Different legal systems have evolved in different parts of the world, each from a range sources. Discuss the legal system of Malaysia.
1.0 Types of Legal System in the World
There are various definitions of the term “legal system”. A Legal System is the framework of rules and institutions within a nation regulating individual’s relations with one another and between them and the government.(Book) In this world, there are many types of legal systems, but the few major legal sytems of the world today are civil law, common law, customary law, religious law, socialist and mixed law systems.
Civil law is the dominant legal tradition today in most of Europe, all of Central and South America, parts of Asia and Africa, and even some discrete areas of the common-law world, like Louisiana and Quebec. The origin of civil law is from the Roman law. The civil law is a set out of comprehensive system of rules which are applied and interpreted by judges. Besides that, civil law is older, more widely distributed and in many ways more influential than the common law.
Common law is a system of law that is derived from judges’ decisions, rather than statutes or constitutions. It is based on tradition, past practices and legal precedents set by courts through interpretation of statues, legal legislation, and past rulings. It is of English origin and is found in United States and other countries with strong English influences
Customary law is a traditional common rule or practice that has become an intrinsic part of the accepted and expected conduct in a community, profession, or trade and is treated as a legal requirement. Not many countries in the world today will operate under a legal system which could be wholly customary. However, customary law still plays a sometimes significant role, like in the matters of personal conduct, in many countries or political entities with mixed legal systems.
Islamic law is derived from the interpretation of the Koran. Its primary objective is social justice, but also includes property rights, economic decision making, and types of economic freedom. Islamic law is mostly found in Pakistan, Iran, and other Islamic states.
Socialist law is based on fundamental tenets of Marxist-socialist state and center on concept of economic, political, and social policies of the state. It can be found in some independent states of the former Soviet Union, China and other Marxist-socialist states.
A mixed legal system is a mixture of two or more legal system practised by some countries.
2.0 Malaysia’s Legal System
Different country practices different types of legal system. Some country practices one type of legal system while others practices the mixed legal system which means a combination of two or more legal systems. Malaysia for example, 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. Malaysia’s unique legal system is designed to balance the delicate racial and religious needs of its heterogeneous people. The Malaysian legal system law can be classified into two categories which is the “Written” and “Unwritten law”.
2.1 Unwritten Law
The “Unwritten law” does not mean that the law is literally unwritten. It refers to the laws which are not enacted by the Legislature and which are not found in the Federal and State constitutions. This category of law comes from cases decided by the Courts and the local customs, which is otherwise known as “common law”. The “unwritten law” mainly comprised of the English law, judicial decisions and custom law.
2.1.1 English Law
The English Law can be divided into two which are the English Commercial Law and English Land Law. In section 5(1) of the Civil Law Act 1956 provides that The English Commercial Law is applicable in Peninsular Malaysia except Penang and Malacca as it stood on 7 April 1956 in the absence of local legislation. On the other hand, Section 5(2) of the same act, applies in Penang, Malacca, Sabah and Sarawak as the law administered in these states will be the same as law administered in England, in the like case at corresponding period. As for the English Land Law, none of the English Land Law concerning the tenure, conveyance, assurance of or succession to any immovable property or any estate, right or interest therein applies in Malaysia. In Malaysia, National Land Code is the law that governs the land matters. There is no any allowance for English land law, except in so far the National Land Code might expressly provide.
2.1.2 Judiciary Decision/ Malaysian Court
Approaching the judicial decision, judges do not decide arbitrarily. Instead, they are bound to follow certain accepted principles known as precedents. Precedents are defined as ‘a judgement or decision of a court of law cited as an authority for the legal principle embodied in its decision”.„ The system of binding judicial precedent is called stare decisis. It is created by the English judges and introduced into Malaysia upon colonization.
