The document provides an overview of key concepts in Malaysian law, including: - Malaysian law is classified into written and unwritten law, with important sources being the Federal Constitution, statutes, common law, and Shariah law. - Law is divided into public law governing relations between citizens and the state, and private law governing relations between citizens. - Parliament has the authority to make laws under the Federal List and Concurrent List in the Constitution. State assemblies can make laws under the State List. - The legislative process involves bills being introduced and debated in both houses of Parliament before assent by the Yang di-Pertuan Agong and publication as an Act.

1. Chapter 1 – Introduction to Law and the
Malaysian Legal System
1

2.  How Malaysian law is classified?
 What are the sources of law?
 What is the doctrine of Judicial Precedent?
 How to cite cases and statutes?
2

3.  What is Law?
◦ Law may be defined as a body of RULES which are
ENFORCED by the STATE
◦ John Austin in his book “The Province of Jurisprudence
Determined” defined law as a command set by a superior
being to an inferior being enforced by sanctions
(punishment)
 Superior being – The State
 Inferior being – The individual
 Sanctions – Imprisonment, fines, damages, injunctions or specific
performance
3

4. 4
Law, The State and The
Constitution
LAW IN MALAYSIA
Malaysia, which consists of Peninsular Malaysia,
Sabah and Sarawak is one political unit, but is
NOT governed by the same set of laws

5.  There are 2 important links which unite the two parts of
Malaysia – the Parliament and the Federal Court
 Parliament can and does legislate for the whole
country
 Federal Court acts as a final court of appeal for the
whole country
5

6. 6
Law, The State and The Constitution
WHAT IS A “STATE”?
 Legal systems are administered almost entirely on the basis of the
political unit known as the State
 For international purposes, Malaysia is one state
 Within Malaysia, however, there are 13 States altogether – Kedah,
Perlis, Kelantan, Terengganu, Penang, Perak, Pahang, Selangor,
Negeri Sembilan, Johore, Malacca, Sabah and Sarawak and the
Federal Territories of Kuala Lumpur, Labuan and Putrajaya
 Every state has a government and has rules which lay who shall
govern and how
 Malaysia has a WRITTEN constitution

7. 7
The Role of Parliament
To make laws of the country

8. 8
Law
Public Law
(individuals & the
State)
Private Law
(individuals inter se)
Constitutional Law
(Rights of individuals in
the State)
Criminal Law
(Offences against the
State. Obligations
imposed on individuals)
Trust (Relationship
between trustee and
beneficiary)
Tort (Offences
against
individuals)
Contract (Rights
and obligations
that arise by
agreement)
International Law
(Law that prevails
between States)
Public International
Law
Private International
Law

9. 9
Law can be classified into: -
Public law
Private law
International law

10.  Public law
◦ Relationship between the citizen and the State
◦ Example
 Constitutional law
 Lays down the rights of individuals in the State
 Criminal law
 Offences committed by individuals against the State
 Aims at punishing criminals and suppressing the crime
 Imposes on individuals the obligation not to commit
crimes
 A crime is a wrong against the State for which
punishment is inflicted by the State, the proceedings
being brought by the Public Prosecutor
10

11.  Private law
◦ Relationship between the citizen and another
◦ Private or civil law is intended: -
 to give compensation to persons injured,
 to enable property to be recovered from wrongdoers, and
 to enforce obligations (contracts & trusts)
◦ Example – contracts, tort and trusts
11

12.  Private law
◦ Example
 Law of contract determines when a promise or a set of
promises is legally enforceable
 A tort is a civil wrong and is the breach of a general duty
imposed by the law (and not agreed between the parties)
 A trust is an equitable obligation binding a person to deal
with property over which he has control for the benefit of
persons of whom he may himself be one and any one of the
beneficiaries may enforce the obligation
12

13. 13
Body of law which is composed for its greater part of
the principles and rules of conduct which States feel
themselves bound to observe, and consequently
commonly do observe, in their relations with each
other
Subdivided into: -
Public international law
Private international law

14. 14
International LawInternational Law
Public international law
Law that prevails between States
Example: -
Climate Change – UNFCCC & Kyoto Protocol
Transboundary movement of toxic wastes – Basel
Convention
Antarctic Region – Antarctica Treaty

