Malaysian Legal System

TUTORIAL CHAPTER MALAYSIAN effective SYSTEM. Q1) The federal homage is the highest court in Malaysia. The federal tap may hear appeals of civil decisions of the tourist court of attr comprise where the Federal Court grants leave to do so. The Federal Court also hears shepherds crook appeals from the Court of Appeal, but still in respect of themes heard by the luxuriously Court in its schoolmaster jurisdiction i. e. where the case has non been appealed from the Subordinate Courts. The Court of Appeal gener each(prenominal)y hears all civil appeals against decisions of the last Courts unpack where against judgment or parliamentary procedures made by consent.In cases where the claim is less than RM250,000, the judgment or order relates to costs besides, and the appeal is against a decision of a judge in chambers on an interpleaded cite on undisputed facts, the leave of the Court of Appeal must first be obtained. The Court of Appeal also hears appeals of criminal decis ions of the High Court. It is the court of final jurisdiction for cases which began in either subordinate courts. some like the former Quarter Sessions in England, the Sessions Courts have jurisdiction to try offences which argon not guilty by death.They argon presided over by Sessions Court judges (formerly Sessions Court Presidents). The Sessions Courts also hear all civil matters of which the claim exceeds RM25,000 but does not exceed RM250,000, except in matters relating to motor vehicle accidents, landlord and populate and distress, where the Sessions Courts have unlimited jurisdiction. The doctrine of Judicial Precedent works in two ways, vertically and horizontally. philosophy of juridic precedents works in vertically with the superior courts bind all courts subordinate to it.In horizontally, it works with the courts that commonsly an appellate court is destined by its own previous decision. First,vertical doctrine shows the Superior Courts which include Federal Court, Court of Appeal and High Court. It also contains the subordinate courts which be Sessions Court, Magistrates Court, Juvenile Court and Penghulus Court. plain doctrine shows the flow from High Court which is Federal Court to the lower court that is Penghulus Court. It is bound by its own previous decision, of its predecessors and coordinate jurisdiction.Second, judicial Decisions can be found in the High Court, Court of Appeal and the Federal Court and the then Supreme Council, Federal Court and the Judicial military commission of the Privacy Council. Decisions of these courts are still being made, systematically by the use of what is called the doctrine of binding judicial precedent. Judges do not decide cases randomly. They conserve certain accepted principles commonly cognize as precedents. Precedents are basically decision made by judges previously in uniform situations.For example The Federal Court (Superior Court in Malaysia) have decided that a minor or those who below 18 years of age, is not liable under a contract. If a minor is sued in High Court for not fulfilling his obligation in a contract, the High Court will follow previous decisions made by the Federal Court. If a judge applies existing rules without extending it, his decision may be called a declaratory precedent whereas if the case before him is without precedent, then the decisions made by him are called an pilot precedent.Because of the way the judging is done, judges are constantly contributing to the growth of unwritten law of nature in this country. Q2) Written law refers to the laws contained in the Federal and State Constitutions and in a code or a statute. The written laws are much influenced by incline laws as the Malaysian legal system retains umteen characteristics of the incline legal system.. The Written law includes the Federal and State Constitution, Legislation and Subsidiary Legislation. Malaysia is a alliance of 13 states with a Federal Constitution and 13 Sta te Constitution.The Federation Constitution is the supreme law of the country. The Federal Constitution also provides for the Yang di-Pertuan Agong who owes his position to the Constitution and act accordance with it. The Constitution can only be changed by a two-thirds majority of the total number of members of the legislature. The Federal Constitution comprises many Articles concerning the righteousness of the federation and many other related subjects. Besides the Federal Constitution, there is a state constitution where each state has their own constitution regulating the government of that state.Legislations refers to the laws that are established by the Parliaments at federal take and by the State Legislative Assemblies at the state level. The Parliament and State Legislatures are not supreme and so they have to enact laws subject to the provisions set out in the Federal and State Constitution. In the Federal Constitution, Article 74, it states that parliament may make law with referring to matters provided in the List I of the Ninth Schedule while the state legislatives may make law with referring to matter provided in List II.As for matters on List III which is the Concurrent list, are in the federal agency of twain parliament and state legislatives. Matters that are not in the lists are within the authority of the States. Subsidiary Legislations are made by the people