MALAYSIAN LEGAL SYSTEM

CHAPTER 1:

INTRODUCTION TO MALAYSIAN LEGAL SYSTEM

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MALAYSIA AS A FEDERATION

Malaysia is a federation of 13 states and three federal territories.

i) 11 states namely Perlis, Kelantan, Terengganu, Pahang, Perak, Kedah,

Selangor, Pulau Pinang, Negeri Sembilan, Malacca, and Johore and 2
federal territories namely Kuala Lumpur and Putrajaya are on West
Malaysia

ii) 2 Borneo states namely Sarawak and Sabah and 1 federal territory –
Labuan, are on East Malaysia

iii) The federation has a strong central government.

iv) The government is divided into three different branches – executive,

legislative and the judiciary.

v) Legislative and executive powers are divided between central and state
governments.

vi) The Federal Constitution of the Federation of Malaysia is the supreme

law of the land.

vii) Both federal and state governments have powers conferred on them by
the Federal Constitution to govern issues that are only within their
jurisdiction.

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THE FEDERAL CONSTITUTION IS THE SUPREME LAW OF THE LAND

Article 4(1) of the Federal Constitution states:

… (1) This Constitution is the supreme law of the Federation and any law passed after
Merdeka Day which is inconsistent with this Constitution shall, to the extent of the
inconsistency, be void…

FEDERAL AND STATE POWERS

The Federal Constitution confers upon the central government and state government their
respective powers to act upon.

• Parliament may legislate on matters in the Federal and Concurrent List,

while the State Legislative Assemblies may enact legislation on matters in
the State and Concurrent List.
• Most matters that are important to the Federation – external affairs,
defence, internal security, civil and criminal law and administration of
justice are on the Federal List.
• Islamic matters, land, mining, local government, agriculture is in the State
List.

In the case of Ah Tian v Government of Malaysia, Suffian LP (now Tun Suffian) has
expressed the view of the judiciary on Malaysia’s governmental framework.

“…the doctrine of the supremacy of the Parliament does not

apply in Malaysia. Here we have a written constitution. The
power of Parliament and of State Legislatures in Malaysia is
limited by the Constitution and they cannot make any law as
they please…”

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SYSTEM OF GOVERNMENT

The Malaysian system of government is modelled after the Westminster system of the United
Kingdom. However, unlike the latter, Malaysia has a written constitution. The key points on
Malaysia’s system of government includes:

• Malaysia is a PARLIAMENTARY DEMOCRACY and a CONSTITUTIONAL

MONARCHY.
• The powers of each branch of the government are set out and provisioned under the
following provisions in the Federal Constitution.
• Executive – (Article 39 to 43C), Legislative – (Article 44 to 69) Judiciary – (Article
121 to 131A)
• The Yang di- Pertuan Agong (YDPA) is the formal head of each branch of
government: legislature, executive and the judiciary. His Majesty is the ruler of the country
while the Prime Minister is the leader of the government.
• He is also the Supreme Commander of the Armed Forces – Article 41
• The YDPA acts on the advice of the Prime Minister or the Cabinet or any minister
under the Cabinet as provided for in the Constitution.
• Though Islam being the religion of the Federation, the federation maintains as a
secular state and not an Islamic state (however, there are some scholars who are of the view
that Malaysia is a mixed or rather, hybrid state)
• It must be noted that Islamic law is not the basic law of the land. Islamic law only
concerns Muslims in 24 areas of personal matters as enlisted under the Ninth Schedule, List
2, Paragraph 1 of the Federal Constitution.

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THE DOCTRINE OF THE SEPARATION OF POWERS

This doctrine expresses the idea of a division between governmental powers namely between
the executive, legislative and the judiciary. Under this model, the divided branches of
government are separate and have independent powers and specific responsibilities so that
powers of one branch of government are not in conflict with those of the other branches.

Charles-Louis de Montesquieu

• The idea of the doctrine on separation of powers also known as the "tripartite system"
is commonly ascribed to the French Enlightenment political philosopher Charles-Louis de
Secondat, Baron de La Brède et de Montesquieu, or generally known just as Montesquieu.
Although he did not use such a term, he expressed the need for the existence of "distribution"
of powers.
• In De l'esprit des lois [The Spirit of the Laws] (1748), Montesquieu described the
various forms of distribution of political power among a legislature, an executive, and a
judiciary. Montesquieu's approach was to present and defend a form of government whose
powers were not excessively centralized in a single monarch or a similar ruler (a form known
then as ‘aristocracy’).

