INTRODUCTION TO LAW MALAYSIAN LEGAL

SYSTEM (LAW245)
DEFINITION OF LAW
ØLaw is a system of rules, usually enforced through a set of institutions.
It shapes politics, economics and society in numerous ways and serves
as a primary social mediator of relations between people.
ØA set of defined principles that governs and regulates human
behaviour.
ØA body of enacted / customary rules recognized by the community
as binding. –Oxford English Dictionary
FOUR SCHOOL OF LEGAL THOUGHTS
1) Naturalist
ØLaw is essential to man and based on reason and human conduct
ØThe oldest amongst school of legal thought.
ØTo all laws must be created by God and man must abide with the
laws.
ØMorality and laws come together.
ØScholars – St Aquinas, Hugo Grotius
2) Positivist
ØLaws adopted by human beings and endorsed by authority.
ØLaw as command of the sovereign body in a society.
ØThis command is backed by sanctions.
ØSeparated law and morality. Law as it is.
ØScholars – Bentham, Austin, Salmond
3) Sociologist
ØLaws to facilitate the transactions between man, solving problems.
ØLaw acted as social mechanism to control society.
ØLaw reflects the identity of society.
ØScholars – Max Weber, Roscoe Pound
4) Realists
ØLaw is a part of the overall social structure having links and dependencies with
other social elements and forces.
ØShould be understood and determined by the actual practices of courts, law
offices, and police stations, rather than as the rules and doctrines set forth in
statutes or learned treaties.
ØLaw cannot be applied in the abstract, rather, judges should take into account
the specific circumstances of each case, as well as economic and sociological
realities.
ØScholars – Karl Llewellyn
CLASSIFICATION OF LAW
1. Municipal and International
2. Public and Private
3. Civil and Criminal
4. Substantive and Procedural
5. Man-made and God-made law
MUNICIPAL VS. INTERNATIONAL LAW
1) Municipal law
Also known as national law
Operative within a state
Includes law at the state, provincial, territorial, regional and local
levels.
2) International law
Body of legal rules governing interaction between sovereign states
(Public International Law) and the rights and duties of the citizens of
sovereign states towards the citizens of other sovereign states (Private
International Law).
It has been built up through agreements, charters, conventions,
memorandum, treaties, etc.
PUBLIC VS. PRIVATE LAW
Public Law Private Law
The law which govern the The law which concerns with the
relationship between individuals rights and duties of individual
and the state. towards each other.
Eg. of public law: Constitutional No intervention of the state or
law, criminal law, administrative government
law, taxation law, environmental
law. Eg.: Law of contract, law of tort,
law of property, family law, law
of trust, law of succession.
CIVIL VS. CRIMINAL LAW

Civil Law Criminal Law

Concerned with matters that Codifies the various offences
affect the rights and duties of committed by individuals against
individuals amongst themselves. the State, such as murder,
cheating, theft, robbery, etc.
Basically, it is intended to give
compensation to persons injured, It aims at punishing criminals and
to enable property to be suppressing crime. Thus, it
recovered from wrongdoers, and imposes on individuals the
to enforce obligations. obligation not to commit crimes.
Eg.: law of contract, tort, law of
trust.
SUBSTANTIVE VS. PROCEDURAL LAW

Substantive Law Procedural Law

The legislation which defines the Lays down the rules governing
principles, objectives, the manner in which a right is
circumstances, limitations etc. enforced under civil law, or a
which governing the society and crime prosecuted under the
the rights of individual. criminal law.
Eg.: an individual has a right to It details the procedure and
express but it limits that right prescribes the steps for enforcing
when it is against the national civil and criminal law.
integrity.
MAN-MADE VS. GOD-MADE LAW

Man-Made Law God-Made Law

The law which is legislated by Refers to the commands,
human legislative body. prohibitions, guidance and
principles that God has
Eg. of legislative body: addressed to mankind pertaining
Parliament & State Legislative to their conduct in this world and
Assembly in the hereafter.
Eg.: Syariah law
FUNCTIONS OF LAW
1. To provide justice
2. To ensure public order
3. As a guideline to citizens
4. To protects individuals liberty
5. To act as agent for social changes
6. To punish the wrongdoers
7. To enforce the rule of law
v UNWRITTEN LAW
v To
enable students to understand the sources
of law, the Court’s system and the
administration of justice in Malaysia.
Meaning of Sources
- legal sources i.e the legal rules that make up
the law in Malaysia.
- Malaysian law can be classified into: written
law and unwritten law.
 Malaysian Law

Written Law Unwritten Law

Federal State English Judicial Custom Islamic Law

Constitution Constitution Law Precedent

Legislation
Common Equity
Law

Subsidiary Legislation
• It is the most important source of law.
• It refers to that portion of Malaysian laws
which are enacted by the Parliament or
the State Legislative Assemblies and it
includes the following:
1) The Federal Constitution.
2) The State Constitutions.
3) Legislation.
4) Subsidiary legislation.
• It is that portion of Malaysian law which
is not written i.e. law which is not being
enacted by Parliament or the State
Assemblies and which is not found in
the written Federal and State
Constitutions.
• It comprises of the following:
1) Principles of English law
2) Judicial decisions
3) Customary Laws
4) Islamic Law.
1) English Law
• English law forms part of the Malaysian
laws. It can be found inter alia in the
English common law and rules of
equity.
• However, not all of England’s common
law and rules of equity form part of
Malaysian law.
• The application of English law in
Malaysia is governed by the Civil Law
Act 1956 (Revised 1972).
} The 1st Royal Charter of Justice – it marked
the beginning of statutory introduction of
English Law in Malaysia.
} It establishes the Court of Judicature of Prince
of Wales’ Island to exercise jurisdiction in all
civil, criminal and ecclesiastical matters.
} The 2nd COJ establishes the new Court of
Judicature of Prince of Wales’ Island,
Singapore and Melaka.
} The 3rd COJ provides for the reorganization of
the Court System. It was granted in 1855.
} 1868- The Court of Judicature of Prince of
Wales’ Island, Singapore and Melaka was
abolished. The Supreme Court of the Straits
Settlement was established.
} 1878 – the introduction of the English
commercial law into the Straits Settlement by
section 6 of the Civil Law Ordinance 1878. It
was later incorporated in to the CLO 1909
and later re-enacted as section 5 of the Civil
Law Ordinance (Chapter 42 of 1936 Revised
Edition)
} 1946- the dissolution of the Straits
Settlement following the formation of the
Malayan Union comprising the 9 Malay States,
Penang and Melaka. Spore was left out of the
Union.
} The statutory introduction of English law to
the Federated Malay States and Unfederated
Malay States occurred in 1937 and 1951.
} The Civil Law Enactment 1937 gave statutory
authority for the introduction of English
common law and equity to the FMS.
} The Civil Law (Extension) Ordinance 1951
extended the application of the Enactment to
the UFMS.
} Both statutes were replaced by the Civil Law
Ordinance 1956 which applied to all 11 states
of the Federation.
} The 1956 Ordinance was then superseded by
the Civil Law Act 1956 (Revised 1972).
} Common law: the system of laws originated
and developed in England and based on
courts decision, on the doctrine implicit in
those decisions and on customs and usage
rather than on codified written law.
} Also known as judge-made law.
} The inelasticity of the common law led to the
emergence of the Court of Chancery and its
special field known as equity.
} Equity is the body of rules originally enforced
by the Court of Chancery.
} Equity means fairness.
} Inflexibility of the writ system
} There was much bribery and corruption at
common law system
} The common law courts lacked of jurisdiction
to hear certain cases
} Inadequacy of the common law remedies.
} The failure of the common law to recognise
the law of trust.
• Section 3(1) of the Civil Law Act 1956
provides that, in Peninsular Malaysia, the
courts shall apply the common law of
England and the rules of equity as
administered in England on the 7th day of
April, 1956.
• In Sabah, the courts shall apply the
common law and the rules of equity,
together with statutes of general
application, as administered in England on
1st December 1951 and in Sarawak, 12th
December 1949.
• The dates specified for reception is
important because later changes in English
law are not automatically received.
• However, the application of English law
throughout Malaysia is subject to two
limitations;
1. 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 only meant to fill in the lacuna
in the legal system in Malaysia.
2. Only that part of the English law that is
suited to local circumstances will be
applied – proviso to section 3(1), Civil Law
Act.
} Mokhtar v. Arumugam
} Jamil bin Harun v. Yang Kamsiah & Anor.
} Ong Cheng Neoh v Yeap Cheah Neoh
} Seng Djit Hin v. Nagurdas Purshotumdas &
Co.
} Chulas v. Kolson
} Courts decisions which make up the common
law of a country.
} Decisions made by judges previously in
similar situations.
} Can be found in the decisions of the Superior
Courts.
} Judicial precedent is a decision of a superior
court of law, cited as an authority, in support
of one’s argument, to be adopted by a judge
in making his decision.
} Binding precedent: when determining a
dispute before the courts, judges will follow
what their predecessors had decided earlier
in a similar situation.
• Eg.: If the Federal Court made a certain
decision in 1999 and assuming the facts and
situation before a High Court judge deciding
a case in 2016 are similar to the said Federal
Court case, the High Court judge must decide
the case before him by applying the
principles laid down by the Federal Court in
1999.
} It means that a case is decided based on the
decision made on a similar case that has been
decided before. The reason being that if
everything is similar, there is no good reason
for the court to make a different decision. It
is based on the doctrine of ‘stare decisis’.
} The doctrine states that where the facts are
the same or almost alike, the previous judicial
decisions must be followed.
1. To provide certainty in law & consistency in
its application
2. It is necessary that somebody would have
the final say as what the law is.
} Judges make laws in 2 ways:

1. Applying an established rule or principle to

a new situation or facts.
2. Interpreting statutes enacted by the
legislature.
• If a judge applies an existing rule of law
without extending it, his decision may be
called a declaratory precedent.
• If the case before him is without precedent,
then the decision made by him may be called
an original precedent.
• In this way, judges are constantly
contributing to the growth of unwritten law in
this country.
• It is based on the hierarchy of courts.
• General rule: decisions of higher courts bind
lower courts and some courts are bound by
their own decisions.
• To understand this principle, one should first
understand the court system in Malaysia.
 Federal Court

Court of Appeal

High Court (Malaya) High Court

(Sabah & Sarawak)
-- - - - - - - - - - - - - - - - - - - -PREVIOUS
- - - - - - - - JUDICIAL
- - - - - - - -SYSTEM
------------------------
Native
Syariah Court &
Court Syariah
Sessions Court Sessions Court Court

Magistrates’ Court Magistrates’ Court

# The present Court system

 } Between the period of 1 January 1987 and 23 June
1994, the Court system was as follows:

Supreme Court

High Court (Malaya) High Court (Borneo) SUPERIOR COURTS

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - - - - - - - - --
Syariah SUBORDINATE
Court Native COURTS
Court &
Syariah
Sessions Court Sessions Court
Court

Magistrates’ Court Magistrates’ Court

Penghulu’s Court
 } Prior to 1 January 1987, however, the court system
was as follows:
PRIVY COUNCIL*
(civil cases only)

Federal Court

High Court (Malaya) High Court (Borneo) SUPERIOR COURTS

------------------------------------------------------------
Syariah Native
Court Court &
Syariah
Sessions Court Sessions Court
Court

Magistrates’ Court Magistrates’ Court SUBORDINATE

COURTS

Penghulu’s Court

*through the YDPA

} The doctrine works in 2 ways:
1) Vertically – The Superior courts bind all
courts subordinate to it
2) Horizontally – A court is bound:

} By its own previous decision

} By the decision of its predecessor

} By the decisions of courts of co-ordinate

jurisdiction.
 • The FC binds all courts
subordinate to it
• The FC does not bind by its
Federal Court own decisions

