LAW037 Short and Comprehensive Notes (FULL) - EXCEPT COURTS W/ SPECIAL JURISDICTION

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LAW037

LEGAL SYSTEM

Definition: A procedure or process for interpreting and

enforcing the law.

Three main types of legal systems in the world

- Common law

- Civil law

- Religious law

Common law Civil law

Derived from English Law Derived from Roman Law

Refers to case laws (judicial precedent)

Refers to statutes (i.e. Fed Cons, Acts)

Adversarial (lawyers play active role)

Inquisitorial (judges play active role)

Based on the rights of the individual (a way of determining individual rights, meant to regulate lives rather than best interest of society itself)

Based on the best interest of the society

Unwritten law (law that has not been enacted by the legislature)

Written law (law that has been enacted by the legislature, i.e. Fed & State Cons, Fed & State Legislations, Subsidiary Legislation)

Based on judicial precedent (first case ever decided in the court, obeys doctrine of stare decisis)

Law is codified (decision-making must be referred from constitutions, acts or other statutes)

i.e. UK, Australia, Hong Kong, USA, Canada

i.e. Italy, Spain (French), Germany, Austria (German)

Religious law

- Refers to law that derive its authority from

religious sources, i.e. holy books, traditions.

- Code of ethics and morality which is upheld

and required by God.

- A legal system which stems from sacred texts

of religious traditions.

- Islamic law is one of the most widely used

religious law and is one of the three most

common legal systems in the world.

- i.e. Iran, Saudi Arabia, Malaysia, Pakistan,

Sudan, Yemen.

- Shariah (Islam), Halakha (Judaism), Canon

Law (Christian).


ADVERSARIAL AND INQUISITORIAL SYSTEMS

Adversarial system:

- A legal system used in the common law

countries where two advocates represent their

parties' positions before an impartial person or

group of people, usually a jury or judge, who

attempt to determine the truth of the case.

- Applied in UK, Malaysia, most Commonwealth

countries and US.

- In Malaysia, the core concept of litigation is the

adversarial system, whether civil or criminal.

- Refers to a system which provides a contest

between two people of conflicting interests, e.g.

in a criminal case, it involves a public

prosecutor and an accused person and in a

civil case, a plaintiff and a defendant.

- The function of a judge is to play a passive role

and his duty is to conduct the trial, to observe

the relevancy of evidence and its discovery.

- Parties are the ones who determine the issues

and provide evidence to prove their claims i.e.

active role of the parties in a trial, particularly

the counsels who play the dominant roles.

- The advocate in the adversarial system is fused

profession, where the lawyers are the

advocates as well as the solicitors.

- On the contrary, in England there are barristers

and solicitors.

Inquisitorial system

- A legal system where the court is actively

involved in determining the facts of the case.

- The judge plays a significant role and

responsibility in trial.

- Judge has control over the way evidence is

collected. He will analyzed the evidence and

document submitted.

- Emphasized more on documentary evidence.

- Lawyers and prosecutions are working together

with judge to achieve just decision.

Differences between adversarial and inquisitorial

systems

Adversarial Inquisitorial

Both sides of the parties have the chance to present their arguments before a neutral umpire for a decision.

Judge plays the main and active role in the court.

Cost: Expensive – lawyers with higher reputation will charge more.

Cost: The court controls and limits the cost including delayed trials (cheap)

Examination in court: Evidences are tested for accuracy by examination in chief, cross-examination and re-examination.

Examination in court: All evidences are submitted and examined by the judges.

Primary goal: To win the case.

Primary goal: To achieve justice.

Lawyers play active role while the judges play passive role.

Judges play active role while the lawyers play passive role.

Used in common law. (law that refers to case laws)

Used in civil law. (law that refers to statutes)

Process of adversarial system

1) Examination in chief

- The purpose is to adduce evidence in support

of facts in issue.

- The witness may not be asked leading

questions.

- A leading question is one which suggests a

desired answer.

2) Cross-examination

- A witness is expected to verify the particular

matters that the lawyer put to him.

- A witness may be cross-examined by any party

who did not call him.

- Leading questions may be asked. Leading

questions provide for effective cross-

examination because the facts are supplied by

the lawyer.

3) Re-examination

- The purpose is to enable the witness to explain

and clarify relevant testimony which may have

been weakened in cross-examination.

- The witness may not be asked leading

questions but previous consistent statements

may be put by leave of court.


Illustration : Whitehouse v. Jordan (adversarial)

- Facts: Mrs. W alleged Mr. J, the obstetrician

had negligently pulled too hard with forceps

when attempting to deliver her baby.

- Evidence from Mrs. W: Her own story that she

had been lifted off the delivery bed by the

pulling ; Support by 2 experts by reading

hospital notes and her story.

- Evidence from Mr. J: Couldn’t remember the

facts but based on statement from junior

colleague, senior and support by other experts,

he’s not negligent.

- In order to prove the case, firstly, Mrs. W’s

lawyer questioned her to bring in her story and

opinion. This process in called as examination-

in-chief.

- Secondly it’s up to Mr. J’s lawyer to shake the

plaintiff’s evidence, bring doubt to the facts

given. This process is called as cross-

examination.

Illustration : Ex p. Moore (inquisitorial)

- Ms. Moore suffered from slipped disc, which

she claimed was due to her bending at work in

her job as a crane driver.

- The tribunal conducted the case by referring to

reports from two doctors who did not appear

before the tribunal.

