Private Law/Civil Law: r/s between citizen.i.e contract, tort, trust, land, family, company, partnership,
agency, commercial law. Action at the instance of the individual.
Plaintiff v Defendant.
Public Law : r/s between citizen & the state. i.e constitutional law – structure of govt & the rights of
individual under that govt. Administrative law – duties & exercise of powers by administrative authorities.
Criminal law – acts/omissions which are offences against the State, if liable & guilty will be punished.
International Law: Private I/L- laws of more than one country affect a case(conflict of law). Which applicable if involve foreign matters
Public I/L- law that prevails over state. intergovernmental organizations (treaties etc)
SOURCES OF LAW
Written Law: 1) the Federal Constitution
2) the thirteen Constitution of the States
3) federal laws made by Parliament
4) state laws made by the state assemblies
5) federal & state subsidiary legislation
Unwritten Law : 1) judicial decision
2) principles of English law
3) customary and Islamic law
Federal Constitution is the supreme law of the land.
Article 4: any law contravene is invalid & void.
Article 162: h/e law enacted b/f independent valid until repeal.
Article 149: subversive law
Article 150: proclamation of emergency
State Constitutions are individual constitutions of each of the 13 states which provide for a single chamber Legislative Assembly in each state. Variations – to cater local peculiarities i.e succession to the throne.
Federal Law made by Parliament after independence –Act while law made between Malayan Union 1946 & 10-9-1956 are called Ordinances. Law made by the King during proclamation of Emergency when Parliament not sitting concurrently also known as Ordinance. F/L covers the whole country and extra-territorially.
State Law made by State Legislative Assembly – Enactment (h/e Sarawak its laws – Ordinances) S/L - apply to that state.
F/L & S/L are legislation/statute law : laws made by a person or body which has the power to make law.
Subsidiary Legislation are rules & regulations made by authority under powers conferred on it by a statute.
SUBSIDIARY/DELEGATED LEGISLATION
S3- Interpretation Acts 1948 & 1967
“any proclamation, rule, regulation, order, notification, by-law or other instrument made under any Ordinance, Enactment or other lawful authority & having legislative effect.”
-increasingly important – business of govt gets more complicated & expand.
1)More detail. Legislator lack of time.
2)Need technical knowledge.
3)flexible, can be amended and repeal.
Control Of Subsidiary Legislation
1- Consultation
2- Publicity
“Ignorance of law not excuse for breaking it”
3- Parliamentary control
4- Judicial Review – “doctrine of ultra vires”
JUDICIAL DECISION
Decision of Higher Court – Privy Council, Federal Ct, Appeal Ct, High Ct – Doctrine of binding judicial precedent/ stare Decisis. (use when no written provision under written law).
- Declaratory precedent:- use rule of law w/x any addition.
- Original precedent:- x precedent, decision base on justice, equity & discretion.
Privy Council: before 1983 the highest appeal ct.
Decision binding on all ct in the fol condition;
1) Decision, appeal from M’sia.
2) Appeal from other Commonwealth country & the law is in pari materia with M’sia.
3) Decision does not bind itself.
Decision House of Lord part from common law. S3(1)(a) & (b) Civil Law Act 1956 binds courts in M’sia.
Federal Court (b/f 1994 Supreme Court): the highest appeal ct.
1) Decision binding on all lower ct.
2) Decision binds itself except in the fol condition;
i) conflict in decision, may follow either one.
ii) decision contradict with decision of Privy Council.
iii) decision per incuriam because precedent/statute were not brought to the attention of the earlier ct which may effect its decision.
High Court
1)Decision binding on all lower court.
2)Decision does not binds itself however could do so base on “judicial comity”.
Decision b/f independence
According to general principle no ct could be bound by decision which were not part from the same judicial system. T/f decision of the Appeal Ct in Federated Malay State did not bind Sabah, Sarawak & Singapore.
Decision outside jurisdiction
These decision does not bind our court h/e it is persuasive especially decision from Singapore & other commonwealth country.