15. 15
International LawInternational Law
Private international law
“Conflict of laws” – every country there will be
a different version of laws
It consists of the rules that guide a judge
when the laws of more then one country
affect a case

16.  Malaysian law can be classified into: -
◦ Written law
◦ Unwritten law
16

17.  Written law is the most important source of law
 It includes: -
◦ The Federal and State Constitutions
◦ Legislation enacted by Parliament and State Assemblies
e.g. Act of Parliament, Ordinance, Enactments etc
◦ Subsidiary legislation made by persons or bodies under
powers conferred on them by Acts of Parliament or State
Assemblies e.g. Rules and Regulations, By-Laws,
Guidelines, etc.
17

18.  Unwritten law is the portion of Malaysian law which is
not written e.g. which is not enacted by Parliament or
the State Assemblies and which is not found in the
written Federal and State Constitutions
 Unwritten law is found in cases decided by the courts,
local customs, etc.
 The unwritten law comprises the following: -
◦ Principles of English law applicable to local circumstances
◦ Judicial decisions of the superior courts, i.e. the High Courts,
Court of Appeal and the Federal Court
◦ Customs of the local inhabitants which have been accepted as
law by the courts
18

19.  One other important source of Malaysian law is
Muslim law
 Muslim or Islamic law is increasing being applied
in our local laws e.g. incorporation of some Islamic
principles into banking laws
 Muslim law applies to all persons who are
Muslims e.g. laws relating to family matters (e.g.
marriage and divorce) and estate matters relating
to the division of property and assets when a
person dies
19

20.  In short, the main sources are
◦ The Federal Constitution
◦ The 13 Constitutions of the State
◦ Federal Laws made by Parliament
◦ State Laws made by the State Assemblies
◦ Federal and State subsidiary legislation (delegated
legislation)
◦ Judicial decisions of the Superior Courts (Common
law/judge-made laws)
◦ Principles of English Law suitable to local circumstances
◦ Islamic Law – applicable only to Muslims
20

21.  Malaysia is a Federation of 13 States with a
written constitution, the Federal Constitution,
which is the supreme law of the country
 Lays down the powers of the Federal and State
Governments and the basic or fundamental
rights of the individual
 Can only be changed by a two-thirds majority of
the total number of members of the legislature
21

22.  The written constitution in Malaysia is called the Federal
Constitution
 The Federal Constitution declares itself as the supreme
law of the Federation (Article 4(1) Federal Constitution)
 Thus, even laws enacted by Parliament which are
inconsistent with the Federal Constitution may be
declared void by the Courts
 In Repco Holdings Bhd. v. Public Prosecutor (1997), the
court held that s126(2) of the Securities Industry Act and
s39(2) of the Securities Commission Act to be
unconstitutional, null and void
22

23.  Article 73 of the Federal Constitution confers
legislative power to the Federal Parliament and
the State Legislatures
 Thus, Parliament may make laws for the whole
of Malaysia
 Article 74 of the Federal Constitution provides
that Parliament may make laws with respect to
any of the matters enumerated in the Federal
List or the Concurrent List
23

24.  The Federal List (List I) may be summarised as
follows:
 External affairs
 National defence
 Internal security
 Civil and criminal law and procedure and the administration of justice
 Federal citizenship and naturalisation; aliens
 The machinery of government
 Finance
 Trade, commerce and industry
 Shipping, navigation and fisheries
 Communications and transport
 Federal works and power
24

25.  The Federal List (List I) may be summarised as follows:
 Surveys, inquiries and research
 Education
 Medicine and health
 Labour and social security
 Welfare of the aborigines
 Professional occupations
 Holidays; standard of time
 Unincorporated societies
 Control of agricultural pests; protection against such pests;
prevention of plant diseases
 Newspaper; publications; publishers; printing and printing presses
 censorship
25

26.  The Federal List (List I) may be summarised
as follows:
 Theatres; cinemas; public amusements
 Federal housing and improvement trusts
 Co-operatives societies
 Prevention and extinguishment of fire, including fire
services and fire brigades
26

