as affecting the security of the nation

18
Revisionary and Supervisory 2) Subordinate Courts

- The H.C has revisionary jurisdiction over criminal and Session Court
civil proceedings in the subordinate courts.
Composition
(i) Criminal (Sec 31 of CJA 1964); The H.C has the power
to revise criminal proceedings in subordinate courts Establish: Sec 59 of Subordinate Court Act 1948

(ii) Civil (Sec 32 of CJA 1964); The H.C has the power to: - The highest court of all subordinate courts

- Call for and examine the record of any civil Sec 59 of SCA 1948; “the YDPA may, by order, constitute
proceedings before any subordinate courts; to satisfy as many Session Courts as he may think fit to assign local
itself as to the correctness, legality or propriety of any limits of jurisdiction.”
decisions recorded or passed, and as regularity of any
Appointment: By YDPA with advice from Chief Judges
proceedings of any such subordinate court.
Qualification: Sec 60 of SCA 1948; a member of the
Sec 35(1) of CJA 1964; The H.C has been conferred the
judicial and legal service of the Federation.
general supervisory and revisionary jurisdiction over all
subordinate courts, in the interest of justice. Jurisdiction

Original

(i) Criminal Jurisdiction

- Sec 63 of SCA 1948; The Session Court may try all

offences other than punishable by death

- Sec 64 of SCA 1948; may pass any sentence allowed by

law except sentence of death

(ii) Civil Jurisdiction

Sec 65(1) of SCA 1948; A Session Court have: -

a) Unlimited jurisdiction to try all actions and suits of

civil nature in respect of motor vehicle accidents,
landlord and tenants & distress

(b) To try all other actions and suits of a civil nature,

where the amount in dispute or the value of the subject
matter is < RM1 million

(c) To try all suits of specific performance, rescission of

contracts, or for cancellation or rectification of
instruments, within the jurisdiction of the Sessions
Court.

Supervisory

Sec 54 of SCA 1948;

(1) A Session Court may call and examine the record of

any civil proceedings before Magistrate Court as to the
correctness, legality or propriety of any decision
recorded or passed and also as regularity of any
proceedings of the court

(2) If the judges in the Session Court view that any

decision is illegal or improper, or any proceedings is
irregular, it must be forwarded the record to H.C

19
Magistrate Court (ii) Second Class Magistrate

Composition Criminal Jurisdiction

Establish: Sec 76 of SCA 1948 Power to trial

Sec 81 of SCA 1948; Seating by one Magistrate and Sec 88 of SCA 1948; A second class Magistrate shall only
appointed from Judicial Legal Service have jurisdiction to try:

- A first-class magistrate is appointed by the YDPA on the - Offenses for which maximum term of imprisonment
recommendation of the respective Chief Judge for provided by law does not exceed 12 months
Federal Territories imprisonment of either description or

- At the state level, they are appointed by State - which are punishable with fine only
Authorities with the recommendation of Chief Judge
Power to Punish
- Deals both criminal offences and civil matters, sits in
almost all major towns in Malaysia Sec 54 of SCA 1948; A second class Magistrate may pass
any sentence allowed by law;
Sec 26 – 28 COJA 1964; All appeals will go to the H.C
- < 6 months imprisonment
- Have two classes; First & Second class Magistrate
- a fine < RM1K
(I) First Class Magistrate
- any sentences combining any of the sentences
Criminal Jurisdiction aforesaid

Power to trial

Sec 85 of SCA 1948; may try all offences: Civil Jurisdiction

- punishable up to 10 years imprisonment or with fine Sec 92 of SCA 1948; A second class Magistrate only has
only and; jurisdiction to try all civil cases where the plaintiff seeks
to recover a debt or liquidated demand, anything but
- offences related under Sec 392 (robbery) and Sec 457 not exceeding RM 10K
(lurking, house-trespass or housebreaking at night) of
the Penal Code

Power to punish

Sec 87(1) of SCA 1948; A first-class Magistrate may pass

any sentence allowed by law not exceeding:

