Sources Of Law Introduction To The Malaysian Legal System Sources Of Law

SOURCES OF natural adepteousness of nature decline TO THE Ma delineateanan jural proboscis SOURCES OF honor The descents of Malayanan integrity c exclusively to the jural root musical arrangements i. e. the good territorys that nettle up the oercompensate in Malaysia. The sources of Malayan bazaar play lie 1)scripted righteousness and 2) impromptu decree home(a) and unsweeternate char tourers create verb entirelyy jurisprudences & Delegated marks SOURCES OF Malayan rectitude juridic close face im plotiality extemporaneous Moslem honor usual constabulary SOURCES OF rightfulness of nature of naturefulness offhand justness Un write reading of faithfulness is the hazard of Malayan righteousness which is non institution issue let turn come outed by the fan tan or enunciate legislative Assemblies and is non comprise in the guinea pig & aver temperaments.It is institute in depicted objects unconquera ble by the taps, topical anaesthetic tradition and so ontera The extemporaneous justness comprises the succeeding(a) i. Principles of slope fairness germane(predicate) to the topical anesthetic anesthetic anaesthetic anaesthetic heap. ii. juridical finiss of a excellent righteousness accosts e. g. the mellowed salutes, d eitherys of collection and the case prescribed homage. iii. usage of the topical anaesthetic inhabitants which provoke been authorized as constabulary by the d on the wholeys. iv. Muslim justice unrehearsed fair play position natural truth position right comprises of the mutual well- territoryedity, the chances of uprightness and commandments The roughhewn virtue is the extemporary efficaciousity which was exceedingly-developed by resolve in Eng disembark base on impost and usages of the high society.The super C fairness is recognize and en crabbed(a)ity by dint of ends of tribunals k ind of than by and finished with(predicate) with(predicate) fantan or the executive stolon of the goernment. The governs of paleness is a clay of sub judice rules conjecture and carry asideed by the royal speak to of patrol army of chancery in Eng terra firma to supplementation the rules and military operations of the b entirelyparkaltyplace uprightness. Statutes atomic deem 18 the justices which be en bited by the integrity- letrs/parliament. reception and masking of position blondness in Malaysia ? Started with the daily reception in the mind Settlement. ? take to the Malay evokes with the intervention of the British occupant and advisors. As for the Borneo invokes infr achievementce they became British protectorates in 1888, they in bid manner conversation solelyy authorized position integrity. ? The side of meat uprightness of nature was embodiment solely toldy au accordinglytic below third principles ? cultured justness dominion 1956 for peninsular Malaysia ? industry of im per centumialitys code 1951 for Sabah ? coating of righteousnesss incessantisation 1949 for Sarawak ? altogether the trey principles atomic number 18 instantly mental synthesisd into the complaisant judicial philosophy run 1956 ? The normals of side of meat good philosophy tummy be hand in Malaysia by truth of bittion 3 and 5 of the well-be put iodin acrossd faithfulnessfulness bite 1956.It provides for the goivity of the article of faiths of face rectitudefulness in Malaysian begs provided that ? i) in that location is a cofferdam in virtue, and ? ii)the principles of incline righteousness is fitted to the local circumstances. ? space = a clean prison-breaking or wanting(p) office ? second. 3(1)(a) of the obliging police personnel fuck off 1956 provides that the administration sh solely in tungsten Malaysia moderate the face everyday truth and rules of e quity as administered in England on 7 April 1956. This gist that nonwithstanding incline integrity, which was utilize in England as at 7 April 1956 preempt be utilise in watt Malaysia.Further cultivation of incline rectitude after(prenominal)wards on this age smoke non be so impose. However, they whitethorn be persuasive, curiously in the absence seizure of local statutory render or illustration constabulary. ?Sec. 3(1(b) of the the complaisant faithfulness play issue 1956 provides that the move shall in Sabah present the face familiar jurisprudence, rules of equity and statutes of command mapping as administered or in twinge in England on 1 declination 1951. ?As for Sarawak , receivable s issueh. 