- This is inquisitorial proceeding as decided by

the court and not against principle of natural

justice.

Advantages of adversarial system

- Any evidence brought into the court is tested

for its accuracy by the examinations.

- The continuous trial helps to speed up the

resolution of the dispute for justice delayed is

justice denied.

- The judge cannot comment until both sides are

heard (less biased).

- The dispute is decided by an independent

judge which gives the public confidence in the

legal system.

Disadvantages of adversarial system

- Much emphasis is placed on legal argument in

court, thus skilled lawyers are more rewarded.

- Successful court action is often expensive.

- Not all evidences in a dispute may be

presented in the court.

Advantages of inquisitorial system

- The decision rests in the hands of crime

expertise.

- All evidences will be checked.

- No chance of being swayed by fancy

arguments.

Disadvantages of inquisitorial system

- When the judges do majority of the work, less

lawyers are needed.

- The judge has a lot of burden as he has a lot of

work to do (slows down the process).

- The judgement rests on one person. Therefore,

the question of bias is never completely clear.


CRIMINAL AND CIVIL LITIGATIONS

Civil Criminal

Involves private disputes between persons or organisations.

Involves an action that is considered to be harmful to society as a whole.

Lawyer represents clients. Public prosecutor prosecutes on behalf of the state.

Matters include contracts, partnership, agreements, marriage.

Matters include murder, theft, rape.

To compensate the plaintiff for injuries or damage.

To punish the wrongdoer.

Civil litigation

- Governed by the Civil Procedure.

- Sources:

1) Statutes: Courts of Juridicature Act 1964

2) Rules: Rules of High Court 1980,

Subordinate Courts Rule 1980

3) Case Law

4) Practice Notes/Directions (circulars issued

by Chief Registrar of High Court, not law

but smoothen the procedure)

Criminal litigation

- Governed by Criminal Procedure.

- Sources of Criminal Procedure:

1) Statutes: Courts of Juridicature Act 1964,

Subordinate Courts Act 1948

2) Criminal Procedure Code

3) Case Law

4) Practice Notes/Directions

PRELIMINARY MATTERS

Parties to the suit

- For civil litigation: plaintiff vs defendant //

appellant vs respondent

- For criminal litigation: PP vs accused

- Categories of people that can be a party:

1) Individuals

2) Person under disability (unsound mind/

minor – Age of Majority Act, under 18)

3) Incorporated bodies

4) Partnership

5) Federal/state government

6) YDPA, Rulers

7) Foreign states

8) Societies

9) Trade Union

Cause of action

- A set of facts or allegations sufficient to justify a

right to sue.

- Why the case is brought to the court.

- The importance:

1) To determine the form of proceedings to

be taken in court.

2) Pleadings (written statements filled by

each party stating their claims) must state

cause of action.

- The plaintiff must have a complete cause of

action.

- Case: Taib Awang v Mohamed Abdullah, the

plaintiff was convicted in Kadi’s court and he

appealed. But before his appeal could be

heard, he commenced an action for malicious

prosecution. Held: Action failed due to

incomplete cause of action.

Locus standi

- A place to stand.

- The person commencing an action must have

an interest in the subject matter.

- Case: Atip Ali v Josephine Nunis, a woman

filed a suit against a former Malacca chief

minister and later discontinued it. The members

of the political party of that former chief oddly

believed that she was insulting their honour,

and sued for defamation. Held: Action failed.

Defamation is a personal action and only the

person who has been defamed can take action.

It was personal to the former chief minister

involved, and not the members. No locus

standi.


Limitation period

- A period of time within which a party to a case

must bring an action.

- A time frame.

- The plaintiff must initiate action within the

specified period or else the suit will be time-

barred.

Action in tort and contract

S.6(1) Limitation Act 1953 6 years from the date on which the cause of action accrued.

Action upon any judgement

S.6(3) Limitation Act 1953 12 years from date of enforcing judgement

Action to recover land S.9(1) Limitation Act 1953 12 years from the date which right of action accrued

Action for breach of trust S.22(1) Limitation Act 1953 6 years

Disability case (minor, unsound mind)

S.24 Limitation Act 1953 A minor ceased disability when he reaches 18 years old or died, whichever come first. Disability ceased when an unsound mind get certificate of sanity or dies or appointed to look his affairs.

Action against any public authority (state/ federal)

S.2 Public Authorities Protection Act (PAPA) 1948 3 years after the wrongful act complained.

Rationale of limitation period

- You should not be sleeping on your right (to

make you more responsible and take fast

action).

- To protect evidence from being missing.

Remedies

- Any method under the law to obtain redress for

the infringement of rights.

- When there is a breach of contract, the party

not in default may claim one or more of the five

following remedies:

1) Damages (S.74-76 CA 1950)

- Money compensation for any loss or damage

suffered as a result of a wrongful act.

- Types of damages:

1) Substantial damages: Compensation

intended to put the plaintiff in the position

he would have enjoyed had the promise

been performed.

2) Nominal damages: A small token award

where the plaintiff has proved a breach but

suffered no actual loss.

3) Exemplary damages: A sum awarded

which is greater than the actual loss

suffered by the plaintiff, i.e. breach of

promise of marriage.

- Mitigation of loss – duty to take reasonable step

to mitigate loss suffered.

- Failure to mitigate loss may prevent the

innocent party from recovering damages for

avoidable costs.

2) Rescission of contract (S.40 CA 1950)

- Refers to the cancellation of a contract.

