Malaysian Legal System

Malaysian Legal System

The Malaysian Legal System is largely based on the British Common Law system as a result of the colonization of the country by the British in the 19th century to the 1960 s. The law system is known as The Constitution of Malaysia which lays down the legal framework to protect the citizens of the country. There are also individual state laws.

There is a dual-law in Malaysia :

a) Criminal and Civil Laws

b) Sharia Laws

The dual law system brings its own problems and those who oppose the laws claim the system goes against the Freedom of Religion. The dual system has caused difficulty for those who convert from the Muslim religion to another religion of which is illegal in sharia laws. 

Federal and state laws are described as Acts of Parliament. State laws are set within the state and are passed in Parliament. In the case of state law, federal laws can override any law including sharia law.

Capital Punishment

In comparison to English sentencing guidelines, capital punishment applies in Malaysia. The main offences where the death penalty may apply are described below:

- Offences against the King such as war

- Murder

- Treason

- Drug Trafficking 

- Terrorism

- Possession of firearms

There is no exemption for foreigners on capital punishment. Capital punishment can only be passed by the High Court of Malaysia. Death sentences are carried out by hanging. There are automatic appeals when a death sentence is passed and the last course of action on appeal is that of a pardon or clemency by the King or Governor of the State. Children and pregnant woman are exempt from the death sentence. There are to date approximately 150 people on death row.

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 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 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 re-visionary 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 RM 50-00 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 RM 25-00.

        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

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       Session’s Court

  The Sessions Courts hear all the issues in which the claim crosses RM 25, 000-00 but not more than RM 250, 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.

Classification of Law

1.Public Law

Public law regulates the relationship between the citizen and the State.

Constitutional Law – defines the structure of government and the right of individual under that government.

Administrative law – regulates the duties and exercise of powers by administrative authorities.

Criminal Law – deals with acts or omissions which are offences against the State and for which the offender is liable to be tried and if found guilty, will be punished according to the law.

2. Private Law

Private law deals with the relation between a citizen and another. It is also known as Civil Law. It includes contract, Family Law, Tort, Land Law and commercial law in general. Legal action may be commenced or initiated by individuals seeking for damage or compensation.

3.International Law

Includes Private and Public International Law.Public international law deals with relationship between states. Eg. Border, territorial waters etc.Private International law is concerned with the application of various national laws of the facts of a particular case involving two or more countries eg. System of law applicable to a marriage between 2 different nationals in a third country.

Sources of Law

The main sources of law are:-

a. the Federal Constitution
b. the 13 Constitution of the States comprising the Federation
c. Federal law made by Parliament
d. State laws made by State Assemblies
e. Federal and State Subsidiary Legislation
f. Judicial Decision
g. Principles of English Law
h. Islamic Law

FEDERAL CONSTITUTION

Malaysia has a written constitution unlike the United Kingdom. The Federal Constitution is the supreme law of the land. Generally, any law which is inconsistent with the Federal Constitution is invalid. The Malaysian Parliament functions under a written constitution and is governed by it. Its law making power is limited by the provisions in the constitution. However our Parliament as a legislative body has the capacity to amend , repeal and make new constitution by way of two third majority vote of the both houses of Parliament. ( Dewan Negara & Dewan Rakyat). The Federal Constitution also establishes a constitutional Monarchy and a Federal System of Government.

THE STATE CONSTITUTION

The 13 States of Malaysia have individual constitutions which provide for a single chamber Legislative Assembly in each state. The government is headed by a Menteri Besar or a Chief Minister. (In the Malay States the MB is assisted by a cabinet known as the Executive Council) In Sabah & Sarawak, members of the Executive Council are known as State Ministers.

LEGISLATION

It refers to laws made by a person or body which has power to make law. In Malaysia, Parliament and Legislative Assemblies have powers to enact laws in their respective areas. Laws made by Parliament may extend to the whole country. However, laws enacted by a State Assembly only apply to that particular state only.

ENGLISH LAW

The legacy of English Law remains in Malaysia even after independence. The English Law is adopted so far as they were suitable to local conditions. Many of the local laws especially those affecting trade, commerce and banking were patterned on English Models (or in some instance other colonial laws).

SUBSIDIARY LEGISLATION/ DELEGATED LEGISLATION

Also known as delegated legislation. A statute will confer power on an authority for it to enact rules and regulation. An example of delegated legislation is the parking by laws enacted by various councils under powers conferred on them by the State Local Government Enactments.

THE COMMON LAW

Refers to law laid down by judges sitting in the Superior Courts as distinct from statute law enacted by the legislative.- Judge made law. This system was inherited from England

ISLAMIC LAW

Applicable to Muslims only and administered in the Syariah Courts. The courts possess civil jurisdiction over offences by Muslim against the religion.

System of Courts and Administration of Justice

The judiciary in Malaysia is mostly centralized and is influenced heavily by the English Common law.  Basically there are two major types of trials which are criminal trials and civil trials.  Starting from the Federal Court, there exists a hierarchy court structure in the country which means that the power and responsibilities keep decreasing as we move down the hierarchy pyramid.

The superior courts in the country are the federal court, court of appeal and high courts whereas the subordinate courts are made up of the sessions court the magistrate court and other courts. To understand this hierarchy better, you can go through the following information.

COURTS

Federal Court

This is the highest court in Malaysia and hears appeals of civil decisions of the court of appeal where the federal court gives the permission. This court also hears criminal appeals but only on those cases when first the High court has exercised its original jurisdiction in the matter.

Court of Appeal

This is that court which hears all civil appeals against the verdict of the high court. It also hears appeals of criminal decisions of the High court.

High Courts

There are 2 high courts in Malaysia which have revisionary and general supervisory jurisdiction over the subordinate courts. These courts have unlimited civil jurisdiction and also in criminal matters besides matters related to the Islamic law.  Some matters which a High court may hear are custody of children, legitimacy of persons, matrimonial clauses, bankruptcy and matters related to winding up of businesses or companies, grants of probate and injunction.

Subordinate Courts

The magistrates’ courts as well as the Sessions courts in Malaysia have jurisdiction in both civil and criminal matters. 

Sessions Courts

These are those courts in Malaysia which are somewhat similar to the former Quarter Sessions in England. However, there is and exception in matters which are related to landlord and tenant distress, vehicle accidents.

Magistrates Courts

Magistrates in Malaysia are divided into First Class and Second Class Magistrates. In the case of criminal matters, the first class magistrates courts have power to try all offences where the maximum imprisonment term does not exceed 10 years.

Other Courts

The Court of a Penghulu or Malay Village Head hears all the cases related to civil matters. The criminal jurisdiction of such a court in Malaysia is limited to the offences of a minor nature.