Malaysian Legal System

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MALAYSIAN LEGAL SYSTEM

TOPICS

CLASSIFICATION OF LAW

1. Public law (Between the Individuals and the State)
2. Private Law (Between the Law and Individuals)
3. International Law (Law between States)

SOURCES OF LAW

1. Historical Sources
2. Place
3. Legal Sources: a) Written Lawb) Unwritten Law

Written Law Unwritten Law Syariah Law

- Federal Constitution - Principles of English Law - State Constitution - Judicial Precedents/ Decisions - Legislation - Native /Customary Law - Subsidiary Legislation

HIERARCHY OF COURTS

Superior CourtsSubordinate Courts
-Federal Court -Sessions Court
-Court of Appeal- Magistrates Courts
-Penghulu’s Court

|WRITTEN LAW |

FEDERAL CONSTITUTION

▪ In Malaysia, there are 13 states and 3 Federal Territories. As such, there is one Federal Constitution and 13 State Constitution. ▪ Federal law is the supreme law of the federation .It is the law of the land, a kind of “higher law” which is used as a yardstick with which to measure the validity of all other laws. ▪ All laws which are made by the 13 states and other bodies must be consistent with the Federal Constitution. ▪ Any law inconsistent with the Federal Constitution may be challenged in court. ▪ In the case of Ah Thian vs Government of Malaysia (1976 2 MLJ p112), Tun Suffian, the Lord President as he then was points out that “the doctrine of supremacy of parliament does not apply in Malaysia. Here we have a written constitution. The power of Parliament and State Legislatures in Malaysia is limited by the Constitution and they cannot make any law that they please”. ▪ The legislature is not the only branch of the government which is subject to the Constitutions .The executive and judiciary, are too. In short all institution created by the Federal Constitution and deriving powers from it is subject to its provisions. ▪ Article 4(1) of the Federal Constitution states that “The Constitution is the supreme law of the Federation and any law passed after the Merdeka Day which is inconsistent with the constitution shall, to the extent of inconsistency, be void. ▪ Supremacy of the Constitution is maintained by giving the courts the power and the right to review legislative and executive acts. When their acts violate the Constitution the court may declare it ultra vires (unconstitutional) and void. ▪ Legislation may be invalidated on one of the following grounds : 1) it relates to a matter concerning which the relevant legislature has no power to make law. 2) it has not been enacted in accordance with the procedure prescribed in the constitution. 3)it is inconsistent with any provision in the constitution. 4) in the case of state law it is inconsistent with the federal law. ▪ The rights that are written in the Federal Constitution can only be amended by a 2/3rd majority of legislation. However there are a number of provisions which requires the consent of Majlis Raja-Raja in addition when it involves “sensitive issues” i.e. institution of Rulers and special rights of Malays including natives of Sabah and Sarawak.

Contents of the Constitution (Refer to the Federal Constitution)

LEGISLATION

• Legislation refers to laws made by a person or body that have power to make law • Thus, legislation is the law enacted by the legislature, and by bodies and persons authorized by the legislature. • In Malaysia, the power to enact law is vested in Parliament at the federal level and the State Legislative Assembly at the state level. • They can enact law only within the limits and in the manner prescribed by the Federal and State...
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