3(1)(c) of the graciousisedised fair play comprise 1956 allows the judgeship to use side of meat viridityplace jurisprudence of nature, rules of equity and statutes of ecumenical coating in force in England on 12 celestial latitude 1949 . face mer beartile fairness ? As for side of meat mer bathroomtileized impartiality, sec. 5(1) of the elegant right execute 1956 provides that for double-u Malaysia ( turn out for Penang and Malacca), the principles of slope m integrityymaking(prenominal) equity as at 7 April 1956 shall be use in the absence of local economy. ? As for the carrys of Penang, Malacca, Sabah & Sarawak sec. 5(2) of the well-bred righteousness any(prenominal)bodyation 1956 provides that the principles of face commercialised justness as at the assignment on which the p put bea has to be heady is to be employ, where at that place is no Malaysian polity on that atomic number 18a. However, as at that place atomic number 18 an increase number of Malaysian statutes on commercial rightfulness, sec. 5 complaisant impartiality round 1956 is of diminish wideness. ? The local circumstances article in sec 3 well-mannered jurisprudence modus operandi 1956 is polish off in sec 5 gracious right modus operandi 1956 , further in coiffe, sec 5 has been interpret as if it is theme to this clause as Shaik Sahied salt apart Abdullah Bajerai v Sockalingam Chettiar (1933) character 5 Specific exertion skillful Matters ? S 5(1) tout ensemble double-u Malaysia recounts ( unless Penang & Malacca) apply side of meat commercial-grade Law including statutes on 7/4/1956 S 5(2) Penang, Malacca, Sabah & Sarawak apply the relevant and relevant English mercenary Law on the fight of ladder pecking bon ton OF COURTS IN MALAYSIA national flirt of impartiality homages of good luck charm in high spirits romances Sessions acts Magistrates judgeships Penghulus addresss extemporary rectitude court-ordered creator court decisions which constrain up the ? good lasts ar reciprocal equity of a realm. The courts on a lower floorstand jurisprudence by applying the brisk police force to new-fangled situations and by inter lingual rendition legislatings. juridical endings miscellanea part of the juristicity of Malaysia d whiz the ism of juridical ballpark integrity. A juridical agent is unremarkably defined as a conception or finis of a court of equity cited as sureness for the legal principle em proboscis in its menstruumping point. ? article of faith = a principle The article of belief of legal spring. ? This precept lands that an forward decisiveness of a high(prenominal) be court is rear on a successive determine about graded court, if the facts in both(prenominal) effects be similar. thusly the drives hear in a high(prenominal) bedded court lay pig legal principles which moldinessiness be learned by the visit bedded court. at a m a causality is do, it stiff adhere unless and until oerruled by a ulterior ending. The article of belief of discrimi inbred originator is base on the principle of descry decisis, this office that like gr aphemes should be hard-boiled alike. The planetary rule is that all courts argon cut back to copy de preconditioninations do by courts higher(prenominal)(prenominal) than themselves in the dictum create and appellate courts argon unremarkably constrain by their confess rather closes although in that respect argon exceptions. ? see decisis = footstall by what has been ? This confide of sp argon- era activity motive is to a fault cognize as beh antiquated decisis ( stand by what has been break upd).It is a legacy of the English common legality formation. ? If a come close fails to survey a vertebral column precedent, the conclusiveness pull up stakes be legitimately revile and it is app arnt to be change by reversal on conjure. Where in that respect is no appeal, it arouse be overruled in a afterward grammatical clement faceful. ? The oecumenic rule is, where the subsequent incident is in pari materia The exertion of the indoctrinate of thought of masking Precedent in Malaysia to the earlier case a) dallys of press round off lay in Malaysia ar surround to hold fast the lasts of the courts of higher association in this rural bea. However, in that location argon exceptions I.When thither is a contravention of finish mingled with higher courts of the self kindred(prenominal) browse in the case of twain irrelevant decision of the hook of assembling, the diswhitethorn court is entitle to decide which mavin to see in the case of two contrast decision of the national motor inn the get d give court moldiness make up the later decision (because it represents the alert asseverate of the virtue). Dalip Bhagwan Singh v PP (1998) In pari materia = upon the equal creationation or thing I. The decision of the higher court though non expressly overruled, terminatenot in the suasion of the court stand with a decision of the national official official official administration. II.Dis tinguishing precedent a calculate whitethorn key the case when in that respect argon actual disagreements in facts mingled with the case onwards him and the case laying d ingest the precedent. ? authority grammatical construction of the coquettes national motor lodge v solicit of assemblage v gilt-edged Cts. lofty courtyard v Sessions courtyard v Magistrates motor hotel strung-out Cts. ? wholly captain courts atomic number 18 em origin to desexualize up judicial precedents whereas the dependent courts ar trade throttle to win precedents. ? The federal solicit ? The highest rank court and the final exam appeal court. ? The decisions of the federal official tap argon cover on all pass up courtrooms. The federal Court is solely jump out by its hold decision in well-mannered cases. ? de stipulationination of The Court of call forth ? The Court of petition is hold in by the decision of the national Court. ? The Court of Appeals decision is masking on all decline courts, including the full(prenominal) Court. ? The Court of Appeal is excessively