Chapter 1_ Introduction to Malaysian Legal Principles

CHAPTER 1

Introduction To Malaysian
Legal Principles

CLO 1: PLO2CLO1Discuss the sources, legal aspects and conducts of
business transactions under the Malaysian law. (C2, PLO1)

Introduction To Malaysian Legal Principles

1.1 Explain the nature of Malaysian legal principles
1.1.1 Define law
1.1.2 Recognize functions of law
1.1.3 Interpret classification of law
a. public law
b. private law
c. international law

1.1.4 Categorize sources of law in Malaysia
a. written law
b. unwritten law
c. Islamic law

1.2 Outline Malaysian judicial system
1.2.1 Identify doctrine of separation of powers

1.2.2 Compare the hierarchy of courts
a. the superior courts
b. the subordinate courts

1.2.3 Explain the jurisdiction of each court
1.2.4 Identify the role of judges in

interpretation of statutes

• Assessment : Quiz 1

Define law

Layman person – a general rule of conduct
Oxford English Dictionary – the body of enacted or customary rules
recognized by a community as binding
A command set by a superior being to an inferior being enforced by
sanctions (punishment)
The principles and regulations established in a community by some
authority and applicable to its people, whether in the form of
legislation or of custom and policies recognized and enforced by
judicial decision.
A160(2)FC law includes :
i. thereof the written law
ii. Common law in so far as it is in operation in the Federation or

any part
iii. any custom or usage having the force of law in the Federation or

in any part thereof.

Classification of law a. public law
b. private law
c. international law

A- PUBLIC LAW

• Is basically the law which governs the relationship
between individuals and the state.

E.g:
1. Constitutional Law - it deals with question such as

supremacy of Parliament and right of citizen, state
and federal powers and
2. Criminal Law - offence committed by individuals
against the state. Normally it is brought bt the
public prosecutor. E.g. murder, criminal breach of
trust, hurt, theft, robbery etc.

Types of law continue…

• B – PRIVATE LAW

Concerned with matter that affect the right and duties
of individuals among themselves

Intended to give the compensation to person injured,
to enable property to be recovered from wrongdoer
and to enforce obligation (contract and trust)

E.g. contract, trust, hire-purchase, insurance, tort,
family, company etc.

C- INTERNATIONAL LAW

• is the set of rules generally regarded and accepted as binding in relations
between states and between nations. International law differs from state-
based legal systems since it is primarily applicable to countries rather than
to private citizens (international relations).

• Treaties such as the Geneva Conventions Act 1962, The International
Organisations (Privileges and Immunities) Act 1992 etc.

• 2 categories :

1 . Public International law

2. Private international law
• Court;

1. International Criminal Court (ICC) - The Hague, Netherlands

2 International Court of Justice (ICJ) - also known as the World Court.
Located - Peace Palace in The Hague (Netherlands).

• Further reading :

http://www.malaysianbar.org.my/international_law/judicial_application_of_i
nternational_law_in_malaysia_an_analysis.html

https://www.icj-cij.org/en/court
https://www.icj-cij.org/en/list-of-all-cases

https://www.icc-cpi.int/

Am I understand?

•Within 5 minutes answer questions
below

1. Define law

2. Is there any differences between
public, private law and international
law?

Sources of Malaysian law

WRITTEN WRITTEN ISLAMIC
LAW LAW LAW

A - written law (statute Law)
1. Federal Constitution
•A4 – FC is the supreme law of the Federation –
any law which is inconsistent – be void.

2. State constitution
• A73 (b) – The legislature of a State may makes

laws for the whole or any part of that state – as
enumerated ai Eighth Schedule to the FC.

3. Legislation enacted by Parliament / State
Assemblies e.g. Acts of Parliament, Ordinance,
Enactment

4. Subsidiary legislation – persons/bodies under
the power conferred on them by Acts of Parliament.
E.g. Proclamation, Rules and regulations, order,
By-Laws, Guidelines etc.

• B - unwritten law
1. English Law / common law

• S3 Civil Law Act 1956 – Common Law and Equity may be
applied subjected with 2 conditions

• 1. lacuna to the law (absence of local statutes)
• 2. it is suited to local circumstance of the State of Malaysia

2. judicial decision – Judge made law

3. Customs – generally relating to family law such as
marriage, divorce, inheritance etc. according to native
customary law.

C - Islamic law
• only confined to Muslim followers
• jurisdiction is limited to Schedule Nine,

List 2, State List of the Federal
Constitution - marriage; divorce, breach
of promise of marriage, inheritance,
custody of children and the division of
the harta sepencarian or jointly acquired
property etc.
• Criminal jurisdiction, only punishment of
offences by persons professing the
religion of Islam against precepts of that
religion such as offences of eating and
drinking in public during the month of
Ramadan, neglecting from performing
Friday prayer, committing zina
(fornication) and khalwat (close
proximity)

• The head of Muslim religion in a state
is the Sultan, except Penang, Melaka,
Sabah, Sarawak and Federal territories
YDP

• Further reading conflict jurisdiction
civil and Syariah court
http://www.malaysianbar.org.my/cons
titutional_law/jurisdictional_conflict_
between_islamic_law_and_civil_laws_
in_malaysia.html

• https://www.mondaq.com/trials-
appeals-compensation/472794/the-
syariah-court-its-position-under-the-
malaysian-legal-system

Do it yourself….