27.  The Concurrent List (List III) is summarised as follows:
 Social welfare, social services, protection of women, children and young
persons
 Scholarships
 Protection of wild animals and wild birds; National Parks
 Animal husbandry
 Town and country planning
 Vagrancy and itinerant hawkers
 Public health, sanitation and prevention of diseases
 Drainage and irrigation
 Rehabilitation of mining land and land which has suffered soil erosion
 Fire safety measures and fire precautions in the construction and
maintenance of buildings
27

28.  The State List (List II) covers matters such as the following: -
 Islamic law and personal and family law of Muslims; Malay customs;
offences by Muslims; Syariah Courts
 Land
 Agriculture and forestry
 Local government
 Local services
 State works and water
 Machinery of the State Government
 State holidays
 Offences against State Law
 Inquiries for State purposes
 Indemnity
 Turtles and riverine fishing
28

29.  Each State possesses its own constitution
regulating the government of that State
 The State Constitution contains provisions which
are enumerated in the 8th
Schedule of the
Federal Constitution
 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
29

30.  Refers to law enacted by a body constituted for
this purpose
 Laws are legislated by: -
◦ Parliament at federal level
◦ Various State Legislative Assemblies at state
level
30

31. Date Enacted by Called
After 1946 but
before 1957
Parliament Ordinance
After 1957 Parliament Act
State Legislative
Assemblies
(except
Sarawak)
Enactment
Sarawak Ordinance
31

32.  Parliament and the State Legislatures are not supreme
 They have to enact laws subject to the provisions set out
in the Federal and State Constitutions
 The subject-matter for legislation is divided between the
Federal and State Governments
 Parliament is competent to enact laws on matters
enumerated in List I of the Ninth Schedule
 The State can enact laws on matters enumerated in
List II (State List)
 Matters on List III (Concurrent List) are within the
concurrent competence of both authorities
 Matters not enumerated in any of the lists are within
the authority of the State
32

33.  Article 44 of the Federal Constitution vests the
legislative authority of Malaysia in Parliament,
comprising: -
◦ The Yang di-Pertuan Agong
◦ The two Houses of Parliament: -
 Dewan Negara (Senate)
 Dewan Rakyat (House of Representatives)
33

34.  Legislation is enacted by Parliament by
introducing a Bill which is passed by both Dewan
and assented to by the Yang di-Pertuan Agong
34

35.  A Bill may originate in either Dewan, although it
most often originates in the Dewan Rakyat
 Bills concerning tax or expenditure (Money or
Supply Bills) must originate in the Dewan Rakyat
 The legislative process outlined focuses on
government Bills that originate in the Dewan
Rakyat
 There are two main stages in the process:
◦ Pre-Parliamentary
◦ Parliamentary
35

36.  In each Dewan, the Bill goes through four stages
◦ First Reading
◦ Second Reading
◦ Committee Stage
◦ Third Reading
36

37. 37
• Government Proposal
• Meetings between relevant government authorities
• Drafting of Bill by Parliamentary Draftsperson
• Cabinet approval of Bill
Pre-Parliamentary
Stage
First Reading Minister formally introduces the Bill in the Dewan
Rakyat by having its short title read
Second
Reading
Committee
Stage
Publication
Royal Assent
Dewan
Negara
Third
Reading
Debate on the general principles of the Bill, followed
by a vote – simple majority or a two-thirds majority
of the total number of members of the Dewan
Detailed examination of the Bill and consideration of
amendments, followed by a report on the Bill to the
Dewan
Further debate on the general principles of the Bill,
followed by a vote
Act comes into force
Similar procedures as in the Dewan Rakyat. If
passed, the Bill is referred back to the Dewan Rakyat
The Yang di-Pertuan Agong affixes the Public Seal
within 30 days of presentation. When assent is not
affected within the specified time, the Bill becomes
law as if it had been assented to. Bill becomes an
Act
Parliamentary Stage

38.  When the Bill is passed with or without amendments by the
Dewan Negara, it is returned to the Dewan Rakyat
 Any disagreement between the two Dewan over any
amendments are resolved by the appointment of a joint
committee by both Dewan under Article 66(3) of the
Federal Constitution
 The Dewan Negara has no power to veto, reject or insist
on its amendments to a Bill passed by the Dewan Rakyat
 Under Article 68 of the Federal Constitution, the power of
the Dewan Negara is restricted to delaying the passage of
the Bill – one month if it is a Money Bill and 12 months if it
is a non-Money Bill
38