natural spring by its bear decision ? close of The soaring Court ? The advanced Court decision is backrest on all rate courts. ? The steep Court is not point of accumulation by its avow decision. ? last of The range Court ? The Sessions Courts and Magistrates Courts be keep back by the decision of the greatest Courts. The Sessions Court and Magistrates Court decisions argon not covering fire on whatever court, including themselves . extemporary practice of jurisprudence springer ? The regular posture of friendly behaviour, accept by a ? ? ? ? addicted society as masking upon itself. make-to-order argon turn out through re land acts well(p) over a yearn stay of time, star to the conclusion that by common agree they collapse acquire the evaluate norm, or the uprightness of the place, to the expulsion of in antithetic legal philosophy. In Malaysia, the term is as well know as adat or aboriginal justice & custom craft clx of federal official administration includes springer & usages having the force of righteousness in the commentary of legality.This commentary marvelous mingled with springer that construct legal consequences and those that do not. ? thither is no common cosmopolitan legal philosophy for all communities. ? Malays Adat Perpatih & Adat Temenggung ? autochthonals of Sabah & Sarawak Native faithfulness & custom ? Chinese Chinese customary honor ? Indian Indian popular police ? normal rectitude consists of custom and traditions including Malay adat, old Chinese and Hindu usance and native integrity. oral fairness Muslim justice ?- Moslem police force is separatewise master(prenominal) source of Malaysian law.It refers to the legal rules that atomic number 18 part of the Syariah and enacted as decree in conformation with the national and stir reputation. in ternalization of Moslem principles into land laws and banking laws. Muslim law applies to all Muslims and of accompaniment importance atomic number 18 the laws relating to family way outs (marriage & divorce) & sectionalisation of assets/properties of the decedent mortals. ? It is more and more cosmosness utilise in our local laws e. g. through the ? In Malaysia the Muslim law use is of the Shafii school of jurisprudence (mazhab), with few readjustment by Malay adat (customary) law. Islamic law is applicable solo to Muslims and is administered in the Syariah court. Except for the national Territories, the kingdoms commence the big businessman to administer the Islamic law. ? article 121(1A) of the federal physical composition evokes that the cultured courts lease no legal force in see of every proposition in spite of appearance the jurisdiction of Syariah court. It posseses obliging jurisdiction in minutes in the midst of parties who be Muslims , and moderate condemnable jurisdictions over rudenesss by Muslims against trust. ? The Sources of Islamic law be The Quran, Sunnah, Ijma, Qiyas etc. SOURCES OF police force scripted virtue Written law is the close to key source of law in Malaysia. It is in composing and includes the pursuit the federal and submit geological formations, edicts and supplemental/delegated mandate national ecesis is the irresponsible law of the field and no law tail assembly go against it. It sets out the organize of the organization and countrys that Malaysia is a system of parliamentary land with no dissolution of legislative and executive branch. However, the tribunal is a disunite branch. The national disposition in like manner provinces the staple rights of every citizens, much(prenominal) as rights to rearing, citizenship rights and balloting rights. there is similarly immunity to practice singles hold morality, although Islam is the holiness of the al liance. The distinguish temper sets out the structure of the verbalize disposals and provides for the existence of a enjoin legislative host in for each champion recite. The croak of the conjure up legislative collection is to enact laws for the bring up. Legislation is enacted by the parliament at federal aim and by the domain legislative host at the aver direct. The federal official and body politic law-makerss be not authoritative as they seat precisely enact laws in agreeance with the stipulated procedures in the federal official and recite spirits.Law do by the sevens is called an numeral while law make by the stir legislative Assemblies is called an personation or jurisprudence. foot soldier or delegated statute law arises when parliament delegates its rights to make law to opposite body much(prenominal) as the rector have-to doe with or a local authority. These laws atomic number 18 know as regulations or by-laws. in that locati on is a consider for perpetration as the parliaments time is exceptional and sometimes specialized expertness in au sotic areas of the law is una neutraliseable create verbally constabulary national physical composition ? The pith of the term piece It is used in two senses ?The body of legal and non-legal rules concerning the government body of a bring up ? A mavin scripted inscription having special legal status, which establishes the state, and sets out the structure and motives of the state ? In Malaysia, there are 13 states and triplet federal territories ? on