- When a party to a contract has refused to

perform it, the promise may put an end to the

contract, unless he has signified by words, or

conduct, his acquiescence in its continuation.

- Any person who has received any advantage

from the contract is bound to restore it or make

compensation for it to the person from whom

he received it.

- The purpose of contract rescission is to restore

the parties to their original status before the

contract was made.

3) Specific Performance (Specific Relief Act 1950)

- The actual carrying out the contract as agreed.

- A decree of the courts directing the contract to

be performed specifically according to its terms.

- Given at the discretion of the court.

- Would not be granted if damages are an

adequate remedy (S.20).

4) Injunction (Specific Relief Act 1950)

- An order of the court requiring a party to do

something or not to do something.

- Given at the discretion of the court.

- Types:

1) Temporary: granted for specific period.

2) Perpetual: final injunction where order

made at the end of trial.

5) Quantum meruit

- Award made where one party has completed all

or part of his side of the contract before the

other’s breach.

- It is a payment of the amount deserved for what

has been done up until the breach.


CLASSIFICATIONS OF LAW

Written law

- Law that has been enacted by Parliament or

SLA.

- Malaysia: Fed Cons, State Cons, Legislation,

Subsidiary Legislation.

Unwritten law

- Law that has not been formally enacted.

- Found in cases decided by courts, local

customs, etc.

- Malaysia: Common law and equity, judicial

precedent, local customs

International law

- Disputes between two nations.

- Rules and principles which governs the

relations and dealings of nations with each

other.

- Can only work if the nation-states accept and

abide by those rules.

- Primarily regulates the conduct of sovereign

states.

- Promotes welfare of entire international

community, and has to respect sovereign

states.

- i.e. Military agreements, diplomatic treaties,

trade regulations, international agreements.

National law

- Rules and principles which govern the

relationship between the citizens in the country.

- Also known as municipal/domestic law.

- Regulates the conduct of persons within a

sovereign state.

- Concerned with running a particular country

and promoting the interests of its people.

- i.e. Contracts, marriage, wills.

Public law

- Law that governs the relationship between

individuals and the state.

- Comprises of criminal/ constitutional/

administrative law.

- Criminal: wrongful acts against the state.

- Constitutional: lays down fundamental rights,

form of government.

- Administrative: power of administrative

agencies, taxation, etc.

Private law

- Matters that affect the rights and duties of

individuals amongst themselves.

- a.k.a civil law.

- i.e. contracts, tort, property, family, partnership.

Criminal law

- Body of law dealing with crimes and their

punishment.

- Concerned with public rights and remedies, that

is, with wrongs committed against the society.

- Party bringing the case – state.

- Main goal is to punish the wrongdoers, teach a

lesson.

- Standard of proof: beyond reasonable doubt.

- i.e. theft, murder, rape.

Civil law

- Body of law dealing with disputes between

people or between government and citizens.

- Concerned with private rights and remedies,

that is, the duties that exist among and

between persons, organisations, and

governments.

- Party bringing the case – plaintiff.

- Main goal is to compensate the innocent party

for the damage done.

- Standard of proof: balance of probabilities.

- i.e. contracts, divorce, child custody.

Written/Unwritten

International/National

Public/Private

Criminal/Civil

Substantive/Procedural


Substantive law

- Law that governs the rights and duties of those

who are subject to it.

- Defines legal rules and principles, which guide

the courts in decision-making (i.e. theft is an

offence).

- i.e. Contracts Act 1950, Penal Code.

Procedural law

- Law that governs the procedures in the

enforcement of rights and duties under

substantive law.

- Procedures on how the substantive law is

applied

- Includes how to file a case, procedure in civil

and shariah courts, etc.

- i.e. Subordinate Court Rules Act 1955,

Evidence Act 1950, Criminal Procedure Code.

Common law and equity

Common law Equity

Developed by common law judges, applying the principle of stare decisis.

Developed by chancellors, in dealing with petitions addressed to the king from citizens complaining about the rigidity of the common law. (to correct common law’s defects and mitigates its harshness)

Also known as case law or judicial precedent.

Literally means fairness.

Complete system of law. Complements of common law, where their application would operate harshly, so as to achieve what is sometimes referred to as “natural justice”.

Remedies available as of right.

Discretionary remedies.

The only remedy available is an award of damages.

The remedies are of equitable in nature, including injunction and specific performance.


SOURCES OF LAW

Definition: The authority from which the laws derive their

force.

Sources of Malaysian law

Written law

FEDERAL AND STATE CONSTITUTION

1) Federal constitution

- Supreme law of the country. (Art.4 FC)

- Lays down powers of federal and state

governments, and the fundamental rights of

individual citizens.

- Applies to all states of Malaysia.

- Can only be amended by 2/3 of Parliament.

2) State constitution

- Each state in Malaysia has its own constitution.

- Contains provisions pertaining to state matters

as provided in 8th schedule to the FC.

- Matters include ruler and executive council

matters, land matters, agriculture, forestry and

Islamic law.

FEDERAL AND STATE LEGISLATION

Legislation: Laws made by a person or body which has

power to make law.

Federal legislation State legislation

Passed by the Parliament. Passed by the SLA.

Applicable to the whole country.

Applicable to that particular state only.

Laws enacted before Merdeka Day are called Ordinances and laws enacted after Merdeka Day are called Acts.

Laws enacted by SLAs are called Enactments, except for Sarawak – Ordinances.

May contain matters listed in list I of the 9th schedule of FC.

May contain matters listed in list II of the 9th schedule of FC.

