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NOTES LAW 033INTRODUCTION TO MALAYSIAN LEGAL SYSTEMNAME:STUDENT ID:*Some topic is incomplete, add it yourself- This note is not endorsed by any parties- Updated prior 2nd Edition 2019LAW 033CHP 1 - LEGAL SYSTEMDEFINITION : A procedure or process for interpretingand enforcing the law.Three main types...

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NOTES LAW 033 INTRODUCTION TO MALAYSIAN LEGAL SYSTEM

NAME:

STUDENT ID:

*Some topic is incomplete, add it yourself - This note is not endorsed by any parties - Updated prior 2nd Edition 2019

LAW 033

system

CHP 1 - LEGAL SYSTEM DEFINITION: A procedure or process for interpreting

and enforcing the law.

Trial by Jury

Give accused people the option of trial by their peers

Countries;

Malaysia, Australia, New Zealand, India…

Three main types of legal systems in the world -

Common law Civil law Religious law

FEATURES Meaning Sources of law

Reliance on precedent

Role of Judges

Type of argument

Presumption of Innocence

Common law Derived from English law Rules of law derived from judicial decisions rather than statute (Anthony et.all) Strong

- Makes rulings - interpret the law - Sets precedent - referee between lawyers Adversarial; two sides in a case have the chance to present their arguments equally before a neutral judges or juries for a decision - An accused person is innocent until proven guilty - The accused person does not have to prove innocence; already presumed - Explicitly stated in common legal

right to a fair trial and the presumption of innocence Trial by jury is less common; except in very selective circumstances Netherlands, Italy, Spain…

ADVANTAGES & DISADVANTAGES OF CIVIL LEGAL SYSTEM AND COMMON LEGAL SYSTEM

Civil law Derived from Roman law Refer statutes as primary source of law

Advantages

Civil law legal system Disadvantages

- Codified - Written in a simple manner - Easy to read

The binding doctrine of precedent does not apply - Establish the facts of the case - Apply the provisions of the applicable code

- Rigid & difficult to change - Give more power to legislature - Lack of flexibility -Time consuming

Common law legal system Advantages Disadvantages - Specificity: Judges - Perpetuation to bad play a role by ruling; bad decision will examining facts in each remain law until the case, administering the court overrules the law, interpreting decision relevant legislation - In the absence of precedent; The court - Consistency – binding have to make a ruling of judicial precedent when no previous law works effectively existed - Unforeseen case - Need for records; - Speed & reliability Lengthy, detailed record have to - Political maintained. independence

Inquisitorial; Role of court to uncover the truth

- Not usually stated - Most European country ratified the European Convention on Human Rights

Religious Law Refers to law that derive its authority from religious sources, i.e. holy books, traditions.

- guarantees the

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- Code of ethics and morality which is upheld and required by God.

DEFINITION: The system of law used to administer justice due to any person specially to preserve his or her rights as guaranteed by the Constitution.

- A legal system which stems from sacred texts of religious traditions.

Adversarial & Inquisitorial Legal System

- Islamic law is one of the most widely used religious law and is one of the three most common legal systems in the world.

Adversarial system: - A competitive process to determine the facts and application of law accurately between two people of conflicting interests, e.g. in a criminal case, it involves a public prosecutor and an accused person whereas in a civil case, a plaintiff and a defendant.

- i.e. Iran, Saudi Arabia, Malaysia, Pakistan, Sudan, Yemen. - Shariah (Islam), Halakha (Judaism), Canon Law (Christian). DIFFERENCES BETWEEN RELIGIOUS & MAN-MADE LEGAL SYSTEM

Source Nature

Dispute

Punishment

Religious God or Prophets Perceive to be eternal & cannot be change Settle by officer of religion such as Priest, Ustaz May include punishment in this world and after world

- Fearlessly uphold the client interest without regard to unpleasant consequences either to himself or others.