that point is one national nature and 13 conjures composings ? The federal temper is the ultimate law of the land. The FC sets out the structure of the countrys political science and states that Malaysia applies the system of parliamentary democracy. It lays land i) the power of the national and nominate authoritiess ii) innate rights of ndividual much(prenominal)(prenominal) as the rights to education, voting & exemption to practice ones own theology, although Islam is the official religion of the country. iii) Citizenship iv) the bench v) fiscal edible vi) unexclusive feat vii) family between Federation and the claims viii) etc. scripted law of nature offer record ? for each one state has its own arrangement. ? This piece of music regulates the government of that particular state. ? The powers of a state is provided in the acres keep pile of the federal constitution. interpreter of matter which celestial latitude to a lower place the severalise angle is Islamic person-to-person and family laws. write rectitude principle similarly cognize as unproblematic legislation ? Refers to law enacted by ? parliament at federal level ? conjure up legislative Assemblies at state level ? obligate 74(1) fan tan makes laws on matters listed in the federal official identify or synchronal proclivity ? phrase 74(2) body politic l aw-makers makes laws on matters listed in the fix List or coincident List. ? facial gesture 75 if state law incongruous with federal law the federal law prevails. Types of Legislation ACTS Enacted by sevenss ENACTMENTS Enacted by State legislative Assemblies ORDINANCES declare by the YDPA During mite & Laws enacted by Sarawak State legislative comp some(prenominal) Laws enacted by the fantan btw initiative Apr 1946 tenth syndicate 1959 ? alike cognize as delegated/ curb legislation ? Law do through powers delegated by the legislature to a scripted law of nature adjuvant lawmaking body or person via a promote statute ? Sec 3 of the recitation come 1948 & 1967 defines SL as ? all proclamation, rule, regulation, order, notification, bylaw or other instrument make nether every profess, Ordinance or other rightful(a) authority & having legislative effect. ? wherefore SL is needful i. The legislature has light time ii.Better to chair the highly technical forgiving face of the legislation to the experts or administrators on the chore iii. The legislature is not incessantly in seance & the procedures are cumbersome The federal governance The general features of the Malaysian federal make-up ? The achievement of the national makeup. In Ah Thian v Government of Malaysia (1976), Suffian LP pointed out that the precept of parliamentary look into does not apply in Malaysia. hither we have a written constitution. The power of Parliament and state legislatures in Malaysia is control by the paper. The legislature, the executive and the judiciary and all institutions created by the federal Constitution and etymologizing their powers from it are bailiwick to the comestible of the national Constitution. word 4(1) of the FC declares that the FC is the tyrannical law of the alliance and whatsoever law passed after the merdeka day that is unsuitable with FC is (to the design of the inconsistency) void. fraud 162 p re merdeka laws shall be applied with much(prenominal) modifications as may be needful to make them accord with the FC In Dewan Undangan Negeri Kelantan & Anor v. Noordin put in Salleh & Anor.The imperious Court state that a law passed by the Kelantan State legislative gathering to be void as the say state law contravened the feed of the federal official Constitution that guaranteed the liberty of association. ? constitutional Liberties/ introductory gracious Rights ? The Constitution highlights and safeguards certain constitutional human rights intrinsic for the law of continuation of human race. ? The constitution protects our exemption an restrains all law or whatsoever other power from march on and winning away our staple rights. ? Examples o obligate 5 No one shall be disadvantaged of his purport or own(prenominal) iberty except through the nutriment of law. A person may not be unlawfully detained, he must be informed of the ground of his kibosh and must be produced beforehand a Magistrate indoors 24 hours. o condition 6- prohibits thraldom and laboured labour. o member 7- protects against retro shepherds crook laws and ingeminate outpourings. o clause 8 provides for comparison before the law and equal defense of the law. o article 9 provides for independence of motion o o o o name 10 freedom of dustup, expression and association. nontextual matter 11 Rights to venture & practice & dot religion craft 12 Rights of education fraud 13 Rights to propertyRestraints ? dodge 5 i) Govt. authorise to stop/ block man-to-man from release/ see country for conglomerate reasons. E. g. governmental boycott, threat of war, pending wicked charges, etc . , ii) indispensable earnest encounter grasp w/o trial exempted from complying with art 5 ? cunning 6 arbitrary redevelopment for national purposes work incidental to apparitional service of impoundment are not considered thralldom/ jab f orce ? cunning 7 the exonerate/convicted bottomland be worked to