LAW 416 Group Assignment PDF

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QUESTION 1With the aid of a diagram, describe the present hierarchy of courts in Malaysia and discuss in detail the jurisdiction for the Superior and Subordinate Court.(20 marks)The Federal Court of Malaysia is the highest judicial authority and the final court of appeal in Malaysia. Its decision bi...

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QUESTION 1

With the aid of a diagram, describe the present hierarchy of courts in Malaysia and discuss in detail the jurisdiction for the Superior and Subordinate Court. (20 marks)

The Federal Court of Malaysia is the highest judicial authority and the final court of appeal in Malaysia. Its decision binds all the courts below. The Federal Court consists of a president styled as the Chief Justice (formerly called the Lord President), the President of the Court of Appeal, the two Chief Judges of the High Courts in Malaya and Sabah and Sarawak and presently six Federal Court judges. The Federal Court is heard by three judges or such a greater uneven number of judges as the chief Justice may determine in some particular cases. The Federal Court has the exclusive jurisdiction to determine in all civil and criminal appeals

from the Court of Appeal. In civil appeals, a litigant may appeal on a point of low the rejection or admission of evidence in lower court. In criminal cases, an appeal may be made against acquittal or conviction or against sentence on a point of law or fact. Other than that, disputes on any other question between States or between the Federation and any State (Article 128(1) of the Federal Constitution). In addition, any constitutional questions which have arisen in the proceedings of the High Court but referred to the Federal Court for a decision. The Yang di-Pertuan Agong may refer to the Federal Court for its opinion any question as to the effect of any provision of this Constitution which has arisen or appears likely to arise, and the Federal Court shall pronounce in open court its opinion on any question so referred to it. The Court of Appeal is the second highest court in the hierarchy below the Federal Court. The court is headed by the President of the Court of Appeal and constitutes up to ten Court of Appeal Judges. Every proceeding in the Court of Appeal shall be heard and determine by three judges or such a greater uneven number of judges. The court of Appeal is an appellate court of the judiciary system in Malaysia and has jurisdiction to hear appeals against any High Court decision relating to criminal matters. In civil matters also the court of Appeal has jurisdiction to hear and determine. However, no appeal shall be brought to the Court of Appeal in the following cases which are if the amount or value of the subject matter of the claim is less than RM250, 000 except with the leave of the Court, the judgment or order is made by consent of parties, the judgment or order relates to costs only and where by virtue of any written law the judgment or order of the High Court is final. The court of appeal has no power to review, re-open or re-hear any appeal has been heard and disposed of by the Court of Appeal. The Court of Appeal is the final court of appeal on matters decided by the High Court in its appellate or revisionary jurisdiction. The High Courts have general supervisory and revisionary jurisdiction over all the Subordinate Courts and hear appeals from the Subordinate Courts in civil and criminal matters, but generally confines itself to offences on which the Magistrates and Sessions Courts have no jurisdiction. In criminal cases, no case may be brought to the High Court unless an offender has been committed for trial after a hearing in a Magistrates’ Court. The jurisdiction to try all civil matters includes bankruptcy or winding-up matters, probates and administration of the estates of deceased persons, where the amount in dispute exceeds RM250, 000. The High Court has the jurisdiction to try these civil matters where the cause of