Man-made Human Being Can be changing by the maker at any time according to the demand Settle by appointed judge

- Applied in common law countries i.e. UK, Malaysia, most Commonwealth countries and US. - In Malaysia, the core concept of litigation is the adversarial system, whether civil or criminal. Inquisitorial system: - Basically, used in civil law countries, i.e. France

Punishment – imprisonment, fine, whipping…

- Judge will conduct the summary process – conducting an investigation and examine witnesses and documents - The Prosecutor merely assisting the court in certain circumstances

CHP 2 – SYSTEM OF JUSTICE

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witness testimony/credibility - Re-examination:

FEATURES & DIFFERENCES OF ADVERSARIAL AND INQUISITORIAL LEGAL SYSTEM

Control

Role of the judge

Role of lawyers

Adversarial - Party controlled - Case organized / developed by sole initiatives of the parties - Each side to a dispute presents its best evidence and motions - passive - Act more like referee -make sure rules of evidence and correct procedure are followed -clear up any ambiguities - ensure trial follow the principles of fairness and equality - must always remain neutral - not interfere too much in the trial - Active - Success of a case strongly based on the skill of the lawyers presenting the case - Decide how and what evidence will be used - Discovering, presenting evidence for their clients / challenging evidence presented by opposition

Verdict

Process

- Declare by jury based on question of facts - *if there is no jury, then the judge will declare the based on the question of facts, as well as the question of law. - Examination in chief: ~Direct questioning/examination of party’s own witness under oath - Cross examination: ~ Process where witness who already testified in examination in chief to be questioned by opposing counsels in order to check, or discredit or impeach the

Inquisitorial - Court control - Control lies more in the hand of judges; reduces disturbance of the attorneys - Active - Truth finder - Controls the execution of every motions - Exercising the power by asking supplemental evidence - Often conducting primary examination of witnesses. - Passive - Success of the case strongly depends on the quality of the investigation done by collaboration between lawyers & judge. - Merely assist judge in investigation

~ conducted by lawyer who present the witness in examination in chief; must revolve around matters brought up in cross examination. ~except allowed by judge ~opponent is given opportunity to cross ~ purpose is to enable witness to clarify which may be weaken during cross.

with the aim to discovering evidence ~Lawyers monitor the investigation (may make certain request) ~the way investigation is handled, remain to the judge. - If the judge recommends a trial, then only trial will be conducted. - only be made when judge convince there is sufficient evidence of guilt against the defendant - The defendant will have to prove his case against this established guilt by the judge.

ADVANTAGES & DISADVANTAGES OF ADVERSARIAL AND INQUISITORIAL SYSTEMS:

Advantages

- Declare by judge based on the evidence & codified law.

- Pre-trial investigation will be conducted by the judge - The judge will conduct an inquiry (involves the questioning of witnesses and suspects, issue of search warrant, examination of the evidence)

Disadvantages

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Adversarial - Any evidence brought into court is tested for its accuracy by the examinations - Judge cannot comment until both sides are heard - Dispute is decided by an independent judge; give public confidence - Expensive - Much emphasis is placed on legal argument

Inquisitorial - Decision rests in the hand of crime expertise - All evidences will be checked - No chance of being swayed by fancy arguments

- Slow because judge do majority of the investigation -Bias (one judge)

TYPES OF LITIGATIONS

PRELIMINARY MATTERS

Civil Litigation

There are 5 preliminary matters:

- To settle disputes between individuals in organized manners either in claiming or defending.

1) Parties to the suit 2) Locus Standi

- Govern by Civil Procedure

3) Cause of action

- Sources:

4) Limitation period

1) Statutes: Court of Judicature Act 1964, Subordinate Court Act 1948

5) Remedies Parties to the suit

2) Case law

Civil Litigation Criminal Litigation First instance: Plaintiff v PP v Accused person Defendant On appeal: Appellant v Respondent

3) Practice Notes/Directions (issued by Chief Registrar to smooth the procedure in Court.

Criminal Litigation

Plaintiff: the party that initiate the lawsuit

- To govern the criminal offenses (wrong against the states) done by the criminals

Defendant: the party that have to defend the claim by the plaintiff against him.

- Initiated by P.Prosecutor/DPP/Police inspector & above in court.

There are 2 Conditions that must be fulfilled in order to be parties to the suit:

- Preserve the Fundamental Liberties (Art.5) of F. Constitution.

