legal system of Malaysia

Chapter 1 : Malaysian Legal System

What is law?

·   The binding rules of conduct meant to enforce justice and prescribe duty or obligation, and derived largely from custom or formal enactment by a legislature.

·  These laws carry with them the power and authority of the enactor and associated penalties for failure or refusal to obey.

·   Law derives its legitimacy ultimately from universally accepted principles such as the essential justness of the rules or the sovereign power of a parliament to enact them.

The aims of law

• ·     To attain justice in society.
• ·     To encourage the doing of what is right or just in a particular set of circumstances.

Administrative Structure in Malaysia

• ·    There are three important bodies to facilitate the administration of the country.
• ·  The purpose – Division of roles based on the theory of power division to avoid misuse of power, interference from one body with another and as a check and balance measure.

The Legislative

• ·   Will enact law so that administration could run smoothly.
• ·   Cannot interfere as to the administration carried out by the executive
• ·   Law will be enacted in accordance with the interact of the citizen.
• ·  Parliament will be the place where law will be enacted and the voice of the people was heard through their representative.

The Executive

• ·  Involves in administrating 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 or no effect.

The Judicial

• The law which was enacted by the legislative will not only govern the people but also the nation including the three government organisation.
• ·If dispute arise as to whether certain action contradict the law, then it might be challenge in court.
• The system of court is under this organisation plays an important roles in determining as to whether action done is legal or illegal.
• 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 judgements without coercion, fear or favour.

Classification of law

1.      Public law

• ·         Public law is basically the law which governs the relationship between individuals and the States.
• ·         Public law further divided into constitutional and criminal law.
• ·         Constitutional law lays down the rights of individuals in the state.
• ·         Criminal law codifies the various offences committed by individuals against the State.

2. Private law

• Law between one individual and another.
• Concerned with matters among themselves.
• For example, contract law, criminal law, constitution law, property law, tort law, trust law, administrative law, international law and etc.

3.      International law

• ·         Law which regulates the relationship between one state and another.
• ·         For example, an issue between Malaysian and Singapore ( Palau Batu Puteh )
• ·         It may further be subdivided into two categories.

      - Public international law 
      -Private international law

Sources of Business Law

Written Law

• The most important source of law.
• ts refers to that portion of Malaysian Law which includes :

                1.      The Federal and State Constitution
                2.      Legislation enacted by Parliament and State Assemblies
                3.      Subsidiary legislation

Law, the State and Constitution

• Malaysia which consists of Peninsular Malaysia, Sabah and Sarawak is one political unit, but it is not governed by the same set of laws.
• There are links that unite the two parts of Malaysia, the Parliament and the Federal Court.

• Parliament – can and does legislate for the whole country.
• Federal Court – act as a final court of appeal for the whole country. 
• Federal Constitution is the Supreme law of the land.
• State Constitution is law that made by State to govern their state. 
•  Any law made by Parliament or by State Constitution that inconsistent with Federal Constitution is VOID.

      Unwritten Law

• It doesn’t mean that it is not written
• What made it unwritten is that it is not made by the formal legislative bodies
•  Sources of unwritten law are :

             - English law

            - Case law

            - Custom