Court of Appeal

High Courts
Federal Court

•The COA is bound by the FC

Court of Appeal & by its own decision

•The COA binds the High

Courts

High Courts
Federal Court

Court of Appeal

*High Courts are bound

High Courts by the FC & COA
* The High Courts do not
bind to each other
• It is not in every case that judges apply
earlier precedents. A judge may not wish
to apply precedents in the following
circumstances:
1. Judges may ignore or overrule a precedent
laid down by a lower court, where the case
is on appeal.
2. They may refuse to apply the earlier
precedent if it is arrived at per incuriam
(i.e. made in ignorance of a statute or a
binding precedent).
3. They may distinguish the case when they
find there are material differences in facts
between the case before them and the
case laying down the precedent.
• There are advantages in applying the system
of binding judicial precedents:
1. The law evolved is more practical since it
evolved through actual experiences.
2. It is more flexible compared to statute law.
3. Case law is richer in legal detail than statute
law.
• There are disadvantages in applying the
system of binding judicial precedents:
1. As the number of cases decided can only
increase, there is a tendency to overlook
some authorities inadvertently due to the
mass of material to be digested.
2. It is sometimes difficult to distinguish
whether a particular statement in a judgment
is ratio or dicta. It is the ratio decidendi of a
case which makes the decision a precedent
for the future. An obiter dictum is not binding
as a precedent.
} PP v. Datuk Tan Cheng Swee & Anor (1980) 2
MLJ 277
- In coming to a decision as to which precedent
is binding, the judge is influenced by two
main factors, namely:
i. The origin of the precedent
ii. The content of the precedent i.e. the ratio
decidendi which is the legal reasoning.
} In the case of two conflicting decisions of the
Federal Court, all courts below must choose
to follow the later decisions (because the later
decisions represents the existing state of the
law and therefore, prevails over the earlier
decision).
} Gopal Sri Ram J.: “it is useful to remind
ourselves of the basic philosophy of our
common law. That philosophy is housed in
the expression “certainty through precedent”.
Its main object is to enable members of the
public to organize their affairs in accordance
with law and for legal adviser to advise their
clients with fair accuracy about the state of
law in order to avoid wasteful and
unnecessary litigation.”
} ”…..this court (the Court of Appeal) is bound
by its own decisions.”
• Customs of the local inhabitants in Malaysia
are also a source of law.
• Generally, customs relating to family law,
i.e. marriage, divorce and inheritance, are
given legal force by the courts in Malaysia.
• Definition of custom:
“A regular pattern of social behavior
which has been accepted by a bulk
of a given society as binding upon its
members because such behavior has
been found to be beneficial to them.”
• Article 160 of the Federal Constitution: it
includes ‘customs and usages having the
force of law.
} Malay Customary Laws (Adat Temenggong &
Adat Perpatih)
} Chinese and Hindu Customary Law
} Native Customary Laws (Sabah & Sarawak)
} It is originated from Sumatera.
} Practiced in Peninsular Malaysia except
Negeri Sembilan and Naning, Melaka.
} It is an autocratic patriarchal.
} The criminal law was characterised by the
principle of retaliation.
} The law-digest of Melaka, Pahang, Kedah,
Perak and Johor embody the Adat
Temenggong which is the mixture of adat
(Malay), Hindu and Islamic laws.
} It is originated from Minangkabau but
practiced in Negeri Sembilan and Naning in
Melaka.
} It is democratic matriarchal.
} Rules were provided in the election of adat
chief, marriage and divorce, land matters,
division of property and inheritance.
Ø 3 kinds of property recognised under Adat Perpatih:-
(a) Ancestral property/ land (harta pusaka)
– This property was always held by the woman. Upon
death of a woman, the property will be inherited by
the female descendents of the deceased.
– In land matters, female vested with customary
property comprises of kampung land, sawah and
house.
(b) Accompanied property & Acquired property (carian
bujang)
• Harta Pembawa- property of husband acquired before
marriage.
• Harta Dapatan- property of wife acquired before
marriage.
• Upon divorce- the property will be taken back by its
respective owner.
(c) Jointly acquired property (carian laki bini)
• Known as Harta Sepencarian- this property
was jointly acquired together by the husband
and wife during their marriage.
• On divorce- the property would be divided
equally.
• Upon death- the property will be held by the
surviving spouse.
Yam Tuan/Yang
Dipertuan Besar

Undang

Lembaga

Buapak

Mamak
} Case: Dato’ Menteri Othman Baginda & Anor v
Dato’ Ombi Syed Alwi bin Syed Idrus
[1981] 1 MLJ 29.
} This dispute concerns the succession to the 14th
Undang (Ruling Chief) of the luak (territory) of
Jelebu in the State of Negeri Sembilan.
} Issue: Does the court have jurisdiction to determine
the dispute?
} Held: the court agree that the jurisdiction should
be given to Dewan Keadilan dan Undang because it
is already the function of the Dewan Keadilan dan
Undang to advise on the appointment of the Ruling
Chiefs. It is clearly stated in Article XVI of the
Constitution of the State of Negeri Sembilan. Article
71 also stated that the Federal gave the power to
State to appoint any candidate to be a Ruler.
• Prior to the enforcement of the Law Reform
(Marriage and Divorce) Act 1976, Hindu and
Chinese customary law applied to the Hindus
and Chinese respectively.
• However, after the enforcement of the Act,
polygamous marriages were abolished.
• Since then, Chinese and Hindu customs have
become of little or no effect as a source of
law in Malaysia.
• The Six Widows Case
• Potoo v Valee Uta Taven
} In Sabah and Sarawak, native customary laws
apply in land dealings over native customary
lands and family matters where natives
subject themselves to native customary laws.
} Sources of native customary law comprise of
statutes, ordinances, proclamations,
enactments and rules which incorporated and
legalized native customs; written collections
of native laws known as codes, past court
cases and unrecorded oral tradition.
} Presently, native customary law continues to
be administered by the Native courts
established under the Sabah Native Courts
Enactment 1992, which replaced the Native
Courts Ordinance 1953.24
} Section 3 of the Native Courts Enactment
1992 provides that the Yang DiPertua Negeri
of Sabah has the power to establish Native
courts.
 Native Court of
Appeal

District Native Court

Native Court
} A native court consists of the District chief as
the presiding member and two other
members who are Native chiefs or headmen.
} A District native court shall consist of the
District officer of the district as the presiding
member and two other members who shall be
District chiefs or Native chiefs.
} The Native court of appeal consists of a Judge
as President, and two other members who are
the District chiefs or Native chiefs.The term
‘judge’ is defined by Section 2 of the
Enactment 1992 as a Judge of the High Court.
} Section 6(1) of the Native Courts Enactment 1992 states the
original jurisdiction of the courts, which covers the following
areas:
} cases arising from breach of native law or custom in which all
the parties are natives;
} cases arising from breach of native law or custom, religious,
matrimonial or sexual
} cases involving native law or custom relating to betrothal,
marriage, divorce, nullity of marriage and judicial separation;
} adoption, guardianship or custody of infants, maintenance of
dependants and legitimacy;
} gifts or succession testate or intestate; and
} other cases if jurisdiction is conferred upon it by this
Enactment or any other written law
} The present Native Courts is a State legal
institution created under the Native Courts
Ordinance, 1992.
Native Court of Appeal

Resident's Native Court

District Native Court

Chief's Superior Court

Chief's Court

Headman's Court
} a District Native Court consists of a
Magistrate and two Assessors;
} a Chief's Superior Court consists of a
Temenggong or a Pemanca sitting with two
Assessors, or both Temenggong and
Pemanca sitting with one Assessor;
} a Chief's Court consists of a Penghulu and
two Assessors;
} a Headman's Court shall consists of a
Headman and two Assessors
} The Resident's Native Court and the Native
Court of Appeal are having appellate
jurisdiction in respect of civil cases and land
disputes.
} The Resident's Native Court shall be
constituted by a person who is the Resident
of the Division and sitting with not less than
2 Assessors but not more than 4
Assessors. The Assessors must be persons
versed in customary law relevant to the
determination of the appeal.
} The Native Court of Appeal is the final court of appeal in the
Native Court system in respect of civil cases and land
disputes.
} The Native Court of Appeal shall consist of:-
} (i) the President;
} (ii) the President of the Majlis Islam or the Ketua Majlis Adat
Istiadat Sarawak; and
} (iii) a person who is or has been appointed a Temenggong
and;
} Where neither the President of the Majlis Islam nor the Ketua
Majlis Adat Istiadat is able to sit as a member of such Court in
any particular case, the President shall, after consultation with
the Chief Registrar, nominate a Temenggong to replace him.
} The President of the Native Court of Appeal must be a person
holding or has held the office of a Judge of the High Court or
is qualified under the Federal Constitution to be appointed as
a Judge of the High Court.
• The Federal Constitution provides that States
have the power to administer Muslim Law.
• The head of the Muslim religion in a State
(except for Penang, Malacca, Sabah, Sarawak
and the Federal Territories) is the Sultan.
• Muslim law applies to Muslims only and it is
enforced by the Syariah Courts.
• Sources of Syariah law: Al-Quran, As-Sunnah,
Ijma’ and Qiyas.
} Article 3(1): Islam is the religion of the
Federation, but other religions may be
practiced in peace and harmony in any part of
the Federation.
} Article 11(1): Every person has the right to
profess and practice his religion and subject
to clause (4) to propagate it.
} Article 11(4): States and Federal Law (for
Wilayah Persekutuan) may control or restrict
the propagation of any religious doctrine or
belief among persons professing the religion
of Islam.
 Syariah Appeal Court

Syariah High Court

Syariah Subordinate Court

• The Syariah Courts have jurisdiction only over Muslim in

the matters of family law and religious observances.
• It can only pass sentences of not more than three years
imprisonment, a fine of up to RM5,000, and/or whipping
up to six strokes.(Syariah Court (Criminal Jurisdiction) Act
1965.
} Syariah Courts were established in all the
states through Administration of Islamic Law
Enactments and in the Federal territories,
through federal law i.e. Administration of
Islamic Law (Federal Territories) Act 1993 (Act
505).
} There are three levels of Syariah courts in a
system parallel to and independent of the
civil courts: Syariah Subordinate Courts,
Syariah High Court and Syariah Appeal Court.
} Syariah Courts in the Federal Territory of
Kuala Lumpur were established by the Yang
di-Pertuan Agong under section 40 of the
Administration of Islamic Law (Federal
Territories) Act1993, on the advice of the
Minister charged with the responsibility for
the administration of the religion of Islam in
Federal Territories (the minister).
} A Syariah Subordinate Court has only original
jurisdiction.
} Presided over by a Syariah Subordinate Court
Judge.
} It has jurisdiction as indicated by state
legislation over criminal suits liable to
punishment up to 3,000 ringgit and/or
imprisonment up to two years and civil suits
in which the value of the subject in dispute is
up to 100,000 ringgit or not estimable in
cash.
} The Syariah High Court has original, appellate
and supervisory and revisionary jurisdiction.
} Presided over by a Syariah High Court Judge.
} The Syariah High Court has appellate
jurisdiction over Subordinate Court decisions
in civil and criminal suits.
} It has original jurisdiction as indicated by
state legislation in criminal suits and civil
jurisdiction over betrothal and marriage,
divorce, nullification or separation, marital
property claims, maintenance, legitimacy,
guardianship and custody, testate and
intestate succession, gifts inter vivos and
awqaf, in cases where all the parties are
Muslims.
} The Syariah Appeal Court has appellate
jurisdiction over decisions arising out of the
Syariah High Courts original jurisdiction; all
appeals are heard by the Chief Syarie Judge
and two other members and decisions are by
majority opinion.
} It also has the supervisory ad revisionary
jurisdiction over the Syariah High Court.
} Ramah v Laton (1927) 6 FMSLR at 129
“Muslim law is not foreign law but local law and
the law of the land. The court must take
judicial notice of it and must propound the
law…”
} Muhammad Habibullah v Faridah Dato Talib
[1992] 2 MLJ 793
- The effect of the Article 121(1A) is to take
away the jurisdiction of the High Court in
respect of any matter within the jurisdiction of
the Syariah Court.
} Mansor v Kadi Daerah Pendang, Kedah [1989]
1 MLJ 106
Facts: the applicant had married a lady in
Patani according to Muslim rites and a local
Kadi refused to register the marriage.
Held: In dismissing the appeal, the High Court
ruled that it had no jurisdiction because the
parties were Muslim and it involved the
personal laws of Muslim both under the Kedah
State Constitution and the Federal Constitution.
} Halimatussaadiah v the Public Services
Commission [1992]1 MLJ 513
The court held that the circular is indeed lawful
and reasonable and must be obeyed.
Disobedience by an officer to such lawful and
reasonable directive or order of the
government would justify the taking of
disciplinary action against him or her by the
appropriate disciplinary authority.
The plaintiff’s application dismissed.
} Lina Joy v Majlis Agama Islam Wilayah
Persekutuan & Anor [2004] 2 MLJ 119
o The Plaintiff’s application dismissed.
o Article 11 of the FC speaks of freedom of
religion but this did not mean that the
plaintiff was to be given the freedom of
choice to profess and practice the religion of
her choice.
o Since the plaintiff was still a Muslim, Art
121(1A) provides that the finality of her
decision to convert out of Islam was within
the competency of a Syariah Court, and not
the civil courts.
 v Federal Constitution
v Legislation
v Subsidiary Legislation
1) The Federal Constitution
§ The Federal Constitution is the supreme law of
the country so that any general law that is
inconsistent with the Constitution is, to the
extent of the inconsistency, void.
§ Besides laying down the powers of the Federal
and State Governments, the FC enshrines the
basic or fundamental rights of the individual.
§ These rights written into the Constitution can
only be changed by a two-thirds majority of
the total number of members of the
legislature. This is in contrast to normal laws
which can be amended by a simple majority.
§ The FC establishes a constitutional
monarchy and a federal system of
government.
§ Under the federal system, there is a
division of legislative powers between the
central Parliament and the State
Legislative Assemblies.
§ Parliament may make laws for the whole
of Malaysia. Art. 74 FC provides that
Parliament may make laws with respect
to any of the matters enumerated in the
Federal List or the Concurrent List.
§ The State Legislature may make laws with
respect to any of the matters enumerated
in the State List or the Concurrent List.
 Federal List Concurrent List State List
1. External 1. Social welfare, 1. Islamic law and
affairs social services, personal and
2. National protection of family law of
defence women, children Muslims; Malay
and young customs,
3. Internal
persons offences by
security
2. Scholarships Muslims;
4. Civil and Syariah Courts.
criminal law 3. Town and country
planning 2. Land
5. Finance
4. Drainage and 3. Local
6. Trade,
irrigation government
commerce,
industry 5. National Parks, 4. State
etc. holidays,etc
7. Education,
etc
} Article 4(1)
} Article 162
} Article 73
} Article 74(1) & (2)
} Article 75
} Article 76
 Art.162: ..the existing laws shall, until
Art. 4(1): This Constitution is the supreme repealed by the authority having power to do
law of the Federation and any law passes so under this Constitution, continue in force
after the Merdeka Day which is inconsistent on and after Merdeka Day, with such
with this Constitution shall, to the extent of modifications as may be made therein under
the inconsistency, be void. this article and subject to any amendments
made by Federal or State law.