Legislative process

1) Pre-parliamentary stage

- Government proposal.

- Meeting with relevant authorities.

- Drafting of bill.

- Cabinet approval.

- Goes to House of Representatives.

2) First reading

- Minister introduces the bill by reading the title

only.

- After the bill is passed at this stage, the text is

printed and distributed.

3) Second reading

- Members debate on general principle of the bill,

followed by voting.

- If accepted, the bill is passed on for

consideration of the committee of the house.

4) Committee stage

- Detailed examination of the bill and may amend

any part of it.

- Followed by a report on the bill to the house.

- If the report is approved, the bill goes on to a

third reading.

5) Third reading

- Further debate and voting takes place.

- Amendments may be put to a note.

- The house either passes or defeats the bill.

6) House of senate

- When a bill has passed one house, it is sent to

the other house.

- Similar procedure with House of

Representatives occur.

Malaysia

Written law

Law that has been enacted by legislature

Unwritten law

Law that has not been enacted by

legislature

Written law

Federal and state

constitution

Federal and state legislation

Subsidiary legislation


- If the second house amends the bill, the bill

must be returned to the first house for its

approval.

7) Royal assent

- When a bill has passed both houses, it is sent

to YDPA for Royal Assent.

- YDPA affixes Public Seal within 30 days of

presentation.

8) Publication

- The bill then becomes a law upon publication.

- To publish: gazette.

SUBSIDIARY LEGISLATION

- Made by persons or bodies under power

conferred on them by Acts of Parliament or

Enactments of SLAs.

- Refers to rules, regulations, by-laws, orders, etc

made by an authority other than the Parliament

and SLAs.

- a.k.a delegated or subordinate legislation.

- If made in contravention of either a parent Act

or the constitution, it is void.

- Deals with details of every day matters which

the legislature has neither time nor expertise to

enact.

Modes of control of subsidiary legislation

- Subsidiary legislation is made by executive,

and executive law-making = inconsistent with

doctrine of S.O.P.

- Vulnerable to abuse, i.e. lack of prior

discussion and consultation and excess of

power delegated.

1) Judicial control

- Court has control over subsidiary legislation.

- Can declare it as void if conflicts with parent Act

or constitution.

- Can be declared void on the ground of ultra

vires (beyond one’s legal power or authority)

the parent Act.

- Case: Low Leng Huat v PP. Appellant was

convicted by the magistrate on the charge of

failing to comply with a notice directing him to

enlarge the open area of some of his houses.

The notice board was issued by the Sanitary

Board in accordance with a by-law. The

appellant challenged it as being in excess of

power as conferred by Sanitary Board

Enactment 1907. Held: The by-law was ultra

vires and therefore void.

2) Legislative control

- The making of the subsidiary legislation is

authorized by the Act which was enacted by the

legislative body (Parliament).

- Because of this, the body can always exercise

control over the subsidiary legislation.

- The legislature may repeal the structure or

repeal or vary the delegated power.

3) Consultation

- Prior consultation with relevant body and

interest groups are often required to be had

before a subsidiary legislation is made.

- Sometimes the parent legislation makes such

consultation as compulsory.

4) Publication

- Subsidiary legislation must be published in the

gazette.

- Will become effective only from the date of

such publication.

- If not gazette, invalid.

- S.20 of Interpretation Act 1948 and 1967: “No

person shall be made or shall become liable to

any penalty in respect of any act done before

the date on which the subsidiary legislation was

published”.

Advantages Disadvantages

Flexible as it can be made, amended, or modified easily and speedily.

Bulk and frequent changes.

Save the time of the legislature.

Inconsistent with the doctrine of S.O.P.

The problem of lack of technical expertise is solved.


Unwritten law

ENGLISH COMMON LAW AND EQUITY

- Comprises of common law and equity.

- The extent of application of English law is

prescribed in S.3, S.5, and S.6 of the Civil Law

Act 1956.

- The application of English law in Malaysia is

subject to two conditions:

1) In the absence of local statutes.

2) If it suits to local circumstances.

- Not binding, but merely persuasive.

- S.3(1) CLA 1956:

1) In West Malaysia, the courts shall apply

the English common law and the rules of

equity as administered in England on the

7.4.1956 (cut off date).

2) In SS, the courts shall apply the English

common law and the rules of equity,

together with statutes of general

application, as administered in England on

the 1.12.1951 (Sabah) and 12.12.1949

(Sarawak).

- Case: Mokhtar v Arumugam: Malaysian courts

are not bound to follow the position of the law in

England after the cut off date.

- Case: Commonwealth of Australia v Milford

(Malaysia) Sdn. Bhd. & Anor: The common law

may be applied after the cut off date (but not

bound to) – should not remain static and not

develop.

- S.5 CLA 1956:

1) All states except Penang, Malacca, Sabah

and Sarawak apply English Commercial

Law as administered in England on

7.4.1956.

2) Penang, Malacca, Sabah and Sarawak

can use relevant and applicable English

common law continuously.

- S.6 CLA 1956: related to land law.

1) Nothing in this part shall be taken to

introduce into Malaysia any part of the

English common law relating to the tenure

or conveyance or assurance or succession

to any estate, right or interest therein.

- Case: United Malayan Banking Corp. Bhd. v

Pemungut Hasil Tanah Kota Tinggi: “The

National Land Code is a complete and

comprehensive code of law governing the

tenure of land in Malaysia and therefore there

is no room for English common law in that

field”.