action occurred within Malaysia, the defendant lives or has his business in Malaysia, the facts on which the actions are existed within Malaysia or any land the ownership of which is disputed is located within Malaysia. The High Court may hear appeals from the Magistrates and Sessions Courts in both civil and criminal matters. In criminal jurisdiction, 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, for example, offences which carry the death penalty. The jurisdictions of Sessions Court on criminal cases are to try all offences other than offences punishable with death. The jurisdictions of Sessions Court on Civil Cases are unlimited jurisdiction to try all running down cases, landlord and tenant, and distress. The next jurisdiction is to try other suits where the amount in dispute or the value of the subject matter does not exceed RM1,000,000.00. Other than that, without prejudice to the generality of paragraph (b), jurisdiction to try all actions and suits of a civil nature for the specific performance or rescission of contracts or for cancellation or rectification of instruments, within the jurisdiction of the Sessions Court. The next jurisdiction would be with the consent of the parties involved, to try cases exceeding RM1,000,000.00 but the award is limited to the statutory limit of RM1,000,000.00 only. The Sessions Court may also, in respect of any action or suit within the jurisdiction of the Sessions Court, in any proceedings before it grants an injunction and make a declaration, whether or not any other relief, redress or remedy is or could be claimed. The jurisdictions of Magistrates' Court on criminal cases are First Class Magistrate Court has the jurisdiction to try all offences where the maximum term of imprisonment provided by law does not exceed 10 years or which are punishable with fine only or cases involving robbery and housebreaking by night. Generally, a First-Class Magistrate may pass any sentence allowed by law not exceeding 5 years imprisonment; a fine of RM10,000.00, whipping up to 12 strokes or any sentence combining any of the sentence aforesaid. The jurisdictions of Magistrates' Court on Civil Cases are a First-Class Magistrate Court has the jurisdiction to try all actions and suits of a civil nature where the amount in dispute does not exceed RM100,000.00.

QUESTION 2 With the aid of mind map, discuss the sources of the written and unwritten law of Malaysia. (20 marks)

WRITTEN LAW

-Federal Constitution -State Constituition -Legislation -Subsidiary Legislation

TYPES OF SOURCES OF LAW

UNWRITTEN LAW

-Judicial Decisions -Engish Law -Customary Law

In Malaysian Legal System, the most important source of law is the Written Law which comprises of The Federal Constitution, State Constitutions, Legislation and Subsidiary Legislation. We have 13 states with a written constitution which is the Federal Constitution. In another word, Written Law refers to the law stated in the Federal Constitutions which is the supreme law of Malaysia and it enshrines the basic or fundamental rights of the individual. The Federal Constitutions also stipulates the “Yang di-Pertuan Agong” who owes his position to the Constitution and act according to it. If there is two-thirds of majority of the total number of members of the legislature, the Constitution can be change. The Federal Constitution consists of many Articles concerning religion of the federation, education, medicine and health, labour and social security, welfare of the aborigines and many other related subjects. Besides the Federal Constitution, every state has their own constitution regulating the government of that state which is known as the State Constitution. The State Constitutions consists of provision listed in the 8th schedule. The provision comprises the Ruler, the Executive Council, the legislature and other related subjects like the Legislative Assembly, financial provisions, State employees, and amendment of the Constitution. At the federal level, laws are legislated by parliament and by state legislative assemblies at state level. In 1946, laws enacted by Parliament are called Ordinance. After Merdeka, laws enacted by Parliament are called Act; laws enacted by State Legislative

Assemblies are called Enactment and in Sarawak are called Ordinance. Parliament and the State Legislatures are not supreme. They have to enact law according to the provision set out in the Federal and State Constitutions. Parliament can enact laws on matters enumerated in List I of the 9th schedule while state is competent to enact laws on matter in List II. List III are within the concurrent competence of both authorities. Delegated Legislation is a legislation made by individual or bodies under powers given on them by Act of Parliament. It is important because the legislation made by Parliament and the state is not enough to give the laws needed to govern everyday matters. Another source of Malaysian legal system law is the Unwritten Law. Unwritten law consists of English Law, judicial decision and customs. Part of the laws of Malaysia is formed by the English Law. It can be found in rules of equity and English Common Law. However, the application of the law is subject for two limitations where it is applied only in the absence of local statutes on particular matters and only part of the English law that is suited to local circumstances will be applied. Judicial decisions of the High Court, Court of Appeal and Federal Court was known as Judicial Precedent which is the basic decisions made by judges in similar situations. These courts were following the “doctrine of binding judicial precedent” which means to stand by cases already decided. They use certain accepted principles and they do not decide case arbitrary. Judges always contribute to the growth of unwritten law in Malaysia. Some customs of the local inhabitants such as Adat Perpatih, Adat Temenggung and custom related to family law are given legal force by courts in this country. In Sabah and Sarawak, land dealing over native customary lands and family matters are applied by native custom-matters...