1)

- Governed by the Criminal Procedure

2)

Sui Juris – 18 and above, according to the Age of Majority Act 1971 Compos Mentis – Sound mind; able to understand and form rational judgement to the effect of litigation on him.

- Sources: 1) Statutes: C.O.J Act 1964, Subordinate Courts Act 1948

Locus Standi

2) Criminal Procedure Code 3) Case Law

- Literally, place to stand

4) Practice notes/Direction.

- Right to appear or bring an action or to be heard in court or to address the court on a matter before it. - determines competence of a plaintiff initiate civil proceedings in a court of law against defendant

DIFFERENCES Criminal Litigation Wrong against the state for any unlawful act that unacceptable in the eyes of public Matters like murder, rape, theft, hurt.

Prosecuted by the state; Prosecutor / Attorney General To punish the wrongdoer

- to ensure system is not abused by people who have no interest

Civil Litigation Govern disputes between individual

Case: Malaysian Trades Union Congress V Government of Malaysia [2014] 2 CLJ 525 Matters such as contracts, partnership agreements, marriage, wills, sales of property, and tort. Lawyer represents clients

-

Plaintiff need to prove at least a real and genuine interest in an issue

E.g: - you want to sue a restaurant for giving poisonous food as a “customer” - you involved into an accident, so you want to sue other party as “a road driver”

To compensate the plaintiff for injuries or damage suffered

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Cause of action

Case: Pirelli Cable Works Ltd V Oscar Faber & Partners [1983] 2 AC 1 -

- Cook v Gill (1873) LR 8 CP 107: “A cause of action is every fact which is material to be proved to entitle the plaintiff to succeed”

- Plaintiff must have cause of action which is “complete”

Cause of action started when the crack on chimney occurred, NOT when the plaintiff discovered it. Action was time barred because discovered after time barred.

Remedies

Case: Sio Koon Lin V SB Mehra [1981] 1 MLJ 225 The plaintiff commenced an action for recovery of arrears where in fact not yet due at the time of the claim The Court held the plaintiff has no cause of action since the debt was not yet due.

- refers to any method available under the law to obtain redress for the infringements of rights Damages

Rescission of contract Breach of Contract: - Contract - Breach of Contract - Loss Specific performance

Tort & Negligence: - Duty of care - Breach of duty of care - Damages

Injunction

Limitation period

Quantum Meruit

- Refers to the period within which the suit must be brought to the court - Plaintiff must initiate action within the specified period, otherwise the suit will be statute-barred - The countdown begins once the cause of action is complete. Action for Tort and Negligence

Dependency Claim

Action against Public Authorities (Fed/State) in discharging their public duties.

- Section 6 of Limitation Act 1953 - Action must be taken 6 years from cause of action completes. - It must start from wrongful act happen, not when plaintiff discovered it. - Section 7(5) of Civil Law Act 1956 - Within 3 years after the death of the person - Section 2 of Public Authorities Protection Act (PAPA) 1948 - Action must be brought within 3 years after the wrongful act complained

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- Money compensate for any loss or damage resulted from the wrongful act - Plaintiff ask for the contract to be cancelled - Especially if the breach goes to the root of the agreement - Under certain circumstances - Order of the court for certain act to be performed specifically according to the agreement - Order of the court for a party to or not do something - Award in ‘proportion of the work done’. - Party who has performed his side of the bargain before the breach, must be awarded adequately.

CHP 3 - CLASSIFICATIONS OF LAW - Refers to different category of law that can be collated under an issue/area of law. PURPOSE - To determine types of procedure involves if action is to be take - To determine types of remedies available - To explain our rights and obligations under certain classification of law Common law Developed by common law judges that applying the principle of ‘stare decisis’. A.K.A case law / precedent

Complete system of law

Remedies available as of right The only remedy available is an award of damages

National law - Consist of rules and principles, which govern the relationship between the citizens in a country - operative within a particular state -a.k.a municipal / domestic law / state law Regulates the conduct of persons within sovereign state Concerned with: - running a particular country - promoting the interests of its people For example: Acts of

Parliament, State Enactment – contracts, marriage, wills, etc - All law passed & practiced in Malaysia are National law Divided into: - Public Law - Private Law

- Military agreements - Diplomatic treatises - Trade regulations - other international agreements

Public International Law

Private International Law - Rules to determine which law prevails when a case involves parties from different countries - a.k.a conflicts of laws I.e; - Dispute between a Malaysian & American arising from breach of contract - Family matters; parents of different nationalities claim custody of their children.