CUSTOMARY LAW

- Regular pattern of social behaviour accepted

by a given society as binding upon itself.

- Proved through repeated acts practiced over a

long period of time, leading to conclusion that

by common consent, they have become

accepted as norms.

- Art.160 FC – customs and usages having the

force of law.

- In Malaysia, it refers to the customs of the local

inhabitants which have been accepted as law

by courts in Malaysia, i.e. Adat Perpatih, Adat

Temenggung, native customary law of SS.

Native customary law

- Applied to the society in Sabah and Sarawak.

- Adjudicate personal matters involving the

natives, i.e. family law, property, customary

land rights.

- Administered by Native Courts.

JUDICIAL PRECEDENT

- The decisions of higher courts in previous

cases must be followed by the lower courts in

similar cases or situation.

- Can be obtained from the decision of superior

courts (federal court, court of appeal, high

court).

Two categories of judicial precedent

1) Binding

- All decisions of higher courts bind the lower

courts.

- The high courts are bound by their own

decision.

2) Persuasive (not necessary to follow)

- High court judges are not bound to follow the

decisions of another high court judges.

- Decisions from outside of the Malaysian courts

(English court).

Doctrine of stare decisis: “To stand by cases already

decided”. Ensures that cases must be decided the same

way when their material of facts are the same, as justice

requires similar treatment of similar cases.

Unwritten law

English common law

and equity Customary law

Judicial precedent

Judgement of foreign courts

Writing of jurists

Islamic law


Two-ways operation of stare decisis

1) Vertical

- A court is bound by the decision of higher court.

2) Horizontal

- Some courts are bound by its own previous

decision of predecessor, court with co-ordinate

jurisdiction.

Exceptions to the rule of stare decisis

- Precedent laid down by a lower court where the

case is on appeal.

- Given per incuriam: made by ignorance of a

statute or a binding precedent.

- When there are material differences in the facts

of the cases.

JUDGEMENTS OF FOREIGN COURTS

- Merely persuasive, but not binding.

- Commonwealth countries’ judgements can be

given consideration pari materia with Malaysian

courts.

- Malaysia has enacted statutes based on the

model of other countries, i.e. Penal Code and

Contracts Act 1950 – India, National Land

Code (Australia)

WRITING OF JURISTS

- Refers to the article written by an expert on

legal subjects.

- Opinions of the jurists based upon their

interpretation of the relevant statutes and

cases, as to what the law is believed to be.

- Persuasive, but if the court adopts them as part

of the ratio of a decision (ratio decidendi), then

they become law.

- If not, it is called as obiter dicta.

ISLAMIC LAW (SHARIAH)

Means the path to be followed.

Primary sources

1) Al-Quran: words of Allah revealed to and

transmitted by Prophet Muhammad.

2) Sunnah: utterance, action or indirect approval

by Prophet Muhammad.

Secondary sources

1) Ijmak: unanimous agreement of the mujtahidun

of the Muslim community of any period

following the demise of Prophet Muhammad.

2) Qiyas: analogy, reasoning, and legal precedent

to decide new case law.

3) Maslahah mursalah: unrestricted public

interest.

4) Urf: customs and practices of a given society.

5) Istihsan: juristic preference.

Position of Islamic law in Malaysia

- The one applied in Malaysia is of the Syafie

school of jurisprudence, as modified by Malay

customary law.

- Only applies to Muslims and is administered at

state levels by a separate system of courts,

called Shariah Courts.

- Matters include marriage, divorce, adoption,

legitimacy and certain religious offences.

- FC provides that the states have the power to

administer Islamic law.

- Case: Lina Joy v Majlis Agama Islam Wilayah

Persekutuan & Anor: Converted from Islam to

Christiany, arguing that it came under her right

to freedom of religion under Art.11 of FC. She

seeks for permission to change her name to

Lina Joy, and also her religious status in her

I/C. Held: Name change was allowed but the

change of religious status in her I/C was

refused.

- She appealed in all courts but still failed to win.


JUDICIARY

Definitions:

Court: A place where justice is administered.

Court system: The system of law courts that administer

justice.

Jurisdiction: The power or authority to decide legal

cases.

Original jurisdiction: The power of a court to hear a case

in the first sentence.

Appellate jurisdiction: The power to consider the case

after decided by lower court.

Supervisory jurisdiction: The power of the superior courts

to supervise all subordinate courts.

Judicial review: The power to review the legality of a

legislation.

Composition: The structure of the court, including the

appointment of judges.

Question of fact and question of law

Question of fact Question of law

An issue of fact which the truth or falsity must be determined by a judge or jury.

An issue arising in lawsuit/criminal proceeding which is related to determination of law.

Point of fact. Point of law.

Refers to evidence, statement of witness.

Legal principles, cases decided and interpretation of statutes.

Answers to questions are considered to be fixed in trial (cannot raise an appeal).

Only issue of law can raise.

“How long did you neglect your children?”

“Does leaving the children considered as against the Child Act 2001?”

Hierarchy of the courts

FEDERAL COURT

COURT OF APPEAL

HIGH COURT

MALAYA SABAH & SARAWAK

SESSIONS COURT

MAGISTRATE COURT

Federal court

- Established pursuant to Art. 121 (2) FC.

- Composition: Chief Justice, President of Court

of Appeal, two Chief Judges of High Courts, 4-

11 other judges.

- Proceeding should be in accordance to S.74 of

Courts of Juridicature Act 1964, be heard and

disposed by three or greater uneven number of

judges.