The Malaysian Court system is similar and in fact, influenced by the English Court system which is divided into the Superior and Subordinate Courts. Under the Subordinate Courts, the Penghulu Court is the lowest level and the state government will appoint a headman to preside the court for the specific district. Relating Sabah and Sarawak, both are equally related to the Native Courts that relates to the indigenous people’s customs. A level above is the Magistrate’s Courts which deals with minor criminal and civil cases and at the highest level are the Sessions Courts. However, the Superior Courts are made up of the High Court, Court of Appeal and Federal Court (which is the highest court in the land).
2.1.3 Customary Law
Customs are another important source of unwritten law. Every race has its own customs. Hindu and Chinese customary law applied to the Hindus and Chinese respectively. Besides that, natives in Sabah and Sarawak have their own customary law which relates to the land and family matters. In Malaysia, there are two types of Adat which is the Adat Perpateh and Adat Temenggung. Adat Perpateh is practiced among the Malays in Negeri Sembilan and Nanning in Malacca. It uses the matrilineal system which belongs to mother’s lineage, meaning to say it involves the inheritance of property, names or titles from mother to daughters. It also concerns with matters such as land tenure, lineage, inheritance and election of members of lembaga and Yang di-Pertuan Besar. As for Adat Temenggung, it is practiced in other states and it uses the patrilineal system which belongs to father’s lineage.
2.2 Written Law
On the other hand, “Written law” 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 and State Constitution, Legislation and Subsidiary Legislation.
2.2.1 The Federal and State Constitution
Malaysia is a federation of 13 states with a Federal Constitution and 13 State Constitution. The Federation Constitution is the supreme law of the country. The Federal Constitution also provides for the “Yang di-Pertuan Agong” who owes his position to the Constitution and act accordance with it. The Constitution can only be changed by a two-thirds majority of the total number of members of the legislature. The Federal Constitution comprises many Articles concerning the religion of the federation and many other related subjects. Besides the Federal Constitution, there is a state constitution where each state has their own constitution regulating the government of that state.
Legislations refers to the laws that are established by the Parliaments at federal level and by the State Legislative Assemblies at the state level…. The Parliament and State Legislatures are not supreme and so they have to enact laws subject to the provisions set out in the Federal and State Constitution. In the Federal Constitution, Article 74, it states that parliament may make law with referring to matters provided in the List I of the Ninth Schedule while the state legislatives may make law with referring to matter provided in List II. As for matters on List III which is the Concurrent list, are in the authority of both parliament and state legislatives. Matters that are not in the lists are within the authority of the States.
2.2.3 Subsidiary Legislations/ Executive
Subsidiary Legislations are made by the people or bodies who are authorized by the legislatures. The Interpretation Act 1967 defines subsidiary legislation as rules, regulations, by laws, order, notifications made under legislations. The Legislatures provide basic law, so subsidiary legislation is very important is unsufficient to govern day-to-day matters. That is why the authority is delegated to delegate their legislative powers. In Article 150 of Federal Constitution, Parliament can pass the power to legislate any subsidiary legislation during emergency, even if there are any contradictions with the Federal Constitutions involved.
The people or bodies who are authorized by the legislatures are the Yang di-Pertuan Agong who is the nominal head of the executive and the Prime Minister and cabinet is the real executive. The Cabinet is answerable to the Yang di-Pertuan Agong as the nominal head of the executive in the country. However, according to the democratic ruling system, the Chief Executive is the Prime Minister. This does not mean that the Yang di-Pertuan Agong is unable to voice any opinion, but rather that he must act on government advice, whatever his personal view might be. The Yang di-Pertuan Agong appoints a Cabinet to advise him on country’s matter. The Cabinet consists of the Prime Minister and a number of Ministers who must all be members of Parliament. Besides that, the Government has set up various agencies to ensure the smooth enforcement of the law. It comprised of three main components, namely ministries, departments and statutory bodies.
2.3 Islamic Law
Last but not least, Islamic law is also a major source of Malaysian law which is enacted under the Federal Constitution. It is only applicable to Muslims and is administered by a separate court system, the Syariah Courts. The State legislature has authority over the constitution, organization and procedure of the Syariah Courts and is also allowed to make Islamic laws pertaining to persons professing the religion of Islam.
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