LEGISLATIVE

• Malaysia’s parliamentary democratic system ensures that there should be a general

election every five years for the Malaysian people to decide on who (political party) should
form the government of the day.
• The Malaysian Parliament comprises of three components: -

1. YDPA DEWAN RAKYAT (HOUSE OF REP)

2. DEWAN NEGARA (SENATE)
3. YDP Agong

• The Dewan Rakyat has 222 elected members by the electoral roll (registered voters)
from different constituencies delineated based on population and size of territory.

• The Dewan Negara has 70 members.

i) 26 members from State Assembly (2 from each state)
ii) 44 members appointed by the YDPA.

• The 44 members appointed by the YDPA represent the federal territories, sectoral
groups and minorities.
• Initially there were only 22 members from the States Assembly and 16 appointed by
YDPA but it has been reversed to its current state now – crushing any hope of the Dewan
Negara playing an effective role in the legislative process.
• The current seating positions of the MPs can be viewed at this site: -
[Link]

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EXECUTIVE
• Article 39 of the Federal Constitution expressly provides for the powers of the
executive. It states that:

39 (1) Executive authority by the Federation:

The executive authority of the Federation shall be vested in the Yang di-Pertuan Agong and
exercisable, subject to the provisions of any federal law and of the Second Schedule, by him
or by the Cabinet or any Minister authorized by the Cabinet, but Parliament may by law
confer executive functions on other persons.

• Also do note that in Article 40(2)

The Yang di-Pertuan Agong may in his discretion in the performance of the following
functions, that is to say:

(a) the appointment of a Prime Minister

(b) the withholding of consent to a request for the dissolution of Parliament
(c) the requisition of a meeting of the Conference of Rulers concerned solely with the
privileges, positions, honours and dignities of The Royal Highnesses and any action at such a
meeting, and in any case mentioned in this Constitution.

So, who then appoints the Prime Minister, is it the YDPA or the Malaysian people?

Every general election, the Malaysian people vote for their representative to represent them at
Parliament and at State Legislative Assemblies respectively. Members of Parliament are
commonly referred to as ‘MPs’ and members of State Assembly are referred to as ADUN
(Ahli Dewan Undangan Negeri). The political party with majority representation at
Parliament (party with the most MPs) will form the government of the day. It need not be a
two thirds majority so long as it is a simple majority. This is also known as the first-past-the-
post system.

Simple majority = (50% + 1)

= Total number of seats in Parliament is 222 A simple majority would be 112 seats.

Throughout Malaysia’s history of general elections, the YDPA has always appointed the
Prime Minister. His Majesty will appoint the leader of the political party which has the
majority representative in Parliament. In accordance with Article 43, The Prime Minister,
needs to be in the opinion of the YDPA, likely to command the confidence of most members
of the Dewan Rakyat.

However, in the historic 14th general election that concluded on 9th May 2018, we did not
have a possible Prime Minister who could take over the government because there was no
one political party who formed the majority in the Dewan Rakyat.

This was because Pakatan Harapan was not a registered coalition under the Societies Act
1966 prior to the election. Their application could not be processed and was rejected just two
months before the general election due to certain political reasons (to prevent Pakatan
Harapan from contesting as a coalition). Hence, they had to contest under the banner of Parti

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Keadilan Rakyat, a member party of the Pakatan Harapan coalition.

Since Pakatan Harapan was not a recognised coalition under the Societies Act, this is
technically considered a hung parliament as there is not a single party who was able to
command a simple majority to form the government. The term ‘hung parliament’ often used
in a Westminster system type legislature describes a situation where there is no political party
or coalition which secures the simple majority requirement in order to form the government.

However, since the Pakatan Harapan coalition made a pact before the general election that
they would continue to remain as a coalition, they all had agreed that Tun [Link]
Mohamad would be the Prime Minister, if Pakatan Harapan were to win.

According to the Federal Constitution, the YDPA will appoint a Prime Minister who has the
majority members of representative in Parliament. Since all members of the Pakatan Harapan
coalition (now forming the majority members of the Dewan Rakyat) were in support of Tun
[Link] Mohamad as the candidate for premiership), the YDPA is constitutionally bound
to appoint Tun [Link] Mohamad as the Prime Ministers.

On a contrary view, the largest party with the most number of seats within the Pakatan
Harapan coalition was Parti Keadilan Rakyat (PKR with 49 seats), and [Link] Azizah
(leader for PKR) could have moved a suggestion to put herself in the premiership. However,
due to aforementioned pact agreed upon by all the parties in the Pakatan Harapan coalition,
[Link] Azizah can chose to abdicate that responsibility and give it to Tun [Link]
Mohammad (whose party only won 13 seats) provided she has the support of other Pakatan
Harapan members in allowing her to do so.