or bodies who are authorized by the legislatures. The Interpretation Act 1967 defines marcher polity as rules, regulations, by laws, order, notifications made under legislations. The Legislatures provide basic law, so subsidiary legislation is very important is unsufficient to govern day-to-day matters. That is why the authority is delegated to delegate their legislative powers.In Article cl of Federal Constitution, Parliament can pass the power to legislate any subsidiary legislation during emergency, even off if there are any contradictions with the Federal Constitutions involve d. The people or bodies who are authorized by the legislatures are the Yang di-Pertuan Agong who is the nominal head of the executive and the bill Minister and cabinet is the real executive. The Cabinet is answerable to the Yang di-Pertuan Agong as the nominal head of the executive in the country. However, according to the democratic ruling system, the Chief Executive is the Prime Minister.This does not entail that the Yang di-Pertuan Agong is unable to voice any opinion, but rather that he must act on government advice, whatever his personal view might be. The Yang di-Pertuan Agong appoints a Cabinet to advise him on countrys matter. The Cabinet consists of the Prime Minister and a number of Ministers who must all be members of Parliament. Besides that, the authorities has set up various agencies to ensure the smooth enforcement of the law. It comprised of three main components, namely ministries, departments and statutory bodies.Lastly, Islamic law is also a major denotation of Malaysian law which is enacted under the Federal Constitution. It is only applicable to Muslims and is administered by a separate court system, the Syariah Courts. The State legislature has authority over the constitution, brass particle and procedure of the Syariah Courts and is also allowed to make Islamic laws pertaining to persons professing the religion of Islam. Q3) The Unwritten law does not mean that the law is literally unwritten. It refers to the laws which are not enacted by the Legislature and which are ot found in the Federal and State constitutions. This category of law comes from cases decided by the Courts and the local customs, which is otherwise known as common law. The unwritten law mainly comprised of the English law, judicial decisions and custom law. The English Law can be divided into two which are the English Commercial Law and English Land Law. In section 5(1) of the Civil Law Act 1956 provides that The English Commercial Law is applicable in Peninsular Malaysia except Penang and Malacca as it stood on 7 April 1956 in the absence of local legislation.On the other hand, Section 5(2) of the aforesaid(prenominal) act, applies in Penang, Malacca, Sabah and Sarawak as the law administered in these states will be the same as law administered in England, in the like case at corresponding period. As for the English Land Law, none of the English Land Law concerning the tenure, conveyance, assurance of or succession to any immovable property or any estate, right or interest therein applies in Malaysia. In Malaysia, National Land Code is the law that governs the land matters.There is no any allowance for English land law, except in so out-of-the-way(prenominal) the National Land Code might expressly provide. Approaching the judicial decision, judges do not decide arbitrarily. Instead, they are bound to follow certain accepted principles known as precedents. Precedents are be as a judgment or decision of a court of law cited as an authorit y for the legal principle embodied in its decision. The system of binding judicial precedent is called stare decisis. It is created by the English judges and introduced into Malaysia upon colonization.The Malaysian Court system is similar and in fact, influenced by the English Court system which is divided into the Superior and Subordinate Courts. Under the Subordinate Courts, the Penghulu Court is the lowest level and the state government will appoint a headman to preside the court for the specific district. Relating Sabah and Sarawak, some(prenominal) are equally related to the Native Courts that relates to the indigenous peoples customs. A level above is the Magistrates Courts which deals with minor criminal and civil cases and at the highest level are the Sessions Courts.However, the Superior Courts are made up of the High Court, Court of Appeal and Federal Court (which is the highest court in the land). Customs are another important source of unwritten law. Every race has its own customs. Hindu and Chinese customary law applied to the Hindus and Chinese respectively. Besides that, natives in Sabah and Sarawak have their own customary law which relates to the land and family matters. In Malaysia, there are two types of Adat which is the Adat Perpateh and Adat Temenggung.Adat Perpateh is salutary among the Malays in Negeri Sembilan and Nanning in Malacca. It uses the matrilineal system which belongs to mothers lineage, meaning to say it involves the inheritance of property, names or titles from mother to daughters. It also concerns with matters such as land tenure, lineage, inheritance and election of members of lembaga and Yang di-Pertuan Besar. As for Adat Temenggung, it is practiced in other states and it uses the patrilineal system which belongs to fathers lineage.