39.  If the Dewan Negara does not pass the Bill or persists
to disagree with the Dewan Rakyat on its proposed
amendments, the Bill will be presented for Royal
Assent at the end of the specified period
 The only exception is a Bill amending the Federal
Constitution
 Such a Bill is required by the constitution to decide by
the requisite majority in each Dewan
 Such a Bill cannot be presented for the Royal Assent
until it has been passed by both Dewan
39

40.  An Act of Parliament or statute is brought into being
by Parliament through the parliamentary process
which is long and involves several stages
 Parliament now produces annually a very large output
of new legislation in the form of Acts of Parliament
 This legislation is an attempt to regulate very complex
matters such as employment, social security, tax
liability and economic management
40

41.  It would be impossible to include in the Acts of
Parliament all relevant details of these subjects
 Moreover, during the period of validity of a
statute, it may be necessary to vary some of
these details, e.g. in a period of severe inflation
it will be necessary from time to time to increase
the amount of excise duties if they are to be
maintained as a constant proportion of the
current retail selling price
41

42.  The need to fill in and to vary the details of statute law is met
by conferring, usually on the minister concerned, a statutory
power to make regulations for defined purposes of the main
statute
 This is called subsidiary legislation or delegated legislation,
since the parent Act delegates to some executive authority
power to legislate in this way
 A parent Act often confers similar powers upon local
authorities to legislate by way of bye-laws
 The reason for there to be subsidiary legislation is because
Parliament does have the time nor the expertise to examine
the regulation of every industry or aspect of the community
 Subsidiary legislation give to certain bodies or people the
right to make ‘legislation’.
42

43.  The Interpretation Act 1967, defines subsidiary
legislation as “any proclamation, rule, regulation,
order, notification, by-law or other instrument
made under any Ordinance, Enactment or other
lawful authority and having legislative effect”
 Such persons or bodies include the Yang di-
Pertuan Agong, Ministers, local authorities etc.
 It is void if it contravenes the parent Act or the
Constitution
43

44.  Why is subsidiary legislation important?
44

45.  It is important because: -
◦ Legislation by Parliament and the State Legislatures is
insufficient to provide laws required to govern everyday
matters
◦ Subsidiary legislation deals with the details about which
legislature has neither the time nor the technical
knowledge to enact laws
◦ Legislature merely lays down the basic and main laws,
leaving the details to persons or bodies to whom they
delegate their legislative powers
45

46.  Limitations: -
◦ Such legislation is made under powers given by
Parliament and it is considered appropriate to some
cases that Parliament should supervise the exercise of
those delegated powers
◦ The second main limitation is the doctrine of ultra vires.
The power to make delegated legislation is given for
specified purposes and such legislation is invalid if it
exceeds the scope of the delegated power to legislate
46

47.  Malaysian law can also be found in the judicial
decisions of the High Court, Court of Appeal and
the Federal Court and the then Supreme Court,
High Court and the Judicial Committee of the
Privy Council
 Decisions of these courts were made, and still are
being made, systematically by the use of what is
called the “doctrine of binding judicial precedent”
47

48.  Judges do not decide cases arbitrarily
 They follow certain accepted principles commonly
known as precedents
 Precedents are basically decisions made by
judges previously in similar situations
 Example, if the Federal Court made a certain
decision in 1987 and assuming the facts and
situations before a High Court judge deciding a
case in 1990 are similar to the said Federal Court
case, the High Court judge must decide the case
before him by applying the principles laid down by
the Federal Court in 1987
48

49.  If a judge applies an existing rule of law without
extending it, his decision may be called
declaratory precedent
 If the case before him is without precedent, then
the decision made by him may be called an
original precedent
 Judges are constantly contributing to the growth of
unwritten law in this country
 The system of binding judicial precedent is called
stare decisis
49

