...net/administrative-law/essays/sources-of-the-malaysian-legal-system-administrative-law-essay.php Sources Of The Malaysian Legal System These essays have been written by students for you to use to help you with your studies. If you need your own custom law essay then we can help.... Get a quote for your own law essay... Share & Download Malaysia practices the mixed legal system which includes the Common Law, Islamic law and Customary Law. Malaysia’s legal system comprises laws which have arise 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. The Malaysian Legal System is based on English common law. The sources of Malaysian law means the legal rules that make the laws in Malaysia, which can be classified into written and unwritten law. Written law is the most important source of law. It refers to the laws contained in the Federal and State Constitutions and in a code or a statute. The written laws are much influenced by English laws as the Malaysian legal system retains many characteristics of the English legal system. The Written law includes the Federal Constitution, State Constitutions, Legislation and Subsidiary legislation. Malaysia is a Federation of thirteen States with a written constitution, the Federal Constitution, which is the supreme law of the country...
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...The laws of Malaysia can be classified into two types of laws, which are written law and unwritten law. Written laws are the Malaysia’s most important source of law. These written laws are made up of Federal Constitution, Acts of Parliament and Enactments, and subsidiary/delegated legislation. Unwritten laws are laws which are not enacted by the legislature (Parliament and State Assemblies) and not found in the constitution, both federal and state. This is known as the English common law and the rules of equity. In case, if there is no law governing a particular circumstance, Malaysian case law may apply. If there is no Malaysian case law, English case law can be applied in accordance with the Civil Law Act 1956 (Revised 1972) only in the absence of local statues on the particular subject matter. It is mean that the common law and the rules of equity can be modified and should not follow the same law as administered in England. Common law and the rules of equity can be developed and amended according to the local needs. S3(1) of the Civil Law Act 1956 statutorily provides that only the part of the English Law that is suited to the local circumstances are to be applied : I. West Malaysia - the English common law and the rules of equity and statues of general application in England as 1 December 1951. II. Sabah – the English common law and the rules of equity and statues of general application in England as at 1 December 1951. III. Sarawak – the English common law and...
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...The Federal Court of Malaysia is the highest judicial authority and the final court of appeal in Malaysia. The country, although federally constituted, has a single-structured judicial system consisting of two parts - the superior courts and the subordinate courts. The subordinate courts are the Magistrate Courts and the Sessions Courts while the superior courts are the two High Courts of co-ordinate jurisdiction and status, one forPeninsular Malaysia and the other for theStates of Sabah and Sarawak, the Court of Appeal and the Federal Court. The Federal Court, earlier known as the Supreme Court and renamed the Federal Court vide Act A885 effective from June 24, 1994, stands at the apex of this pyramid. There are generally two types of trials, criminal and civil. The hierarchy of courts begins from the Magistrates' Court, Sessions Court, High Court, Court of Appeal, and finally, the Federal Court. The jurisdiction of the courts in civil or criminal matters are contained in the Subordinate Courts Act 1948 and the Courts of Judicature Act 1964. Article 121 of the Constitution provides for two High Courts of coordinate jurisdiction, the High Court in Malaya, and the High Court in Sabah and Sarawak. Thus this creates two separate local jurisdiction of the courts for Peninsular Malaysia and for East Malaysia. The highest position in the judiciary of Malaysia is the Chief Justice of the Federal Court of Malaysia (also known as the Chief Justice of Malaysia), followed by the President...
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...“The only source of law in Malaysia is the Federal Constitution” Do you agree? Discuss. State the relevant section and case law wherever relevant. Equity Equity Federal Constitution Federal Constitution Customs Customs Judicial Precedents Judicial Precedents English law English law State Constitutions State Constitutions Common law Common law Legislation Legislation Subsidiary Legislation Subsidiary Legislation According to the table above, we don't agree that the Federal Constitution is the only source of law in Malaysia. State constitution The constitution is the Supreme Law of Malaysia. Federal constitution is the highest law of the land. Besides the Federal constitution, which applies to all states in the Federation. Each state also possesses its own constitution regulating the government of that state. The state constitution contains provisions which are enumerated in the Eighth Schedule to the Federal constitution. Some of these provisions include matters concerning the Ruler, the Executive Council, the Legislature, the legislative Assembly, financial provisions, State employees, and amendment to the Constitution. If such essential provisions are missing, or if any provision is inconsistent with them, Parliament may make provision to give effect to them or to remove any inconsistencies, as the case may be ---Article 71, Federal constitution (Lee&Ivan, 2014). English law English law is used as a sources of law which was provided...
