Different country practices different types of legal system. Some country practices one type of legal system while others practices the mixed legal system which means a combination of two or more legal systems. Malaysia for example, practices the mixed legal system which includes the Common Law, Islamic law and Customary Law. Malaysia’s legal system comprises laws which have arisen from three significant periods in Malaysian history dating from the Malacca Sultanate, to the spread of Islam to Southeast Asia, and following the absorption into the indigenous culture of British colonial rule which introduced a constitutional government and the common law.
Malaysia’s unique legal system is designed to balance the delicate racial and religious needs of its heterogeneous people. The Malaysian legal system law can be classified into two categories which is the “Written” and “Unwritten law 2. 1 Unwritten Law “Unwritten Law” does not mean that the law is not written properly. It refers to the law is not enacted by the Legislature and is not found in the federal and state constitutions. Category of laws derived from cases decided by the Court and local customs, also known as “common law”. “Unwritten law” is mostly made up of English law, judicial decisions and customary law.
2. 1. 1 English Law The principle of English law is also applicable to the extent permitted in Malaysia. The principles of English law is contained in the common-law and equity of England. Application of the principles of English law is resulting in letter and spirit. It is implied when trying to interpret a court order to judge the case based on “justice and rights” as indirect adopt English law [Wu Min Aun – The Malaysian Legal System, pp. 99]. In addition, the principles of English law has been (by statute) to be adopted as a source of law in letter and Malaysia since 1807 when the First Charter of Justice designed to bring English law in Pulau Pradesh .
Several other statutes subsequently emerged and today we are referring to the Civil Law (Civil Law Act 1956) (Revised 1972), which outlines principles guide the inclusion of English law in Malaysia. Application of U. K. common law, rules of equity and certain statutes 3. (1) Save so far as other provision has been made or may hereafter be made by any written law in force in Malaysia, the Court shall— (a) In Peninsular Malaysia or any part thereof, apply the common law of England and the rules of equity as administered in England on the 7 April 1956; (b).
In Sabah, apply the common law of England and the rules of equity, together with statutes of general application, as administered or in force in England on 1 December 1951; (c) in Sarawak, apply the common law of England and the rules of equity, together with statutes of general application, as administered or in force in England on 12 December 1949, subject however to subparagraph Referring to the provisions of the Civil Law Act 1956 (Revised 1972) above, the courts in Peninsular Malaysia shall (Shall apply) adopted the common-law and equity of England as it is in force in England as far as the 7th April 1956.
In Sabah and Sarawak, the court should adopt the common-law and equity together with the English statutes of general application in force in England on 1st December 1951 (Sabah) and the 12th of December 1949 (Sarawak). Attention should be given to the dates mentioned above because the court is bound only on common-law and equity of England and the statutes of general application (Sabah & Sarawak) which became effective on that date. As we know, the principle of the principle of English law has evolved since the following dates. 2. 1. 2 Judiciary Decision/ Malaysian Court.
Toward judicial decision, the judge did not decide by arbitrarily. Instead, they are bound to follow accepted principles that are recognized as first given. The judgment or court decision statute named as a party in power for the principle of law contained in the decision. Binding judicial system is first invoked to draft stare decisis. It was created by British judges and was introduced to Malaysia upon colonization. The hierarchy of courts of Malaysia starts with the Magistrates Court as the first level followed by the Sessions Court, High Court, Court of Appeal and the Federal Court of Malaysia, which is the highest.
The Federal Court (The Federa l Court hears appeal s from the Court of Appea l. ) The Court Of Appeal (The Court of Appeal hears appeals from the High Court relating to both civil and criminal matters) The High Court (Civil Jurisdiction, Criminal Jurisdiction And Criminal Jurisdiction) The Sessions Court level. The High Court, Court of Appeal and the Federal Court are superior courts, while the Magistrates Court, the Court for Children and the Sessions Court are subordinate courts. A Magistrate’s Court and a Court for Children are presided by magistrates. There are also various other courts outside of the hierarchy.
There are the Penghulu’s Courts, the Syariah Courts and the Native Courts. A court, which is paralleled in jurisdiction with the Magistrates’ Court, is the Juvenile Court. Court System of Malaysia Under the High Court they are divided by 3 jurisdiction which is Civil Jurisdiction, Criminal Jurisdiction and Appellate Jurisdiction. CIVIL JURISDICTION CRIMINAL JURISDICTION APPELLATE JURISDICTION The High Court has jurisdiction to try all civil matters but generally confines itself to matters on which the Magistrates and Sessions court have no jurisdiction.