50.  The principle of law to be followed must form part
of the ratio decidendi of the case
 The ratio decidendi is the 'reason for the decision'
and is the principle of law as applied to the facts of
the case; it is a matter of interpretation for the later
judge to determining the similar dispute
 Obiter dicta (general judicial observation) is made
by a judge in the course of his judgement. It is not
strictly relevant to the decision. It is treated as
persuasive precedent i.e. for later judges to pay
attention. These are not binding but if stated by an
important court in the structure
50

51.  Hierarchy of Precedents
◦ The general rule regulating the hierarchy of precedents is
based on the principle that decisions of higher courts
bind lower courts and some courts are bound by their
own decisions
51

52. 52
Federal Court
Court of Appeal
High Court in Malaya High Court in Sabah & Sarawak
Syariah
Court
Sessions Court
Magistrates’ Court
Small Claims Court
Penghulu’s Court
Native
Court &
Syariah
CourtSessions Court
Magistrates’ Court
Small Claims Court

53.  It is not in every case that judges apply earlier
precedents
 A judge may not wish to apply precedents in the
following circumstances: -
◦ Judges may ignore or overrule a precedent laid down by a
lower court, where the case is on appeal
◦ They may refuse to apply the earlier precedent if it is
arrived at per incuriam (i.e. made in ignorance of a statute
or a binding precedent)
◦ They may distinguish the case when they find there are
material differences in facts between the case before them
and the case laying down the precedent
53

54.  What are the advantages and disadvantages of
judicial precedents?
54

55.  Advantages
◦ Since the law is a result of an actual dispute rather than
a hypothetical situation, it is more practical since it
evolved through actual experiences and not a result of
abstract theory
◦ It is more flexible when compared to statute law enacted
by Parliament
◦ Case law is richer in legal detail than statute law
◦ It provides greater certainty in the law.
55

56.  Disadvantages: -
 As the number of cases decided can only increase, judges
and lawyers are compelled to engage in greater research
and reading. Due to the mass of material to be digested,
there is a tendency to overlook some authorities
 It is sometimes difficult to tell whether a particular statement
in a judgment is ratio or dicta. Judges seldom indicate the
ratio decidendi or obiter dicta
 Judges are not elected by the people unlike members of
Parliament who are representative of the people. Therefore,
judges may not know the needs of the general public when
making these case laws
56

57.  Forms part of the laws of Malaysia
 Can be found in the English common law and
rules of equity
57

58.  However, not all the English common law and
rules of equity form part of Malaysian law
 S3(1) of the Civil Law Act 1956 (Revised 1972)
provides that in Peninsular Malaysia, the
courts shall apply the common law of England and
the rules of equity as administered in England on
the 7th
day of April, 1956
 In Sabah and Sarawak, the courts shall apply
the common law of England and the rules of
equity, together with statutes of general
application, as administered or in force in England
on the 1st
day of December 1951 and the 12th
day of December 1949 respectively
58

59.  However, the Supreme Court in Commonwealth of
Australia v Midford (Malaysia) Sdn. Bhd. & Anor
held that the developments of common law after
1956 may well be applicable in Malaysia
59

60.  The application of the law of England throughout
Malaysia is subject to 2 limitations: -
◦ It is applied only in the absence of local statutes on
particular matters
◦ Only part of the English law that is suited to local
circumstances will be applied (proviso to s3(1) Civil Law
Act)
60

61.  Applicable only to Muslims
 Administered by Syariah Courts
 Except for the federal territories of Kuala Lumpur
and Labuan, the power to administer Islamic law
is primarily that of the States
61

62.  Customs of the local inhabitants in Malaysia are
also a source of law
 Customs relating to family law (marriage, divorce
and inheritance) are given legal force by the
courts in Malaysia
 In Sabah and Sarawak, native custom-matters
apply in land dealings over native customary lands
and family matters
62

63.  A case is normally cited in support of a legal
proposition and this is done by qouting the name,
date, volume number and first page of the report
Tan Bing Hock v Abu Samah [1968] 2 MLJ 221
 Plaintiff – Tan Bing Hock
 Defendant – Abu Samah
 Reported in the Malayan Law Journal of 1968,
Volume 2 at page 221
 Act of Parliament – Hire-Purchase Act 1967
63

64. 64