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...In English law if other than the promisee provide consideration, then the promise could not be enforce by the law. This problem usually may arise when third party involve. For example in the case of Price v Easton (1833), In this case X are doing work for Easton and Easton make a contract with X. In return for X services Easton would pay a price of $19 to Price. The work was done by X but Easton didn’t make any payment to Price and Price sue Easton. Court held that Price claim failed as he didn’t make any consideration. However under the Malaysia law third party of promise are allowed to provide consideration. Section 2(d) of contract Act 1950 define consideration as “when at the desire of the promisor, the promisee or any other person has done or abstained from doing, or does or abstains from doing, or promises to do or to abstain from doing, something such act or abstinence or promise is called a consideration for the promise”. For example in the case of Kerpa Singh v Bariam Singh [1966], The defendant own RM8,869.94. In order to settle the debt the defendant son offer a cheque to plaintiff RM4,000 in full settlement for his father debt. The plaintiffs cash the cheque and demand for the balance of the debt. The federal court ruled that as the plaintiff cash the cheque. It is consider that the plaintiff has acceptance the defendant son offer in full satisfaction preclude the plaintiff to claim the balance of the debt. This means that, for an agreement to be binding...
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...perpetrators can exploit traditional vulnerabilities in seconds. They can also take advantage of new weaknesses in the software and hardware architectures that now form the backbone of most organisations including the Government. Hence, in order to protect the security of user in communication and multimedia industry, the Malaysia Government have enforce several Acts and regulatory framework. All the regulatory frameworks will be discuss further in this report. DISCUSSION. Malaysia was one of the earliest countries to introduce a specific set of laws covering the Internet. These laws known as Cyber Laws which enacted in 1997. The government include the Computer Crimes Act 1997, the Digital Signature Act 1997, and the Telemedicine Act 1997 in Cyber Laws. The Malaysian Communications and Multimedia Act 1998 or CMA was also enacted as the regulatory arm for the Ministry of Energy, Communications and Multimedia namely, the Communications and Multimedia Commission in 1998. This Commission purpose was to regulate communications and multimedia activities. The CMA provides for a regulatory framework to enhance the rapid growth of the communication and multimedia industry in Malaysia. The CMA also had been enacted to replace previous regulatory such...
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...a) Sources of law is the authority from which the law derives their forces. It also can define as legal rules that make up the laws in Malaysia. The sources of law in Malaysia can be divided into two types, which are written laws and unwritten laws. Written law is the law that has been enacted by the legislature or constitutions while unwritten law is the law that has not been enacted by any legislature or constitutions. Written law consists of three sources, which is Federal and State Constitution, Federal and State Legislation, and Subsidiary Legislation. Firstly, Federal Constitution is the supreme law of the land of the country by virtue of Article 4 of said constitution; any laws passed after Merdeka Day which is inconsistent...
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...English Law (Common law) Common Law is a major part of many States, especially Commonwealth countries. The common law is based on the principle of deciding cases by reference to previous judicial decisions, rather than to written statutes drafted by legislative bodies. The decisions came from English Common Law courts and are essential case law made by English judges. It is based on tradition, past practices and legal precedents set by courts through interpretation of statues, legal legislation, and past rules. The existence on English Common Law assists judge to decide cases when Statute is not adequate to cover the situation. Section 5 of the Criminal Procedure Code states that English law shall be applied in cases where no specific legislation has been enacted. However, only the relevant part which is suited to the local needs and circumstances applies. Consequently not all English laws are applicable in Malaysia. This can be look at the formation of Malaysian law is not totally by English law indicating that not all English laws are applicable in Malaysia. The application of English Common law could be illustrated by the situation when there is no law governing by a particular circumstances, Malaysia case law can be applied. If there is no Malaysian case law, English case law can be applied. In the case “Commonwealth of Australia v. Midford (Malaysia) Sdn. Bhd”, it was held that the doctrine of sovereign or crown immunity which was developed in English Common Law after...