- Five-years imprisonment

- a fine of RM10K

- 12 strokes of whipping

- any sentence combining any of the sentences aforesaid

Civil Jurisdiction

Sec 90 of SCA 1948; A first-class Magistrate has

jurisdiction to try all litigations where the amount/value
of subject matter does not exceed RM 100K

20
COURTS OF SPECIAL JURISDICTION SPECIAL COURT

SYARIAH COURT - Established in 1993 after the constitutional conflict

involving the immunity of all Sultans following the
assault of a hockey coach by Sultan of Johor (The Gomez
Incident).
COURT FOR CHILDREN
Composition: Art. 182(1) of F.C;
Established: Child Act 2001.
- Chief Justice of the Federal Court (Chairman)
- Replaced Juvenile Court.
- Chief Judge of the H.C of Malaya
Purpose: to hear, determine and dispose of any charges
against a child. - Chief Judge of the H.C of S.& Sarawak
Sec 2 of CA 2001; A child is a person below 18 (in a - Two other Judges who hold office as judges of the
criminal proceeding – more than 10 years old). Supreme Court/H.C (appointed by Conf. of Rulers)
Composition: First Class Magistrate, two Advisors (one Jurisdiction:
must be a woman) – to inform and advise the court
concerning any consideration affecting the order made - Art. 182(3) of F.C; Only deals with original jurisdiction.
upon finding of guilt or other related treatment of a child
brought before it, and if necessary, to advise the parent - Art. 182(4) of F.C; Special Court has the same power &
or guardian of the child. jurisdiction as any other courts in the hierarchy

- Child detained under this court will be protected from - Art 182(6) of F.C; The decision made is final and cannot
publicity, separate lock-up from adult and close trial. be challenged or called in question in any court on any
ground
- The court is not open to the public but only attended
by court officers, children who are Art 183 of F.C; Any suit towards the Rulers must be done
in his capacity with the consent of AG personally.
parties to the case including their parents, guardians,
advocates and witnesses. Case: Faridah Begum v Sultan Hj. Ahmad Shah [1996] 2
CLJ 159
- Cannot use the word “person convicted”, “conviction”
and “sentence”, must use “child found guilty”, “finding - A suit by a foreigner against the Ruler of Pahang was
of guilt” and “order made upon finding of guilt”. dismissed on the ground that the head of the state is
immune from such proceedings
- Has the jurisdiction to try all offences except those
punishable with death.

- Has the power to: Case: Standard Chartered Bank Malaysia Berhad v Duli
Yang Maha Mulia Tuanku Ja’afar Abdul Rahman [2009]
1) Advice and discharge the child. 3 CLJ 709

2) Discharge the child upon his executing a bond to be of - The case succeed because only use the ‘salutation’
good behaviour instead of ‘Sultan’, which meet the requirement to
institute against his capacity
3) Place the child to be placed in the care of the
appointed party - When Rulers are convicted with imprisonment of more
than a day, he will cease from being the Ruler except by
4) Order the child to pay a fine, compensation or costs. free pardon from CoR.
5) Make a probation order.

6) Place the child in an approved school or Henry Gurney

School.

7) Order the child, if a male, to be whipped with not

more than ten strokes of a light cane (within the court’s
premise and in the presence, if he desires to be present,
of the parent or guardian of the children)

8) Imprisoned, if aged 14 and above.

21
MARTIAL COURT - offences against morale

Establishment: Sec 103 of Armed Force Act 1972 (AFA - offences by or about service
1972)

Sec 2 of AFA 1972; “Armed forces” includes the regular

forces of Malaysia and other forces which may be Sec 90(2) of AFA 1972; Provides the punishment that can
declared by the YDPA from time to be armed forces be passed such as:

“Regular forces”; includes RMA, RMN, RMAF (TDM, - Death

TLDM, TUDM)
- Imprisonment not more than 14 years

- Dismissal from His Majesty’s Service

Court Sitting: Sec 107(1) of AFA 1972
- Forfeiture of seniority of rank, etc
- may sit at any place specified by authorities, whether
outside or inside of Federation

Composition:
NATIVE COURT
Sec 105(1) of AFA 1972; President and not less than 2
other offices

Sec 105(3) of AFA 1972; Members appointed must have

at least 2 years of service

Sec 103(4) of AFA 1972; Bench sitting or the panel

members of a trial against an officer or warrant officer.