Art.73:…Parliament may make Art.74:…Parliament may make laws

laws for the whole or any part of with respect to any matters
the federation and law having enumerated in the Federal List [First Art.75: If any State law is
List] or in the Concurrent List [Third inconsistent with a Federal law,
effect outside as well as within the
List]. the Federal Law shall prevail and
Federation.
…the Legislature of a State may make the State law shall, to the extent of
…The legislature of a State may laws with respect to any matters the inconsistency, be void.
make laws for the whole or any enumerated in the State List and the
part of that State. Concurrent List.

Art.76: Power of parliament to legislate for

states in certain cases:
a) For the purpose of implementing treaty,
agreement or convention. b) for the purpose
of promoting uniformity of the laws of two or
more States, or c) if so requested by the State
Legislative Assembly.
} Article 32: YDPA as the supreme Head of the
Federation
} Article 40(1): YDPA to act on an advice.
} Article 40(2): YDPA may:
a) Appoint a Prime Minister
b) Withhold consent to a request for a dissolution of
Parliament
c) Request of a meeting of the Conference of Rulers
} Article 41: YDPA as a supreme Commander of the
armed forces
} Article 42: YDPA has power to grant pardon
} Article 39: Executive authority of the Federation
vested in the YDPA
} Officially known as Majlis Raja-Raja
} Established by Article 38 FC
} It consists of the nine Rulers and the four
YDPNs
1. the election of the YDPA;
2. the dismissal of the YDPA;
3. veto power on federal legislation on matters affecting, amongst
others, the privileges, position, honours or dignities of the Malay
Rulers;
4. consultation on appointments to certain key positions in Government
such as, amongst others, judges of the superior courts, the Auditor-
General and chairpersons and members of the Public Services
Commission;
5. involvement in matters relating to the religion of Islam;
6. consultation on matters relating to the privileges of the Malays and
the natives of Sabah and Sarawak and the legitimate interests of other
communities;
7. the issuance of a pardon in respect of the YDPA and the Sultans;
8. nomination of two judges to sit on the Special Court (which hears
legal proceedings involving the YDPA or the Sultans); and
9. the power of deliberation on matters of national policy.
} The Cabinet of Malaysia is the executive branch
of the government.
} Led by the PM, the cabinet is a council of
ministers who are accountable collectively to
the Parliament.
} Article 43: members of the Cabinet can only be
selected from members of either houses of
Parliament.
} Formally, the YDPA appoints all Ministers on the
advice of the Prime Minister.
} In practice, the Yang di-Pertuan Agong is obliged
to follow the advice of the Prime Minister on the
appointment and dismissal of ministers.
1. To formulate national economic policies and
development programs.
2. To set the budget and finance of the
country.
3. As an arena for suggestions, debates, and
criticisms.
4. To propose and amend the law.
} Article 44: Composition of the Parliament
} Article 45: Composition of the senate
} Article 46: The House of Representative
} Article 48: Circumstances in which a person is
disqualified for being a member of Parliament
} Subversive: an attempt to overthrow or
destroy a government that has
been legally established.
} Article 149- action prejudicial to public order
} Emergency – Article 150
} Fundamental liberties are those freedoms
which are, or should be guaranteed to
persons to protect an area of non-
interference from others, particularly the
power holder and legal authorities.
} Freedoms that completely protect the
individual from government. It sets limits for
government so that it cannot abuse its power
and interfere with the lives of its citizens.
1. Restrictions may be imposed by ordinary
legislation enacted under the authority of
constitutional provision conferring the right.
2. FL may be curtailed by legislation against
subversion.
3. Legislation to combat on emergency may
suspend all FL except freedom of religion.
4. Constitutional amendments may be enacted
to curtail or abolish a right guaranteed by
the basic law.
} Article 5: Right to life and liberty
} Article 6: No slavery
} Article 7: Protection against retrospective
effect of criminal law and repeated trial
} Article 8: Equality
} Article 9: Prohibition of banishment and
Freedom of Movement
} Article 10: Freedom of Speech, Assembly and
Association
} Article 11: Freedom of Religion
} Article 12: Rights in respect of education
} Article 13: Rights to Property
} Article 5 enshrines a number of basic
fundamental human rights:
1. No person may be deprived of life or personal
liberty except in accordance with law.
2. A person who is unlawfully detained may be
released by the High Court (right of habeas
corpus).
3. A person has the right to be informed of the
reasons of his arrest and to be legally
represented by a lawyer of his choice.
4. A person may not be arrested for more than 24
hours without a magistrate's permission.
} The court was of the view that an arrested
person is entitled to his constitutional right of
legal representation after his arrest and the
right must be granted to him within
reasonable time after his arrest.
} Syed Agil Barakbah cautioned magistrates
that they should not allow the full period as a
matter of course but should weigh the
seriousness of the offence and determine
whether a shorter period should be sufficient
to enable police to complete the
investigation.
} Article 6 provides that no person may be held
in slavery.
} All forms of forced labour are prohibited, but
federal law, such as the National Service Act
1952, may provide for compulsory service for
national purposes. It is expressly provided
that work incidental to serving a sentence of
imprisonment imposed by a court of law is
not forced labour.
} No person shall be punished for an act or
omission which was not punishable by law
when it was done or made.
} No person shall suffer greater punishment for
an offence than was prescribed by law at the
time it was committed.
} A person who has been acquitted or
convicted of an offence shall not be tried
again for the same offence except where a
retrial is ordered by a court.
} In this case, the court was asked by the
prosecution to apply new law which put the
mandatory death sentence as the only
punishment for drug trafficking under section
39B of the Dangerous Drugs Act 1952. The
court refused to do so as the increase for the
punishment was done after the commission
of the offence.
} It was held, although the charges against the
plaintiff in two disciplinary proceedings were
made under different provisions, their
substance was in respect of the same conduct
and thus had put him under double jeopardy.
} Article 8 (1) provides that all persons are equal
before the law and entitled to its equal
protection.
} Art.8(2):“Except as expressly authorised by this
Constitution, there shall be no discrimination
against citizens on the ground only of religion,
race, descent, gender or place of birth in any law
or in the appointment to any office or
employment under a public authority or in the
administration of any law relating to the
acquisition, holding or disposition of property or
the establishing or carrying on of any trade,
business, profession, vocation or employment.”
} Article 8 (3) There shall be no discrimination in favour of any person
on the ground that he is a subject of the Ruler of any State.
} Article8(5): This Article does not invalidate or prohibit-

(a) any provision regulating personal law;

(b) any provision or practice restricting office or employment
connected with the affairs of any religion, or of an institution managed
by a group professing any religion, to persons professing that religion;
(c) any provision for the protection, well-being or advancement of the
aboriginal peoples of the Malay Peninsula (including the reservation of
land) or the reservation to aborigines of a reasonable proportion of
suitable positions in the public service;
(d) any provision prescribing residence in a State or part of a State as a
qualification for election or appointment to any authority having
jurisdiction only in that State or part, or for voting in such an election;
(e) any provision of a Constitution of a State, being or corresponding
to a provision in force immediately before Merdeka Day;
(f) any provision restricting enlistment in the Malay Regiment to
Malays.
} The High Court, having regard to the gravity
of the offence, substituted a more severe
sentence for a lesser one imposed by a lower
court, which had taken into account the
status of the accused as a Prince of the ruling
house of the state of Johore.
} This case was about a person who had accepted the
offer to be a temporary teacher at a government
school. The moment the employer knew that she was
pregnant , the employer voided the offer. Noorfadilla
appealed to the court for interests, damages and
costs. The parties who were being sued included the
officer, Federal Government, Education Minister and
Education Director General. According to the
Malaysia's obligation under the Convention of the
Elimination of all forms of Discrimination Against
Women (CEDAW) , this case comprises of direct
discrimination which uses pregnancy to stop women
from working and indirect discrimination whereby
men and women are not treated equally.
(1)No citizen shall be banished or excluded from
the Federation.
(2)Subject to Clause (3) and to any law relating to
the security of the Federation or any part thereof,
public order, public health, or the punishment of
offenders, every citizen has the right to move
freely throughout the Federation and to reside in
any part thereof.
(3)So long as under this Constitution any other
State is in a special position as compared with the
States of Malaya, Parliament may by law impose
restrictions, as between that State and other
States, on the rights conferred by Clause (2) in
respect of movement and residence.
(1) Subject to Clauses (2), (3) and (4)-
(a) every citizen has the right to freedom of
speech and expression;
(b) all citizens have the right to assemble
peaceably and without arms;
(c) all citizens have the right to form
associations.
(2) Parliament may by law impose-
(a) on the rights conferred by paragraph (a) of Clause (1), such
restrictions as it deems necessary or expedient in the interest of
the security of the Federation or any part thereof, friendly relations
with other countries, public order or morality and restrictions
designed to protect the privileges of Parliament or of any
Legislative Assembly or to provide against contempt of court,
defamation, or incitement to any offence;

(b) on the right conferred by paragraph (b) of Clause (1), such

restrictions as it deems necessary or expedient in the interest of
the security of the Federation or any part thereof or public order;

(c) on the right conferred by paragraph (c) of Clause (1), such

restrictions as it deems necessary or expedient in the interest of
the security of the Federation or any part thereof, public order or
morality.
(3)Restrictions on the right to form associations
conferred by paragraph (c) of Clause (1) may also
be imposed by any law relating to labour or
education.

