Malaysia Legal System

MALAYSIAN
LEGAL SYSTEM
The Coat of Arms (Jata Negara)
Malaysian Legal System 2

Flag of Malaysia

Rukun Negara
MAKA KAMI, rakyat Malaysia, berikrar akan menumpukan
seluruh tenaga dan usaha kami untuk mencapai cita-cita
tersebut berdasarkan atas prinsip-prinsip yang berikut:
• Kepercayaan kepada Tuhan

• Kesetiaan kepada Raja dan Negara
• Keluhuran Perlembagaan
• Kedaulatan Undang-undang
• Kesopanan dan kesusilaan
Federation of Malaysia
The Federation of Malaysia consists of 13 states:
• 11 of the states are located in the Peninsular Malaysia (West
Malaysia)
• 2 states in the Borneo Island (East Malaysia)
• Each states have its own government
The Federal Territories consists of 3 regions:

• W.P. Kuala Lumpur – Dewan Bandaraya Kuala Lumpur
• W.P. Labuan - Perbadanan Labuan
• W.P. Putrajaya – Perbadanan Putrajaya
Federation of Malaysia
What is a federal territory?
• A federal territory is a district under the control of the federal

government rather than a state government
• Kuala Lumpur became a federal territory on 1 Feb 1974. Labuan
in 1984 and Putrajaya in 2001
• All three territories are under the control of the Ministry of
Federal Territories

WHAT IS LAW?
• The body of enacted or customary rules recognized by a
community as binding
Sir John Salmond, Jurisprudence:

• The body of principles recognized and applied by the State in
the administration of justice … law consists of the rules
recognized and acted on by courts of justice

WHAT IS LAW?
• Law is generally the procedures and the rules of conduct or
act which one uses one’s every senses in order to harmonize
the convenient of oneself and/or another
Article 160(2) of the Federal Constitution:

• “Law” includes written law, the common law in so far as it is in
operation in the Federation or any part thereof, and any custom
or usage having the force in the Federation or any part thereof

WHAT IS LAW?
• Law may be defined as a body of rules and regulations which
are developed and enforced by the government or authorities
to deal with crime, business arrangements and social
relationships
• Law is typically administered through a system of courts in

which judges hear disputes (argument/disagreement) between
parties and apply a set of rules in order to provide an outcome
that is just and fair

WHAT IS LAW?
• The manner in which law is administered is known as a legal
system, which typically has developed through tradition in each
country
• Most countries rely upon the police to enforce the law: to issue
legal warnings, execute search or other legal warrants and to make
arrests
• Law is sometimes based on the concept of “fault”. E.g. passing of

sentences in criminal cases and award of damages in civil cases

FUNCTIONS OF LAW
• To attain justice
• To encourage the doing of what is right or just in a particular set of
circumstances
• To govern, to regulate, to control the conduct of the people and
organizations in a community, society or nation
• To protect and preserve the safety and well-being of the society
from those who would threaten it
• To punish the guilty with aims of retribution, deterrence and
rehabilitation
• To strike a true balance in the scale of justice by providing remedies
Classification of Law
PER PER SOURCES PER ENFORCEMENT
CONTENT Historical sources
Public Law
• Customs
• Constitutional & Administrative Law
• Trade Usage
• Criminal Law
• Authoritative Opinions
Substantive law
Private (Civil) Law
Source of Reference • Contract Law
• Statute (Act) • Tort Law
Procedural • Law Reports/Journals • Sale of Goods Law
law • Authoritative Text • Company Law
• Judgements • Property Law
International Law
Legal Sources
• Public International Law
• Written Law (Federal Constitution, State
Constitution, Legislation, Subsidiary • Private International Law
Legislation)
• Unwritten Law (Applicable English Law,
Judicial Decision, Customary Law
• Syariah Law

CATEGORIES OF LAW
• Contract law
• Tort Law
• Criminal Law
Read: Mona Fandey Case
• Constitutional Law
• Property Law
• Company Law
CATEGORIES OF LAW
• Family Law
• International Law
• Intellectual Property Law

Read: McDonald’s v McCurry
And many more laws...

Public Law
Sinha & Dheeraj, Legal Dictionary:
Public law is the branch of the law which concerned with the
relations between:
• governmental divisions
• the organizations of government
• the relations between the individual and the state

Public Law
Constitutional & Administrative Criminal
Describe the rights of individuals Systemise the law against criminal

under the government
Regulates the duties and Public prosecutors will seek
exercise of powers by punishment for inflicted crimes in
administrative authorities state level
Deals with matters such as the There must be a “wrongful act” and
supremacy of parliament and the a “guilty mind” in order to test the
rights of citizens crime offences
Includes the areas dealing with E.g. criminal breach of trust,
state and federal powers murder, cheating, theft etc.
Private Law
• Private law is the branch of the law which concerned with the
legal relations between private individuals, as distinct from
public law

Private Law
Contract Tort
Based on the agreement No agreement between parties for
between two or more claims against the civil wrong or
parties breach of general duty
Must meet all essential The act or omission must be
elements to form a contract wronged and must prove required
(offer, acceptance etc.) elements (duty of care, breach of
that duty, causation and the
damages must not too remote)

International Law
• International law is a body of rules and principles governing
the relations of nations between each other
• Since these rules could not be enforced by any definite

supranational (international) agency, their validity has long
depended on the extent to which any particular nation chose to
recognize them

