LAW037 Notes - 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).

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LAW037 Notes - EXCEPT COURTS W/ SPECIAL JURISDICTION