(4)In imposing restrictions in the interest of the

security of the Federation or any part thereof or
public order under Clause (2) (a), Parliament may
pass law prohibiting the questioning of any matter,
right, status, position, privilege, sovereignty or
prerogative established or protected by the
provisions of Part III, Article 152, 153 or 181
otherwise than in relation to the implementation
thereof as may be specified in such law.
} Case: Nordin Salleh v. Dewan Undangan
Negeri Kelantan [1993] 3 MLJ 344
} Issue: Whether Art. XXXIA of Pt. 1 of the
Constitution of the State of Kelantan is
inconsistent with sub-cl (1)(c) of Art. 10 of
the Federal Constitution?
(1) Every person has the right to profess and
practise his religion and, subject to Clause (4),
to propagate it.
(4) State law and in respect of the Federal
Territories of Kuala Lumpur and Labuan,
federal law may control or restrict the
propagation of any religious doctrine or belief
among persons professing the religion of
Islam.
} Dalip Kaur v Pegawai Polis Daerah, Bukit
Mertajam [1992] 1 MLJ
} Halimatussaadiah v Public Service
Commission [1992] 1 MLJ 513
} Meor Atiqulrahman Ishak & Ors v Fatimah Sihi
& Ors [2000] 5 MLJ 375
} Lina Joy v Majlis Agama Islam WP & Anor
[2004] 6 CLJ 242
(1) Without prejudice to the generality of Article 8,
there shall be no discrimination against any citizen on
the grounds only of religion, race, descent or place of
birth-

(a) in the administration of any educational institution

maintained by a public authority, and, in particular, the
admission of pupils or students or the payment of fees;
or

(b)in providing out of the funds of a public authority

financial aid for the maintenance or education of pupils
or students in any educational institution (whether or
not maintained by a public authority and whether
within or outside the Federation).
} Held: Although it was apparent that financial
expenditure in making the defendant school
disable-friendly was a principle factor in
excluding the plaintiff, but as a matter of law
and justice, financial consideration must take
back seat and give way to disabled children’s
basic right education.
(4) For the purposes of Clause (3) the religion
of a person under the age of eighteen years
shall be decided by his parent or guardian.

Case: Teoh Eng Huat v Kadi Pasir Mas & Anor

[1990] 2 MLJ 300
(1) No person shall be deprived of property
save in accordance with law.
(2) No law shall provide for the compulsory
acquisition or use of property without
adequate compensation.

Case: Adong Kuwau v Kerajaan Negeri Johor

[1997] 1 MLJ 418
§ Each State 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, and
amendment of the Constitution.
Legislative (Art.44,45,46)

Executive (Art.39, 43)

Judiciary (Art. 121-131)

 Executive
The powers to
govern and put the
law into operation
Judiciary
Legislative
The power to
The power to make
interpret and
law
enforce the laws

Government
} Political stability and freedom would be
secured if the 3 arms of government remain
separate – checks and balance
} If all the 3 powers are held by the same
person, then there would be a dictatorship
and arbitrary rule would prevail.
} The principle that no one is above the law.
} “A principle of governance in which all
persons, institutions and entities, public or
private, including the State itself, are
accountable to laws that are publicly
promulgated, equally enforced and
independently adjudicated, and which are
consistent with international human rights,
norms and standards...” (Definition by United
Nations)
§ Legislation refers to law enacted by a body
constituted for this purpose.
§ In Malaysia, laws are legislated by Parliament
at federal level and by the various State
Legislative Assemblies at state level.
§ Laws made by Parliament may extend
throughout the country and extra-
territorially while laws enacted by a State
Assembly can only apply to that State.
§ Laws that are enacted by Parliament after
1946 but before 1957 are called
Ordinances, but those made after 1957 are
called Acts. Laws made by the SLA are called
Enactments except in Sarawak (Ordinance).
§ Parliament and the State Legislatures
have to enact laws subject to the
provisions set out in the Federal and
State Constitutions.
§ The subject matter for legislation is
divided between the Federal and State
Governments as provided by the Ninth
Schedule of the FC.
§ Legislature as a source of law has
become more important than case law or
precedents. It is being increasingly used
as a means of repealing, amending,
enacting or codifying the law.
 Undergo the same
Pre-parliamentary Pass to the other process i.e 1st Reading ,
Process Houses 2nd Reading, Committee
Stage & 3rd Reading

First Reading Third Reading Royal assent

Publication (Government
Second Reading Committee Stage
Gazette)
 • A bill is presented by one of the two Houses
• Only the title of the Bill is introduced and read as a formality
First • After the Bill is supported for the 2nd Reading, its text is printed and distributed to the
Reading members of both Houses

• The most important stage

• The substance of the Bill will be debated
Second • If accepted, it is passed on for the consideration by a Committee of the House
Reading

• Considers the Bill in detail and may amend any part of it.
• The Committee then submits a report on the Bill to the House.
Committee • If the report is approved, the Bill goes on to a 3rd Reading in the House
Stage

• No debate is allowed and no amendment can be made.

• The vote by a simple majority either to pass or defeat the Bill.
Third • After passing it, the Bill will go to the next House and undergo the same process as the first
Reading House.

• After the Bill is passed by both Houses, it will be presented to the YDPA to get His Royal Assent.
• Article 66(4) – the YDPA shall within 30 days assent the Bill by causing the Public Seal to be
affixed thereto.
Royal Assent • After this, the Bill becomes an Act of Parliament.

• The law will be published in the Government Gazette in order to be enforced.

• The date the Act of Parliament is gazetted or published is the date the law come into force.
Publication
1) Amendment by way of simple majority at both
the Senate and the House of Representative.
2) Requires the support of two-thirds majority of
the total members of both Houses.
3) Requires the 2/3 majority and the consent of the
Conference of Rulers.
4) Requires the 2/3 majority and the consent of
either the Yand di-Pertua Negeri of Sabah or
Sarawak.
5) Through Article 150 which gives the executive
power to declare emergency.
§ SL is also known as subordinate legislation or
delegated legislation.
§ Section 3 of the Interpretation Act 1967, defines
subsidiary legislation as ‘any proclamation, rule
regulation, order, notification, by-law or other
instrument made under any Ordinance,
Enactment or other lawful authority and having
legislative effect’.
§ SL is very important as legislation by Parliament
and the State Legislatures is insufficient to
provide the laws required to govern everyday
matters.
§ SL deals with the details about which legislature
has neither the time nor the technical
knowledge to enact laws.
§ Legislature merely lays down the basic and
main laws, leaving the details to persons or
bodies to whom they delegate their
legislative powers.
§ Such persons or bodies include the Yang di-
Pertuan Agong, Ministers and local
authorities, among others.
§ A rule or regulation that is properly enacted
is as much a law as the parent statute.
§ SL made in contravention of either a Parent
Act or the Constitution is void.
§ An exception to this rule is the proclamation
of emergency under Article 150 of the FC.
} Lembaga Padi and Beras Negara (Indication of
Grade and Price) Regulations 1971
} Dangerous Drugs Regulations 1952
} Child Protection (Places of Safety) Regulations
1992
 Government
Functions
-more compex
from time to time

Ministerial
The legislature has
regulation can be
easily rescinded if Why is SL neither time nor
the technical
it becomes
impractical /
important? knowledge to enact
law on every detail
outdated

Flexibility in
circumstances
which demand
flexibility
 Parliamentary
Control

The
Judicial
Controls Consultation
Review
of SL

Publicity
 The relevant instrument It may be subjected to
It may be subject to
may be required to be laid affirmative approval by
annulment by Parliament
before Parliament Parliament

It will expire at the end of

It shall not be made if the the period that may be
draft is disapproved by stipulated unless approved
Parliament by Parliament within that
specified period
The Parent Act ultra vires the Federal Constitution

The SL ultra vires the Parent Act

The SL ultra vires the Federal Constitution

Procedural ultra vires

The SL ultra vires the Parliamentary Act

Unreasonable

Mala Fide (bad faith)

Delegatus non potest delegare (a delegate cannot sub-delegate)

} The Federal Constitution provides that
power is exercised by the legislative, the
executive and the judiciary.
} The Judiciary has the power to hear and
determine civil and criminal matters.
} It can even pronounce on the legality of
legislative or executive acts. It can also
interpret the Federal and State
Constitutions.
} The judicial power of Malaysia is vested in
the Federal Court, the Court of Appeal, the
High Courts and subordinate courts. The
head of the judiciary is the Chief Justice.
 Original

Appellate
Federal Court Advisory &
Supervisory

Civil

Superior
Court of Appeal
Criminal
Courts

Civil
Criminal

High Court Appellate High Court

(Malaya) Supervisory (Sabah & Sarawak)

Civil

Sessions Court Sessions Court

Criminal
Subordinate
Civil
Courts
Magistrates’ Court Criminal Magistrates’ Court
 1) The Courts for Children
Establishment Composition Jurisdiction

•Established under •Presided over by •Jurisdiction over

the Child Act 2001 the first class offenders between
•The Child Act magistrate. the age of 10
2001 has repealed •Assisted by 2 lay years and under
the Juvenile Court advisers, one of 18 years.
Act 1947 whom is a woman. •Has jurisdiction to
try all offences
except those
punishable with
death penalty.
} Nurul Hanis
} Nur Sakeela Ramli Chow
} PP v. Velory Abong
Establishment Composition Jurisdiction

• Established under • Consists of Chief • Has exclusive

Article 182(1) of the Justice of the Federal jurisdiction to any
Federal Constitution Court, Chief Judge of proceedings by or
the High Court and 2 against YDPA or the
other persons. Rulers of the State in
his personal
capacity.
• Has jurisdiction to
try all offences where
the cause of action
arose in Malaysia.
} Faridah Begum Abdullah v. Sultan Haji Ahmad
Shah [1996] 1 MLJ 61
 Establishment Composition Jurisdiction

•Established by the •They are of several •Possesses jurisdiction

Armed Forces Act 1972 grades. over persons subject to
(Act 77) •A servicepersons are service law that is
tried only by service generally members of
person of his or her the armed forces
own rank or higher. including reservists and
volunteers on duty, and
civilians employed by
or accompanying
regulars on active
service.
•Civilian passengers on
board military ships
and aircrafts.
4) The Shariah Courts
5) The Native Courts
Malaysian Legal System

The Administration of Justice

 Introduction
• The Federal Constitution provides that power is
exercised by the legislative, the executive and the
judiciary.
• The Judiciary has the power to hear and determine
civil and criminal matters.
• It can even pronounce on the legality of legislative
or executive acts. It can also interpret the Federal
and State Constitutions.
• The judicial power of Malaysia is vested in the
Federal Court, the Court of Appeal, the High Courts
and subordinate courts. The head of the judiciary is
the Chief Justice.
 The Court System
Federal Court

Court of Appeal

High Court High Court

(Malaya) (Sabah & Sarawak)