International Law
Topics covered in an international law:
• Treaties: Agreement between states dealing with any matter of
international concern. E.g. Asean Agreement on Transboundary
Haze Pollution was adopted in 2002 to mitigate haze pollution
• Jurisdiction: Power of a state to make and enforce its laws at

the international level
• Human rights
• War and peace

International Law
Public
• It is the main part of legal rules applying between sovereign states. It deals with
relationship between states
• Includes law of sea, international criminal law, international humanitarian law
Private
• It is the body of rights and duties of citizens of different sovereign states towards
one another. It deals with that branch of the law that applies to individuals or legal
entities involved in legal disputes of an international nature
• Also known as a “municipal law” - every country may have its own version of law
• The rules will guide the judge when the law in more than one country affects a case
(conflicts of law)
• Includes law on civil or human rights, negligence, contract
• Not only between a government and its own citizens but also in how its citizens are
treated by other nations

LEGAL SOURCES OF LAW
Federal Constitution
States Constitution
Written Law
Legislation
Subsidiary Legislation
Legal Sources Common law

English law
Equity
Unwritten Law
Judicial Precedents
Syariah Law Customary Law
LEGAL SOURCES OF LAW
• Peninsular Malaysia, Sabah and Sarawak - one country but is
not governed exactly by the same set of laws
Some laws are originated and adopted from other countries:

• England - Common law
• India - Criminal law and Contract law
• Australia - Land law

WRITTEN LAW
• “Written law” includes this Constitution and the Constitution of

any State

WRITTEN LAW
Section 3 of the Interpretation Acts 1948 and 1967 defines
“written law” as:
• The Federal Constitution and the Constitutions of the States

and subsidiary legislation made thereunder;
• Acts of Parliament and subsidiary legislation made thereunder;
• Ordinance and Enactments (including any federal or State law
styling itself an Ordinance or Enactment) and subsidiary
legislation made thereunder

Federal Constitution is the supreme (highest) law that applies
throughout the country
It constitutes:
• Legislations
• Courts
• Administrative aspects of law
• Powers of the government
• The monarchy
• Rights of the citizens
Sinha & Dheeraj, Legal Dictionary
• Constitution is the fundamental law of a state or nation

• This Constitution is the supreme law of the Federation and any
law passed after Merdeka Day which is inconsistent with this
Constitution shall, to the extent of the inconsistency, be void
• The constitution’s supremacy is preserved by allowing the

courts to review legislative or executive acts
Can the Constitution be amended?
• Yes. Article 159 (1) – provides the Constitution may be amended
by passing a federal law, subject to certain provisions
• Except for certain minor amendments, Dewan Rakyat and
Dewan Negara requires absolute majority of 2/3
Meaning:
• 148 members of 222 members of Dewan Rakyat must vote in
favour
• For Dewan Negara, 47 members out of 70 members
The Constitution Malaysia is a 3 branches of

is the Supreme Constitutional Government:
Law of Malaysia Monarchy Legislature,
Executive &
Judiciary

• The Yang Di-Pertuan Agong (the King) is the Federal head of State
of Malaysia. He reigns but does not rule
• Sultan or Yang Di-Pertua Negeri is the head of state
• Every State has a government and own written constitution on who

shall govern and how
• The Prime Minister is the elected head of government
• Chief Ministers are head of the state government

Article 73 of Federal Constitution states:
In exercising the legislative powers conferred on it by this

Constitution:
(a) Parliament may make laws for the whole or any part of the
Federation and laws having effect outside as well as within the
Federation;
(b) The legislature of a State may make laws for the whole or any
part of that State
• The laws made by the Parliament and the State Legislatures
must comply with the manners and provisions laid out in the
Federal constitution
The divisions of legislation are prescribed in the Ninth Schedule:

• Federal List (List I) are legislated by the Parliament
• State List (List II) are legislated by the State Legislature
• Concurrent List (List III) are matters shared by the Parliament
and State Legislature

Federal List (List I)
• Matters where Parliament can legislate
State List (List II)

• Matters where State Assembly can legislate
Concurrent List (List III)

• Matters where Parliament & State Assembly can legislate

Federal Government
• External affairs, national defence, internal security, citizenship, etc.
State Government
• Islamic law, land, agriculture and forestry, local government, etc.
Federal & State Government

• Town & country planning, housing, national park, social welfare, etc.

Article 75
• If any State law is inconsistent with a Federal law, the Federal

law shall prevail and the State law shall, to the extent of the
inconsistency, be void

• The Yang di-Pertuan Agong (YDPA) is Malaysia’s Head of State
• He is elected by the Conference of Rulers, by 5 year term

rotation, from the Rulers of the nine Malay States
• As a constitutional monarch, he is required to exercise his

executive powers on the advice of Cabinet

State Constitution
• Involves matters related to the Ruler (to act on advice), the
Executive Council, the Legislature, the Legislature Assembly, State
employees and amendment of the constitution and financial
provisions

• ‘The Federation shall guarantee the right of a Ruler of a State to
succeed and to hold, enjoy and exercise the constitutional rights
and privileges of Ruler of that State in accordance with the
Constitution of that State; but any dispute as to the title to the
succession as Ruler of any State shall be determined solely by such
authorities and in such manner as may be provided by the
Constitution of that State’

Legislation
• a law made by Parliament is called an Act of Parliament
Article 73 of the Federal Constitution:

