Introduction to

The Malaysian Legal System

Center of Studies for Real of Estate
Management,
Faculty of Architecture, Planning and
Surveying,
Universiti of Teknologi MARA
40450 Shah Alam,
Selangor Darul Ehsan, Malaysia.

Email
rohayumajid@salam.uitm.edu.my
rohayumajid@gmail.com

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 State Constitution is law made by State to
govern her own state
Malaysia is a federation of 14
states and 3 FederalTerritories.
Any law made by Parliament or by State
Constitution that inconsistent with Federal
It has a Federal Constitution and a
Constitution is VOID-
13 State Constitutions
- Federal Constitution is the
An article 74 of the Federal Constitution
Supreme Law of the land.
provides that Parliament may make laws with
respect to any of the matters enumerated in
the Federal Lists

State Legislature may make laws in respect to

any of the matters enumerated in State List.

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 Malays
Chinese Indians

Population of
Malaysia

Minority
groups of
other races

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Classification of Law

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Both Parliament and State
Assembly may also make
laws with respect to any
matters enumerated in the
Concurrent List.
But, if there inconsistency,
laws made by Parliament
shall prevail.
-Classification of Law
International law
- law which regulates the
relationship between one
state and another.
Eg: Singapore & Malaysia
( Pulau Batu Puteh)
it may further be
subdivided into 2
categories: public
international law private
international law
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National law

1) Public law 2) Private law

PL is basically the law which
governs the relationship
between individuals and the
State.
PL further divided into 2
i)constitutional and
ii)criminal law
law between one individual
and another
concerned with matters
that affect the rights and
duties of individuals amongst
themselves.

Constitutional law lays down - Eg; contract, tort, trust etc

the rights of individuals in the
state.

Criminal law codifies the

various offences committed by
individuals against the State
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Malaysian Constitution & Sources of Law

The word sources has several Sources of law can be found

meanings which include the following: from: statutes law reports text
books
1) historical sources
factors that have influenced the
development of the law although they
are not recognized as law.
(Eg: religious beliefs, local customs
and opinion of jurists)

2) Legal sources
legal rules that make up the law
-Can be classified into
i) written
ii) unwritten

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Sources of Law

Sources of law can be classified

into: 2) Unwritten law
1) Written
- is the most important source of doesnt mean that it is not
law. written
it refers to that portion of
not made by the formal
Malaysian Law which includes:
I. The Federal and State legislative bodies
Constitution
II. Legislation enacted by Sources of unwritten law are:
Parliament and State I. 1. English law
Assemblies II. 2. Case law
III. Subsidiary legislation III. 3. Customs

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Sources Of Malaysian Law

SOURCES OF MALAYSIAN LAW

Written Law Unwritten Law Syariah Law

I. The Federal I. English Law ??

Constitution II. Judicial
II. State Decisions
Constitution III. Customary
III. Legislation Laws
IV. Subsidiary
Legislation

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 Sources of Malaysian Law

Malaysi Law

Unwritten
Written Law Muslim Law
Law

Judicial
Federal State Customs
Precedent
Constitution Constitution English Law

Legislation
Common Equity
Law
Subsidiary
Legislation

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The most important source of law:
The Federal
Subsidiary
& State Legislation Legislation
Constitution

Written Law: Constitution

Each state also possesses its own constitution regulating the government
of that State.
Written Law: It contains provisions which are enumerated in the Eighth schedule of
State the Federal Constitution.
Constitutions Some of these provisions include matters concerning the Ruler, the
Executive Council, the Legislature, the Legislative assembly, financial
provisions, State employees, and amendment of the Constitution.
Parliament may make provision to give effect to them or to remove any
inconsistencies as stated in Federal Constitution.

Federal Constitution is the supreme law of the country.