These include matters relating to divorce and matrimonial cases, appointment of guardians of infants, the granting of probate of wills and testaments and letters of The High Court may hear all matters but generally confines itself to offences on which the Magistrates and Sessions Courts have no jurisdiction, for instance, offences which carry the death penalty. The High Court may hear appeals from the Magistrates and Session Courts in both civil and criminal matters. Amount in dispute in any civil matters must exceed RM 10, 000 except where it involves a question of law administration of the estate of deceased persons, bankruptcy and other civil claims where the amount in dispute exceeds.
Rm 1,000,000 While the session Court may divided by 2 part CIVIL JURISDICTION CRIMINAL JURISDICTION A session court may hear any civil matter involving motor vehicle accdents, disputes between landlord and tenant and distress actions. The session court may also hear other matters where the amount in dispute does not exceed Rm 1,000,000 A session court has jurisdiction to try all criminal offences except those punishable by death . 2. 1. 3 Customary Law Customs are another important source of unwritten law. Every race has its own customs.
Hindu and Chinese customary law applied to the Hindus and Chinese respectively. Besides that, natives in Sabah and Sarawak have their own customary law which relates to the land and family matters. In Malaysia, there are two types of Adat which is the Adat Perpateh and Adat Temenggung. Adat Perpateh is practiced among the Malays in Negeri Sembilan and Nanning in Malacca. It uses the matrilineal system which belongs to mother’s lineage, meaning to say it involves the inheritance of property, names or titles from mother to daughters. It also concerns with matters such as land tenure, lineage, inheritance and election of members of lembaga and Yang di-Pertuan Besar.
As for Adat Temenggung, it is practiced in other states and it uses the patrilineal system which belongs to father’s lineage. Adat perpateh Adat temenggung Nature Matirachal/Patriachal In custom Perpatih women have positions in society •The women have the right to inherit property and priority in •Paternity of offspring also measured through quarterly principal •The daughter of the foundation in the existence of the tribe. The / different custom Temenggong men have a position in the family •Sons have the right to inheritance •Chronology calculated from the male lineage.
•Men also serves as head of the family. Administration Perpatih custom is democratic: •Power is divided from the lowest hierarchy – Perut, Buapak, Lembaga dan Undang. •Selection is done with the consent of the head of the head that are in each stage Instead Custom Temenggong nature of autocracy (absolute power): •strengthen the power of the sultan’s prerogative, for example: color •Administration headed by a king / sultan and supported by glass. •Perut will choose Buapak, Buapak Choose the Lembaga, Lembaga Choose Undang and Undang chose Yang Di pertuan Besar •sultan appoints speaker.
•Magnifying the bottom is the village chief •Sultan serves as a symbol of unity between the people and the head of state •sultan’s son is the heir to the throne •had no sons, the younger brother will inherit the throne of the sultan Legislation In Customary criminal law Perpatih more of a recovery to increase awareness •Offenses committed can be redeemed by paying compensation according to situation. •The equal compensated will be given according the cases, damages will be charged according to the level of such an injured will be paid with chicken or lamb.
Theft victims will be able to recover the replacement bags and killer will bear the family life of the victim. •May the Great or Law can only condemn murder •Yang Dipertuan Besar or Undang can only condemn murder The Temenggong custom nature of vengeance and tougher laws •punishment for murder is death response, stealing hands cut off. •Only the king / sultan to be sentenced to death. Division Of Property In Perpatih Custom Family-Owned Property: •Distribution of the estate inherited from mother to daughter on which the existence of the tribe. •Hereditary estate belongs to the tribe. •Search property: property acquired by spouses during the partnership. If there is a divorce property will divided by two.
•Real result: harmonious property is in the wife before marriage. If there is a divorce, the property remains in the hands of wife. •Real temperament: property owned by the husband before the marriage, the wife cannot claim his property The custom Temenggong individual Possesions: •Based on Islamic law and give justice to all parties. •Sons are entitled to inherit the estate of rate 2/3 compared to girls because based on responsibility tad larger family. •Daughter is entitled to inherit the estate of a fraction of 1/3 part. In conclusion, Perpatih custom and custom.