In exercising the legislative powers conferred on it by this
Constitution:
(a) Parliament may make laws for the whole or any part of the
Federation and laws having effect outside as well as within the
Federation;
(b) The Legislature of a State may make laws for the whole or any
part of that State
Legislation
• The Parliament has the power to enact laws
• Legislative power is granted in accordance with Article 44 of

the Federal Constitution of the Yang Di-Pertuan Agong, the
Senate (Dewan Negara) and the House of Representatives
(Dewan Rakyat)
• Duties in legislature include the duty to amend the constitution,

approve the new law, repealing the old law and new laws and
verifying its progress

Legislation
• The Parliament has power to make laws for the whole of the
Federation or any part
• Federal Parliament has jurisdiction over many important matters

such as finance, commerce and industry, education, defence and
foreign affairs
The Parliament will exercise its power to make laws by the passing
of Bills in both Houses of Parliament:
• Senate (Dewan Negara) - Upper house
• House of Representatives (Dewan Rakyat) - Lower house
Legislation
• A Bill may originate in either of the House
• The House, which a Bill is originated, shall send it to the other

House once the Bill has been passed
• A Bill goes through several stages of ‘Reading’ in both the

Houses of Parliament i.e. House of Representative (Dewan
Rakyat) & Senate (Dewan Negara)

Legislation
• Drafting of Bill - after the proposal approved by Cabinet
• First Reading - only the long title will be read. This is when the
Minister will introduce the Bill in Dewan Rakyat. No debate is
allowed
• The minister will announce orally the expected date of the Second
Reading
• The text of the Bill must have been printed and circulated to every
member of the House before the Second Reading
Legislation
• Second Reading - the most important for debate and voting
• The contents, merits and principles of the Bill are debated and
discussed by all members of the House
• Voting is by simple majority. For Constitutional amendments, it

requires 2/3 majority
• The Bill pass on to the Committee Stage if the majority of the

members are in favor of it. If the majority vote against the motion
that the Bill be read the second time, no further action will be taken
Legislation
• Committee Stage - detailed examination of the Bill. The
committee can be Committee of the whole House or a select
committees
• They will have specific debate on all clauses, schedules and

preambles
• Amendments will be carried out if necessary. Special technical

details of the Bill may be discussed at this stage

Legislation
• Third Reading - for further ‘read for the third time and do pass’.
Voting for second time
• A Bill that clears Third reading is transmitted to the other House

where it goes through a similar procedure. i.e. the First, Second,
Committee Stage and Third Reading
• A Bill passed by one House can be amended by the other House. If

both Houses are unable to agree on the amendments, then it is ‘laid
aside’. Meaning no further action is possible on the Bill

Legislation
• Royal Assent – A bill secures the passage through both houses
is presented to the Yang Di Pertuan Agong
• He will give his royal assent in form of Public Seal within 30

days from the date a Bill is being presented to him
• The Bill will become law at the expiration of the 30 days period
specified should the Yang di-Pertuan Agong, for whatever
reason, fails to give his assent to the Bill within the specified
period

Legislation
• However, no laws shall come into force until it has been
gazetted or published in the Gazette under the Article 66(5) of
the Federal Constitution
• The law will be printed
• http://www.federalgazette.agc.gov.my/index.php

Legislation
• On 6 April 2017, Dewan Rakyat was in a marathon session for
almost 20 hours, ended at 5.05am setting a new record as the
longest Parliament session.
• The old record time was at 4.25am set in 2015
• Few Bills were passed

The Supply Bill (Budget 2021)
6 November 2020
• The government tabled Budget 2021 at Dewan Rakyat
25 November 2020
• The policy stage in Parliament. Budget 2021 was passed with a
simple voice vote
• Under Standing Order 46(3), a Bill will be put to the House for a
voice vote of “ayes” and “noes” at the debates, with the results
announced by the Speaker

26 November 2020
• Amanah's Pokok Sena MP Datuk Mahfuz Omar called for a bloc
vote
• Parliament Standing Order 46(4): The voice vote results can be
challenged by an MP by calling for a bloc vote which involves
actual vote count of lawmakers present in the House
• However, for a bloc vote to be triggered, at least 15 lawmakers
must be seen standing in support, failing which the Speaker
will announce results of the earlier voice vote
• There were only 13 MPs who stood up in support

30 November 2020
• Resume debates at the Committee Stage
• Although Budget 2021 can be passed via a simple voice vote

after debates at the committee stage completes, it can still be
derailed via a bloc vote

111 108 1
• Total: 220/222 (2 vacant due to death of the MP)

• 111 votes represented a simple majority

16 December 2020
• All 27 ministries’ budgets had cleared the committee stage of
Budget 2021 after passing the policy stage last month. The
opposition lost all its bloc voting during the debates
• The RM322.5bil Budget, the largest in the nation’s history was

passed with a thin margin at the Third & Final Reading
• The Budget 2021 is expected to handle the economic and social

impact of the Covid-19 pandemic

What now?
• The Budget will now be presented to the Dewan Negara for

debates
• The Dewan Negara cannot formally reject Bills but can delay
their passage by one month or a year if it is not a money Bill
• Once passed by the Dewan Negara, the Budget will be sent to

the Yang Di-Pertuan Agong for the Royal Assent
Can a Bill become Law without Royal
Assent?
Answer: YES
• National Security Council (NSC) Bill did not receive royal assent like
other Bills
• It was passed by Dewan Rakyat and Dewan Negara with 107 in
favour and 74 against the Bill. Some abstained or absented
themselves
• However, the Conference of Rulers wanted some provisions of the
Bill to be refined
• The Bill automatically became law after 30 days, on 18 February
2016 as if the royal assent was given
• NSC Act 2016 came into force on 1 August 2016

