Top-Rated Free Essay
Preview

Law in Malaysia

Powerful Essays
1315 Words
Grammar
Grammar
Plagiarism
Plagiarism
Writing
Writing
Score
Score
Law in Malaysia
Law is a system of rules and guidelines, usually enforced through a set of institutions. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. For example, Contract law regulates everything from buying a bus ticket to trading on derivatives markets and Property law defines rights and obligations related to the transfer and title of personal and real property and so on. Then, Natural law or the law of nature (Latin: lex naturalis) has been described as a law whose content is set by nature and is thus universal. As classically used, natural law refers to the use of reason to analyze human nature and deduce binding rules of moral behavior While Rule of Law is the absolute supremacy of the law over everybody, both the rulers and the ruled. The rule of law is a legal maxim that provides that no person is above the law, that no one can be punished by the state except for a breach of the law, and that no one can be convicted of breaching the law except in the manner set forth by the law itself.

NATURAL LAW
The unwritten body of universal moral principles that underlie the ethical and legal norms by which human conduct is sometimes evaluated and governed. Natural law is often contrasted with positive law, which consists of the written rules and regulations enacted by government. The term natural law is derived from the Roman term jus naturale. Adherents to natural law philosophy are known as naturalists.
Naturalists believe that natural law principles are an inherent part of nature and exist regardless of whether government recognizes or enforces them. Naturalists further believe that governments must incorporate natural law principles into their legal systems before justice can be achieved. There are three schools of natural law theory: divine natural law, secular natural law, and historical natural law. Common law in Malaysia takes the form of Natural law

RULE OF LAW:
The Rule of Law, in its most basic form, is the principle that no one is above the law. The rule follows logically from the idea that truth, and therefore law, is based upon fundamental principles which can be discovered, but which cannot be created through an act of will.

The most important application of the rule of law is the principle that governmental authority is legitimately exercised only in accordance with written, publicly disclosed laws adopted and enforced in accordance with established procedural steps that are referred to as due process. The principle is intended to be a safeguard against arbitrary governance, whether by a totalitarian leader or by mob rule. Thus, the rule of law is hostile both to dictatorship and to anarchy.
The rule of law in its modern sense owes a great deal to the late Professor AV Dicey. Professor Dicey's writings about the rule of law are of enduring significance.
The essential characteristic of the rule of law are:

i. The supremacy of law, which means that all persons (individuals and government) are subject to law. ii. A concept of justice which emphasises interpersonal adjudication, law based on standards and the importance of procedures. iii. Restrictions on the exercise of discretionary power. iv. The doctrine of judicial precedent.
v. The common law methodology. vi. Legislation should be prospective and not retrospective. vii. An independent judiciary. viii. The exercise by Parliament of the legislative power and restrictions on exercise of legislative power by the executive. ix. An underlying moral basis for all law.

Legislative Authority – Source of Primary Legislation- Malaysia Legislative authority is the power to enact laws applicable to the Federation as a whole under Article 66(1) of Federal Constitution. At Federal level, the legislative power is vested in a bicameral Parliament headed by the Yang di-Pertuan Agong and comprises the Dewan Negara (House of Senate) and Dewan Rakyat (House of Representatives). The Dewan Negara has 70 members, of whom 44 are nominated by the Yang di-Pertuan Agong, and 26 elected by the State Legislative Assemblies. The Dewan Rakyat is fully elected and has 219 members. The duration of the life of each Parliament and State Legislatures is about five years and is split into one-year sessions, after which the session is terminated or prorogued usually in September. The distribution of law-making authority between the Federal and State Governments is enumerated in the Ninth Schedule of the Federal Constitution; and is set out in a Federal List, State List and a Concurrent List. The main subject areas of the Federal List are external affairs, defence, internal security, civil and criminal law, citizenship, finance, commerce and shipping industry, communications, health and labour.

EXECUTIVE AUTHORITY - Source of Subsidiary Legislation Malaysia The Executive is vested with the authority to govern and administer the laws by way of delegated and drafts Bills as provided under Article 39 of the Federal Constitution. The power to govern that is vested in the Yang di-Pertuan Agong is however exercisable by a Cabinet of Ministers headed by the Prime Minister. The Cabinet is answerable to the Yang di-Pertuan Agong as the head of Executive Authority in the country. Each executive act of the Federal Government flows from his Royal authority, whether directly or indirectly. However, in accordance with the principle of a democratic ruling system, the Chief Executive is the Prime Minister. The Yang di-Pertuan Agong appoints a Cabinet - a council of Ministers - to advise him in the exercise of his functions. It consists of the Prime Minister and an unspecified number of Ministers who must all be members of Parliament either the Dewan Rakyat (House of Representatives) or Dewan Negara (House of Senate). The Ministers hold different portfolios and are collectively responsible for all decisions made by the Cabinet, which is the highest policy-making body in the country.