Temenggong obviously have differences. However, both the common law have the same meaning which is to protect the community, live in compliance with the rules, discipline, respect one another, observe the customs. Both the common law is still practiced to this day. After the arrival of the British, there is a change in the customary practices of local communities. 2. 2 Written Law Written law refers to the laws contained in the Constitution and the State and in the code or statute. Written law as influenced by English law as the legal system of Malaysia retains much of its British legal system. The “Written law” includes the Federal Constitution and State laws and subsidiary legislation.
2. 2. 1 The Federal and State Constitution Malaysia is a federation of 13 states with a Federal Constitution and 13 State Constitution. The Federation Constitution is the supreme law of the country. The Federal Constitution also provides for the “Yang di-Pertuan Agong” who owes his position to the Constitution and act accordance with it. The Constitution can only be changed by a two-thirds majority of the total number of members of the legislature. The Federal Constitution comprises many Articles concerning the religion of the federation and many other related subjects.
Besides the Federal Constitution, there is a state constitution where each state has their own constitution regulating the government of that state. 2. 2. 2 Legislation Legislations refers to the laws that are established by the Parliaments at federal level and by the State Legislative Assemblies at the state level. The Parliament and State Legislatures are not supreme and so they have to enact laws subject to the provisions set out in the Federal and State Constitution. In the Federal Constitution, Article 74, it states that parliament may make law with referring to matters provided
in the List I of the Ninth Schedule while the state legislatives may make law with referring to matter provided in List II. As for matters on List III which is the Concurrent list, are in the authority of both parliament and state legislatives. Matters that are not in the lists are within the authority of the States. 2. 2. 3 Subsidiary Legislations/ Executive Subsidiary Legislations are made by the people or bodies who are authorized by the legislatures. The Interpretation Act 1967 defines subsidiary legislation as rules, regulations, by laws, order, notifications made under legislations.
The Legislatures provide basic law, so subsidiary legislation is very important is unsufficient to govern day-to-day matters. That is why the authority is delegated to delegate their legislative powers. In Article 150 of Federal Constitution, Parliament can pass the power to legislate any subsidiary legislation during emergency, even if there are any contradictions with the Federal Constitutions involved. The people or bodies who are authorized by the legislatures are the Yang di-Pertuan Agong who is the nominal head of the executive and the Prime Minister and cabinet is the real executive.
The Cabinet is answerable to the Yang di-Pertuan Agong as the nominal head of the executive in the country. However, according to the democratic ruling system, the Chief Executive is the Prime Minister. This does not mean that the Yang di-Pertuan Agong is unable to voice any opinion, but rather that he must act on government advice, whatever his personal view might be. The Yang di-Pertuan Agong appoints a Cabinet to advise him on country’s matter. The Cabinet consists of the Prime Minister and a number of Ministers who must all be members of Parliament.
Besides that, the Government has set up various agencies to ensure the smooth enforcement of the law. It comprised of three main components, namely ministries, departments and statutory bodies. 2. 3 Islamic Law Last but not least, Islamic law is also a major source of Malaysian law which is enacted under the Federal Constitution. It is only applicable to Muslims and is administered by a separate court system, the Syariah Courts. The State legislature has authority over the constitution, organization and procedure of the Syariah Courts and is also allowed to make Islamic laws pertaining to persons professing the religion of Islam.
The main function for Syariah court section is to provides advice and legal review of matters related to the implementation,enforcement and legislation at the Federal Shariah referred to by the Government and the agencies under it. Among the issues that is often referred to Section Syariah is the issue of conflict of jurisdiction between the civil courts and the Syariah court as the issue of conversion and conversion to Islam by one spouse to marry non-Muslims and issues relating to the interpretation of the Constitution of the Islamic religion , gender equality , human rights , the enforcement of Syariah law , the implementation of Islamic family law, the development of the judicial system as well as the Syariah Muamalat, banking and finance.
Syariah court section also serves to review the provisions of Federal law to ensure it is in line with Syariah. If there is a provision of federal law that conflict with Syariah then proposals will be submitted to amend such provisions so that it is consistent with Syariah. Else thant that the Syariah Section is also responsible to organize community meetings to discuss Syariah Islamic issues that arise from time to time in the enforcement and the drafting of Syariah law.