Anti-Fake Laws 2018
• The Anti-Fake News Bill 2018 passed the Second Reading at the
Dewan Rakyat after a bloc vote, to bring the Bill to the Committee
Stage. The bloc vote was called by the opposition, but 123 members
voted in favour of and 64 members voting against the Bill
• The bloc vote took place after 50 MPs debated the Bill at the policy
stage
• At the Committee Stage, the Dewan Rakyat on 2 April, passed the

Anti-Fake News Bill with two amendments: to replace the word
“knowingly” with “maliciously” and reduce the maximum jail term
from 10 to 6 years
Anti-Fake Laws 2018
• The Dewan Negara passed the Anti-Fake News Bill 2018 on 3 April
with a majority vote after 17 senators spoke during the debate
session
• The Anti-Fake News Bill 2018 has received the Royal assent and has
been gazetted. The Federal Gazette states the law received the Yang
di-Pertuan Agong’s Royal Assent on 9 April 2018
• The new law comes into effect on 11 April. A person committing this
offence is liable of not exceeding RM500,000 or imprisonment of a
term not more than 6 years

DEWAN RAKYAT DEWAN NEGARA

Legislation
Ordinance and Enactment
Section 3 of the Interpretation Acts 1948 and 1967:

• State laws are called Enactments, including those made by the
former Malay States before Merdeka Day. The only exception to this
is the State of Sarawak whose laws are still termed Ordinance
• Article 160(2) of the Federation Constitution:

• ‘Enactment’ where the expression occurs in the Eight Schedule,
means a law made by the Legislature of a State

Section 3 of the Interpretation Acts 1948 and 1967:
• Subsidiary legislation means any proclamation, rule,

regulation, order, notification, by-law or other instrument made
under any Act, Enactment, Ordinance or other lawful authority
and having legislative effect

Reasons to have this delegation:
• The legislature has insufficient time to enact the legislation

• Many modern legislations involve technical matters therefore
experts must be referred to
• When the laws need to be made or amended quickly
• Persons or bodies where powers have been delegated to them
will have the authority to make the changes

UNWRITTEN LAW
• Unwritten law constitutes that part of the local law that is not
recognized as ‘written law’ in the Malaysian context
• It falls outside the classification afforded under Section 3 of the
Interpretation Acts 1948 and 1967
Unwritten law comprises the following:

• English Law - Common Law and Equity as applicable in the local
context
• Judicial decisions (or case law) of the superior courts
• Customary Law and usages that have been recognized as
applicable by the Malaysian courts
English Law
• Civil Law Act 1956 states that English Law can be used in Malaysia
However, the application of English law can apply subject to two

limitations:
• With the absence of Malaysian law on the particular subjects,
English law is applied only to fill the missing part in the Malaysian
legal system
• Only English Law that suited to local circumstances could be

applied
English Law
Section 3(1) Civil Law Act states:
• “The said common law, rules and equity and statutes of general
application shall be applied so far only as the circumstances of
the States of Malaysia and their respectives inhabitants permit
and subject to such qualifications as local circumstances…”

English Law: Common Law
• Section 3 of the Interpretation Acts 1948 and 1967 defines
“common law” to mean the common law of England
• It is mainly made up of non-statutory (non-written) laws, which

are the precedents derived from judgements given on real
cases by judges in courts

• As the law was stood up prior to Merdeka, this English
common law was only applicable “as the circumstances of the
States of Malaysia and their respective inhabitants permit and
subjected to such qualifications as local circumstances render
necessary”
• Malaysian Courts have a wide discretion whether to accept the

common law principle or not

• When Malaysian judges accept such principles, they become
part of Malaysian common law and Malaysian law has
developed in that manner
• Almost all ex-British colonies have adopted the common law

system
• But in each country, the Courts develop their own common law
which may not be identical to the English common law

English Law: Equity
• Equity is the body of law, formerly enforced in the Court of the

Chancellor of England to aid, supplement and correct the common
law
• Equity applied the concept of ‘justice’ or ‘fairness’
• It is used in common law decisions as a gauge of moral rightness in

the interpretation of statutes, and in the application of legal rules

English Law: Equity
• It is developed after many conflicts could not be redressed
through the common law. Meaning, it is for the King to decide
• The King would refer the cases to his adviser or known as the
King’s Chancellors

English Law: Equity
• The King’s Chancellors did not apply the common law (judicial
precedents) but they practiced the Christian precepts on
fairness (good faith)
• When there are conflicts between the English Common law and
Equity law, the rules of equity shall prevail
• But when there is a conflict between English Law and

Malaysian written law, Malaysian written law will prevail

Judicial Decision
• Judicial Decision is the law which is created by the decisions of
case law in courts
• The past judicial decisions in similar situations are known

as judicial precedent (explained in later slides)
• This judicial precedent becomes an example or authority, for

judges deciding similar issues in the future

Judicial Decision
• It means that courts look to past and similar issues to guide
their decisions
• The decision made by the judge in this situation is known as

“Doctrine of Binding Judicial Precedent”

Judicial Precedents
• The doctrine of judicial precedent is encapsulated in the Latin terms
“stare decisis”
• Precedent is the official action or decision that happened in the past

seen as example or rule to be followed
• The general rule is decisions of higher courts bind lower courts and
some courts are bound by their own decisions
• Malaysian court do refer to decisions of higher court of other

jurisdiction. However, the decisions is persuasive rather than
binding judicial precedents