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...[Please do not circulate or cite without permission] Written Constitutions and Unwritten Constitutionalism Mark D. Walters Faculty of Law Queen’s University February 2007 To Be Published In: Grant Huscroft (ed.), Expounding the Constitution: Essays in Constitutional Theory (Cambridge University Press, forthcoming) I. Introduction Defending the idea of ‘unwritten law’ has never been easy. Jeremy Bentham thought the very expression to be a ‘paradoxical and unmeaning epithet’.[1] In his view, social reform required ‘fixed and accurate’ laws—laws that ‘[w]e see, we hear, we touch; in short we handle…’[2] This empirical concept of law follows from the ideal of law as something produced by conscious acts of sovereign will. Central to this concept are, to use H.L.A. Hart’s expression, ‘rules of change’ that permit societies to escape the confines of ‘primitive’ custom.[3] The progressive march of legal theory, it may be said, has been away from medieval notions of law as customs practiced time out of mind or as the immutable dictates of natural law, away from the fiction that judges discover rather than make law, and towards modern notions of law as creative political acts recorded in writing. In terms of constitutional law, this march leads to the idea of written constitutionalism, a destination that the rebelling American colonists are often said to have reached first.[4] It was a task especially ‘reserved’ to the American people, wrote...
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...Sustainable Energy Development Authority SUSTAINABLE ENERGY DEVELOPMENT AUTHORITY BILL 2010 ARRANGEMENT OF CLAUSES PART I PRELIMINARY Clause 1 1. 2. Short title and commencement Interpretation PART II THE AUTHORITY 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. Establishment of the Authority Common seal Membership of the Authority Temporary exercise of functions of the Chairman Schedule Approval to hold other offices Tenure of office Remuneration and allowances Revocation of appointment and resignation Vacation of office Committees Disclosure of interest PART III FUNCTIONS AND POWERS OF THE AUTHORITY 15. 16. 17. 18. 19. 20. 21. Functions of the Authority Powers of the Authority Additional functions of the Authority Delegation of the Authority’s functions and powers Direction by Minister Returns, reports, accounts and information Authority may establish and participate in bodies corporate 2 Bill PART IV EMPLOYEES OF THE AUTHORITY Clause 22. 23. 24. 25. 26. 27. 28. The Chief Executive Officer Temporary exercise of functions of Chief Executive Officer Appointment of employees of the Authority Conditions of service Payment of retirement benefits, etc. Loans, scholarships and advances Authority may adopt regulations, etc. PART V FINANCE 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. The Sustainable Energy Development Authority Fund Expenditure to be charged on the Fund Conservation of the Fund Bank accounts Power to borrow Investment Limitation on...
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...and discuss environmental issues and its’ challenges in Malaysia. Motivation According to the statistic from the River Division of Department of Irrigation and Drainage Malaysia (Cho, 2006), there are a total of 189 rivers in Malaysia which cover 57,300 kilometres in length with 89 rivers in Peninsular Malaysia, 22 rivers in Sarawak, and 78 rivers in Sabah. River is important to our life because it could serve as the source of transportation, recreation, food, and income. In fact, rivers provide 97 % of all the water used in Malaysia. However, some rivers have been identified as highly polluted and caused great negative impacts to human and livestock in the polluted areas. The reduction in river water quality is a clear indicator of the decline in the environmental health of a river basin too (Azwad, 2012). Since river pollution is highly concerned with our daily lives, I am motivated to look into the river pollution issues and its rehabilitation challenges in Malaysia. River Pollution Statistical Background in Malaysia River pollution is a serious problem in Malaysia and causes negative impacts on the sustainability of water resources. It reduces the total water availability considerably due to the high water treatment cost or the polluted waters are not treatable for consumption in some instances. Meanwhile, Department of Environment (DOE) Malaysia had classified Juru River, Penang as the most polluted river in Malaysia (SungaiJuru.com, 2011). It is shamed that the Juru River...