1. What is doctrine of binding precedent or
judicial precedent?

2. What is res judicata?
3. What is ratio decidendi?
4. What is obiter dictum?
5. What is stare decisis?
6. What is doctrine of separation of powers?
7. State the hierarchy of courts in Malaysia.
8. Identify the role of judges in interpretation

of statutes.

Courts in Malaysia

Magistrate Court

• jurisdiction to hear both criminal and civil cases

1. Criminal Jurisdiction

• Section 87 of the Subordinate Courts Act 1948 [Act 92] - try all offences
of which:
• the maximum term of imprisonment does not exceed ten (10) years;
or
• are punishable with fine only;

• but may pass sentences of -
• not more than five (5) years imprisonment;
• a fine of up to RM10,000; and/or
• impose whipping up to a maximum of twelve (12) strokes of the
cane.

2. Civil Jurisdiction

• Section 90 of the Subordinate Courts Act 1948 [Act 92] - hear all
actions and suits of a civil nature where the amount in dispute or value
of the subject matter does not exceed RM100,000

Sessions Court

• jurisdiction to hear both criminal and civil cases

1. Criminal Jurisdiction

Section 64 of the Subordinate Courts Act 1948 [Act 92]- try all offences
except punishment with death sentence.

2. Civil Jurisdiction
• Section 65

• unlimited jurisdiction to try all actions and suits of a civil nature in
respect of motor vehicle accidents, landlords and tenants and
distress;

• jurisdiction to try all actions and suits of a civil nature where the
amount in dispute or the value of the subject matter does not
exceed RM1,000,000; and

• jurisdiction to try all actions and suits of a civil nature for the
specific performance or rescission of contracts or for cancellation or
rectification of instruments.

High Court

➢ unlimited jurisdiction civil and criminal jurisdiction including
death sentence

➢ Section 26 of the Courts of Judicature Act 1964 [Act 91] - hear
appeals from the Subordinate Courts

Shah Alam High Court

➢ Also include:

➢ relating to immovable property;

➢ for accounts;

➢ for declaration of decrees;

➢ for the issue and revocation of grants of representation of the
estates of deceased persons or the administration or distribution
thereof;

➢ wherein the legitimacy of any person is in question;

➢ wherein the guardianship or custody of infants is in question; and

➢ wherein the validity or dissolution of any marriage is in question.

➢ commercial cases inclusive of admiralty, insurance, companies
winding-up, agency, banking, intellectual property and Specific
Relief Act cases

➢ hears matrimonial cases under the Law Reform (Marriage and
Divorce) Act 1976 [Act 164]

Court Of Appeal

•The Court of Appeal is limited to only
perform the function of an Appellate
Court

•The principal registry of the Court of
Appeal is located at the Palace of Justice
in Putrajaya

Federal Court

• hear appeals of civil and criminal decisions of the Court of

Appeal
• A121 (2) FC :-

• (a) jurisdiction to determine appeals from decisions of the

Court of Appeal, of the High Court or a judge thereof;
• (b) such original or consultative jurisdiction as is specified in

Articles 128 and 130; and
• (c) such other jurisdiction as may be conferred by or under

federal law.

• A128. (1) The Federal Court shall, to the exclusion of any other
court, have jurisdiction to determine in accordance with any rules
of court regulating the exercise of such jurisdiction—
• (a) any question whether a law made by Parliament or by the
Legislature of a State is invalid on the ground that it makes
provision with respect to a matter with respect to which
Parliament or, as the case may be, the Legislature of the State
has no power to make laws; and
• (b) disputes on any other question between States or
between the Federation and any State.

• Advisory jurisdiction of Federal Court
• A130. The Yang di-Pertuan Agong may refer to the Federal Court

for its opinion any question as to the effect of any provision of
this Constitution which has arisen or appears to him likely to
arise, and the Federal Court shall pronounce in open court its
opinion on any question so referred to it

PARTIES IN CIVIL CASES

Judge

Plaintiff Defendant



In appeal cases…

Lawatan Virtual Mahkamah

• Kunjungi Istana Kehakiman melalui 360 Virtual Tour dan terokai bilik bicara di
Mahkamah Persekutuan dan Mahkamah Rayuan, perpustakaan dan Muzium
Kehakiman.

http://www.kehakiman.gov.my/virtual/

Info: http://www.kehakiman.gov.my/ms/lawatan-virtual-mahkamah

Do it yourself….

1.What is doctrine of separation of
powers?

2.State the hierarchy of courts in
Malaysia.

3.Identify the role of judges in
interpretation of statutes.

GOOD LUCK
QUIZ 1