- Only with a minimum of 5 officers, Martial Court try

any offence punishable by death

- If less than 5, then Martial Court shall not award

punishment more than 2 years imprisonment

Sec 105(4) of AFA 1972; For panelling 5 officers or more,

the President shall be appointed by officer convening the
court-martial and shall not be under the rank of or above
Lieutenant-Colonel or its equivalent

Sec 105(5) of AFA 1972; If panelling less than 5, the

President shall not be under the rank of Major and its
equivalent

Section 105(6) of AFA 1972; If the accused is or above

rank brigadier-general, the president shall be or above
the rank of accused

Sec 105(7) of AFA; Same if the accused is Colonel and

above, the President shall be or above the rank of
accused

Jurisdiction

Offences in respect of military services:

- aiding the enemy

- misconduct by commanders when in action

- misconduct by other persons in operations against

enemy

- communication with the enemy

22
OTHER RELATED LEGAL-BASED INSTITUTION - Provide legal advice and opinion, manage legal
knowledge and provide a database for law.
AG CHAMBERS
9) Management
- Office of the AG of Malaysia.
- Conducting matters involving human resources
- Was classified as a Ministry in 1951 and held
responsible for all legal matters involving the
government.
ATTORNEY GENERAL
- 1980 – present: Prime Minister’s Department.
The principal legal advisor to the Government
1) Prosecution Division
- Head of AGC
- Conduct prosecutions in all courts.
- The highest-ranking of Public Prosecutor
- Provides advice to enforcement agencies.
Appointment: Art. 145(1) of F.C; appointed by YDPA with
- Perusal of investigation papers. the advice of PM, qualified to be a Federal Court judge

2) International Affairs Terms: (5) As long as YDPA want

- Provide legal advice to Government on international Roles & Responsibility: Art. 145(2);
law.
- To advise the YDPA or the Cabinet or Minister on legal
- Represent Malaysia in the international arena. matters, and to perform such other duties of a legal
character, referred or assigned to him
- Harmonize Malaysian law with international treaties.
- Discharge the function conferred on him by or under
- Drafting various instruments relevant to Malaysian the F.C or any other written law
obligations under international treaties.
Power: Art 145 (3)(3A)(4);
3) Appellate and Trial Division
- (3) Institute, conduct, discontinue any proceedings
- Conducting trials and appeals for all high profile, except in the Syariah, Native and Martial Courts
complex and sensitive case
- (3A) Determine which court that any proceedings
- Provide legal advice in preparing trials to government which have the power in Clause (3) to institute shall be
agencies. instituted or transferred.
4) Civil Division - (4)
- Represent government in any civil proceedings, a case
concerning public, religious, social interest.
MALAYSIAN BAR
- Represent AG in the admission of a lawyer.
- A professional body was established under the
5) Advisory Division Advocates and Solicitors’ Ordinance 1947 which was
repealed by the Legal Profession Act 1976 (LPA).
- Provide legal advice in the general area of laws; 2
sections – municipal and Shariah. - The purpose of the Malaysian Bar is to uphold the rule
of law and the cause of justice and to protect the
6) Drafting
interest of the legal profession as well as the public.
- Draft and vet principal and subsidiary legislation.
- The management is called the Bar Council, which
- Translate legal documents, Act in English to Bahasa comprises 38 members who are elected annually to
Malaysia vice versa. manage the affairs and execute the functions of the
Malaysian Bar.
7) Law Revision and Law Reform
SABAH LAW SOCIETY
- Review archaic and obsolete law, publish the revised
text of laws.

8) Research ADVOCATES ASSOCIATION OF SARAWAK

23
LEGAL PROFESSION & EDUCATION IN MALAYSIA Qualification Sec 11 of the Sec 25 of the
for admission LPA; LPA;
- Governed by the LPA 1976.