Sessions Court Sessions Court

Magistrates’ Court Magistrates’ Court

 Magistrates’ Court
• The Magistrates’ Court deals with minor civil and
criminal cases. The Court is presided over by a
magistrate.
(1) First class magistrate
q Criminal jurisdiction:
• A first class magistrate possesses jurisdiction to try
all offences for which the maximum term of
punishment provided by law does not exceed 10
years’ imprisonment, or all offences punishable
with fine only, or cases involving robbery or
housebreaking by night.
q Power to sentence:
• The magistrate may pass any sentence allowed by
law not exceeding:
(i) 5 years’ imprisonment;
(ii) A fine of 10 thousand ringgit;
(iii) Whipping up to 12 strokes;
(iv) A combination of any of the above mentioned.
q Civil jurisdiction: The first class magistrate has
authority to try all actions and suits where the
amount in dispute or value of the subject matter
does not exceed RM100,000.
(2) Second class magistrate
q Criminal jurisdiction:
• A second class magistrate has jurisdiction to try
offences for which the maximum term of
imprisonment does not exceed 12 months’
imprisonment or offences punishable with fine only.
q Power to sentence:
(i) Not exceeding 6 months’ imprisonment;
(ii) A fine of not more than RM1,000 ringgit;
(iii) Any sentence combining either of the aforesaid
sentences.
qCivil jurisdiction:
• A second class magistrate shall only have jurisdiction
to try original actions or suits where the plaintiff
seeks to recover a debt or liquidated demand on
money payable by the defendant, with or without
interest, not exceeding RM10,000.
• The ‘Small-Claims’ Court: It was set up under the
Subordinate Court (Amendment) Rules 1987. It has
jurisdiction to decide on claims for recovery of
debts or liquidated demands in money not exceeding
RM5,000 at the date of filing.
Cont’d
• This court is cheap and no legal representation is allowed, i.e. no
party to any suit in this court can be represented by lawyer.
• This court is heard by second class magistrate.
 Sessions Courts
• It is the highest of the subordinate or inferior courts.
• It is under the charge of the Sessions Court judge.
qCriminal jurisdiction: its criminal jurisdiction
extends to all offences other than offences
punishable with death.
qPower to sentence: A Session Court may pass any
sentence allowed by law other than the death
sentence.
qCivil jurisdiction: it has jurisdiction to try all actions and suits
of a civil nature where the amount in dispute does not exceed
RM1,000,000.
• However, in general, matters relating to land, specific
performance or recession of contracts, injunction, probate
and administration of estates, divorce, bankruptcy, trusts, and
accounts are excluded from its jurisdiction.
 The High Court
• The jurisdiction of the High Court is original,
appellate and supervisory.
Ø Original jurisdiction: It has unlimited criminal and civil
powers.
Ø Any civil matter which cannot be determined in the
subordinate courts is heard before the High Court.
Ø The High Court has the jurisdiction to try all
proceedings where:
1) The cause of action arose within Malaysia; or
2) The defendant(s) resides or has his place of business
within Malaysia; or
3) The facts on which the proceedings are based, exist
or are alleged to have occurred within Malaysia; or
4) Any land the ownership of which is disputed is
situated within Malaysia.
vThe High Court’s civil jurisdiction also includes,
among others, bankruptcy or winding-up matters,
probates and administration of the estates of
deceased persons.
vIn criminal cases, no case may be brought to the
High Court unless an offender has been properly
committed for trial after a preliminary hearing in a
Magistrates’ Court.
vAppellate jurisdiction: the High Court hears civil
and criminal appeals from the Magistrates’ and
Sessions Courts.
vSupervisory jurisdiction: The High Court may call
for the records of any proceedings in the
subordinate courts, whether civil or criminal, at any
stage of such proceedings. It may also remove the
case to the High Court or give such directives to the
subordinate courts as it thinks necessary. When the
High Court calls for any records, all proceedings will
be stayed pending further order of the High Court.
vThe High Court is reorganized into five divisions;
Commercial Division, Appellate and Special Powers
Division, Civil Division, Criminal Division and
Family Division.
 The Court of Appeal
• The COA constitutes the President of the COA and up
to ten COA Judges.
• The COA is heard by three judges or such greater
uneven number of judges.
§ Criminal jurisdiction: The COA has jurisdiction to hear
and determine any appeal against any High Court
decision on criminal matters.
§ Civil jurisdiction: to hear and determine civil appeals
generally for cases where the amount or value of the
subject-matter of the claim is at least RM250,000.
• Where an appeal has been heard and disposed of by the
COA, it has no power to review the case.
 The Federal Court
• It is the highest court in Malaysia.
• The FC consists of the Chief Justice, the President
of the COA, the Chief Judge of Malaya and Chief
Judge of Sabah and Sarawak, and six FC judges.
• Every proceeding in the FC shall be heard and
disposed of by three judges or such greater uneven
number.
• Jurisdiction:
1) To hear civil and criminal appeals from the COA.
2) To exercise exclusive original jurisdiction on those
matters conferred on it under Article 128(1) and
(2) of the Federal Constitution.
3) To determine constitutional questions which have arisen in
the proceedings of the High Court but referred to the FC for
a decision.
4) To give its opinion on any question referred to it by the
YDPA concerning the effect of any provision of the Federal
Constitution.
THE LAW OF
TRESPASS
 1) TRESPASS TO LAND

• Definition: intentionally or negligently entering or

remaining on or directly causing any physical matter
to come into contact with land in the possession of
another.
• Winfield & Jolowiz had defined it as unjustifiable
interference with the possession of land.
• It is a tort actionable per se. Therefore, a plaintiff in
trespass is entitled, even though he has sustained no actual
loss, to recover damages.
• There is no need to prove any intention on the part of the
defendant as long as there is an act to enter into the land
which is in the possession of another person.
• If it is involuntary act, it would not amount to trespass.
Eg; pushed by someone onto someone’s land – no
trespass since no voluntary act at all.
• Interference: it must be a direct and immediate
interference
• Interference may occur in a variety of ways:
i. Enter to someone’s land wrongfully
ii. Remaining on the plaintiff ’s land – continuing trespass
iii. Entering or placing an object on the plaintiff ’s land
iv. Interference to airspace
 2) TRESPASS TO GOODS

• Definition: immediate and direct unauthorized

interference with possession of goods of another
person eg: deliberately destroying other’s goods.
• The interference must be a direct interference – it is
physical in nature and voluntarily/ intentional.
• Trespass to goods is actionable per se.
• Conversion: intentional dealing by a person with goods
inconsistent with the rights of its rightful owner or to claim a
right over the goods eg: take someone’s car and sell it.
• Conversion must involve an act. Mere omission is not
sufficient eg; just take the car (not sufficient)
• Conversion may include the act of using or destroying the
goods. If the goods are damaged but not destroyed it is not
conversion.
• The test of destruction is said to be, when the identity of the
goods disappear such as sugar has turned into syrup.
• Another example is abused the possession. This is when the
defendant initially has the possession of the goods but later
does an act that constitutes a conversion.
• THE JAG SHAKTI’S CASE
• The plaintiff was a salt importer who had 2 bills of lading.
The defendant was the owner of a ship carrying salt from
India to Bangladesh. Upon arrival in Bangladesh the
defendant gave the salt to another person instead of the
plaintiff. The plaintiff sued for conversion.
• The Court held: there was an abused possession. The
defendant had committed conversion when he handed
over the salt to another person.
 3) TRESPASS TO PERSON

i. ASSAULT
ii. BATTERY
iii. FALSE IMPRISONMENT
 ASSAULT

• It is an intentional and direct act of the defendant

which causes to the plaintiff reasonable
apprehension of the immediate infliction of a force
onto his person.
• Eg: striking at another with a stick and fist; drawing a
sword
 Elements of assault

1. Mental state of the defendant – it has to be intentional

and direct act of the defendant
2. Reasonable apprehension of harm – the test here is a
reasonable man
3. There must be a capability to carry out the threat – if
there is an interception by a third party, it still amounts to an
assault.
4. There must be some bodily movements – shows some
positive act to carry out the threat.
 1. Mental state of the defendant – it has to be
intentional and direct act of the defendant

• Assault requires intent, i.e.there has been a deliberate,

unjustified interference with the personal right or
liberty of another in a way that causes harm.
• Intent is established if a reasonable person is
substantially certain that certain consequences will
result; intent is established whether or not he or she
actually intends those consequences to result.
• Pointing a gun at someone's head is substantially
certain to result in apprehension for the victim.
• An act may be an assault although the defendant lacked
the power to inflict violence. Eg.: defendant pointed gun
which he, but not the plaintiff, knew was unloaded.
• Case: R v. St. George
The defendant pointed a firearm at plaintiff, which
defendant knew to be unloaded though plaintiff did not, and
was so near that it might produce injury if it were loaded and
went off.
The court held that it constituted an assault.
 2. Reasonable apprehension of harm

• An act will not be an assault unless it causes

reasonable fear of immediate injury or violence.
• This element is established if the act would produce
apprehension in the mind of a reasonable person.
• Apprehension means awareness that an injury or
offensive contact is imminent.
• Whether an act would create apprehension in the mind of
a reasonable person varies depending upon the
circumstances.
• For example, it may take less to create apprehension in the
mind of a child than an adult. Moreover, if a victim is
unaware of the threat of harm, no assault has occurred.
An assailant who points a gun at a sleeping person has not
committed an assault.
• Finally, the threat must be imminent, meaning impending
or about to occur. Threatening to kill someone at a later
date would not constitute an assault.
• Case: Stephen v. Myers
• The defendant made a violent gesture at the plaintiff
by waving a clenched fist, but was prevented from
reaching him by the intervention of a third party.
• It was held that the defendant was liable for assault.
 3. There must be a capability to carry out the threat

• There must be the apparent ability to carry out the

act: if a reasonable person would not think the
actor capable of fulfilling the threatened
contact then there is no assault.
• Case: Thomas v. National Union of Mineworkers
• The court held there was no assault when the
picketing miners made violent gestures to working
mines that were safely in vehicles behind police
barricaders.
 4. There must be some bodily movements

• Words, without an act, cannot constitute an assault.

For example, no assault has occurred where a person
waves his arms at another and shouts, "I'm going to
shoot you!" where no gun is visible or apparent.
• However, if the threatening words are accompanied
by some action that indicates the perpetrator has the
ability to carry out a threat, an assault has occurred.
• Case: Read v. Coker
• The defendant was held liable for assault when he
made the menacing gesture and accompanied by a
threat to break the plaintiff ’s neck unless he got out.
 BATTERY

• It is the intentional and direct application of force to

another person without that person consent – actual
infliction of force
 Elements of battery

1. There must be some force

2. There must be a hostile intent
3. It must be without the plaintiff ’s consent
 1. There must be some force / act

• There must be some kind of touching with the plaintiff ’s

body.
• The act must result in one of two forms of contact:
1. Causing any physical harm or injury to the victim, such
as a cut, a burn, or a bullet wound, could constitute
battery, but actual injury is not required. Even though
there is no apparent bruise following harmful contact,
the defendant can still be guilty of battery.
2. The second type of contact that may constitute
battery causes no actual physical harm but is,
instead, offensive or insulting to the victim.
• Examples include spitting in someone's face or
offensively touching someone against his or her will.
 2. There must be a hostile intent

• The force must be with an intent.

• Although the contact must be intended, there is no
requirement that the defendant intend to harm or injure
the victim.
• The intention which is required in battery is not the
intention to hurt the plaintiff, but the intention to apply
physical force.
• If the defendant intended to injure someone other than
the plaintiff, this could still amount to battery if as a
consequence the plaintiff suffers some application of
force.
• It has been held that certain forms of social touching
are reasonable and generally acceptable are not
batteries. Example: jostling in a crowd during Hari
Raya sales, touching to catch a person’s attention and
hearty slap on the back by way of congratulation.
• A factor common to these socially accepted batteries
is that they lack the element of hostility.
 3. It must be without the plaintiff ’s consent

• The requisite intent is merely to touch or make contact

without consent. The gist of the action is the lack of
consent to contact.
• Under certain circumstances consent to a battery is
assumed. A person who walks in a crowded area impliedly
consents to a degree of contact that is inevitable and
reasonable.
• Medical treatment of an unconscious person has
traditionally been regarded as lawful on the basis of
implied consent or necessity.
 Cases

Livingstone v. Minister of Defence

• The plaintiff succeeded in battery when he was hit by
a bullet intended by a soldier for someone else.
Nash v. Sheen
• The defendant, a hairdresser, gave the plaintiff an
unwanted tone rinse, a form of hair dye, when she
requested a perm. It was held that the defendant was
liable for battery.
Pursell v. Horn
• There was battery when the defendant threw water
over the plaintiff
Dodwell v. Burford
• The defendant struck the horse on which the
plaintiff was riding and he was thrown off. The
defendant was liable for a battery.
 FALSE IMPRISONMENT

• A restriction of a person’s freedom of movement, so

that he cannot move to another place as he wishes.
• The restriction must be without lawful excuse or
justification.
• The wrongful continuation of an originally lawful
imprisonment is also actionable.
 Elements of false imprisonment
1. Knowledge of the plaintiff is not essential
- the tort is still committed even if the plaintiff did not know
he was being detained
2. There must be a complete restraint
- if there is a means of escape, it would not constitute false
imprisonment. E.g.: if his path was barred in one direction,
but not in another.
- when there is a reasonable way out, it must be used and the
plaintiff cannot, in those circumstances, claims that his
liberty has been restrained.
 Cases
Warner v. Riddiford
• After dismissing plaintiff as resident manager of a beer house,
the defendant prevented him going upstairs to collect
belongings. Held: this amounted to false imprisonment.
Bird v. Jones
• Defendants blocked one side of Hammersmith Bridge to form
a grandstand for a boat race, thus preventing plaintiff ’s passage
Plaintiff remained in to enclosure for some time, and refused to
cross by the opposite path. Held: no false imprisonment, as he
had reasonable means of living.
Lawrence v. Chief Constable of Dyfed-Powys
Police
• The plaintiff was arrested, suspected of holiday
cottage arsons, and held in isolation for 21 hours
except for a single brief interview. The length of
detention was held to be unreasonable and he was
awarded £600
Houghton v. Chief Constable of Greater Manchester
• The plaintiff was arrested and detained for over two and a
half hours on suspicion of the offence of impersonating
a police officer. A police officer had noticed him leaving a
fancy dress party carrying a truncheon and dressed as a
policeman. He received an award of £600 damages.
Meering v. Grahame White Aviation Co. Ltd
• Employee of respondent company, who was suspected of
theft, agreed to wait in a room with two security officers.
He was not told that he was free to leave, although such
was in fact the case. Held: False imprisonment. A person
can be imprisoned without knowing it.
 Defences to an action for trespass

• Self-defence
• Defence of property
• Consent of the plaintiff
• Preservation of the peace
• Parental or other authority
• Inevitable accident
• Judicial authority
The Law of Tort

NUISANCE
 § Nuisance is an unlawful interference with a person’s use
or enjoyment of land or some right over or in
connection with it.