Judicial Precedents
• Case A - The Court of Appeal has made a decision in 2000
• Case B - the same case facts and situations have been brought
to the High Court, which is a lower court, in 2005
• The High Court must therefore decide the case based on the
principles governed by the Court of Appeal in 2000
• Under this doctrine, decision made by higher courts will bind
lower courts

Judicial Precedents
Stare decisis is based on 2 conditions:
• The court making the decision is higher than the court is to be

bound by the decision. If both courts are at the same level, then
a decision by one does not bind the other. E.g. High Court’s
decision
• The court must be in the same hierarchy. E.g. Federal court in

Malaysia is 1 hierarchy which is different from other common
law jurisdiction such as British, Hong Kong

Judicial Precedents
However, a few situations where the court may not apply the earlier
precedent:
• The judge in Superior Court overruled the precedent decided by the

lower courts
• Precedent laid down by the lower court where the case is on appeal
• The earlier precedent was arrived at per incuriam (made in
ignorance of a statute or a binding precedent)
• There are material differences in facts between the case
established the precedent with the new one
Judicial Precedents
Advantages Disadvantages
• Uniformity – for • Rigidity – once a rule
all laid down, it is binding
• Certainty – • Illogical – if judges do

lawyers can not wish to follow
advise on the judicial precedents,
probable outcome judges may introduce
illogicality and
artificiality

Judicial Precedents
• Flexible – rules • Complexity – so many
based on facts precedents making it
• New rules can be hard to find relevant
established to precedents to follow
meet new
circumstances
and changing
needs of society

Judicial Precedents
• Save time – • Bulky – so many
already existing precedents and no
solutions one can know them all
• Save legal cost – • Slow development –
lesser disputes depends on slow and
expensive litigation
systems

Customary Law
• Custom is a rule of conduct which in a given place and among given
groups of persons has been followed for an appreciable time. They
are given legal force by the courts
Customs from the local inhabitants such as:

• Family law E.g. marriage, divorce and inheritance
• Adat in the Malay community. E.g Adat Pepatih in Negeri Sembilan
• Hindu and Chinese customs
• Native customary law e.g. Iban in Sarawak

Customary Law
• Adat Pepatih is effective in Negeri Sembilan for land lineage,
election of lembaga, undang and the Yang di-Pertuan Besar
• Generally, Hindus and Chinese customs have become little or

no effect after the enforcement of Law Reform (Marriage and
Divorce) Act 1976 on 1 March 1982 where polygamous
marriages were abolished

Syariah Law
• The Syariah law only applies to the Muslims
• It is a sacred law of Islam as revealed by Prophet Muhammad

s.w.t.
• It is totally based on God’s commands on duties towards Allah

and relationship of one Muslim with another

Syariah Law
Article 3 of the Federal Constitution states:
• Islam is the religion of the Federation but other religions may be

practiced in peace and harmony in any part of the Federation
• The court that will enforce the Islamic law are the Syariah Court for
matters such as:
• Family matters
• Marriage
• Divorce

3 BRANCHES OF GOVERNMENT
YDPA
Legislative Executive Judiciary
Prime
Parliament Chief Judge
Ministers/Ministers
House of Government
Senate Courts
Representative Ministries
Government
Citizen Citizen
Departments

Separation of Powers
• Malaysia practices Parliamentary Democracy with
Constitutional Monarchy and YDPA as the Paramount Ruler
• The Federal Constitution was legislated with the setting up of

conditions for this system to exist
• One of the characteristics of Parliament Democracy is the

separation of powers into 3 parts which are the Legislative,
Judiciary and Executive

Separation of Powers
Legislative Executive Judiciary
Makes law Administers Interprets

law and apply
law

Legislative
Article 44
• Parliament is a bi-cameral legislature comprising of:

• Lower house known as House of Representatives (Dewan
Rakyat). A member of the Dewan Rakyat is called a Member of
Parliament (MP).
• Upper house known as the Senate (Dewan Negara). A member
of the Dewan Negara is called a Senator.
• The Yang di Pertuan Agong is also a part of Parliament

Legislative
• Parliament is a legislative body that passes and amends Federal
laws, so that administration could run smoothly
• They cannot interfere to the administration carried out by the

Executive
• Parliament is where law will be enacted and the voice of the people
was heard through their representative
• They will scrutinizes Government policies and approves

Government budgets and proposal for new taxes
Legislative
• Article 46 - The Dewan Rakyat has 222 elected members
Members of Parliaments by State
31
26 25
24
22
15 14 14 13
11
8 8
6
3
1 1

Legislative Dewan Rakyat Dewan Negara
Number of 222 70
members
• Article 45 - 54 Mode of Elected by • 4 Senators - appointed by
appointment voters the YDPA for the Federal
Territories (2 for KL, 1 for
Putrajaya, 1 for Labuan)
• 26 Senators - elected by
State Legislatures (2 for
each State)
• 40 Senators - appointed by
the YDPA
Term of Until the • 3 years, unaffected by
Office dissolution of dissolution of Parliament
Parliament • A person can only be a
Senator for a maximum of 2
terms, whether consecutive
Malaysian Legal System or not 90
Legislative
• Article 55 Parliamentary Cycle
Each parliament lasts for 5 years from the date of its first
meeting, unless dissolved earlier by the YDPA at the request
of the PM
Parliament dissolved
Elections within 60 days of dissolution
Next Parliament within 120 days of dissolution

New Parliament starts
13th Parliament First Meeting was 24 June 2013
13th Parliament Automatic Dissolution 24 June 2018