1) Original jurisdiction (Art.128 FC)

Civil appeals:

- To determine any appeal against decision of

Court of Appeal (S.96 COJA 1964).

- To order a new trial of any matter tried by High

Courts.

Criminal appeals:

- To determine any appeal from any decision of

Court of Appeal (S.87 COJA 1964).

2) Referral jurisdiction (Art. 128 FC)

- Constitutional issues tried in High Courts/

subordinate courts.

3) Advisory jurisdiction (Art. 130 FC)

- YPDA may refer to Federal Court regarding

effect of any provisions in FC.


Court of Appeal

- Prior to 1985 = Privy Council.

- Abolished and replaced by Supreme Court.

- 1994 = establishment of Court of Appeal.

- Established pursuant to Art. 121 (1B) of FC.

- Composition: President of Court of Appeal, 10

other judges.

- Proceedings should be heard and disposed by

three judges or greater uneven number.

1) Civil appellate jurisdiction

- To hear and determine any appeal from High

Courts, except (S.68 COJA 1964):

1) Amount of subject matter less than

RM250,000 except with leave of the Court

of Appeal.

2) Where the judgement is made by consent

parties.

3) Where the judgement relates to cost only,

except with the leave of Court of Appeal.

4) Whereby any written law for the time being

in force, the judgement of the High Court is

expressedly declared to be final.

2) Criminal appellate jurisdiction

- To hear and determine any appeal against any

decision of High Courts (S.50 COJA 1964).

High Court

- Established pursuant to Art. 121(1) FC.

- There are two high courts – High Court of

Malaya and High Court of Sabah and Sarawak.

- Composition: Each headed by a Chief Judge,

4-60 other judges (High Court of Malaya), not

exceeding 13 other judges (High Court of

Sabah and Sarawak)

- Every proceeding in the High Court will be

heard and disposed of before a single judge.

- The High Court have specialised divisions:

criminal, civil, commercial, appellate, family.

1) Original jurisdiction (S.24 COJA 1964)

- Unlimited jurisdiction in civil and criminal

matters.

- Civil: Includes divorce, matrimonial (marriage),

admiralty (maritime), bankruptcy, guardianship

of infant, wills, probate.

- Criminal: Any jurisdiction over citizen and non-

citizen.

2) Appellate jurisdiction

- Civil: No appeal for less than RM10,000 except

for question in law (S.27 COJA 1964).

- Criminal: To hear appeals from subordinate

courts according to any law for the time being

in force (S.26 COJA 1964).

3) Revisionary & Supervisory

- S.32 COJA 1964: Revisionary power for civil

cases – to revise correctness or legality of

decision passed of any proceedings.

- S.31 COJA 1964: High Court is allowed to

revise criminal proceedings in subordinate

courts.

Sessions Court

- Established pursuant to S.59 Subordinate

Courts Act 1948.

- Highest of all subordinate courts.

- Presided over by a Sessions Court judge.

- Any appeal from Sessions Court will go to the

High Court.

1) Original jurisdiction

- Civil: Unlimited jurisdiction over matters relating

to accidents, landlord-tennants and distress

(S.65-70 SCA 1967), all suits where the

amount in dispute or the subject matter does

not exceed RM1,000,000 (S.26 SCA), all suits

for specific performance, rescission of contract

and injunction.

- Criminal: May try all offences except for those

punishable by death (S.63-64 SCA).

2) Supervisory

- May examine record of any civil proceeding

before the Magistrates Court.

- If any decision is illegal or improper, or any

proceeding is irregular, it must be forwarded to

High Court.

Magistrates Court

- Established pursuant to S.76 SCA 1948.

- Deals both civil and criminal offenses, sits in

almost all major towns in Malaysia.

- All appeals will go to the High Court (S.26-28

COJA 1964).

1) First class Magistrate

- Civil: To try all litigations where the matter in

dispute or subject matter does not exceed

RM100,000 (S.90 SCA).

- Criminal: To try all offenses punishable with up

to 10 years of imprisonment/ with fine only/

offenses related to punishment for robbery and

house breaking at night.


2) Second class Magistrate

- Civil: Only to try civil cases where the plaintiff

seeks to recover debt or liquidated demand, not

exceeding RM10,000 (S.91 SCA).

- Criminal: Only to deal with cases where the

maximum punishment not more than 12

months of imprisonment or which is punishable

with a fine only (S.88 SCA).

Courts of special jurisdiction

- Special Court

- Court for Children

- Martial Court

- Industrial Court

- Shariah Court

- Native Courts

Special Court

- Established in 1993 after the constitutional

conflict involving the immunity of all Sultans

following the assault of a hockey coach by

Sultan of Johor (The Gomez Incident).

- Only deals with original jurisdiction.

- The registry is in KL.

- Only citizens of Malaysia can start the

proceeding – Faridah Begum v Sultan Hj.

Ahmad Shah.

- No action to be instituted against YDPA or

Ruler except with the consent of Attorney

General.

- When Rulers are convicted with imprisonment

more than a day, he will ceased from being the

Ruler except by free pardon from CoR.

Court for Children

- Established under Child Act 2001.

- Replaced Juvenile Court.

- The purpose is to hear, determine and dipose

any charges against a child.

- A child is a person below 18 (in criminal

proceeding – more than 10 years old).

- Composition: First Class Magistrate, two

Advisors (one must be woman) – to inform and

advise the court with respect to any

consideration affecting the order made upon

finding of guilt or other related treatment of a

child brought before it, and if necessary, to

advice the parent or guardian of the child.

