Law in Malaysia
Law is a system of rules and guidelines, usually enforced through a set of institutions. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. For example, Contract law regulates everything from buying a bus ticket to trading on derivatives markets and Property law defines rights and obligations related to the transfer and title of personal and real property and so on.
Then, Natural law or the law of nature (Latin: lex naturalis) has been described as a law whose content is set by nature and is thus universal.
As classically used, natural law refers to the use of reason to analyze human nature and deduce binding rules of moral behavior While Rule of Law is the absolute supremacy of the law over everybody, both the rulers and the ruled. The rule of law is a legal maxim that provides that no person is above the law, that no one can be punished by the state except for a breach of the law, and that no one can be convicted of breaching the law except in the manner set forth by the law itself. NATURAL LAW
The unwritten body of universal moral principles that underlie the ethical and legal norms by which human conduct is sometimes evaluated and governed. Natural law is often contrasted with positive law, which consists of the written rules and regulations enacted by government. The term natural law is derived from the Roman term jus naturale. Adherents to natural law philosophy are known as naturalists. Naturalists believe that natural law principles are an inherent part of nature and exist regardless of whether government recognizes or enforces them.
Naturalists further believe that governments must incorporate natural law principles into their legal systems before justice can be achieved. There are three schools of natural law theory: divine natural law, secular natural law, and historical natural law. Common law in Malaysia takes the form of Natural law RULE OF LAW: The Rule of Law, in its most basic form, is the principle that no one is above the law. The rule follows logically from the idea that truth, and therefore law, is based upon fundamental principles which can be discovered, but which cannot be created through an act of will.
The most important application of the rule of law is the principle that governmental authority is legitimately exercised only in accordance with written, publicly disclosed laws adopted and enforced in accordance with established procedural steps that are referred to as due process. The principle is intended to be a safeguard against arbitrary governance, whether by a totalitarian leader or by mob rule. Thus, the rule of law is hostile both to dictatorship and to anarchy. The rule of law in its modern sense owes a great deal to the late Professor AV Dicey. Professor Dicey’s writings about the rule of law are of enduring significance.
The essential characteristic of the rule of law are: i. The supremacy of law, which means that all persons (individuals and government) are subject to law. ii. A concept of justice which emphasises interpersonal adjudication, law based on standards and the importance of procedures. iii. Restrictions on the exercise of discretionary power. iv. The doctrine of judicial precedent. v. The common law methodology. vi. Legislation should be prospective and not retrospective. vii. An independent judiciary. viii. The exercise by Parliament of the legislative power and restrictions on exercise of legislative power by the executive. ix.
An underlying moral basis for all law. Legislative Authority – Source of Primary Legislation- Malaysia Legislative authority is the power to enact laws applicable to the Federation as a whole under Article 66(1) of Federal Constitution. At Federal level, the legislative power is vested in a bicameral Parliament headed by the Yang di-Pertuan Agong and comprises the Dewan Negara (House of Senate) and Dewan Rakyat (House of Representatives). The Dewan Negara has 70 members, of whom 44 are nominated by the Yang di-Pertuan Agong, and 26 elected by the State Legislative Assemblies. The Dewan Rakyat is fully elected and has 219 members.
The duration of the life of each Parliament and State Legislatures is about five years and is split into one-year sessions, after which the session is terminated or prorogued usually in September. The distribution of law-making authority between the Federal and State Governments is enumerated in the Ninth Schedule of the Federal Constitution; and is set out in a Federal List, State List and a Concurrent List. The main subject areas of the Federal List are external affairs, defence, internal security, civil and criminal law, citizenship, finance, commerce and shipping industry, communications, health and labour.
EXECUTIVE AUTHORITY – Source of Subsidiary Legislation Malaysia The Executive is vested with the authority to govern and administer the laws by way of delegated and drafts Bills as provided under Article 39 of the Federal Constitution. The power to govern that is vested in the Yang di-Pertuan Agong is however exercisable by a Cabinet of Ministers headed by the Prime Minister. The Cabinet is answerable to the Yang di-Pertuan Agong as the head of Executive Authority in the country. Each executive act of the Federal Government flows from his Royal authority, whether directly or indirectly.
However, in accordance with the principle of a democratic ruling system, the Chief Executive is the Prime Minister. The Yang di-Pertuan Agong appoints a Cabinet – a council of Ministers – to advise him in the exercise of his functions. It consists of the Prime Minister and an unspecified number of Ministers who must all be members of Parliament either the Dewan Rakyat (House of Representatives) or Dewan Negara (House of Senate). The Ministers hold different portfolios and are collectively responsible for all decisions made by the Cabinet, which is the highest policy-making body in the country. Judicial Authority – Source of Case Law The Judiciary is empowered to hear and determine civil and criminal matters, and to decide on the legality of any legislative or executive acts as provided under Article 125A of the Federal Constitution. It is also conferred authority by law to interpret the Federal and State Constitutions. The courts can pronounce on the validity or otherwise of any law passed by parliament and they can pronounce on the meaning of any provision of the constitution.
The jurisdiction of the Malaysian courts is determined by the Courts of Judicature Act 1964 for Superior Courts and the Subordinate Courts Act 1948 for Subordinate Courts The Malaysian Courts of Justice are made up of the Superior Courts and the Subordinate Courts. The Superior Courts comprise of the Federal Court (the highest court), the Court of Appeal and the two High Courts. By virtue of Act 121(1) of the Federal Constitution judicial power in the Federation is vested on two High Courts of Coordinate jurisdiction and status namely the High Court of Malaya for Peninsular Malaysia and the High Court of Borneo for Sabah and Sarawak. ———————————————— In conflict with natural law Upholding the rule of law can sometimes require the punishment of those who commit offenses that are justifiable under natural law but not statutory law. Heidi M. Hurd raises the example of a battered woman who rightly believes that there is a strong probability that her husband will eventually attempt to kill her and her children unless she preemptively kills him.
If the law does not permit the acquittal of those who claim self-defense in the absence of an imminent threat of harm, then the woman must be punished, or “what will become of the rule of law? For law seemingly ceases to be law if judges are entitled to rethink its wisdom in every case to which it applies and to disregard it whenever it is inferior to the rule that they would fashion. ” http://www. nyulawglobal. org/Globalex/Malaysia. htm#_2. _Legislative_Authority