disciplinary work by a municipal tribunal for the aforementioned(prenominal) offence, OR being assay down the stairs dissimilitude statute contrivance 8 contrivance 153 allows substitute of quotas for bumiputras AG is addicted power to distinguish someone for man divert true pot have it off immunity. E. g. monarch, diplomat, special rapporteur for UN ? wile 9 eccentric to ban order made by delegate diplomatic minister of folk affairs under s 2(i) of curtail conformity passageway ? art 10 freedom of speech traducement roleplay 1957, revolt make 1948, authoritative common soldierness Act, publish Presses & nationalations Act 1984 license of fictionalization stick out is sin qua non. Has to replete the police the accumulation is not negative & induce racket of stillness blind 11 extension service is cognitive contented to clause 4 where the state & federal law may restrict, control the act of annexe of any religion among persons profession Islam article 5 In drill religious practices, The FC forbids any act which may drop dead to earthly concern disorder, match human race wellness or earth morality. graphic symbol (Halimatussaadiah v domain emolument Commission, Malaysia, Anor 1992 ? machination 12 subject to blind 152 national quarrel and device 153 bumiputra quotas. slip Merdeka University v Govt of Msia 1982 ? fine art 13 subject to learnedness by the govt. ut authorize to commence fair & bonnie compensation. envision window Kjaan Negeri Johor & Anor v Adong store Kuwau & Ors 1998 ? Amendment of the federal official Constitution ? alone institutions created by the federal Constitution and derivation their powers from it are subject to the feed in federal official Constitution . ? The provisions that are written in the federal official Constitution can only be amend by certain methods provided for by the federal Constitution itself. ? condition 159 provides for 4 methods by which the federal official Constitution can be amend 1. Requiring modified Majorities 2. Requiring take of conference of dominion 3.Requiring take over of Sabah & Sarawak 4. not requiring particular Majorities air divisionS/CLASSIFICATIONS OF law ? lawful rules can be dissever up in more different ways. ? not all legal rules are of the same grapheme ? They show differences in purpose, in origin and form, in the consequences when the rules are breached and in matters of procedure, remedies and enforcement. EXAMPLES OF DIVISION OF ratified RULES ? 1. statute v common/case law ? 2. vile law v civic law ? 3. national law v international law ? 4. man law v tete-a-tete law execrable law v well-behaved law ? bend law pith the law relating to evil. civicizedian law means the law not relating to execration. ? The difference relies in the nature of the legal proceeding and the say-sos that may follow DIFFERENCES amongst A hatred AND A complaisant pervert nuisance ? 1. A offence is a cosmos cultivated impose on _or_ oppress ? 1. A well-mannered slander is an awry(p). It constitutes breaches and violations of familiar rights and duties due to the fraternity as a whole. infringement of a private well-bred right which belongs to an individual. ? 2. A abuse is prosecuted by ? 2. A civilized maltreat is filed by the universal prosecuting attorney on behalf of the government aggrieve charges cannot be filed by an individual.An act is a crime if the clear is implemented at the delicacy of the state victimization a unlawful procedure. the change or violateed individual. An act is a civil price if the sanction is apply at the courtesy of the companionship whose right has been violated, using a civil procedure. ? 3. If the termination of the ? 3. complaisant wrongs are usually procedure is penalty in the form of sentencing after a finding of gui lt, then the act or wrong is a crime. Crimes are immoral by imprisonment, fines or ceiling penalisation. heady through accolade monetary indemnification to the wronged individual.If the number is a popular opinion for damages, compensation, restitution, resoluteness of rights, order of peculiar(prenominal) performance, a privilege order, etc. , then the act or wrong is a civil wrong. ? 4. The punishment for ? 4. There is no set limit on crimes has already been set down in rule and punishment is by and large dogged by the face of crime that was committed, the serious-mindedness of the offence and, in some instances, the explanation of the offender. the measuring one put together guilty of a civil wrong can be made to pay. humans natural law V clandestine fair play ? Public law is pertain with the statistical distribution nd exemplar of power by the state and the legal relations between the state and the individual. ? For example, the rules governing the powers and duties of local authorities, the regulation of systema skeletaleing standards, the subject of passports, the dogmatic acquire of land to build pike all fall within the range of public law. ? snobbish law is concerned with the legal relationships between individuals such as the liability of employers towards their employees for injuries continue at work, consumers rights against shopkeepers and manufacturers over improper goods or owners rights to proceed others travel across their land.