Legislative

Legislative
Parliament
dissolved
7 April 2018
GE 14
9 May 2018
GE15
2023
Parliamentary Privileges
Article 44 - 68
• No person shall be liable in any court for anything said or vote

given in any proceedings
• The immunity is effective against all criminal and civil laws
• It cannot be questioned in any court

Parliamentary Privileges
However, there are exceptions. The immunity does not apply to:
• Laws passed under Article 10(4) of the Constitution which

prohibit the questioning of any matter, right, status, position,
privilege, sovereignty or prerogative
• Any offence under the Sedition Act 1948
• Any words or actions which were not part of parliamentary

proceedings
Executive
• Involves in administering the nation and ensuring that
government policy will be carried out according to the law
• The government departments which assist in administering the

nation are part of the executive
• The duties must be done according to the power granted by the

law so that it will not be void and be held ultra vires and has no
effect

Executive
Article 39 – 43
• The executive authority of the Federation is vested in the Yang

di-Pertuan Agong
• But, as a constitutional monarch, he must act in accordance

with the advice of the Cabinet, except in limited matters such
as the giving of consent to dissolve Parliament

Executive
Article 43 Appointment of Cabinet
Dewan Rakyat
• YDPA appoints PM
• Acting in his discretion, the YDPA first appoints as Prime
Minister a member of the Dewan Rakyat who in the YDPA’s
judgment is likely to command the confidence of the majority of
that Dewan
Dewan Rakyat
• YDPA appoints other Ministers under PM’s advice
• Acting on the advice of the PM, the YDPA appoints other
Ministers from among the members of either the Dewan
Rakyat or the Dewan Negara
Dewan Negara
• Cabinet is formed
Judiciary
• The law which was enacted by the legislative will not only
govern the people but also the nation including the three
government organs
• If dispute arise as to whether certain action contradict the law,

then it may be challenge in court
• The court system under judiciary plays an important role in

determining as to whether action done is legal or illegal

Administration of Law
Special Court
SUPERIOR COURTS
Federal Court
Court of Appeal
High Court in Malaya / High Court in Sabah & Sarawak

SUBORDINATE COURTS
Sessions Court
Syariah
Court Magistrates’ Court

Judiciary
Articles 121 – 131A
• The power to interpret laws, including the Constitution, lies with the
judiciary
• The judiciary will interpret the law enacted by the legislative and at
the same time, applies the said law in arriving at their decision
• All parties will be treated equally and the judiciary is free to make
judgments without coercion, fear or favour

Judiciary
Article 122B Appointment of Judges
• The YDPA, as a constitutional monarch is required to act on the
advice of the PM
• Judges are in effect appointed by the Prime Minister, through
this process:
PM consults PM advises the
persons stipulated YDPA to appoint YDPA appoints* that
in Art 122B (e.g. the the person person as judge,
Chief Justice of the selected by the PM after consulting the
Federal Court) as a judge Conference of Rulers

Judiciary
Article 125 Judges’ Security of Tenure
• Once appointed, judges cannot be removed except under
exceptional circumstances (such as infirmity of mind) by a
tribunal of judges
Chief Justice of President of
Chief Judge of
the Federal the Court of
a High Court
Court Appeal
Other Federal Other Court of Other High

Court Judges Appeal Judges Court Judges
Federal Court
• It is the highest court of the land
• Every proceeding must be decided by 3 judges or greater

uneven numbers may be decided by the Chief Justice
• The decision of the majority becomes the decision of the Court

Federal Court
Federal court will hear and determine:
• Civil cases from the Court of Appeal after leave (permission) is

granted by the Federal Court
• Criminal appeal cases from Court of Appeal and decided by

High Court

Court of Appeal
• When an appeal is heard by 3 judges or more, the decision of the
majority becomes the decision of the Court
The Court of Appeal will hear:

• For civil cases, all appeals from the High Courts:
• where claims are more than RM250,000
• where claims are less than RM250,000, a leave (permission) of the
Court of Appeal must first be obtained
• For criminal jurisdiction, appeals from High Courts in original
jurisdiction and appeal or revisionary jurisdiction decided by
Sessions Court
• criminal appeals against decisions of the High Courts
High Courts
• A judge sitting alone
• General supervisory and revisionary jurisdiction over all the
Subordinate Courts
The High Courts have:

• unlimited civil jurisdiction but normally tries cases value in
dispute exceeds RM1,000,000
• powers to hear criminal matters. E.g. murder, drug trafficking
• to hear appeals from the Subordinate Courts in civil and
criminal matters
Session Courts
• Sessions Courts unlimited jurisdiction does not exceed
RM1,000,000
• Civil nature e.g. motor vehicle accidents
• Have powers to hear all criminal matters except for offences

punishable with death and may pass any sentences allowed by
law except the sentence of death

Magistrates’ Courts
Magistrates’ Courts are staffed by:
First class magistrate

• May try all offences punishable with up to 10 years
imprisonment or by fine only
Second Class magistrate

• May try all offences punishable with up to 12 months
imprisonment or by fine only
First Class Magistrate may pass sentence not exceed:
• 5 years imprisonment
• A fine not exceeding RM10,000
• Whipping up to 12 strokes
• Any combination of the above

Second Class Magistrate may pass sentence not exceed:
• 6 months imprisonment
• A fine of RM1,000
• Any combination of the above

Special Court
• Setting up of the Special Court in 1993 became a major turning
point in the legal system in Malaysia
• Before the amendment was made, no proceeding can be

brought in any court against the Yang di-Pertuan Agong or the
Ruler of a State in his personal capacity

