The Malaysian Legal System

Nota:

• Powers are divided btw national/central/federal government & its state governments - Tourism planning is the responsible of federal govt. MInistry of Tourism&Culture (MOTAC)    

1. Central/federal Govt

   Nota:

   • Has no complete power over state govt
   1. Federal List

      Nota:

      • External affairs, national defence, internal security, citizenship and etc(tourism)
      1. Concurrent List

         Nota:

         • National parks, housing, sports, heritage, fire safety, water supply
2. State Govt

   Nota:

   • Do not have total freedom to make the laws they want  Have their own legislative assemblies 
   1. State List

      Nota:

      • Islamic Law, land, agriculture and forestry, local services and etc.
3. Malaysian Constituition

   Nota:

   • The constitution is the supreme law of Malaysia
   1. Constitution Monarchy

      Nota:

      • Yang-di-Pertuan Agong's powers are limited by the constituition
   2. 3 branches of govt

      Nota:

      • Legislature, Executive and Judiciary
      1. Parliament (bi-cameral legislature)

         Nota:

         • Power to make and change law i. Dewan Negara (the senate)-upper house ii. Dewan Rakyat (house of Representatives)- lower house
         1. Law maker/Scrutinizes the govt

            Nota:

            • Laws passed-statutes/Acts of Parliament Eg: Innkeepers Act 1952, Food Act 1983, Tourism Industry Act 1992
      2. The Executive

         Nota:

         • Power to put law into action
         1. Govt of the day

            Nota:

            • Implements laws enacted by Parliament Eg: The Ministry of Health is responsible for the implementation and enforcement of Food Act 1983, whereas the Ministry of Tourism and Culture us responsible for implementing Tourism Industry Act 1992.
      3. The Judiciary (Courts & judges)

         Nota:

         • Power to make judgements on law Decide cases based on existing law
         1. Create new laws- common law/case law/ judge-made law

            Nota:

            • Eg; Donoughue v Stevenson (1932) - a case that laid down an important principle in tort law which formed part of common law 
   3. How a Bill become law in Parliament
      1. First Reading

         Nota:

         • The bill is considered read for the first time and is printed
         1. Second Reading

            Nota:

            • Members debate the bill's principle
            1. Committee Stage

               Nota:

               • Committee members study the bill clause by clause.  The stage in Parliament where amendments can be made. 
               1. Report Stage

                  Nota:

                  • Member can make other amendments
                  1. Third Reading

                     Nota:

                     • Members debate and vote on the bill
                     1. Senate

                        Nota:

                        • The bill follows a similar process in Senate
                        1. Royal Assent

                           Nota:

                           • The bill receives Royal Assent after being passed by both Houses
      2. Classification of Laws
         1. Public law
            1. Concerned w the legal relationships & disputes btw individuals & the state (The state is directly involved)

               Nota:

               • -criminal law -constitutional law -Administrative law -Taxation law
         2. Private law (civil law)
            1. Concerned w the legal relationship & disputes btw individuals (The state is indirectly involved)

               Nota:

               • -contract law -property law -family law -tort law (disputes about tourism services are often in contract or tort) -commercial law
         3. Sources of Malaysian Law
            1. Written law

               Nota:

               • Laws which have been enacted in the constitution or in legislations
               1. Federal Constitution (highest law of land)
                  1. Legislation

                     Nota:

                     • Laws enacted by P'ment/ State Legislative Assemblies e.g. Acts, Enactments, ordinance
                     1. Subsidiary Legislation

                        Nota:

                        • -any rule, order, regulation, by-law (law made by ministers under powers derived from Acts of Parliament)
               2. State Constitution (13 state constitutions)
            2. Unwritten law

               Nota:

               • laws which are not contained in any statutes & can be found in case decisions.  Known as common law or case law
               1. English Law

                  Nota:

                  • The Civil Law Act 1956- English law forms part of Malaysian law provided (i) there is no local law on the matter  (ii) when it is suited to local circumstances
                  1. common law
                  2. equity
               2. Judicial Decisions (court decisions)
               3. Custom (practicies of communities)
            3. Muslim law (syariah law)

               Nota:

               • applies to muslims only
            4. Hierarchy of Malaysian Courts (The Judicial System)
               1. Federal Court (Supreme Court)