- The legal profession in Malaysia is a fused one with a a) 18 years > a) Has
current membership of approximately 12,000 members. satisfactorily
b) Good served the
- Each advocate and solicitor is automatically a member character (not prescribed
of the Malaysian Bar so long as they hold a valid bankrupt, has period of
Practicing Certificate. not been articles
convicted of a
- Two categories of person who are eligible for admission
criminal b) Has attended
to the legal profession are, 1) Qualified person”, and 2)
offence, etc) such courses of
Articled clerk.
instruction as
Qualified Articled Clerk c) Either a may generally
person Federal citizen or specifically
Definition Sec 3 of the Sec 20 of the or a permanent be prescribed
LPA: LPA resident of by the Board
Malaysia
a) Has passed a) Has attained c) Has passed
the final the age of d) Served the such
examination seventeen prescribed examination as
leading to the years; period of may be
degree of pupillage (9 prescribed by
Bachelor of Months) the Board
b) is a good
Laws in character; and
University of e) Passed or d) Passed or
Malaysia, the exempted from exempted from
c) Has the
University of the BM BM Qualifying
necessary
Malaya in Qualifying Examination
educational
Singapore, the Examination
qualification as
University of
may be
Singapore and
prescribed by
National - Educational Institutions (diverse institutions of higher
the Board.
University of learning created to educate for life as well as for a
Singapore; or profession and to grant degrees.)

- The first national law school is UM (1972).

b) A barrister-
at-law of - There are seven law schools currently recognised to
England; or practice, i.e. UiTM, UM, UKM, UIAM, UUM, MMU and
UniSA. Most private institutions offer a combination of
c) Has such law degrees with overseas universities in the UK,
other Australia, NZ, and external LL.B London degrees.
qualification as
may by - In Malaysia, law degrees: LLB (Bachelor of Laws) which
notification in allows students to go on to take the Malaysian Bar
the Gazette be examinations, to become a practising lawyer.
declared by the
- The Certificate in Legal Practice (CLP) is taken by
Board to be
foreign law graduates, graduates of B.Juris (UM) and BLS
sufficient to
(UiTM).
make a person
a qualified CHP 6 – ALTERNATIVE DISPUTE RESOLUTION (ADR)
person for this
Act. - Is a term used to describe several methods of resolving
legal disputes without going to court

- Black’s Law Dictionary includes dispute resolution as

the processes and techniques that act as a means for

24
disagreeing parties to agree by means other than
litigation

25
 NEGOTIATION MEDIATION CONCILIATION ARBITRATION
PARTIES Only the parties to An independent third Similar to the Independent third
the dispute are party (mediator) will mediator, an party (the arbitrator)
involved act as a peacemaker independent third would be appointed;
between 2 parties party will be either 2 forms i.e.
- Can happen with or appointed to compulsory or
without a negotiator - Must have a third reconcile the parties. voluntarily
(optional) party Usually comprises a
- ‘Mediator’ formal body called - Must have a third
the ‘conciliatory party
- ‘Negotiator’ can be
body’ - ‘Arbitrator’
any person that both
parties agree with - Comes from a
- Must have a third licensed body
party
- ‘Conciliator’
- Comes from
conciliatory body
FUNCTIONS - To give any advice to - Act as peacemaker - Reconciles the - Act as the judge
the subject of matter between 2 parties disagreeing parties - Resolve the parties
in dispute - Decision is made - Decision is made - Formal
- Decision is made together together
together - Call both parties at - Meets the parties in
- Informal once, and be a dispute separately
moderator in the and attempts to
open forum resolve their
- Can be anywhere differences
(informal) - Informal
- Remain Neutral
EFFECTS - Settlement of - Party have the - Party would settle - Compulsory
dispute depends on choice to agree with according to arbitration; sign
each party the proposal made by proposals of the body agreement, arbitrator
- can proceed to the mediator or bring or bring the case to settle the problem &
litigation the case to the court the court decision is binding

