CHAPTER 1 THE MALAYSIAN LEGAL SYSTEM

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CHAPTER 1 THE MALAYSIAN LEGAL SYSTEM by Mind Map: CHAPTER 1 THE MALAYSIAN LEGAL SYSTEM

1. 1.1 INTRODUCTION

1.1. Historically, Malaysia was once a British colony. In 1957, Malaya gained independence and in 1963, Sabah,Sarawak & Singapore merged with Malaya to form Malaysia. Singapore, however, seceded from Malaysia in 1965.

1.2. In our court structure, that there is a 'High Court in Malaya' and a 'High Court in Sabah & Sarawak'.

1.3. Some statutes apply to the Peninsular of Malaysia but not to Sabah & Sarawak

1.4. Despite the merger, Sabah & Sarawak are constitutionally entitled to preserve certain autonomy (freedom), institutions and laws.

1.5. English law was 'imported' wholesale into our shores. For example, the Royal Charter of Justice of 1807 introduced to Penang the law of England as it stood in 1807.

2. 1.2 THE FEDERAL SYSTEM

2.1. 1. Basic characteristics of a federal system:

2.1.1. Malaysia is a federation of 3 federal territories and 13 states. In a federal system, there are 2 levels of goverment - the central or federal government and the state government.

2.1.2. Under a federal system, the federal government has no complete power over the state government.

2.1.3. State government does not have total freedom to make the laws or to implement the policies it wants.

2.1.4. This structure is laid down by Article 1(1) of the Federal Constitution, the supreme law of our country.

2.2. 2. Federal Constitution:

2.2.1. The Federal Constitution lays down the foundational characteristics of the country, the form and powers of the government, and the fundamental principles by which the country should follow.

2.2.2. For example, by virtue of Article 32 read together with Article 40, Malaysia is a 'constitutional monarchy'.

2.2.3. This means we have a head of state (the Yang di-Pertuan Agong) whose powers are set out or limited by the Federal Constitution.

2.3. 3. Different legislative competence:

2.3.1. A central characteristics of a federal system is that the states within the federation have their own legislative assemblies or low-making bodies.

2.3.2. In the Ninth Schedule of the Federal Constitution, the Federal List states the areas that Parliament may legislate.

2.3.3. National security concerns every state in Malaysia, it is only appropriate that this area falls under the control of the federal government.

2.3.4. Most Islamic affairs fall within the State List. Some matters may be legislated upon by either the federal government or the state government. They fall under the Concurrent List.

2.4. 4.Tourism planning:

2.4.1. Tourism comes under the Federal List. The federal government is responsible for overall tourism planning and development and falls under the jurisdiction of the Ministry of Tourism and Culture (MOTAC).

2.4.2. There are other government agencies whose works directly or indirectly impact on the tourism sector.For example, many ecotourism destinations are located in national parks or forest reserves.

2.4.3. In West Malaysia, this tourism segment is therefore partly regulated by the Department Of Forestry Peninsular Malaysia and the Department of Wildlife & National Parks, Peninsular Malaysia, which come under the purview of the Ministry of Natural Resources and Environment.

2.5. 5. Tourism policies and guidelines:

2.5.1. Apart from enacting statutes pertaining to the tourism industry (e.g. the Innkeepers Act 1952 and the Tourism Industry Act 1992), the federal government lays down policies that affect the sector.

2.5.2. Tourism planning may be affected by broad developmental strategies, such as the Northern Corridor Economic Region and the East Coast Economic Region.

2.6. 6.State tourism planning:

2.6.1. Various states or federal territories may have specific tourism development strategies.For example, the planning and development of tourism in the Federal Territory of Kuala Lumpur guided by the Kuala Lumpur Tourism Policy, formulated by the city council, Dewan Bandaraya Kuala Lumpur.

2.7. 7.Implementation at local level:

2.7.1. National policies or state policies on tourism are manifested in the 'structure plans' and 'local plans' drawn up pursuant to the Town and Country Planning Act 1976.

2.7.2. The structure plans are prepared by the federal Town and Country Planning Authority for the adoption by state goverments.

2.7.3. At the local/municipal levels, 'detailed local plans' are prepared to provide closer guidance on implementation.

3. 1.3 PARLIAMENT, THE EXECUTIVE AND JUDICIARY

3.1. 1.3.1 PARLIAMENT

3.1.1. Parliament is the supreme legislature or law-maker of the country (Article 4). It consists of the Yang di-Pertuan Agong, the Dewan Negara (Senate), and the Dewan Rakyat (House of Representatives).

3.1.2. There are 222 members in the Dewan Rakyat, elected by their respective constituencies during the general election. The senate has 70 appointed senators. It is elected for a maximum period of 5 years.

3.1.3. Laws are normally passed by all 3 bodies acting in agreement. The Yang di-Pertuan Agong is empowered by Article 150 to issue a proclamation of emergency. Once a proclamation is issued, the Yang di-Pertuan Agong may make law independently of the Dewan Rakyat and Dewan Negara.

3.1.4. Also serve other functions. Important social and economic issues are debated and policies are challenged in the process.

