Transcript pps
MALAYSIAN STUDIES ZAKIAH KHASSIM SOURCES OF MALAYSIAN LAW • WRITTEN LAW :- THE FEDERAL CONTITUTION – FUNDERMENTAL LIBERTIES – LEGISLATIVE POWER OF FEDERAL/STATE – TO CHANGE ON BY 2/3 MAJORITY - THE STATE CONSTITUTION - LAW THAT REGULATES THE ADMINSITRATION OF THE STATE - LEGISLATION - ACTS - ENACTMENTS -SUBSIDIARY LEGISLATION SUBSIDIARY LEGISLATION The term delegated legislation means – • Section 3 Intepretation Acta1948 & 1967 “ any proclaimation, rule, regulation, order, notifications, by law or other instrument made under any ordinance, enactments or lawful authorithy and having legislative effect@ • Laws passed by subordinate authorithy under powers conferred upon it by an Act called parent or Enabling Act • • • • • If parent Act repealed – automatically subsidiary repealed If contravene parent Act or constitution – invalid Exception Section 150 of Fed Consti- emergency ordinance Comparison Subsidiary legislation are laws made by persons or bodies under powers conferred on them by ACTS OF Parlimen or State Assemblies (rules, regulations and by-laws) It become very important as the government gets more complicated • Subsidiary legislation Advantages:• matters of detail as the legislature has no time or technical knowledge • flexibility eg Currency Control • can easily be recinded if impractical or outdated • urgent matters - epidemic, political or economic calamities • compare to Act of Parliament – can be amended/repealed only by another Act and must wait next Parlimentary siting • • • • • • Delegated legislation may be controlled in the following manner :Consultation - prior consultation with organized groups and advisory bodies Publicity - made public as soon as come into force Parent Act can repealed the provision debate in Parliament member may move a prayer to annul the reguslations Sub-delegation means- unusual but if authorized, it means law making will take place at three or more levels from Parent Act Disadvantages: • a)Abuse of power in the hands civil servants not accountable to public • b) Over delegation • c) if power too freely given –undermine effect system Judicial system in Malaysia FEDERAL COURT COURT OF APPEAL HIGH COURT OF MALAYA HIGH COURT OF BORNEO SESSION SESSION MAGISTRATE MAGISTRATE PENGHULU NATIVE SPECIAL COURTS • • • • • SPECIAL COURTS INDUSTRIAL COURTS MARTIAL COURTS SYARIAH COURTS COURT FOR CHILDREN SPECIAL JURISDICTIONS FEDERAL COURT Original :• • • Article 128 (1) of the FC law which the bodies has no power to make disputes between states and federation Referral • to determine constitutional questions Appelate Hear appeal from Hg Court/Court of Appeal (Civil/Criminal) Advisory – advises YDPA on effect of the Constitution SPECIAL HIGH COURT JURISDICTION • divorce & matrimonial matters - estate matters • admiralty matters • bankruptcy matters • appointment of guardians of infants/infants property property • appointment of guardians of mentally disordered person/ unsound mind • Equitable remedy • Presumption of death Unwritten law • Judicial decision • Custom • English law Judicial precedent • • Judge make laws in 2 ways - applying rules to new situation interpreting statutes & apply them Not every case judge need to apply :• case overulled on appeal • arrived in ignorance of the law • material difference in facts Advantages:• more practical as it involved real dispute • flexible and able to grow • richer in legal detail • certain Disadvantage overlooked in view of the large number • difficulty to distinguish obiter/ratio • Decisions of higher court greater than lower ones English law • Unwritten Law comprised of :- English Law, Judicial precedents and customs. • English law - English Law forms part of the laws of Malaysia. It can be found in the English Common Law and rules of equity. However not all form part of Malaysian Law Two limitations :• applicable in the absence of local statutes which is only meants to fill in the lacuna • only that part that is suited to local circumstancesproviso of law Section 3(1) Civil Act • It may offend religious sentiments, customs and practice English Law not applicable in :(a) Criminal Procedure Code • - English law not applicable in CPC • Cases : Karpal Singh & anor vs PP (b) Commercial Law • --Section 5(1) principle of Eng Commercial Law as at 7/4/1956 in the absence of local legislation (except Penang & Malacca ) • --section 15 (2) Eng Commercial Law applicable to 4 states (pg, Malacca, Sabah, Sarawak) apply to the matter which has to be decided as it would in England in the absence of local legislation • Eg : Kon Then Soong v Tan Eng Nam – English Partnership Law not applicable because local statute exist © Land law • Section 6 Civil Law Act- Land Law not applicable • Cases : UMBC vs Pemungut Hasil Tanah Kota Tinggi- eng law not applicable because Land Law is complete and comprehensive . • Note if Eng law accepted by court- it becomes local Law under the doctrine of judicial precedent. • According to your perception, how should an ideal Malaysian be, in respect character, attitude and visions so that he can be well equip to face the challenges of tomorrow.