Written Law: Any law passes after Independence Day with inconsistent with
Federal the Federal Constitution is void.- Parliament exist under
Constitutions Constitution therefore all action must consistent with the
Constitution.
If inconsistent, it is void.
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Written Law: Legislation

Legislation- Refers to law enacted by a body constituted for this purpose.-

Legislation is not only contains law but is law itself.-
Legislation made by parliament at the federal level and by state legislative
assemblies at state level

Legislation refers to law enacted

Parliament at federal level and by
Laws after 1946 various State Legislative Assemblies at
ORDINANCES but before 1957 state level.
Laws in Sarawak Parliament & State Legislatures are
NOT supreme but have to enact laws
subject to provisions set out in the
Federal & State Constitutions.
Legislature as a source of law has

Laws made by become more important than case

law or precedents.
the State
It is being increasingly used as a
ENACMENTS Legislative means of repealing, amending,
Assemblies enacting or codifying the law.
(except in
Sarawak)
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Written Law: The Subsidiary Legislation

DEFINITION Subsidiary legislation is very important as legislation

The Interpretation Act 1967 by Parliament and the State Legislatures is insufficient
defines subsidiary legislation as to provide the laws required to govern everyday
any proclamation, rule, matters.
regulation, order, notification, It deals with the details about which legislature has
by-law or other instrument neither time nor technical knowledge to enact laws.
made under It is void if made in contravention of either a parent Act
or the Constitution. An exception to this is the
any Ordinance, Enactment or
proclamation of emergency under Article 150 of the
other lawful authority and
Federal Constitution.
having legislative effect.
Subsidiary legislation- In theory, power to rule in
Malaysia is divided into : Body of law legislative
executive judiciary- Power to make law is vested to
the legislative body.- However, there are too little
laws made by legislative body.- Part of the power is
vested to the executive body.- Legislation made by
the executive through delegation is known as
subsidiary legislation
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Unwritten Law

The portion of
Malaysian Law which is
English
not written.
Law
Law which is not being
enacted by the
Parliament or the State Judicial Customs
Assemblies. Decisions
Law which is not found
in the written Federal
and State Constitutions

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 English Law
English Law (English Common Law & Equity) forms part
of the laws of Malaysia.

The application of the law of England throughout

Malaysia is subject to two limitations:-
1. It is applied only in the absence of local statutes on
the particular subjects.
2. Only that part of the English Law that is suited to local
circumstances will be applied.

EL is used as a source of law which was provided in Sec 3

and sec 5 of Civil Law Act 1956-
sec 3 is bound on two limitations:
1) it is applied only in the absence of local statutes on
particular subjects
2) 2) only part of the EL that is suited to local
circumstances will be applied.

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 Judicial Precedent
Declaratory precedent = judges apply
Malaysian Law can also be found in the
existing rule of law without extending it.
judicial decisions of the High
Original precedent = decisions made by a
Court, Court of Appeal and the Federal
judge where the case is without precedent.
Court and the then Supreme Court, Federal
Distinguishing precedent = judges may not
Court and the Judicial Committee of the
wish to apply precedents:
Privy Council.
Ignore / overrule a precedent laid down
Decisions of these courts were made, and still
by a lower court in an appeal case.
being made systematically by the use of what
Refuse to apply earlier decision made in
is called the doctrine of binding judicial
ignorance of a statute or a binding
precedent as practised in England, Malaysia,
precedent.
and other common law countries.
Distinguish the case of material
Judges do not decide arbitrarily, but follow
differences in facts
certain accepted principles commonly known
as precedents.

Doctrine of judicial precedent- meaning: every time the judge is to make a

decision in a trial, they are follow the previous decision made by the previous
judge, where the fact in the previous case is the same as in the present case.- If
there is no precedent, the judge is bound to make decision as he think just.
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 Customs of the local inhabitants in Malaysia are also a
source of law generally relating to family law: Marriage, Customs
divorce, inheritance.

Malay Native Hindu and

Customary Customary Chinese
Law Law Customary
Adat Perpatih (prevalent in NS Sabah Law
and Naning in Malacca = Sarawak Hindus
matrilineal system) Chinese
AdatTemenggong (prevalent in
other States which originated
from Palembang, Sumatra
= patrilineal system)

Custom- The most common customs that apply

are adat perpatih and adat temenggung.-
There is also customs for Chinese and Indian

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 Muslim Law

The Federal Constitution provides that

States have the power to administer
Muslim Law.
Applies to all muslims only.
The courts which enforce Muslim Law in
the country are the
Syariah Courts.
The head of Muslim religion in a State is
the Sultan (except for Penang, Malacca,
Sabah & Sarawak and Federal
Territories, theYand di-Pertua Negeri) .

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The Malaysian legal system hierarchy

The Malaysian legal system

hierarchy
is mainly centered despite federal
constitution of Malaysia.

The British Common Law has a great

influence over this system

Malaysian legal system hierarchy

usually have two kinds of trials
namely
civil
criminal.