§ The defendant may interfere with the plaintiff’s interest

by :-

INTRODUCTION ü Affecting materially his land, or

ü Affecting his use or enjoyment of it, or
ü Interfering with servitudes (easement) and
ü Similar rights over the land
 § Nuisance is governed by the common law maxim : sic
utere tuo ut alienum non laedas – “so use your own
property as not to injure your neighbour’s”.

§ Nuisance distinguishes between cases where the

INTRODUCTION conduct alleged to be a nuisance has caused material

injury to property and the cases where it has caused
“sensible personal discomfort”.

§ Not every act is an actionable nuisance for the law

requires give and take among neighbours.
Examples of
nuisance
 § “Nuisance means any act, omission or thing
Section 2 of the occasioning or likely to occasion injury, annoyance,
Local offence, harm, danger or damage to the sense of sight,
smell or hearing or which is likely to be injurious or
Government Act dangerous to health or property to which affects the
1976 safety or the right of the inhabitants at large”.
 § It can be seen in the case of St. Helens Smelting Co. v. Tipping,
where the Pf bought an estate near the Df’s copper smelting
factory and later complained that noxious fumes from it were
damaging his trees and crops. The Df contended that the whole
neighbourhood was devoted to similar manufacturing purpose &
therefore, the smelting operation should be allowed to continue
with impunity.
Distinction between § Court held: When interference is alleged with a Pf’s enjoyment, the
material interference surrounding circumstances are relevant, but that different

with property & consideration apply when the alleged interference is with material
injury to property.
interference with use
or enjoyment § Reasons for distinction:
1. Property generally receives greater protection than
enjoyment derived from it.

2. Property damage is more easily assessable and

quantifiable than mere interference with enjoyment.
 1. To provide comfort to those who have proprietary
interests in land and members of the general public

§ Even though everybody has the right to do whatever

Purpose they wish on their land, their activities must not cause
inconvenience or damage to others

2. Balancing competing interest

 PUBLIC NUISANCE
§ A crime as well as a tort
§ The number of persons required to constitute a class of the
society is a question of fact in each case
§ Examples: obstructing the public highways or interference
with public comfort, safety and health.

TYPES OF
NUISANCE PRIVATE NUISANCE
§ Only a tort
§ Unlawful interference with a person’s use, comfort,
enjoyment and any interest that a person may have over
his land.
 § A public nuisance is an unreasonable interference with
the public's right to property. It includes conduct that
interferes with public health, safety, peace or
convenience.

PUBLIC § To be liable for public nuisance, the defendant must

have interfered with public property, or with a right
NUISANCE common to the public.

§ Examples of public nuisance include pollution of

navigable waterways, interfering with the use of public
parks and the creation of public health hazards.
 § Attorney General v PYA Quarries Ltd (1957)
§ Public nuisance arises when an act materially affects
the reasonable comfort and convenience of life of a

PUBLIC
class of the society.

§ In this case, dust and vibration caused by operation of a

NUISANCE quarry amounted to a public nuisance although the Df
tried to argue that too few people were affected by
their acts for them to amount to anything more than a
private nuisance.
 § A nuisance will not be public unless the number of
persons affected are sufficiently large to constitute a
class. This is a question of fact.

PUBLIC § A public nuisance may also be a private nuisance and a

tort.
NUISANCE § It is actionable as a tort only by one who has suffered
particular damage over and above that suffered by the
public at large.
 § Lyons, Sons & Co v. Gulliver
§ D was occupiers of a theatre. Popular performances at
2:30 pm and 6:30 pm caused queues to form which
obstructed customers to adjacent shop.
§ Held: that the plaintiff suffered particular damage and
nuisance was actionable at the suit of the adjacent shop
owner.
Cases § Miller v Jackson
§ Balls were often struck out of a cricket ground on to M’s
house recently built nearby. The court awarded damages
for negligence and nuisance, but discharged an injunction
against playing cricket because in modern conditions the
interest of the public should prevail over that of the
individual.
 § G of Ontario v Orange
§ The defendant was held to cause a public nuisance when
Cases he organized a pop festival, which caused noise and large
mount of traffic
THE LAW OF DEFAMATION
LAW OF TORT
 DEFINITION

¡ Lord Atkin in Sim v. Stretch defined defamation as:

Ø “...statement (oral or written, temporary or permanent) which injures the reputation of another by
exposing him to hatred, contempt, and ridicule or which tends to lower him in the esteem of right-
thinking members of society.”
¡ Applicable law: Defamation Act 1957
 TYPES OF DEFAMATION

LIBEL SLANDER
¡ Written, permanent, in visible form ¡ Oral & temporary
¡ Actionable per se i.e. action can be taken without ¡ Not actionable per se i.e. require special damage to
having to prove damage render them actionable, except:
• Imputation of a criminal offence punishable by
imprisonment
• Imputation of unchastity or adultery to a woman or
a girl
• Imputation of certain contagious diseases
• Slander affecting official, professional, or business
reputation
 Who can be defamed?

Only living persons Corporations have the

can bring an action in legal personality and
defamation capacity to sue for
defamation
¡ In Atip Ali v. Josephine Doris Nunis [1987] 1 MLJ 82, the court held that defamation involves a
right in personam and close relationship with the person defamed alone will not give rise on the part
of other persons to sue the defendant.
 ELEMENTS OF DEFAMATION

Words complained of
must be defamatory

DEFAMATION Words complained of

must refer to the Plaintiff

Publication to a third
party
1. WORDS COMPLAINED OF MUST BE DEFAMATORY

¡ The plaintiff must prove that the words complained of are defamatory.
¡ Whether the words are defamatory or not, they must be understood in their ordinary and natural
sense, i.e. the meaning that the words would convey to the ordinary man.
¡ Words that are merely abusive, however crude or hurtful, are not defamatory.
CASES: LUK KAI LAM V. SIM AI LENG [1978]

¡ The appellant alleged as the respondent was walking past her and one, Chong, the respondent uttered
the word (which Chong could hear): “Eh, what is there about you to be proud of? Who does not know
that you receive guest at $50 a time, Prostitute!”
¡ On another occasion, the appellant uttered the following words of the respondent: “Who doesn’t
know she and Sia had been sleeping in the nursing home for over a year before they got married.”
¡ The court held that both was liable for slander. The appellant was awarded $1500 damages against the
respondent and the respondent was awarded $1250 damages against the appellant.
HASNUL ABDUL HADI V. BULAT MUHAMED [1978] MLJ 75

¡ The court held that to call a person a liar, ‘Abu Jahal’, is defamatory and publication of the words ‘Abu
Jahal’ is actionable per se. The plaintiff need not prove that he had suffered any damage.
DATO’ MUSA HITAM V. S.H. ALATTAS [1991] 1 CLJ 314

¡ The defendant wrote in a book,“The Challenge – Siapa Lawan Siapa”:

“So long as Musa is not expelled from UMNO, so long will UMNO members bear the sins that Musa
has committed. Dato’ Musa is responsible for the killing of 14 innocent Muslims in Memali. Who was
the Home Minister at the time of the incident? It is Musa who was responsible for the killing of
innocent children and folks. Is it right that you should protect one who should be punished in
accordance with his sin?”
¡ The court held that the words complained of in their natural and ordinary meaning are defamatory of
the plaintiff.
OTHER CASES

¡ Syed Husin Ali v. Sharikat Perchetakan Utusan Melayu [1973] 2 MLJ 56

¡ J.B. Jeyaratnam v. Lee Kuan Yew [1982] 1 MLJ 239
INNUENDO

¡ Innuendo: a hidden or inner meaning

¡ If the plaintiff alleged that the words contain an innuendo which render them defamatory to him, this
is something which he must plead and prove in court. If he fail to do so, his pleading will be struck of.
¡ Case: Cassidy v. Daily Mirror Newspaper
¡ The defendant published a photograph of Mr. Cassidy with Miss X and announced their engagement. In
fact, Mr. Cassidy was already married, though the parties had been living apart. Mrs. Cassidy brought an
action alleging an innuendo that since the paper had published the statement that Mr. Cassidy was still
a bachelor, she must be regarded as his mistress.
¡ The court gave judgment to the plaintiff.
2. WORDS COMPLAINED OF MUST REFER TO THE PLAINTIFF

¡ The words complained of must refer to the plaintiff and not to some other person, real or imaginary.
¡ Where the words complained of refer clearly to the plaintiff, the state of the defendant’s mind is not
relevant.
¡ The defendant can be held liable where his statement is true of one person but is, in fact defamatory
of another person of the same name or of the same description.
NEWSTEAD V. LONDON EXPRESS NEWSPAPER

¡ The defendant published in their newspaper that, “Harold Newstead, a thirty-year old Camberwell man” had been
convicted of bigamy. This news item was true of a Camberwell barman of that name but not of the plaintiff, a
barber by profession, who was also of the same age and who resided in Camberwell. The Plaintiff's contention
that the words published could be understood to refer to him was upheld by the court.
LE FANU V. MALCOMNSON

¡ There is no requirement that the Plaintiff be expressly referred to by the Defendant. It is sufficient
even if the defamatory statement referred to the Plaintiff by implication.
¡ In this case, a local newspaper published a letter denouncing the alleged cruelty with which factory
workers were treated. The verdict in favour of the owner of the factory was upheld because there
were special circumstances which enabled the court to identify the factory belonging to the Plaintiff.
¡ The Defendant was held liable.
3. PUBLICATION TO A THIRD PARTY

¡ Publication means “making known the defamatory matter after it has been written to some person
other than the person of whom it is written”.
¡ A communication between spouses about a third party is not publication.
¡ A communication by a third party to one spouse, however, is publication.
¡ A statement not heard because, for example, made to a deaf person, or in a language not understood,
or because it is not obviously referable to the plaintiff, is not considered as having published.
THEAKER V. RICHARDSON

¡ The defendant wrote a defamatory letter to the plaintiff, accusing her of being a whore and a brothel
keeper. The plaintiff, a married woman , was a fellow local councilor with the defendant. The defendant
had placed the defamatory letter in the plaintiff’s husband letterbox in a manila envelope, similar to the
type used to send election materials. The plaintiff’s husband picked up the envelope and thinking that it
contained material, opened it and read its content.
¡ The jury found the defendant liable because in the circumstances of the case, it was reasonable to
expect that the letter would be opened and read by the plaintiff’s husband.
ANWAR IBRAHIM V. ABDUL KHALID BAKAR SHAH & ANOR [1998]
3 CLJ 177

¡ The plaintiff in this case is the Malaysian Deputy Prime Minister. In 1998, the defendants published a
book entitled “50 Dalil Mengapa Anwar Tidak Boleh Jadi PM”. They circulated the book among the
delegates in the 1998 UMNO General Assembly. The plaintiff alleged that the book contained
statements which were untrue, and were malicious and defamatory of him. The plaintiff sued the
defendants and sought for a permanent injunction against the publication and distribution of the book,
and also for damages for libel and conspiracy.
¡ Held: the impugned statements, expression and words in the book refer to the plaintiff and in their
usual and ordinary meaning and, or by innuendo they convey the meaning as claimed by the plaintiff.
¡ The judge awards RM4 million for the tort of defamation and RM500,000 for the tort of conspiracy to
injure.
 DEFENCES

Justification Fair
Privilege
/ Truth comment

Offer of
Apology
Amends
JUSTIFICATION / TRUTH

¡ If an alleged defamatory statement is true, the plaintiff cannot by nature of things, have suffered damage to his
reputation.
¡ Section 8 provides: In an action for libel or slander in respect of words containing two or more distinct charges
against the plaintiff, a defence of justification shall not fail by reason only that the truth of every charge is not
proved if the words not proved to be true do not materially injure the plaintiff’s reputation having regard to the
truth of the remaining charges.
FAIR COMMENT – SECTION 9

¡ It is essentially comment, honestly made, on a matter of public interest.