- Child detained under this court will be protected

from publicity, separate lock-up from adult and

close trial.

- The court is not open to public but only

attended by court officers, children who are

parties to the case including their parents,

guardians, advocates and witnesses.

- Cannot use the word “person convicted”,

“conviction” and “sentence”, must use “child

found guilty”, “finding of guilt” and “order made

upon finding of guilt”.

- Has the jurisdiction to try all offenses except

those punishable with death.

- Has the power to:

1) Admonish and discharge the child.

2) Discharge the child upon his executing a

bond to be of good behaviour.

3) Order the child to be placed in the care of

a relative or other fit and proper person.

4) Order the child to pay a fine,

compensation or costs.

5) Make a probation order.

6) Order the child to be sent to an approved

school or a Henry Gurney School.

7) Order the child, if a male, to be whipped

with not more than ten strokes of a light

cane (within the court’s premise and in the

presence, if he desires to be present, of

the parent or guardian of the children)

8) Order the child to be imprisoned, if aged

14 and above.

Martial court

- Military court for army officers that commit any

offenses against military law.

- Possess jurisdiction over persons subject to

service law – generally, members of the armed

forces.

- A service person is tried only by service

persons of his own rank or higher.

- The sentence imposed is subject to

confirmation by a superior officer.

- The court administers service law intended to

ensure discipline and good order among

service personnel so that absence without

leave, desertion, disobedience of orders are

punishable offences.

Industrial court

- Established under Industrial Relations Act 1967

and headed by President of Industrial Court.

- Exercises its jurisdiction on matters relating to

trade disputes and dismissal of a workman.

- Parties to dispute cannot take a matter directly

to the court – via the Minister.

- The Industrial Court on receipt of reference

from the Minister will then proceed and

determine the case.

- The decision handed down by the Court is

referred to as an award.


ALTERNATIVE DISPUTE RESOLUTION (ADR)

Definition: Any method of resolving disputes other than

by litigation (settlement outside of the court).

Opportunity for the parties to set their terms of settlement

and reduce backlog of cases in the court.

Form of ADR

Negotiation

- Common mode of ADR.

- Non-binding process.

- Allows the parties to meet in order to reach a

compromise.

- The parties themselves control the process and

the solution.

Mediation

- The intervention in a dispute or negotiation of

an acceptable impartial and neutral third party.

- It is generally conducted with a single mediator

who does not judge the case, but simply helps

to facilitate discussion and eventual resolution

of the dispute.

- The objective is to assist the parties in reaching

a mutually-acceptable resolution.

- i.e. Malaysian Mediation Centre (MMC) – body

established under the support of the Bar

Council.

Conciliation

- A process that involves a neutral third party to

communicate with the parties in the exchange

of information and settlement options.

- Normally, conciliator will be asked by the

parties to provide them with a non-binding

settlement proposal.

Arbitration

- Generally conducted with a panel of arbitrators

who take on a role like that of a judge.

- The common procedure is both sides agree on

one arbitrator, or each side selects an arbitrator

and the two arbitrators select a third arbitrator.

- An arbitration agreement can be made in one

of two ways:

1) The parties agreed in advance that in the

event that a dispute arises between them,

the dispute should be referred to an

arbitration.

2) An ad hoc reference to arbitration after a

dispute has arisen.

Differences between negotiation, mediation,

conciliation and arbitration


Advantages of ADR

- Cheapness – The relative cheapness of ADR

in comparison with the Courts is advantageous.

Costs normally associated with court

proceedings such as court fees, delays and

having to follow complex court processes are

not incurred with ADR.

- Speed – The use of ADR is much quicker. In

particular one of the quickest and cheapest

methods of ADR is negotiation and this is

because parties get round the negotiation table

themselves to solve the dispute without the

need for representatives.

- Control – With ADR the parties retain control

over the dispute and the way it is resolved

rather than handing over control to the Courts.

There is a saying with litigation in the courts to

the effect that once started no matter how sure

you are of the merits of your own case, there is

no knowing when it will end.

- Adversarial – Court proceedings are

adversarial and about winning not losing,

whereas ADR is about finding possible

solutions to disputes. As the proceedings are in

private it can be a damage limitation exercise

and this can be important if the parties expect

to do business with each other in the future.

ADR can avoid bad feeling between the parties.

- Privacy – Court proceedings are conducted in

public. The press is admitted and it is possible

for the case to be reported in the local or

national newspapers. A clear advantage ADR

is that the methods used are private and again

this may be an important factor if commercial

reputations are at risk.

- Expert Arbitrators – With court proceedings

the Judge may be an expert in the area of law

involved but is not likely to be an expert in

building or civil engineering or whatever the

subject of the dispute is about. The judge

relies upon facts being presented to him or her

following detailed and expensive trial

preparation. Expert witnesses may well be

necessary and this will inevitably contribute to

the length of the trial and the overall cost.

When expert arbitrators are used they do not

rely upon expert evidence in the same way, this

means that the proceedings are usually quicker

and cheaper.

Disadvantages of ADR

- Willingness to compromise – The use of

ADR is dependant upon the willingness of

individuals to compromise and to this extent it

is arguable that the parties are more likely to

settle for less whereas once they have

embarked upon court proceedings their

expectations may be higher. It could be that

one of the parties does not accept there is a

problem and is not prepared to compromise.