- Voluntarily
arbitration; given an
option to settle the
case in court or seek
the assistance of an
arbitrator in absence
of a clause in the
agreement
APPLICATION AND - Not governed by - Mediation Act 2012 - Not governed by - Arbitration Act 2005
LEGISLATION specific acts - It came into force on specific acts, but can
1 Aug 2012 be found in many - Sec 30(1) of
- Used in trade statutes Workmen’s
dispute (S. 13 of Main objectives: - (i) Statutory Compensation Act
Industrial Relation - To encourage and Conciliation 1952 stated that:
Act 1967) promote the - if the workman’s
- any dispute in trade, mediation to facilitate - Industrial Relations employer and the
must do negotiation the dispute Act 1967 commissioner failed
process before settlement - Law Reform Act to resolve the
brought to the court - In an impartial, time 1976 dispute, the
- Show the results of saving and cost- - Islamic Family Law arbitrator shall have
the negotiation effective way Act (Federal Terr.) the power to decide
1984 such disputes
- Also used in Institutions in
bankruptcy (S.18 of Malaysia governing - Provides provision
26
 Bankruptcy Act) process of mediation: for statutory
- Before someone is - Malaysian conciliation - Islamic Family Law
declared as bankrupt, Mediation Centre - Oblige by parties in Act 1984 (Federal
he/she needs to go to (MMC) dispute to use ADR Terr..) stated that:
the Malaysian - Housing Buyers before pursuing
Insolvency Tribunal (HBT) litigation
- If there are quarrels
Department for the - Tribunal for
and disputes between
negotiation process Consumer Claims (ii) Industrial disputes husband and wife,
(CCM)
there is Arbitration by
- Sec. 20 of the Hakam.
Industrial Relations
Act 1967
- If the person
considered
him/herself as being
dismissed without
just cause and excuse
- Within 60 days, she
may make meet the
Director-General of
Industrial Relations
(‘DGIR’)
- And before the case
is brought to the
court, the parties in
dispute are required
to attend conciliation
or mediation to
resolve the issues.

(iii) Matrimonial
disputes

- Muslim (Islamic
Family Law Act 1984)
- Non-Muslim (Law
Reform Act 1976)

- Sec 106 of LRA

1976; disallows non-
Muslim couples from
filing their divorce
petitions under
certain grounds until
they have attended
the conciliation
proceedings
PROCEDURAL - Informal - Informal - Informal - Formal
- Flexible based on - Mediator gather - Conciliator dictates - Kuala Lumpur
the parties information and his role at the Centre for Arbitration
- At the will of parties identifies the beginning to invite (KLRCA) provides
in dispute problems parties and rules for arbitration
- Can be done - Generate department, agency as mentioned before
anywhere options/reach an or municipality
agreement representative to give - When a dispute
opinions arises, parties may
request and submit
- Then, encourage their dispute for
27
 them to negotiate arbitration
- If necessary, will
assist to hold - Then will be
discussions and try to followed by the
reach a settlement appointment of the
- During the session, arbitrator (either by
the Conciliator might agreement of both
suggest or agree to parties or by Court)
discuss some points - The arbitrator will
privately with one issue the direction
party or with other and conduct the
representatives. initial hearing, discuss
the arbitration
agreement with
parties

- Decision/Settlement
made by the
arbitrator is final and
enforceable by the
Court

*It may also be

subject to judicial
review if the decision
is not laid down or
within the party’s
agreement.

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ADVANTAGES OF ADR:

1) It is more flexible

2) Increase settlement

3) Improved satisfaction with the outcome or manner in which the dispute is resolved among disputants

4)reduced time in dispute

5) reduced cost & stress relating to the dispute resolution

6) Increased compliance with an agreed solution

7) It can be kept confidential

DISADVANTAGES OF ADR:

1) No guarantee of resolution (except arbitration)

2) Lack of ability to appeal (arbitration)

3) The parties had no choice since the contract stated it would be the only way for dispute resolution

4) Beware of the limitation period

5) There is no binding precedent

6) Rules of evidence are not applicable

29