Constitution presents two High Hence, this forms two different

Courts of equivalent jurisdiction local jurisdictions of courts
The Malaysian High Court for the Peninsular Malaysia and
High Court In Sarawak And Sabah. also for the East Malaysia.

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Malaysian legal system hierarchy comprises the Malaysian High
Court, the Court of Appeal, the Federal Court and the Court of
Sarawak and Sabah.

High Court The High Court has general revisionary and

supervisory jurisdiction over all Subordinate Courts and hears
appeals related to criminal and civil cases from Subordinate
Courts. The High Courts have rights to hear cases concerning all
the criminal matters.

Court of Appeal The Court of Appeal hears all the civil and
criminal cases against the judgments of High Court.

Federal Court All civil cases from Court of Appeal comes to

the Federal Court only after the Federal Court grants leave. The
criminal cases are also heard by the Federal Court from Court of
Appeal only the issues which are heard by High Court in its
jurisdiction.

Court of Sabah and Sarawak The Sabah and Sarawak Court

only hears appeals on matters of their native customs and laws.

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The Subordinate Courts

In Malaysian legal system

hierarchy, the Subordinate
Courts comprises the Sessions
Courts, the Penghulus Courts
in western part of Malaysia
and the Magistrates Court.

Penghulus Court The Penghulus

Courts hear
civil issues in which the claim is
below RM50.00 and where the
offenders are of Asian race and
speaks and understands the Malay
language.
criminal cases are heard in which
the fine is not more than RM25.00.

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Penghulus Court The Penghulus Courts hear civil
issues in which the claim is below RM50.00 and where the
offenders are of Asian race and speaks and understands
the Malay language. In Penghulus Courts criminal cases
are heard in which the fine is not more than RM25.00.

Magistrates Court The Magistrates Courts hear all

the civil issues in which the claim is not more than
RM25,000.00. In criminal issues, the Courts have the
power to try all the offences in which the imprisonment
term is not more than 10 years.

Sessions Court The Sessions Courts hear all the

issues in which the claim crosses RM25, 000.00 but not
more than RM250, 000-00. It also hears criminal cases
except matters of death penalty.

Juvenile Court This court is for the issues related to

the minors who are below the age of 18 years.

Syariah Courts The Syariah Courts have jurisdiction

over the issues of Muslims and has an imprisonment term
of not exceeding three years.
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The Judicial System

FEDERAL COURT- It ranks at the highest in hierarchy of courts in

Malaysia.- Jurisdiction to hear: original appellate on both
constitution question advisory Criminal appeals only can be
made by the convict as against sentence only, where as the
prosecutor can appeals as against any decision including
acquittal For civil appeals, is disallowed if amount in demand is
less than RM250,000(except with the HC & FC discretion?

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COURT OF APPEAL- COA has jurisdiction to hear and
determine any appeal against any HC decision on
criminal matters.- Civil appeals which can be hear only
where the amount of claim is at least RM250,000.

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 HIGH COURT
Consist of two chief judges
i) peninsular Malaysia
Ii)Sabah and Sarawak.-

Jurisdiction to hear: original

appellate
supervisory Jurisdiction to
hear original jurisdiction is
unlimited

In practice
HC does not involved a small
criminal or civil cases. However, the appeals of criminal disallowed if the
amounts of penalty is not more than RM25
HC jurisdiction is to try cases
under province only
Civil cases: appeals is not allowed if
amount of claims is not less than
has jurisdiction to hear
RM10,000.
appeal from subordinate
courts.
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SESSION COURT- Has jurisdiction to hear any types of criminal
cases except those deals with death sentence.- Under civil
jurisdiction, claims is not more than RM250,000.- For complex
matters, such as trust, termination of contract, the cases will
be heard in HC even the amount in demand is less than
RM250,000.

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MAGISTRATE COURT- Divided into 2: 1)1st class magistrate
2)2nd class magistrate- The 1st class magistrate court is for
civil case where amount in claim is less RM25,000- The 2nd
class is to hear claims of less than RM3000

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JUVENILE COURT- Specially for minor
between 10- 18.- For murdered, the juvenile
will be tried as an adult.

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 1. How many state in this country?. 5 Type of Role/Function
Please state. court
Federal
2. What is Muslim law and syariah Law?
court
3. Is there any differences between both
of this?

4 Keywords Unwritten Written Law

Law

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