- Governs relations of states inter se - Concerns with dispute between countries

Equity - Developed by chancellors - dealing with petitions addressed to the King from citizens - complained about rigidity of common law - Literally means ‘fairness’ Complements to common law, where their application would operate harshly, so as to achieve what is sometimes referred to as ‘natural justice’ Discretionary remedies

I.e; - issue of Pulau Sipadan & Pulau Batu Putih; to determine to which country the island is belong to; rules of war

Public Law Law that governs the relationship between individuals & the States To protect public interest

The remedies are of equitable in nature, including injunction, specific performance, & rescission of contract

Subdivided into criminal law, constitutional law, and administrative law

International law - Consist of rules and principles, which govern the relations and dealings of nations with each other - Only work if the other nation-states accept and abide those rules. Regulates the conduct of sovereign states - Promote the welfare of the entire international community - Has to respect the sovereignty of states For example:

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Divided into: - Public International law - Private International law

Private Law Law that governs the relationship between individuals To protect the individual interest - Contracts - Torts - Property - Family - Partnership - etc

Criminal law - Body of law dealing with crimes and their punishment - Concerned public rights & remedies towards the wrongs against the society

The party bringing the case is the States (i.e Prosecutor) - To punish the wrongdoer - To give him / others lesson not to commit similar crimes Standard proof: Beyond reasonable doubts Theft, robbery, murder, rape, etc…

Civil law - Body of law dealing with disputes between people / between the government & its citizens - Concerned with private rights and remedies - Duties that exist among and between persons, organizations and government The party bringing the case is the Plaintiff

Substantive Law Law that govern rights, duties and liabilities among citizens and government Defines the legal rules and principles, which guide the courts in decisionmaking For example: Theft is an offence For example; - Contracts Act 1950 - Penal Code

- To compensate the innocent party for the damage done

Standard proof: Balance of probabilities Contracts, divorce, child, custody, etc…

Procedural Law Law that governs the procedures in the enforcement of rights and duties under substantive law Includes how to file a case, in civil and Syariah courts etc.

For example; - Subordinate Court Act 1948 - Rules of Court 2012 - Criminal Procedure Code

Criminal case: Public law – Criminal law – National Substantive law – Procedural law – Written law Civil Case: Private law – Civil law – National/International law – (if international) Private/Public International law Substantive law – Procedural Law – Written/Unwritten – (if unwritten) Common Law

Written Law Refers to the law that has been enacted by the Parliament / State Legislative Assemblies (SLA) In Malaysia, it comprises of: - Federal Constitution - State Constitution - Legislation - Subsidiary legislation

Unwritten Law Refers to the law that has not been formally enacted

In Malaysia, it comprises of: - English common law & equity - Judicial precedent - Local customs

Syariah/Islamic Law - Govern the Muslims - Covering matters such as morality, inheritance, marriage and divorce - Syariah Courts have jurisdiction to try civil case (Mal) and criminal cases - Syariah Civil Law; have jurisdiction in personal matters (i.e family law and inheritance) - Syariah Criminal Law; With regards to criminal cases, drinking or eating on Ramadan are examples of offenses which may carry a jail term up to one year. - Sources: Primary- Quran & Sunnah

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CHP 4 – SOURCES OF LAW

[2] Amendments requiring simple majority

DEFINITION: The authority from which the laws derive their force

- Simple majority means, any majority – more than 50% - Art. 159(4), Certain provisions can be amended if supported by simple majority of members present and voting in each dewan.

SOURCES OF MALAYSIAN LAW

For examples: - Art. 121 (1); The creation of inferior courts, jurisdictions and powers of the H.C and inferior courts...