. Judicial Authority – Source of Case Law The Judiciary is empowered to hear and determine civil and criminal matters, and to decide on the legality of any legislative or executive acts as provided under Article 125A of the Federal Constitution. It is also conferred authority by law to interpret the Federal and State Constitutions. The courts can pronounce on the validity or otherwise of any law passed by parliament and they can pronounce on the meaning of any provision of the constitution. The jurisdiction of the Malaysian courts is determined by the Courts of Judicature Act 1964 for Superior Courts and the Subordinate Courts Act 1948 for Subordinate Courts The Malaysian Courts of Justice are made up of the Superior Courts and the Subordinate Courts. The Superior Courts comprise of the Federal Court (the highest court), the Court of Appeal and the two High Courts. By virtue of Act 121(1) of the Federal Constitution judicial power in the Federation is vested on two High Courts of Coordinate jurisdiction and status namely the High Court of Malaya for Peninsular Malaysia and the High Court of Borneo for Sabah and Sarawak.

-------------------------------------------------
In conflict with natural law
Upholding the rule of law can sometimes require the punishment of those who commit offenses that are justifiable under natural law but not statutory law. Heidi M. Hurd raises the example of a battered woman who rightly believes that there is a strong probability that her husband will eventually attempt to kill her and her children unless she preemptively kills him. If the law does not permit the acquittal of those who claim self-defense in the absence of an imminent threat of harm, then the woman must be punished, or "what will become of the rule of law? For law seemingly ceases to be law if judges are entitled to rethink its wisdom in every case to which it applies and to disregard it whenever it is inferior to the rule that they would fashion."

http://www.nyulawglobal.org/Globalex/Malaysia.htm#_2._Legislative_Authority

You May Also Find These Documents Helpful

  • Better Essays

    Although Aristotle did not use the term ‘natural law’ many medieval philosophers considered him as one of the first exponents of the fundamentals of natural law. Stoic philosophy was the first to introduce the term ‘natural law’ with the Stoics emphasising nature and the moral requirement to accept and conform to what is given in nature. This Greek philosophy spanned several centuries and greatly influenced the Roman philosopher Cicero. Cicero (d. 43BC) was a strong advocate of natural law and spoke of natural law as the innate power of reason to direct action. Catholic natural law theory was formulated by St. Thomas Aquinas over seven centuries ago. He identified one fundamental norm of natural law: do good and avoid evil. Doing good in this context is following reason’s lead to actualise human…

    • 2320 Words
    • 10 Pages
    Better Essays
  • Good Essays

    As an ethical theory, natural law has a number of strengths; it allows Christians today, using their human reason to guide them, live as God intends them to live. However it can be argued that is has a number of weaknesses also, for example its religious underpinning.…

    • 789 Words
    • 4 Pages
    Good Essays
  • Good Essays

    The End

    • 805 Words
    • 4 Pages

    Nature law is said to be from a higher being (God) and deals with things that morally wrong. Man-made laws are made by man does not have to be morally wrong like a parking in a no parking zone.…

    • 805 Words
    • 4 Pages
    Good Essays
  • Better Essays

    Criminal Law

    • 1304 Words
    • 6 Pages

    Properties of criminal law include natural law, positive law and common law. Natural law is described as rule “of conduct inherent in human nature and in natural order, which are thought to be knowable through intuition, inspiration, and the exercise of reason without the…

    • 1304 Words
    • 6 Pages
    Better Essays
  • Good Essays

    The original concept of Natural law was thought of by Aristotle and was then adapted by Thomas Aquinas to fit the teachings and views of the Roman Catholic Church. Who was concerned with moral law of how human beings should behave .It is understood by reflecting on human nature and by rationally working what will lead to fulfilling your purpose. According to natural law “good” can only be achieved when the subject has fulfilled its end purpose, the end purpose of human beings is to be rational and achieve Eudemonia. Eudemonia is human flourishing, when they achieve happiness. Aquinas also believed natural law was in everyone, so everyone is good. Human’s unconsciously aim for perfection, to avoid evil and aim for god. Because we are made in god’s image, we are unable to knowingly go for evil. As Animals and humans share desires and wishes it’s only the ability to be rational that separates the human beings from the beasts. Aquinas also believed that the only way to discover divine design in nature, would be through human reason. The divine design was created to the essence/the idea before its actual existence. So the only way reason discovers what is right, is by interpreting nature.…