- Uncertainty – Although ADR is generally

quicker and cheaper this is not always the

case. Even negotiations can drag on and

become lengthy and expensive with no

certainty of a resolution of the dispute. At least

with court proceedings there is usually

certainty.

- Complexity and Expense – Generally ADR is

cheaper than using court proceedings but some

formal arbitration hearings can still be complex

and expensive depending on the subject matter

of the dispute. There are professional and

trained arbitrators and these can be expensive.

- Making a statement – Because ADR is

confidential they are unsuitable if one party

wants to make a point and put out a clear

warning or send out a message about the

proceedings and their outcome.

- Immediacy - ADR is not suitable where one

party wants the other to stop instantly. This

could be in the case of one party wanting to

prevent another from selling goods which are of

a similar design to something they are selling or

in the case of harassment.

- Time limits – It is worth remembering that if

there is a time limit involved in a legal claim it

may not be appropriate to use ADR. It does not

put a stop to any legal time limit and may mean

that, if unresolved, the time to make a legal

claim has passed.


LEGAL INSTITUTIONS

Malaysian Bar

- A professional body established under the

Advocates and Solicitors’ Ordinance 1947

which was repealed by the Legal Profession

Act 1976 (LPA).

- The purpose of Malaysian Bar is to uphold the

rule of law and the cause of justice and to

protect the interest of the legal profession as

well as the public.

- The management is called the Bar Council,

which comprises of 38 members who are

elected annually to manage the affairs and

execute the functions of Malaysian Bar.

Legal Profession in Malaysia

- Governed by the LPA 1976.

- The legal profession in Malaysia is a fused one

with a current membership of approximately

12,000 members.

- Each advocate and solicitor is automatically a

member of the Malaysian Bar so long as they

hold a valid Practicing Certificate.

- Two categories of person who are eligible for

admission to legal profession are, 1) “qualified

person”, and 2) articled clerk.

What is meant by “qualified person”? (S.3 LPA 1967)

- Has passed the final examination leading to the

degree of Bachelor of Laws in University of

Malaysia, University of Malaya in Singapore,

University of Singapore and National University

of Singapore; or

- A barrister-at-law of England; or

- Is in possession of such other qualification as

may by notification in the Gazette be declared

by the Board to be sufficient to make a person

a qualified person for the purposes of this Act.

Faculty of Law

- Means the Faculty of Law of a University

established under the Universities and

University Colleges Act 1971, the Faculty of

Law of UiTM established under UiTM Act 1976,

and the Kuliyyah of Law of IIUM established

pursuant to Companies Act 1965.

The admission and qualifications for admission to

Malaysian Bar (S.10-19 LPA 1976)

Other requirements include:

- Attained the age of 18.

- Good character.

- Either a citizen or a permanent resident.

- Has served the prescribed period of pupillage

(nine months).

- Has passed the BM Qualifying Examination.

Attorney General’s Chamber

- Office of the AG of Malaysia.

- Was classified as a Ministry in 1951 and held

responsible for all legal matters involving the

government.

- 1980 – present: Prime Minister’s Department.

Divisions of AG’s Chamber

1) Prosecution Division

- Conduct prosecutions in all courts.

- Provides advice to enforcement agencies.

- Perusal of investigation papers.

2) International Affairs

- Provide legal advice to Government on

international law.

- Represent Malaysia in international arena.

- Harmonize Malaysian law with international

treaties.

- Drafting various instruments relevant to

Malaysian obligations under international

treaties.

3) Appellate and Trial Division

- Conducting trials and appeals for all high

profile, complex and sensitive case

- Provide legal advice in preparing trials to

government agencies.

4) Civil Division

- Represent government in any civil proceedings,

case concerning public, religious, social

interest.

- Represent AG in admission of lawyer.

5) Advisory Division

- Provide legal advice in general area of laws ; 2

section – municipal and Shariah.


6) Drafting

- Draft and vet principal and subsidiary

legislation.

- Translate legal documents, Act in English to

Bahasa Malaysia vice versa.

7) Law Revision and Law Reform

- Review archaic and obsolete law, publish

revised text of laws.

8) Research

- Provide legal advice and opinion, manage legal

knowledge and provide database for law.

9) Management

- Conducting matters involving human resources.

Attorney General

10) The principal legal advisor to the government.

11) Head of the AGC.

12) Highest ranking Public Prosecutor.

13) Appointed by YDPA, on the advice of PM (a

person who is qualified to be a judge of Federal

Court).

14) Current AG: Mohamed Apandi Ali.

15) His roles and responsibilities include:

1) To advise the YDPA or the Cabinet or

Ministry on legal matters, and to perform

such other duties of a legal character,

referred or assigned to him.

2) To institute, conduct or discontinue any

proceedings for an offense, other than

proceedings before a Shariah, Native or

Martial Courts.

Educational Institutions (diverse institutions of higher

learning created to educate for life as well as for a

profession and to grant degrees.)

16) The first national law school is UM (1972).

17) There are seven law schools currently

recognised to practice, i.e. UiTM, UM, UKM,

UIAM, UUM, MMU and UniSZA. Most private

institutions offer combination of law degree with

overseas university in the UK, Australia, NZ,

and external LL.B London degree.

18) In Malaysia, law degrees: LLB (Bachelor of

Laws) which allows students to go on to take

the Malaysian Bar examinations, in order to

become a practicing lawyer.

19) The Certificate in Legal Practice (CLP) is taken

by foreign law graduates, graduates of B.Juris

(UM) and BLS (UiTM).