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...MARINE ENVIRONMENT LAWS IN MALAYSIA DEVELOPMENT AND COMPLIANCE Outline of Presentation • Introduction • Objectives of Study • Methodology • Development of Marine Environment Laws in Malaysia • Compliance with Marine Environment Laws in Malaysia • Conclusions Introduction – Environmental Law • Body of international convention, domestic statutes • • • or laws, state or provincial ordinances and local government bylaws that govern human activities which impact the environment. Established to: - avoid tragedy of the commons - eliminate free riders in environmental protection and control of pollution And in response to: - the growing development of environmental ethics - the changing requirement of international law Tool for implementing policies Objectives of Study • Examine marine environment laws in Malaysia in terms of its development and its coverage; • Assess the level of compliance with marine environment laws in Malaysia and what it means in terms of environmental management; and • Identify means to promote compliance with environmental laws. Research Questions • How has marine environmental law in Malaysia changed over the years? • Are our laws adequate in dealing with marine environment issues? • What is the level of compliance with our marine environment laws? • Can the compliance level be improved? • What are the factors which drive environmental law development in Malaysia? Methodology •...
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...Introduction History of Unwritten Law Objective of Unwriten Law General Principle of Unwritten Law Element of Unwritten Law The Different between a Unwritten Law and Written Law Example of Unwritten Case UNWRITTEN LAW It is simply that portion of Malaysian law which is not written, i.e., law which is not being enacted by Parliament or State Assemblies and which is not found in the written Federal and State Constitutions. Unwritten law is found in cases decided by the courts, local customs, etc. Unwritten law comprises of the following. * English law The common law of England does apply in Malaysia. However, not all of England’s common law forms part of Malaysian Law. Section 3 (1) of the Civil Law Act 1956 ( Revised 1972) provides that, in Peninsular Malaysia, the courts shall apply the common law of England as well as equity as administered in England on April 1956. In the states of Sabah and Sarawak, the common law of England and the rules of equity together with the statutes of general application shall be applied However, the application of the English law throughout Malaysia is subject to two limitations: a) It is applied only in the absence of local statutes on the particular subjects. Local law takes precedence over English law as the latter is meant to fill the gaps (lacuna) in the local system. b) Only that part of the English law is suited to local circumstances will be applied. The provision to Section 3(1) of the Civil Law Act, 1956 is authority for...
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...legal system. Nowadays, there are few types of legal systems such as civil law, common law, customary law, and mixed law systems. Some country practices one type of legal system and practices the mixed legal system. Malaysia for example, practices the mixed legal system which includes the Common Law, Customary Law and Islamic law. The sources of Malaysian Law can be separated into two different laws which are written and unwritten. Written law refers to the law that is contained in a formal document and which has been passed by a person or body that is authorised to do so. In Malaysia, written law consists of the Federal Constitutions, State Constitutions, Legislation and Subsidiary legislation. Unwritten law, refers to the law that has not been formally enacted. The unwritten law consists of Judicial precedents, Islamic law, Customary law and English common law. Written law, the Federal Constitution is the supreme law of the land. It is a written constitution. It stipulates the powers of the Federal and State level and provides for a democratic system of government. It also establishes a constitutional monarchy and entrenches fundamental liberties of the individual. To ensure that the Federal Constitution is not easily amended, a special majority of two-thirds of the total number of members of the legislature is required for an amendment. State Constitution is own by each of the 13 states of Malaysia. These contain provisions which are counted in the Eighth Schedule to the Federal...
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...Unwritten Law Unwritten laws are laws that are not enacted and not found in any constitution. It comprises of judicial decision of the superior courts, English law and customary law. Judicial decisions of the superior courts In Malaysia, judicial decisions of the superior courts are the High Court, Court of Appeal and the Federal Court. It is based on the hierarchical system known as stare decisis or the doctrine of binding judicial precedent. There are two types of precedents. Mandatory precedent is applied when the decisions of superior court are binding on lower courts or the superior courts are bound by their own decisions previously. However, the decisions of lower courts are not binding over superior courts. The lower courts must refer to the mandatory precedents of superior courts. However, judge of superior court will distinguish a case before him and the cases lying down the precedents and can decide not to follow the mandatory precedent if he thinks that the mandatory precedent is not related to the case before him. From this, an original precedent is formed. Persuasive precedent is a precedent which is useful or relevant to a case. It is not mandatory for the judges to apply persuasive precedent. Persuasive precedent may be binding on lower courts if judges of superior court choose to apply persuasive precedent. Precedents are the decisions made by judges previously in similar circumstances. It is generally recognized that judges do make law though not in the...
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