                  Nota:

                  • Hears civil appeals from Court of Appeal Also hears criminal appeals from the Court of Appeal where e case was heard by e High Court in its original jurisdiction
                  1. Court of Appeal

                     Nota:

                     • Hears civil and criminal appeals from High Court
                     1. High Court in Malaya
                        1. Sessions Court
                           1. Syariah Court
                           2. Magistrates' Court
                              1. Small Claims Court
                                 1. Penghulu's Court
                              2. Small Claims Procedure

                                 Nota:

                                 • Monetary limit: <Rm5000 Matter heard by Magistrates' Court No legal representation allowed
                           3. The Court for Children (Juvenile Court)

                              Nota:

                              • Hears cases involving minors (young offenders) exp cases carrying the death penalty, which are heard in high court The Child Act 2001 defines a minor as one who has not attained the age of majority (a person below the age of 18 years)
                           4. Civil Jurisdiction & Criminal Jurisdiction

                              Nota:

                              • Civil jurisdiction: monetary limit RM100,000 > RM1,000,000 Hears all matters concerning motor vehicle accidents, landlord & tenant matters, regardless of monetary limit Criminal jurisdiction: all criminal cases except offences punishable w death
                        2. Civil Jurisdiction & Criminal Jurisdiction

                           Nota:

                           • Civil jurisdiction: monetary limit exceeds RM1,000,000 Hears probate & administration of estates, divorces, bankruptcy etc. Criminal jurisdiction: Hears all criminal cases
                     2. High Court in Sabah & Sarawak
                        1. Sessions Court
                           1. Magistrates' Court
                              1. Small Claims Court
                           2. Native Court& Syariah Court
                  2. Special Court (established in 1993)

                     Nota:

                     • Hears wrongdoings by a Ruler Includes Yang di-Pertuan Agong (King), sultans, Yang di-Pertuan Negeri, Yang di-Pertuan Besar (head of states) Before 1993, Rulers' enjoyed immunity. rulers cannot be sued.
               2. Court Structure
                  1. Plaintiff- person who brings a legal action against another
                     1. Defendant- person who is sued in court
                        1. Respondent- person who responds to an appellant's appeal of the trial court's decision
                           1. Jurisdiction- powers of a court
                              1. Original jurisdiction- power to hear a case for the first time
                                 1. Appellate jurisdiction- court that hears an appeal has appellate jurisdiction
                                    1. Civil case- a dispute btw 2 parties
                                       1. Criminal case- The State takes action against the D
                                          1. Subordinate Courts- Magistrates' Court, Session Court
                                             1. Superior courts- High Court, COA, Federal Court
               3. Importance of Court hierarchy
                  1. Essential for the doctrine of judicial of precedent

                     Nota:

                     • Precedent: A judge must follow any decision by a higher court in a case w similar material facts. Courts should follow their own previous decisions Also known as 'stare decisis' or let the decision stand, means courts should not change the law unless they absolutely have to; certainty is more important to injustice
                     1. Lower courts are bound by e decisions of higher court
                     2. Key Terms in Judicial Precedent
                        1. Ratio Decidendi

                           Nota:

                           • When a judge decides a case, he gives his reasons in a law report. Those reasons & explanations are called Ratio Decidendi & they are set binding precedents
                        2. Obiter Dicta

                           Nota:

                           • The judge might say other things unrelated to the case (speculate how e case would've been decided if e facts were different) This is called obiter dicta and only sets persuasive precedent
               4. Other Courts & Tribunals
                  1. Syariah Court -Deals exclusively w Islamic laws, iinvilving Muslims
                  2. Industrial Court -Deals w disputes btw employer & employee in relation to employment matters
                  3. Native Court - Only in Sabah& Sarawak, deals w native customs, involving natives
                  4. Consumer Claims Tribunal

                     Nota:

                     • Established under e Consumer Protection act 1999 Tribunals deals w consumer claims arising from alleged contravention of e Act Monetary jurisdiction: RM25,000 (limit can be exceeded if both parties agreed in writting) Legal representation is allowed.however, either party can bring a family member or a friend to assist in hearing
               5. Comparison btw Secular & Islamic law
                  1. Secular law and Criminal offences apply to everyone
                     1. Islamic law and Islamic offences apply to Muslims only