Malaysian Legal System

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  • Topic: Law, Common law, Legal systems of the world
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  • Published : November 20, 2012
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TUTORIAL CHAPTER : MALAYSIAN LEGAL SYSTEM.

Q1) The Federal Court is the highest court in Malaysia. The Federal Court may hear appeals of civil decisions of the Court of Appeal where the Federal Court grants leave to do so. The Federal Court also hears criminal appeals from the Court of Appeal, but only in respect of matters heard by the High Court in its original jurisdiction i.e. where the case has not been appealed from the Subordinate Courts. The Court of Appeal generally hears all civil appeals against decisions of the High Courts except where against judgment or orders made by consent. In cases where the claim is less than RM250,000, the judgment or order relates to costs only, and the appeal is against a decision of a judge in chambers on an interpleaded summons on undisputed facts, the leave of the Court of Appeal must first be obtained. The Court of Appeal also hears appeals of criminal decisions of the High Court. It is the court of final jurisdiction for cases which began in any subordinate courts. Somewhat like the former Quarter Sessions in England, the Sessions Courts have jurisdiction to try offences which are not punishable by death. They are 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 tenant and distress, where the Sessions Courts have unlimited jurisdiction. The doctrine of Judicial Precedent works in two ways, vertically and horizontally. Doctrine of judicial precedents works in vertically with the superior courts bind all courts subordinate to it. In horizontally, it works with the courts that usually an appellate court is bound 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 are Sessions Court, Magistrates’ Court, Juvenile Court and Penghulu’s Court. Horizontal doctrine shows the flow from High Court which is Federal Court to the lower court that is Penghulu’s 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 Committee 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 follow certain accepted principles commonly known as precedents. Precedents are basically decision made by judges previously in similar 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 original precedent. Because of the way the judging is done, judges are constantly contributing to the growth of unwritten law 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 English laws as the Malaysian legal system retains many characteristics of the English legal system.. The “Written law” includes the Federal and State Constitution, Legislation and Subsidiary Legislation. Malaysia is a federation of 13 states with a Federal Constitution and 13 State Constitution. The Federation Constitution is the supreme law of the country....
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