Special Court
• The Chairperson of the Special Court shall be Chief Justice of
the Federal Court together with the Chief Judges of the High
Courts and two other persons who hold or have held office as
Judge of the Supreme Court or a High Court appointed by the
Conference of Rulers
• The Special Court has exclusive jurisdiction to try all offences

committed in the Federation by the Yang di-Pertuan Agong or
the Ruler of a State and all civil cases by or against the Yang
di-Pertuan Agong or the Ruler of a State, notwithstanding
where the cause of action arose

Court for Children
• Established under the Child Act 2001 for the purpose of hearing,
determining or disposing of any charge against a child
• Section 2 - Child is a person under the age of 18 years, and for the
purposes of criminal proceedings, means a person who has
attained the age of 10
• The words ‘person convicted’, ‘conviction’ and ‘sentence’ cannot be

used in relation to a child dealt with by the Court for Children. The
terms used are ‘child found guilty’, a ‘finding of guilt’ and an ‘order
made upon a finding of guilt’ respectively

Doctrine of Ultra Vires
• Ultra vires means “beyond the powers”
• It is ultra vires if an act requires legal authority and it is done

without such authority
• Ultra vires acts are invalid
• For the administrators, this also governs the validity of all

delegated and sub-delegated legislation
Doctrine of Ultra Vires
For administrative power, it is ultra vires if:
• It is unauthorized in substance
• It is procedurally irregular, improperly motivated or in breach

of the rules of natural justice
• an act that goes beyond the limits of the powers conferred on it

LITIGATION
• The process of fighting or defending a case in a court of law
• Litigate means to take legal action
• In Malaysia, court cases are presented and conducted under an

adversarial system as adopted in England
• The plaintiff and the defendant are to find evidence to be

presented to the judge to adjudicate
Criminal Law & Civil Law
Criminal Law Civil Law
• to punish the offenders • to redress the wrongs (to set right,
• to give offenders & others a strong remedy or rectify)
inducement not to commit same or • award of damages - compensation or
similar crimes restitution (to bring back to a former
• to reform him and perhaps to satisfy condition/restore)
the public sense that wrongdoing • offences against individuals
ought to meet with punishment • burden of proof: on balance of
• passing of sentences probabilities, whose case is stronger
• offences against the State for
obligations imposed on individuals
• burden of proof - beyond reasonable
doubt

Party Government Private party i.e.
taking corporation, individual
action person
Party who Public Prosecutor Plaintiff / Claimant
files
lawsuit is
called
The legal Criminal defendant Civil defendant
action
against
Punishment A defendant will be If a defendant is liable,
convicted/guilty or plaintiff will generally
acquitted/not guilty be awarded a
judgment:
If convicted he will • a sum of money
generally receive a which the losing
sentence i.e. jail, fine, party will have to pay
death penalty etc. • an injunction i.e. an
order that someone
do or refrain from
Malaysian Legal System
doing something 120
Burden of The State / Prosecutor Initially on the plaintiff
proof must prove the The burden can shift
defendant is guilty to the defendant to
refute or rebut the
plaintiff's evidence
Standard of The defendant is guilty The defendant is more
proof beyond reasonable likely to be liable than
doubt not liable, on balance
of probabilities
PRIMA FACIE CASE
• Prima facie is a Latin phrase which means “at first glance” or
“on the face of it”
• Once the plaintiff/public prosecutor has adduced their
evidence, the judge must decide if there is a “prime facie” case.
i.e. sufficient justification that there is a case to answer
• “Prima facie” is not a conclusive finding of guilt on the charges

• The finding of whether the defendant or accused is guilty or not
of the allegations is made at the conclusion of the trial

PRIMA FACIE CASE
• If the judge is of the opinion that the plaintiff or public
prosecutor has not proven a “prima facie” case, the judge must
give judgment in favour of the defendant or accused
• Principle: presumption that the defendant / accused are

innocent until proven to the contrary

How the case proceeds?
• A case proceeds in the following sequence:
• Plaintiff / PP begins their case
• Plaintiff / PP concludes their case
• The judge makes a findings of whether there is a ‘prima facie’ case
• If no “prima facie” case - judgment in favour of defendant/accused

How the case proceeds?
• If there is a “prima facie” case proven - defendant/accused
called on to begin their case
• Defendant /accused begin their case; OR
• Exercise their rights of silence
• The judge decides on whether the defendant/accused are liable

/guilty or not
ALTERNATIVE DISPUTE RESOLUTION
• ADR is a term for the methods that parties can use to settle
their disputes without resorting to court proceedings
The most common forms of alternative dispute resolution:
• Mediation
• Arbitration
• Adjudication

Mediation
• Mediation is a voluntary process of settlement by the
assistance of a third party
• A mediator facilitates communication and negotiations to assist

the conflicting parties to reach an amicable settlement
• The Mediation Act 2012 facilitate this process

Mediation
The rules of mediation:
1) Disputing parties may submit to mediation at any time
• Either before or during the court proceeding. The judges may
also encourage parties to mediation
2) Disputing parties may decide the terms of mediation

• Parties may sign a mediation agreement with agreed terms.
Example: Which mediation forum to go, parties’ choice of
mediator, mediation communications, confidentiality etc.