¡ The defendant must prove that the statement objected to be one of ‘comment’, in other words, one of ‘opinion’,
not a fact.
¡ The comment must be based on facts contained in or referred to in the publication complained of.
¡ The facts must be sufficiently true to make the comment fair.
¡ The comment must also be made without malice.
 PRIVILEGE
¡ This defence protects certain defamatory statements from legal action on the ground of public policy.
¡ There are two classes of privilege:
a)Statements made in either Houses of Parliament
b)Reports of parliamentary proceeding published by order of either Houses
Absolute c)Statement made by judges, lawyers, jurors, witnesses or parties in the course of
proceedings – section 11
Privilege d)Communication made by one officer of state to one another in the course of
his official duties
e)Communication between spouses

Qualified • Two fundamental conditions must be satisfied:

1. There is a legal, moral or social duty to make statement on one side,
Privilege 2. There is a corresponding interest to receive it on the other.

*if the statement is made maliciously, the law withdraws the protection of privilege and the defendant will be liable for
defamation
APOLOGY- - SECTION 10

¡ A defendant may plead:

v That the publication was made without malice or gross negligence
v That a full apology was published at the earliest opportunity, and
v That compensation has been paid to court
OFFER OF AMENDS - SECTION 7

¡ This defence is available when words have been published innocently, i.e. if the publisher used reasonable care and
either:
v Did not intend to publish them of the plaintiff and did not know of circumstances by which it might be
understood to refer to him.
v Did not know of circumstances by which words innocent on the face of it might be understood to be defamatory
of the plaintiff.
¡ At the same time, the defendant offer to publish a correction and an apology and to take reasonable steps to
notify persons to who copies of the defamatory matter have been disturbed.
 LAND LAW (National Land Code 1965)

THE MALAYSIAN TORREN SYSTEM

What Is Torrens A system of registration of titles to land (as distinct from registration of deeds) introduced into South
System? Australia by the Real Property (or Torrens) Act (Act 15 of 1857-58), drafted by Sir Robert Torrens (1814-
84).

Twin Principles Under 1) THE MIRROR PRINCIPLE

Torrens System The register reflects all the facts material to the registered owner’s title in the land. e.g name of proprietor,
the land, area, location, wide etc.

2) THE CURTAIN PRINCIPLE

Any potential purchaser will be concerned only with the register and nothing else. The purchaser can
safely rely on the information revealed in the register, and he need not, nor may he and look behind it.
Principal Characteristic i) No absolute ownership
of Malay Customary ii) Usual method of acquisition of land – by opening and cultivating virgin jungle or waste land
Tenure iii) To pay 1/10 of the proceed to the ruler as tax
iv) If land neglected out of reasonable reason for substantial period – forfeited by the Ruler
v) Price of land – return of expense (sum of total of his labour and out of pocket expense)
vi) If the owner wishes to borrow money on the security of his land Malay custom recognizes the
transaction known as jual janji

INDEFEASIBILITY OF TITLE

Meaning - ‘Indefeasibility of title’ means that the proprietor’s title to or interest in the land once registered, is
unchallengeable, unimpeachable or unquestionable by any adverse claims not stated on the register.

- Applying to the above example, once the title is registered in your name, nobody can make any claim that
the title to and interest in the land, as his.
 - However, indefeasibility is not absolute under certain circumstances. Section 340 (2) sets out the
circumstances where a title or interest will be rendered defeasible wherein a registered title or interest in
the land may be set aside or defeated by anybody who claims to fall under Section 340(2).
- Section 340(2) briefly states that the title to and interest in of any person or body shall not be indefeasible
Exceptions to in the following cases:-
Indefeasibility of
Title i) Fraud or misrepresentation
In this case, fraud or misrepresentation has been committed by a person or body or the agent of the person
or body which caused the registration to take effect.

Teknik Cekap Sdn. Bhd. v. Villa Genting Development Sdn Bhd

the court held that a fraud may be established if the object of the transaction is to cheat one who knows his
existing right or where by a deliberate and dishonest act, a person loses his exiting right.

(b) Where registration was obtained by forgery or by means of an insufficient or void instrument
By virtue of Section 340(2) (b), where the registration is obtained by forgery, it becomes defeasible and can
be set aside. Where registration is obtained through insufficient or void instrument, it can also be challenged
and set aside.

Section 43(1)(a) of the Code and Section 11 of the Contracts Act 1950, states that the transfer instrument
signed in favour of or by a minor is void and if registration took effect, it cannot confer indefeasibility.

(c) The title and interest to the land was unlawfully acquired
In the event registration of an acquisition may be obtained unlawfully being ultra vires the statutory power
or due to non-compliance of the statutory requirements under any written law, the registration can be
questioned and set aside.

In the case of Wong Kim Poh v. Saamah Hj. Kasim (1987) 1 MLJ 400 the Supreme Court decided that an
instrument of transfer which was registered by the Registrar while a caveat was still in force was in
contravention of a prohibition imposed by a caveat and the registration was held to be defeasible.

Effect of - Section 340(3) briefly stipulates that any person or body holding defeasible title or interest specified in
Purchaser having Section 340(2) is liable to be set aside:
Defeasible Title a. in the hand of immediate registered proprietor; and
or Interest b. in the hand of any subsequent purchaser.
 Illustration
Ali is a registered owner of a piece of land in Shah Alam. Ali’s son, Thipoo by way of fraud, transfers the land
into his name. Under Section 340(2)(a). Ali is entitled to set aside the title in Thipoo’s name (immediate
registered proprietor) on the ground of fraud.

Although the title or interest was held as being defeasible, the proviso the subsection (2) of Section 340
states that defeasible of title shall not affect”… any title or interest acquired by any purchaser in good faith
and for valuable consideration, or by any person or body claiming through such a purchaser.”

This means that the proviso of Section 340(2) confers indefeasible of title or interest to a bona fide (good
faith) purchase for valuable consideration. The purchaser must show that he had no knowledge about or
was not party to the fraud and valuable consideration (payment of money) was made.

Applying to the above illustration, if Thipoo sold the land to Seela (subsequent purchaser) who has no
knowledge of the fraud and pays a purchase price of RM200,000.00., Ali could not set aside the registration
of transfer in Seela’s name. Seela was a bona fide purchaser (as she had no knowledge of the fraud) for value
(as she had paid a valuable consideration of RM200,000.00).

TYPES OF TITLE

What Is Title? The land title is the evidence of ownership, that is, who the owner is and which land he owns. Besides that there
are a number of particulars and information stated on the title such as the title number, the particulars of proprietor,
the amount of annual rent, the condition and/or restriction in interest, the term of alienation and its expiry date.

Types Of Title? i) Qualified Title (Hak Milik Sementara)

- When the State Authority approved the land for alienation, a qualified title (Q.T) is issued according to
Section 77(2) of the Code. The boundaries of land under a Q.T are only provisional and not final.
- The purposes of qualified title are to enable land to be alienated and the title to be issued in the name of the
proprietor in advance of survey.
- It confers on the proprietor the same rights as those conferred by a final title except that the land issued with
a qualified title cannot be subdivided, partitioned or amalgamated.

ii) Final Title (Hak Milik Kekal)

- Before the F.T is prepared and issued, the land is surveyed and the boundary marks are conducted.
- The plan of the land is prepared and certified by the Director or Survey, a lot number is given and the plan
then is transferred to in the form of a title. Then, final title can be registered.
- In some cases, after a survey is conducted, the land area held under the Q.T may differ and not the same as
that held under a F.T. It may be smaller than that provisionally approved.
- However, Section 83(4) of the Code stipulates that the proprietor shall have no claims against the State
Authority for any discrepancies in respect of the land area

iii) Registry Title (Hak Milik Pejabat Pendaftar)

- Registry title is registered and issued by the Registrar of Titles in the Registry of Titles to the proprietor in
the following cases as stated in Section 77(3)(a) of the Code:
a. for a town or village land; or
b. for any country land exceeding four (4) hectares; or
c. for any part of the foreshore or seabed.
- In each State there will be only one (1) Registry of Titles which is located in the State capital. For example,
the Registry of Titles for Selangor is located in Shah Alam.

iv) Land Office Title (Hak Milik Pejabat Tanah)

- Land Office title is registered and issued by the land Administrator at the Land Office of the district to the
proprietor in the case of any lot of country land not exceeding four(4) hectares in area under Section
77(3)(b) of the Code.

v) Register Document of Title (RDT) (Dokumen Hak Milik Daftar)

- After identifying whether the title to the land shall be in either Registry title or land Office title, the State
Authority will have to prepare the Register Document of Title. Each lot will have its own separate title.
- If the land is to be issued with a Registry title, Section 86 of the Code provides two (2) forms of RDT:-
a. Grant in Form 5B for land alienated in perpetuity (Freehold); and
b. State lease in Form 5C for land alienated for a period of years (leasehold).
- Section 87 of the NLC provides two (2) forms of Land Office Title and the RDT to be prepared are:
a. mukim grant in Form 5D for land alienated in perpetuity (freehold); and
b. mukim lease in Form 5E for land alienated for a period of years (leasehold).

vi) Issue Document of Title (IDT)(Dokumen Hakmilik Keluaran)

- Besides the RDT, an Issue Document of Title (IDT) will also be prepared by the Registrar. The IDT shall be a
copy of the RDT and both the RDT and IDT shall have a plan of the land certified by the Director of Survey.
- The IDT shall be given to the proprietor for safe-keeping and it can be used when the proprietor deals with
the land. The RDT, on the other hand shall be kept at the respective Registry of Titles.
 DEFINITION OF LAND AND FIXTURES

Definition of S 5 NLC: Land includes:

‘land’ under NLC a) The surface of the earth and all substances forming that surface;
b) The earth below the surface and all substances therein;
c) All vegetation and other natural products,
d) All things attached to the earth or permanently fastened to anything attached to the earth, whether on or
below the surface; and
e) Land covered by water.

The definition of ‘land’ is however widely provided under (d) above:

‘all things attached to the earth or all things permanently fastened to anything attached to the earth whether on
or below the surface”

S. 5 (d) can be divided into 2 limbs:

i) all things attached to the earth
- all things directly attached to the land, is land. e.g a house or building.

ii) all things permanently fastened to anything attached to the earth whether on or below the surface
- It is not easy to determine whether things which are permanently fastened to the building, can be
considered as ‘land’. e.g: air conditioner unit, kitchen cabinet and lightings.
- To overcome the problem in determining whether a particular thing or item is ‘land’ or otherwise, we
have to identify whether it is a fixture OR chattel property.
- The main difference between a fixture and chattel is that what is attached to the land becomes part of
the land and immovable whereas a chattel is removable.

Importance of i) To determine the right of a purchaser on certain items in a sale and purchase transaction of a piece of land.
defining what Example: Mr A is the registered proprietor of a piece of land with a house built on it. He wishes to sell the
constitutes land land to Mr B. Who has the right over all the items attached to the house on the land?

ii) To determine the right of chargee banks over the land charged to them as security.
Example: Mr A is the registered owner of a piece of land. He applies for loan from a bank. As security for the
loan, he charges the land to the bank. Therefore, if Mr A defaults in payment, the bank can sell the land. Who
has the right over all the items attached to the house on the land?
The Law of - Legal maxim on fixtures - “Quic quid plantatur solo, solo cedit "
Fixtures - whatever is affixed to the soil belongs to the soil”
- This legal principle means that something that is or becomes affixed to the land becomes part of the land;
therefore, title to the fixture is a part of and passes with title to the land and consequently whosoever owns
that piece of land will also own the things attached.