    • 1069 Words
    • 5 Pages
    Good Essays
  • Good Essays

    As defined by the Philosophical Dictionary, the Natural Law Theory is "In moral philosophy, a norm, custom, or set of beliefs shared by people living in different cultures or eras. Such a “law” is supposedly derived from Nature (via reason or some other natural human faculty) and is considered binding on all humans everywhere. Ancient Stoicism, for example, held that there are eternal laws that govern all human actions and that happiness depends on recognizing and living in harmony with these fundamental “laws of nature.” Similarly, Aquinas argued that God established a set of universal laws – ascertainable through reason alone (hence available to everyone, regardless of their religion) – that operate for the welfare and benefit of all creatures.”…

    • 197 Words
    • 1 Page
    Good Essays
  • Good Essays

    Natural Laws- Laws that are predetermined by nature and as a result are valid everywhere.…

    • 1586 Words
    • 5 Pages
    Good Essays
  • Good Essays

    Natural law was thought of by a 13th century monk called Thomas Aquinas. He was inspired by a Greek a posteriori philosopher called Aristotle who came up with the efficient cause and believed that a humans purpose is to reach eudaimonia. Aristotle's thoughts were inspired by the stoics who were a group of Greek philosophers who believed God is everywhere and in everyone there is a divine spark. Natural law is based on the belief that everyone has a natural sense that 'good is to be done and evil avoided' which somse call human nature. It is what directs our conscience and if applied with reason to a situation will lead to the right outcome.…

    • 1038 Words
    • 5 Pages
    Good Essays
  • Satisfactory Essays

    Natural Law is a deontological theory of ethics. According to Thomas Aquinas it is absolutist and depends on the idea that God created everything with a purpose and supreme good is found when that purpose is fulfilled. For Aristotle, who heavily influenced Aquinas’ ideas, he believed that supreme good for humans is happiness. Thomas Aquinas agreed with Aristotle, but saw a human’s supreme purpose to be perfection.…

    • 343 Words
    • 2 Pages
    Satisfactory Essays
  • Good Essays

    According to the textbook, the definition of natural law is the expression of what a person knows in his or her own soul to be right or wrong. The Ten Commandments are a perfect way to apply natural law. A great Commandment to focus on when speaking of natural law is the 7th Commandment, “Thou shall not steal.” In the world that we live in today, I believe that this Commandment is often broken the most. About 75% of the people that rob or steal something feel an immediate guilt, whether they are stealing something very small or very large. The guilt that people feel in their conscience is not taught and is naturally inbred into your soul; This guilt is also called natural law. A good example of how natural law affects a person is the…

    • 309 Words
    • 2 Pages
    Good Essays
  • Good Essays

    Lastly, it is difficult to enforce natural law since it is rejected by those who follow contemporary political philosophy. This can make it difficult to enforce natural law because these people, who study topics like politics and law, reject this philosophy. They can potentially influence others to reject the natural law…

    • 549 Words
    • 3 Pages
    Good Essays
  • Better Essays

    The theory of natural law originates from Aristotle’s idea of goodness as fitness for purpose and stoic’s concept of a universal law of reason which is in agreement with nature. What we now call human nature. This point is then furthered by Aquinas who agrees with the argument but furthers it by linking it with his Christian belief by saying following this law is equivalent to following the command of God as human nature is in us inbuilt into us from when God created us.…

    • 1800 Words
    • 8 Pages
    Better Essays
  • Good Essays

    The Natural law philosophy is a system in place for the right of all humans. “The natural law theory is a theory of ethics that holds that there are moral laws found in nature and discernable by the use of reason” (MacKinnon 2015). This theory law theory identifies the actions of humans and categorized them either right or wrong. Virtue Ethics is often used to define characteristics standard of a person. Virtue Ethics normative theory that maintains that the focus of morality is habits, dispositions, and character traits” (MacKinnon 2015).…

    • 401 Words
    • 2 Pages
    Good Essays
  • Good Essays

    Mere Christianity

    • 670 Words
    • 3 Pages

    People are moral creatures. The Law of Nature refers to morality. Morality is the standard to which all people expect all others to act. Everyone has different ideas about what is right and wrong. Human beings know morality and consistently break it.…

    • 670 Words
    • 3 Pages
    Good Essays
  • Better Essays

    Unwritten Law in Malaysia

    • 2001 Words
    • 9 Pages

    Unwritten laws are laws that are not enacted and not found in any constitution. It comprises of English law (Common Law and Equity), judicial decisions and customs. Common Law is a major part of many States, especially Commonwealth countries. It is mainly made up of non –statutory laws, which are the precedents derived from judgments given on real cases by judges. Law of Equity resolves disputes between persons by referring top principles of fairness, equality and justness. In these cases,nothing was done against the law by the parties to dispute, but their rights are in conflict. Thus, it is different from law,both the Statutory Law enacted by Parliament and State Legislatives and Common Law which consists of precedents and opinions given on real cases by judges. 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. There are instances where Australian, Indian,and Singaporean cases are used as persuasive authorities.…

    • 2001 Words
    • 9 Pages
    Better Essays