Malaysia Legal System

 

Introduction to "Law"

1. What is law?

Numerous philosopher and jurists have attempted to define it. actually we can define law into 3;

• Legal order that regime of ordering human activities and relations through systematic application of the force of politically organized society or through social pressure in such a society backed by such force.
• Aggregate of laws or legal prospects; the body of authoritative grounds of judicial and administrative action established in such a society. We may mean the body of received and established material on judicial and administration determination proceed.
• The judicial process. The process of determining controversies, whether as it actually takes place, as the publics, the jurists and the practitioners in the courts hold it ought to take place.

2. Functions of law

There are 3 function in law;

3. Classification of Law

4. Legal System In Malaysia

Law in general is a rule of being or of conduct, established by an authority able to enforce its will, a controlling regulation, the mode or order according to which an agent or a power acts.

The Malaysian law is based on the common law legal system. It was the direct result of the colonization of Malaya, Sarawak and North Borneo by Britain between early 1800s to 1960s.The Constitution of Malaysia sets out the legal framework and rights of Malaysian citizens.

Federal laws which the parliament enacts are applicable throughout the country. Again there are state laws enacted by the State Legislative Assemblies applicable in the particular state. The constitution of Malaysia also provides for a unique dual justice system-the secular laws (criminal and civil) and sharia laws.

Dual Justice System

The dual system of law is provided in Article 121(1A) of the Constitution of Malaysia. Article 3 provides that Islamic law is a state law matter with the exception for the Federal Territories of Malaysia. Islamic law is the sharia law and in Malaysia it is known as syariah and the court is called Syariah court. But in the larger context of the legal system the sharia law plays a relatively small role in defining the laws on the country. It applies only for people following Islam.

Federal and State Law

Federal laws are made by legislators (members of Parliament and senators) sitting in the Parliament of Malaysia and applies throughout the country. Federal laws are also called as Acts of Parliament. State laws are passed by the State legislative assembly.

Common Law
The laws of Malaysia can be divided into two types of laws—written law and unwritten law. Written laws are laws which have been enacted in the constitution or by legislative. Unwritten laws are laws which are not contained in any statutes and can be found in case decisions. This is known as the common law or case law. In situations where there is no law governing a particular circumstance, Malaysian Case Law may apply. If there is no Malaysian Case Law, English Case Law can be applied.

5. Malaysia 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 and also the Islamic law but to a lesser extent and no political interference is there in this system. In Malaysian legal system hierarchy there are usually two kinds of trials, namely civil and criminal. The jurisdictions of courts in the matters of civil or criminal cases are there in the Subordinate Courts Act 1948 and Courts of Judicature Act 1964.
The Article 121 of the Constitution presents two High Courts of equivalent jurisdiction, the Malaysian High Court and the High Court in Sarawak and Sabah. Hence, this forms two different local jurisdictions of courts for the Peninsular Malaysia and also for the East Malaysia. The Malaysian legal system hierarchy is explained below:

  
The Superior Courts – 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.

The Subordinate Courts – In Malaysian legal system hierarchy, the Subordinate Courts comprises the Sessions Courts, the Penghulu’s Courts in western part of Malaysia and the Magistrates’ Court.

• Penghulu’s Court – The Penghulu’s 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 Penghulu’s Court’s 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.

• Session’s 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.