3.2. 1.3.2 THE EXECUTIVE

3.2.1. The executive is the government of the day. The function of a government is to implement the laws as enacted by Parliament and to act in the interests of the people.

3.2.2. As a general rule, any political party that has a majority control of the Dewan Rakyatforms the goverment.

3.2.3. The Ministry of Health is responsible for the enforcement of The Food Act while MOTAC is charged with implementing the Tourism Industry Act.

3.3. 1.3.3 THE JUDICIARY

3.3.1. The main function of the judiciary is to decide cases based on existing law.

3.3.2. Judges sometimes come up with new interpretations that effectively create new laws.The judge is forced to 'make' law when deciding the case.

3.3.3. The body of law that is developed by the courts is called 'common law'. 'judge-made law' or 'case law'.

4. 1.4 THE SOURCES OF MALAYSIAN LAW

4.1. 1. Statutes: Laws ecnacted by Parliament are called 'statutes'. State legislative assemblies may also enact laws under the powers conferred to them by the respective state constitutions. Example of statutes that directly affect the hospitality industry are the Inkeepers Act 1952, the Registration of Guests Act 1965, The food Act 1983 and the Tourism Industry Act 1992.

4.2. 2. Delegated legislation: Some statutes may authorised the relevent Minister to make rules under the 'parent Act'.The laws made by the Minister are called 'delegated legislation'. For example, s34 of the Food Act 1983 empowers the Minister of Health to make regulations in order to carry out the purposes of the Act. The Minister has made various regulations which is the Food Regulations 1985, the Control of Tobacco Product Regulations 2004 and the Food Hygiene Regulations 2009.

4.3. 4. Principles of English law applicable to local circumtances: Section 3 of the Civil Law Act allows our courts to adopt English law as our law where they are applicable to local circumtances. The English case, Donoghue v Stevenson, is considered a precedent in our tort law.

4.4. 5. Syariah law: Most Syariah matters fall within the state List and are dealt with by the state legislative assemblies. The halal-certification system (where it applies to food and beverages) is intended to ensure that products are suitable for the consumption Muslims.The concept of Syariah-compliant hotels is also gaining popularity.

4.5. 6. Customs: Customs are no longer an important source of law. Though in some areas such as marriage, divorce and inheritance, the courts may look at the customary law of the relevent group of local inhabitants.

5. 1.5 COURT STRUCTURE

5.1. A plaintiff is a person who brings a legal action against another in court A defendant is a person who is sued in court For example , more than 1 person might be injured in an incident and decide to bring an action jointly against the defendant.

5.2. HIERARCHICAL ORDER IN COURT An appellant is a person who applies to the higher court to reverse the decision of the lower court. A respondent is a person who reply or responds to an appellant’s appeal of the trial court’s decision.

5.3. 1.5.1 MAGISTRATES’ COURT

5.3.1. 1) FIRST CLASS MAGISTRATES

5.3.1.1. Can hear all civil claims that do not exceed RM100,000.

5.3.2. 2) SECOND CLASS MAGISTRATES

5.3.2.1. By contrast , a Second Class Magistrate can only hear a civil matter that does not exceed Rm10,000.

5.4. 1.5.2 SMALL CLAIMS PROCEDURE

5.4.1. An individual (not a company) whose claim does not exceed RM5,000 may proceed under the small claims procedure.

5.4.2. Filling by Form 164 ( Summons and Statement of Claim ) which is available upon request at a Subordinate Courts building )

5.5. 1.5.3 SESSION COURT

5.5.1. The Session Court hears all civil claims that exceed RM100,000 but do not exceed RM1,000,000.

5.5.2. Hear all matters concerning motor vehicles accidents , landlord and tenant and distress , regardless of the monetary value.

5.5.3. 1 March 2013 , the Sessions Court can try all actions for specific performance or rescission of contracts or for cancellation or rectification or instruments within the monetary limit of RM1,000,000.

5.6. 1.5.4 HIGH COURT

5.6.1. In civil matters , the High Court generally hears cases where claim exceeds RM1,000,000 ( except motor verhicle accidents , landlord and tenant and distress )

5.7. 1.5.5 COURT OF APPEAL

5.7.1. The Court of Appeal hears civil and criminal appeals against decisions of the High Court.

5.8. 1.5.6 FEDERAL COURT

5.8.1. Hears criminal appeals from the Court of Appeal but only where the case was heard by the High Court in its original jurisdriction.

5.9. 1.5.7 OTHER COURT AND TRIBUNALS

5.9.1. Syariah Court exercises jurisdiction over matters relating to islamic law where the parties are Muslims.

5.9.2. Native Court only exists in Sabah and Sarawak who practice native customs may have their disputes resolved at the Native Court.

5.9.3. Industrial Court relating to trade disputes and dismissal of employees.

5.9.4. Consumer Claims Trinubal is established under the Consumer Protection Act 1999. It deals with claims arising fro alleged contravention of the act

6. BY: NAVENA A/P MUNIANDY (28DHM17F1099) NURUN NADIAH BT HAMIDON (28DHM17F1023) WAN NURNAJWA NAJEEHAH BT GHAZALI (28DHM17F1015) TUN NURAIN IZZAH BT AHMAD ZAILI (28DHM17F1032)