Malaysian Courts

http://en.wikipedia.org/wiki/Federal_Court_of_MalaysiaOh man.

Malaysian Law is so complicated. I’m in the process of reading Wan Arfah’s introductory text on this subject and boy, is it convoluted.

For one, according to the book, we are not even clear on the issue of binding precedents in our Malaysian courts. The reason is because of various reorganisations of the court systems in Malaysia over the years.

As an example, the Court of Appeal was only created in 1994, and did not exist before that. While it sits below the Federal Court in the hierarchy, it is not clear on where it stands in history.

As I understand it, in the past, the highest position in our court hierarchy was held by the Privy Council in the UK. Under that was the Federal Court. We broke away form that system in 1985 and renamed the Federal Court to the Supreme Court, which was renamed to the Federal Court later.

However, we later inserted the Court of Appeal between the Federal Court and the High Courts. Now, this causes a conundrum.

While my mind can parse the fact that the Federal Court is the highest court of the land and that all its decisions are binding on the lower courts, what I cannot parse is whether this Federal Court is equivalent to the previous Privy Council or the previous Federal Court; and where the two superior courts stand in relation to the Supreme Court?

So, taken at an instantaneous point in time – i.e. now – things are very clear. However, in terms of binding precedent, which may go way back in time, things are less clear on whether the present Court of Appeals is bound by previous decisions made by the Supreme Court and previous Federal Court. Ditto with the present Federal Court.

Honestly, as an engineer, I think that most of this is a synchronisation issue. There was a loss of synchronisation when we went from two superior courts to one and back to two. What we need is to resynchronise with a new point of reference. However, due to the principles of stare decisis, we cannot just do away with the past.

Now, that’s not even taking into account the different laws in the land, as it stands. In almost every piece of legislation, we will have differences between most of Peninsular Malaysia, Sabah, and Sarawak. Often, there will also be differences between Penang, Malacca, and the rest of the Peninsular.

Pain!

Learning the Law

Glanville Williams Learning the LawI started studying law, for real, today. I’ve decided to spend regular evenings at the law library at study. However, I’m going to build up the momentum gradually by initially making two visits a week.

Today, I decided to start with an introductory text – Learning the Law – by Glanville Williams. I spent a few hours reading this little book and I managed to cover most of it. The first half is about the law while the second half is about how to pass law examinations and becoming a lawyer.

Goodness me, this book is hilarious. I actually spent a lot of time laughing as the author poked fun at the legal profession and lawyers in general. It’s nice that the author has a sense of humour. I liked the book a lot though the price is a little prohibitive for me to own it.

I plan to finish reading most of the text books by the end of December and get started with reading cases next year.

From the GW book, I learned the basic structure of law, and the difference between the various categories of law. I also learned about the courts system in England. However, I think that the most important takeaway for me, from the book is this – stare decisis.

If a lawyer is confronted with a legal precedent, he/she has got the option of challenging the decision (assuming that it is not binding) or to distinguish the case. The former is difficult as courts are hesitant on overturning long-standing decisions; and neither do the courts want to be seen to vacillate by overturning recent decisions.

Therefore, the best strategy would likely be to find some material fact of the present case that distinguishes it from the previous precedent. This would make the previous ratio decidendi as non-binding and purely advisory. However, whether a fact is material or not, is entirely subjective.

I think that trying to study the social sciences needs a very different skill-set from the hard sciences. However, I do think that engineering prepares one for legal studies as we understand the concept of trade-off and compromise very well.

Well, today was a good start. I hope to read more on Thursday.

Law Libraries

My photo of the Wren Library, where the Principia Mathematica is housed.Today, we had a lecture on legal methods – essentially teaching us ‘how’ to read the law e.g. case law and statutes. However, one part of the lecture really tickled me – when the lecturer mentioned that the law library is the quintessential tool of a lawyer and urged us to master its use. I laughed in my heart as I recalled an incident early last year, when I first began to scout for a suitable law school to attend.

My first port of call was to a local private college, famed as the leading provider of the University of London LL.B examinations in Malaysia. On the reception floor was the law library, right next to the reception area. It was an impressive library as it had rows and rows of brightly coloured books on its shelves. I was so looking forward to diving into the books.

Then, while speaking to their marketing representative, I was told this, and I paraphrase: “Do you see our law library at the back, with all the impressive books? Don’t worry, you won’t have to use it. All that you will need is our lecture notes. Study that and you are guaranteed to pass.”

I looked at the marketing rep in surprise and I think that he thought that I was probably amazed and delighted at being able to so easily pass the exams. However, I was actually surprised at the questionable quality of the programme conducted at such an establishment. This totally turned me off from the place.

Personally, I have no interest in becoming a lawyer and gaining a law degree is the furthest thing from my mind. I am truly interested in learning the law, and relished the idea of regularly visiting the library and reading case law. I am interested in the process, not the degree.

Thankfully, the programme at the University of Malaya set a different tone. We were drilled from day one that we had to use the library. The very first class that we had was on how to use the law library, search for statutes, case law, legal articles, etc.

For now, I still think that it’s a little too early for me to use the Tan Sri Professor Ahmad Ibrahim Law Library. However, I did pay a visit to all four floors just to see how it’s organised. There are plenty of widely spaced reading spaces unlike the cramped spaces I’m used to.

Personally, I plan to plant my ass in the library at least once a fortnight, to learn the law. I’m going to start this month and I’m looking forward to it.