Advantages
1)More practical – reality.
2)More flexible – statute have to be enacted/amend/repeal by Parliament.
3)Judge may avoid by differentiating each factsDisadvantages
1)Have to do a lot of research since too many cases involve.
(Malayan Law Journal & Current Law Journal)
1)Some cases may be overlook accidentally.
2)Judges themselves never mention which is ‘ratio decidendi’ & ‘obiter dicta’
HIERACHY OF COURTS
Administration of justice is a Federal matter.
Penghulu’s Court
1)Lowest Court.
2)Only exist in Peninsular M’sia.
3)Trial – civil & criminal cases amount not more than RM50/=
4)Only applies to Asian races & can communicate in BM.
5)Sentences in criminal cases – fine not more than RM25/=
6)Presided by a Penghulu appointed by state.
Magistrate Court
Presided by a mgt who is an officer from the judiciary dept.
•Criminal jurisdiction – not more than 10 years imprisonment, fine, 12 stroke h/e can only sentence;
- not more than 5 years imprisonment, fine not more than RM10,000 & not more than 12 stroke / combination.
- inquest
* Civil jurisdiction – amount in dispute not more RM25,000.
- disputes over immovable property,
- recovery of rent mesne profits and damages where the amount claimed not more RM24,000 per year/RM2,000 per month.
Small Claim Court
- for claim not more than RM5,000.00.
- cannot be represented by a lawyer
NATIVE COURTS
1)Peculiar only to Sabah & Sarawak.
2)Under scrutiny of District Officer in supervisory & appellate jurisdiction.
3)Jurisdiction in all matters affecting native customs & parties
are native.
* breaches of a native law/custom.
* issues relating to land where there is no title issued by Land Office.
* does not exceed RM50/=
COURT FOR CHILDREN (previously Juvenile Ct)
1)Deal with persons under 18 years.
2)Consists of a mgt & 2 lay persons as advisors (one of them must be a woman).
3)Trial ‘in camera’.
4)Appeals are to the High Court.
SESSION COURT
1)Presided by Session Court Judge (after 1987, formerly Session Court President).
Criminal Jurisdiction:-
can hear all types of cases & may impose any sentence except punishable with death.
Civil jurisdiction:-
* amount in dispute not more RM250,000.
* cases is not outside jurisdiction e.g probate & administration of estate,divorce, bankruptcy, specific performance,injunction, enforcement of trust.
* supervisory role.
HIGH COURT
1)2 Chief Judges - Peninsular M’sia
- Sabah & Sarawak
) More than 50 judges & Judicial Commissioner
Original Jurisdiction:-
-unlimited civil & criminal powers.
-All criminal matters punishable by death.
-Civil matters exceeded RM100,000/= & which cannot be tried by session court.
-on the high seas /air space (ship/aircraft registered in M’sia).
-By any citizen/permanent resident on the high seas / air space.
-Where offence is piracy.
Appelate jurisdiction:-
* hear all appeal from lower court.
Supervisory jurisdiction:-
* supervise mgt & session ct judges.
APPEAL COURT
President of the Ct of Appeal & 8 Judges
Original Jurisdiction:-
-From any criminal matter in the H/Ct on question of law.
-Civil matter amount more RM250,000. Lesser must obtained leave.
FEDERAL COURT
Chief Justice, the President of the Ct of Appeal, the Chief Judge Of Sabah & Sarawak, & six Federal Ct Judges.
Original Jurisdiction
•w/t a law made by legislature (fed/state) is invalid (ultra vires)
•Disputes on any question between state & between the federal & any state.
Referral Jurisdiction
•Q that have arisen in the H/Ct & referred to it for a decision.
•Q referred to it by YDPA concerning effect of any provision of the Constitution.
Appellate Jurisdiction
-Hearing civil & criminal appeals from the H/Ct.
SPECIAL COURT (March 20, 1993)
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