Fixtures vs. - Fixture: an item that is attached to the land and immovable and shall form part of land
Chattels - Chattel: a chattel is an item even if attached to the land, it is removable and shall not form part of land.
- The English law on fixtures laid down two tests for establishing whether an item is a fixture or a chattel.
They are the degree of annexation and purpose of annexation. Both tests must be applied.

i) Degree of Annexation Test (an objective test on the physical attachment of the article)
- We must look to what extent is an item affixed or attached to the land. It may be strongly or slightly
attached or it may be resting by its own weight to the land.
a) If an article is affixed to the land even slightly - the presumption is that it is a fixture. e.g:
Machinery which is affixed with nuts and bolts to the floor.
b) If an article is attached to the land by its own weight – the presumption is that it is a chattel. e.g:
A picture which is nailed to the wall

- We must also look to what extent an injury will be caused to the item upon its removal.
a) If the removal of the article would result in damage to the article - the presumption is that it is a
fixture. e.g: built-in-cabinet
b) If the removal of the article does not result in damage to the article – we cannot presume that it
is a chattel but to look at the purpose.

*However, this Presumption can be strengthened or rebutted by the Purpose Test.

2) Purpose of Annexation Test

- The purpose of annexation is also important to be ascertained before we come to a conclusion that
an item is a fixture or a chattel. We may ask the reason why and the intention of the person who
annexed or attached the item to the land. Is it for the enhancement of the value of the land or for
better use of the item as a chattel itself?

a) If an article is attached to the land for the better enjoyment of the land as a whole so as to improve
its usefulness and value - strengthens the presumption that it is a fixture. e.g: statutes or rock
garden arranged in a garden
 b) If an article is attached to the land merely for the more complete enjoyment and use of the item
as a chattel - rebuts the presumption that it is a fixture. e.g: A picture which is nailed to the wall.
Cases:

Goh Chong Hin’s case

The issue was that whether an item consists of machinery affixed by the proprietor to the land was a fixture. It
was decided that the machinery which was affixed to the earth by bolts and nuts, became a fixture and form part
of the land.

Shell Company of Federated of Malaya v. Commissioner of the Federal Capital of K. L.

The main issue that arises was whether the underground storage petroleum tank form part of the land and
therefore rateable (annual payment to be made to Commissioner). It was held by the court that the tanks formed
part of the land as they were placed underground with the intention to remain as long as the buildings erected
on the filling station. Therefore, it was rateable.

Exceptions to the There are several exceptions to the law of fixtures:

law of fixtures i) Tenants fixtures, Trade fixtures, Agricultural fixtures and Domestic fixtures
Spyer v Phillipson [1931]
Held: A tenant has the right to remove his fixtures provided no substantial damage was done to the premises.

Smith v City Petroleum [1940] 1 All ER 260

Held: A tenant could remove petrol pumps from the land because they were trade fixtures and could easily
remove since they were only bolted to the land. However, it was held that the petrol tanks could not be
removed because they have become an integral part of the land and could not easily detached.

ii) Malay wooden house

An exception to the law of fixtures based on custom.

Re Tiambi bt Ma’amin (1904) Innes 285

A Malay wooden house is moveable property and thus, a chattel and can be removed.

Kiah v Som [1953]

A Malay traditional wooden house built on stilts are regarded as chattels by proved custom and not subject
to the English law of fixtures.
 CLASSIFICATION OF LAND USE

1) By virtue of Section 51 of the Code, land is classified as follows:-

a. Land above the shore-line; and
b. Foreshore and sea-bed.

a. Land above the shore-line comprised of:-

i) town land
ii) village land
iii) country land
All lands above the shore-line can be disposed of by the State Authority by way of alienation or other than by alienation, for example
by issuing the temporary occupation license or granting lease of reservation land.

b. Foreshore and sea-bed.

Land classified as foreshore and seabed is prohibited from and shall not be disposed of in any way whatsoever except for alienation
where the State Authority considers to fall under special circumstances or for public purpose,

CATEGORIES OF LAND USE

1) A land which is alienated by the State Authority may also subject to three (3) categories mentioned in Section 52(1) of the Code and
summarized as follows:

a. Agriculture land - S.115

- No building
- Commence cultivation within 12 months.
- Fully under cultivation within 3 years.
- Maintained according to good husbandry.
- Shall be continuously cultivated.
- The followings allowed;
i) For proprietor/dwelling house (cannot 1/5 of the whole area) .
ii) Extracting/processing raw materials.
iii) Preparing for distribution of livestock/fish.
iv) Welfare facilities
v) Any other purpose State Authority deems fit.
 b. Building land – S.116
- Building erected within 2 years
- part for agricultural/industrial purpose.
- Shall be maintained in repair.
- Cannot demolished, altered/extended without consent of appropriate authority.
- The followings allowed;
i) Residential purposes
ii) Administrative/commercial purposes.
ii) Exhibiting, selling by retail, repairing
iii) Welfare facilities.
iv) Entertainment, refreshment/recreation.
v) Any other purpose state authority deem fit.

c. Industrial land – S.117

- Within 3 years.
- Every building/installation must be maintained in repair.
- Cannot demolished, altered/extended without prior consent.
- Erection /maintenance of factories, workshops, foundries, warehouse, docks, jetties, railways/other building/ installations in
connection
- Manufacture, Smelting, The production of power, Storage, transport, distribution of goods/ other commodities.
- Such other purposes as may be prescribed by state authority

2) When the State Authority alienates land, it may impose any one of the above categories of land use such as “For Agriculture only”. This
means that the registered owner may only use the land for agriculture purpose. Likewise, if the land is endorsed as “Building Land”, the
registered owner is prohibited to develop a palm oil estate on the said land unless approval for conversion of category of land use first
obtained from the State Authority.

3) Breach of condition of the category of land use shall result in the land being liable for forfeiture by the State Authority.
Customs of the local inhabitants in Malaysia
are also a source of law.
Generally, customs relating to family law,
i.e. marriage, divorce and inheritance, are
given legal force by the courts in Malaysia.
Definition of custom:
regular pattern of social behavior
which has been accepted by a bulk
of a given society as binding upon its
members because such behavior has
been found to be beneficial to them.
Article 160 of the Federal Constitution: it
includes and usages having the
force of law.
Malay Customary Laws (Adat Temenggong &
Adat Perpatih)
Chinese and Hindu Customary Law
Native Customary Laws (Sabah & Sarawak)
It is originated from Sumatera.
Practiced in Peninsular Malaysia except
Negeri Sembilan and Naning, Melaka.
It is an autocratic patriarchal.
The criminal law was characterised by the
principle of retaliation.
The law-digest of Melaka, Pahang, Kedah,
Perak and Johor embody the Adat
Temenggong which is the mixture of adat
(Malay), Hindu and Islamic laws.
It is originated from Minangkabau but
practiced in Negeri Sembilan and Naning in
Melaka.
It is democratic matriarchal.
Rules were provided in the election of adat
chief, marriage and divorce, land matters,
division of property and inheritance.
3 kinds of property recognised under Adat Perpatih:-
(a) Ancestral property/ land (harta pusaka)
This property was always held by the woman. Upon
death of a woman, the property will be inherited by
the female descendents of the deceased.
In land matters, female vested with customary
property comprises of kampung land, sawah and
house.
(b) Accompanied property & Acquired property (carian
bujang)
Harta Pembawa- property of husband acquired before
marriage.
Harta Dapatan- property of wife acquired before
marriage.
Upon divorce- the property will be taken back by its
respective owner.
(c) Jointly acquired property (carian laki bini)
Known as Harta Sepencarian- this property
was jointly acquired together by the husband
and wife during their marriage.
On divorce- the property would be divided
equally.
Upon death- the property will be held by the
surviving spouse.
Yam Tuan/Yang
Dipertuan Besar

Undang

Lembaga

Buapak

Mamak
Case: Dato Menteri Othman Baginda & Anor v
Dato Ombi Syed Alwi bin Syed Idrus
[1981] 1 MLJ 29.
This dispute concerns the succession to the 14th
Undang (Ruling Chief) of the luak (territory) of
Jelebu in the State of Negeri Sembilan.
Issue: Does the court have jurisdiction to determine
the dispute?
Held: the court agree that the jurisdiction should
be given to Dewan Keadilan dan Undang because it
is already the function of the Dewan Keadilan dan
Undang to advise on the appointment of the Ruling
Chiefs. It is clearly stated in Article XVI of the
Constitution of the State of Negeri Sembilan. Article
71 also stated that the Federal gave the power to
State to appoint any candidate to be a Ruler.
Prior to the enforcement of the Law Reform
(Marriage and Divorce) Act 1976, Hindu and
Chinese customary law applied to the Hindus
and Chinese respectively.
However, after the enforcement of the Act,
polygamous marriages were abolished.
Since then, Chinese and Hindu customs have
become of little or no effect as a source of
law in Malaysia.
The Six Widows Case
Potoo v Valee Uta Taven
In Sabah and Sarawak, native customary laws
apply in land dealings over native customary
lands and family matters where natives
subject themselves to native customary laws.
Sources of native customary law comprise of
statutes, ordinances, proclamations,
enactments and rules which incorporated and
legalized native customs; written collections
of native laws known as codes, past court
cases and unrecorded oral tradition.
Presently, native customary law continues to
be administered by the Native courts
established under the Sabah Native Courts
Enactment 1992, which replaced the Native
Courts Ordinance 1953.24
Section 3 of the Native Courts Enactment
1992 provides that the Yang DiPertua Negeri
of Sabah has the power to establish Native
courts.
 Native Court of
Appeal

District Native Court

Native Court
A native court consists of the District chief as
the presiding member and two other
members who are Native chiefs or headmen.
A District native court shall consist of the
District officer of the district as the presiding
member and two other members who shall be
District chiefs or Native chiefs.
The Native court of appeal consists of a Judge
as President, and two other members who are
the District chiefs or Native chiefs. The term
is defined by Section 2 of the
Enactment 1992 as a Judge of the High Court.
Section 6(1) of the Native Courts Enactment 1992 states the
original jurisdiction of the courts, which covers the following
areas:
cases arising from breach of native law or custom in which all
the parties are natives;
cases arising from breach of native law or custom, religious,
matrimonial or sexual
cases involving native law or custom relating to betrothal,
marriage, divorce, nullity of marriage and judicial separation;
adoption, guardianship or custody of infants, maintenance of
dependants and legitimacy;
gifts or succession testate or intestate; and
other cases if jurisdiction is conferred upon it by this
Enactment or any other written law
The present Native Courts is a State legal
institution created under the Native Courts
Ordinance, 1992.
Native Court of Appeal

Resident's Native Court

District Native Court

Chief's Superior Court

Chief's Court

Headman's Court
 a District Native Court consists of a
Magistrate and two Assessors;
a Chief's Superior Court consists of a
Temenggong or a Pemanca sitting with two
Assessors, or both Temenggong and
Pemanca sitting with one Assessor;
a Chief's Court consists of a Penghulu and
two Assessors;
a Headman's Court shall consists of a
Headman and two Assessors
The Resident's Native Court and the Native
Court of Appeal are having appellate
jurisdiction in respect of civil cases and land
disputes.
The Resident's Native Court shall be
constituted by a person who is the Resident
of the Division and sitting with not less than
2 Assessors but not more than 4
Assessors. The Assessors must be persons
versed in customary law relevant to the
determination of the appeal.
The Native Court of Appeal is the final court of appeal in the
Native Court system in respect of civil cases and land
disputes.
The Native Court of Appeal shall consist of:-
(i) the President;
(ii) the President of the Majlis Islam or the Ketua Majlis Adat
Istiadat Sarawak; and
(iii) a person who is or has been appointed a Temenggong
and;
Where neither the President of the Majlis Islam nor the Ketua
Majlis Adat Istiadat is able to sit as a member of such Court in
any particular case, the President shall, after consultation with
the Chief Registrar, nominate a Temenggong to replace him.
The President of the Native Court of Appeal must be a person
holding or has held the office of a Judge of the High Court or
is qualified under the Federal Constitution to be appointed as
a Judge of the High Court.