However, normal practice in situations of a coalition like this has always resulted in the
Prime Minister being appointed from the party (within the coalition) which has secured the
highest number of seats.

THE JUDICIARY

Article 121 of the Federal Constitution provides for the power of the judiciary. The
Malaysian judiciary has a unique court structure hierarchy where the decisions of the higher
courts bind all the lower courts.

The judiciary holds a very central place in Malaysia’s constitutional and democratic set- up.
Judges are under oath to preserve and protect the Federal Constitution. It is their duty to
enforce the supremacy of the Constitution against all pre-independence and post-
independence legislation. They have an inherent power to employ the ‘first principles of
administrative law’ to keep the government in check.

Malaysia also has Syariah Courts system that governs only Muslims in religious offences.
Syariah courts will come under the State’s jurisdiction - Ninth Schedule, List 2, Paragraph 1
and Article 121(1)

There also exists a Native court system in East Malaysia where both Sarawak and Sabah have
different native court hierarchy that decides matters and issues regarding native customary
laws and very limited original jurisdiction in both civil and criminal matters.

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DEVELOPMENT OF THE LAW BEFORE THE BRITISH ERA

HINDU-BHUDDIST INFLUENCE

• The Malay land had Hindu Buddhist influence for at least a thousand years before the
emergence of Islam somewhere around the 14th century.
• The Malay chief was elevated to devaraja or semi-divine king who derived his
authority that transcended the customary laws of the tribe.
• The god-king consequently possessed absolute political and legal authority. The god-
king had two main officials helping him – bendahara (commander of the army) and
laksamana (admiral of the fleet)
• The Hindu laws were based on Dharmasutras (law books in prose) and Dharmasastra
(law books in verse). These Hindu laws were based on religion – where the basis of it was on
law of retaliation (lex talionis) – an eye for an eye, a tooth for a tooth.
• However, caste distinctions varied penalties. Lower caste suffers a more brutal
punishment. Brahmans usually are immune.
• Hindu laws were paramount in the beginning of the 15 centuries. Some elements of it
persisted up until the 19th century, though being replaced by Syariah, they have not been
completely eradicated.

THE MALACCA SULTANATE

• When Parameswara founded Malacca in 1400, it was a riverine village mostly

inhabited by the Orang Asli and Orang Laut (sea people). Presumably Malay Adat with
Hindu-Bhudddist elements were originally applied.
• The oldest recorded history of the Malaccan Sultanate and its functions as a state can
be found in the Malay Annals (Sulalutus Salatin) which was written somewhere around the
15th century
• By 1500, the Sultanate had an administrative structure that was to be the model for the
later Malay states.
• The Sultans – though no more divine, is a representative of God on earth. He now
must follow tradition that required Sultan to consult people under his authority. One of them
being the bendahara (combined offices of the prime minister, chief justice and commander-
in-chief)
• There were two legal digests in the Malacca Sultanate
i) Hukum Kanun Melaka - covers civil and criminal matters
ii) Undang-Undang Laut Melaka – covers maritime matters

PORTUGESE ADMINISTRATION

• After Alfonso de Albuquerque’s conquest in 1511, a military and civil administration

was established. Malacca was then governed by a Governor and in military matters, he had to
consult the Captain- General of War.
• They also formed the Corpus de Cidade – a body which managed all matters
concerning the walled city of Malacca – which exercised civil and criminal jurisdiction over
all Portuguese inhabitants.
• Portuguese authorities did not exert their influence over the Malay and other Asian
communities who lived outside the city walls. They were more interested in trade rather than
political power.

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• Much of the former Malay administration was retained. It is doubtful if Portuguese
law was ever introduced in Malacca.
• A 1641 Dutch report of Malacca mentioned ordinances issued by the Portuguese
administration but did not state what law they contained.

DUTCH ADMINISRATION

• The Dutch administration was headed by a Governor. He was assisted by a council

comprising the collector, the fiscal, the mayor and the upper merchant and a secretary.
• Polite Raad – formed executive while Raad van Justitie - administered justice.
• Europeans were governed by Dutch laws based on colonial statutes, it is uncertain
what laws applied to the locals and other inhabitants. The Dutch like the Portuguese were
also solely interested in trade.
• The Dutch in Batavia (present day Jakarta) left the local inhabitants to their own laws
unless these clashed with accepted principles of justice, it may seem the Dutch did it
otherwise in Malacca. Soon after the Dutch left, the British took over.