Mediation
The rules of mediation:
3) The mediator shall have no decision-making power
• Mediator only play the role of facilitating
communications/negotiations and identifying their needs, and
developing options amongst them for amicable solution
4) All disclosures, communications and even admissions made

under a mediation session are strictly “without prejudice”
• It is not subject to discovery or be admissible in evidence in any
proceedings unless parties consented to it

Mediation
• If parties cannot come to a consensus, they can request the
Malaysian Mediation Centre of the Bar Council (“MMC”) to
appoint a qualified mediator from its panel
• Any agreement arising from a successful mediation is

recorded in a Settlement Agreement signed by the parties
• If mediation is not successful, parties may proceed to pursue

their rights in litigation or arbitration

Arbitration
• Arbitration is a private and judicial determination of a dispute
by an independent third party
The difference between mediation and arbitration:

• Mediation - the parties maintain full control of the workings
and outcome of the decision
• Arbitration - the arbitrator decides the outcome of the
proceedings and the parties are bound by that decision

Arbitration
• Arbitration is similar to court proceedings where the arbitrator
(like the judge) will decide the dispute
• Parties may agree by way of an arbitration clause to refer any

dispute that might arise in respect of that contract to
arbitration
• Parties may also agree to refer an existing dispute to

arbitration even though there was no such prior agreement

Arbitration
• Parties are at liberty to decide on the number of arbitrators,
the appointing body in the event parties cannot mutually agree
on the choice of arbitrators, the place of the arbitration, etc.
• The Arbitration Act 2005 is the law governing arbitration in

Malaysia. Asian International Arbitration Centre (AIAC) is the
default appointing body (previously known as Kuala Lumpur
Regional Centre for Arbitration (KLRCA))

Arbitration
• Arbitrators do not have to be legally qualified but they must be
independent and impartial
• There is no specific qualifications required of arbitrators.

However, parties are usually advised to appoint arbitrators
who have sufficient experience in arbitration as well as
technical knowledge on the subject matter in dispute

Adjudication
• It is a process for the resolution of payment construction
disputes under the Construction Industry Payment and
Adjudication Act 2012 (CIPAA)
• The unpaid party is only allowed to refer a “payment” dispute

not other claims like tort etc.
• Section 4 defines “payment” to mean “payment for work done

or services rendered under the express terms of a
construction contract”

Adjudication
The non-paying party has to reply to the claim dispute:
• They may accept that they owe the unpaid party the claimed amount
and propose to make payment to the unpaid party
• They may accept that they owe a part of the claimed amount and
propose to make payment of the said part to the unpaid party
• They may completely deny the claimed amount and state its defence
to the claim
• They may opt to not reply to the Payment Claim within the 10
working days at all
Adjudication
• If they do not respond to the Payment Claim at all, the entire
Payment Claim is deemed to be disputed and the Payment
Claim can be taken for adjudication proceedings

Statutory Tribunal
• The Ministry of Urban Wellbeing, Housing and Local
Government set up the Tribunal for Homebuyer Claims under
the Housing Development (Control and Licensing) Act 1966 to
assist parties in dispute over housing matters
• For strata properties, the Strata Management Tribunal is set up
under Strata Management (Strata Management Tribunal)
Regulations 2015
• The Tribunal For Consumer Claims was established under the
Ministry of Domestic Trade and Consumer Affairs to assist on
claims for any loss suffered matters concerning consumer’s
interest

Malaysia Legal System

Uploaded by

Copyright:

Available Formats

Malaysia Legal System

Uploaded by

Document Information

Original Description:

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Malaysia Legal System

Uploaded by

Copyright:

Available Formats

MALAYSIAN

Malaysian Legal System 2

Malaysian Legal System 3

• Kepercayaan kepada Tuhan

The Federal Territories consists of 3 regions:

• A federal territory is a district under the control of the federal

Malaysian Legal System 6

Sir John Salmond, Jurisprudence:

Malaysian Legal System 7

Article 160(2) of the Federal Constitution:

Malaysian Legal System 8

• Law is typically administered through a system of courts in

Malaysian Legal System 9

• Law is sometimes based on the concept of “fault”. E.g. passing of

Malaysian Legal System 10

Malaysian Legal System 12

• Intellectual Property Law

And many more laws...

Malaysian Legal System 14

Malaysian Legal System 15

Describe the rights of individuals Systemise the law against criminal

Malaysian Legal System 17

Malaysian Legal System 18

• Since these rules could not be enforced by any definite

Malaysian Legal System 19

• Jurisdiction: Power of a state to make and enforce its laws at

Malaysian Legal System 20

Malaysian Legal System 21

Legal Sources Common law

Some laws are originated and adopted from other countries:

Malaysian Legal System 23

• “Written law” includes this Constitution and the Constitution of

Malaysian Legal System 24

• The Federal Constitution and the Constitutions of the States

Malaysian Legal System 25

Article 4(1) of the Federal Constitution:

• The constitution’s supremacy is preserved by allowing the

The Constitution Malaysia is a 3 branches of

Malaysian Legal System 29

• Sultan or Yang Di-Pertua Negeri is the head of state

• Every State has a government and own written constitution on who

• The Prime Minister is the elected head of government

• Chief Ministers are head of the state government

Malaysian Legal System 30

In exercising the legislative powers conferred on it by this

The divisions of legislation are prescribed in the Ninth Schedule:

Malaysian Legal System 32

State List (List II)

Concurrent List (List III)

Malaysian Legal System 33

Federal & State Government

Malaysian Legal System 34

• If any State law is inconsistent with a Federal law, the Federal

Malaysian Legal System 35

• He is elected by the Conference of Rulers, by 5 year term

• As a constitutional monarch, he is required to exercise his

Malaysian Legal System 36

Article 71(1) of the Federal Constitution:

Malaysian Legal System 37