Malaysian Court System

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Task 1a)There are three courts with different jurisdiction within what is known as the Superior Court. They are the Federal Court; i.e. the highest court in the land, the Appeal Court, the High Court of Malaya and the High Court of Sabah and Sarawak. Each is head by a federal judge called Chief of Justice of the Federal Court, President of the Appeal Court, and Chief Judge of the High Courts of Malaya and Sabah and Sarawak. The subordinate court comprises the Session Court and the Magistrate Court. In the Peninsular, there is also the Penghulu's Court but the latter is increasingly less used. In Malaysia, they are presently 60 Court Judges, 52 in the Peninsular and 4 each in the states of Sabah and Sarawak. At level, there are 151 Magistrate. Of that numbers, 122 for the Peninsular, 10 Sabah, 1 Federal territory of Labuan and 18 only 118 were filled in the Peninsular, 7 in Sabah and 12 in Sarawak.In addition to the above, there are also several tribunals or such as the Industrial Court, Labour Court, the Mining Court, Courts Martial, and the Special Court, each dealing with specific matters already mentioned very briefly.At the state level, there are several courts; Syariah Court that is further sub-divided into Syariah Court of Appeal, Syariah High Court and Syariah Lower Court, and in the states of Sabah and Sarawak, the Adat (Native) Court.Superior courtFederal CourtThe FederalCourt is the highest court in Malaysia. The Federal Court may hear appeals of civil decisions of the Court of Appeal where the Federal Court grants leave to do so. The Federal Court also hears criminal appeals from the Court of Appeal, but only in respect of matters heard by the High Court in its original jurisdiction (i.e. where the case has not been appealed from the Subordinate Courts).Court of AppealThe CourtofAppeal generally hears all civilin his warrant, which can be punished with a fine not exceeding RM50.b)Thecourt in Malaysia that are empowered to hear appeal cases are the Court of Appeal which headby the President of the Court of Appeal.Itcomprises 10 other judges, excluding the president.The Court of Appeal was constituted from the Federal Court which was abolished when the Supreme Court was formed in 1985. It resurfaced again 1995, the Supreme Court was Federal Court and the Court of Appeal as in pre- 1985 period. The appointments of members of the Court of Appeal are made by the King upon the of Prime minister who is constitutionally required to consult the Chief justice and the President of the Court of Appeal. They shall hold office until reaching the age of 65.TASK 2a)In Malaysia, parties in a civil dispute are advised to settle their disputes outside the court room. This resolution called as alternative dispute resolution (ADR). ADR being introduced to provide an alternative settlement outside an open court which is private and less time-consuming while giving the opportunity to the parties in dispute to decide on their terms of settlement and to reduce backlog of cases in the courts. This resolution consist in four forms i.e. negotiation, mediation, conciliation and arbitration. By the way, in Malaysia all these alternative dispute resolution do not being apply towards the criminal proceedings as practised in many countries.One of the more ignored aspects of employment law is tribunal procedure. To this neglected area the Coalition Government has brought in a host of reforms to address what is regarded as an economic imperative. This commentary considers the employment law reforms contained in the Enterprise and Regulatory Reform Act Part 2.Coming at the mid-way point in the Coalition's planned reforms which are scheduled to be fully introduced as of 2015, this legislative overhaul of employment tribunal procedure has been linked to efforts to improve the country's economy. Government reports published leading up to the passage of the legislation offer guidance to the new framework. The package contains a negative and singular view of employment litigation. The Act and Regulations may assist employers, but more remarkable is the Government's ambivalence regarding rights. These reforms put into question access to redress for potential infringements of employment rights and emphasise the use of law as a tool for economic stimulation rather than a source of rights protection.This commentary first briefly situates the package within a continuum of procedural changes and then outlines the long-standing discussion regarding Employment Tribunal reform. The next segment delves into the reforms by considering three provisions which are: the requirement for claimants to report their claims to Acas first; fees for launching claims; and settlement offers. This discussion is interspersed with references to Government documents anticipating the changes. Based on these foregoing sections, the final portion of this commentary investigates instructive themes emerging from the current reforms package. The Coalition's plans are of particular importance to small-to-medium-sized (SME) and microbusinesses. The emphasis of employment regulation is being shifted to that of an easy-to-use format accessible to those entirely unfamiliar with these regulations. Together this package suggests fundamental change in employment law: a retrenchment of the parameters for access to redress which has the potential to limit the enforcement of recognised employment rights, especially when determined by their impact on business.(Nuraisyah Chua Abdullah (2013), Questions & Answes on MALAYSIAN COURTS, STATUTES, CASES & CONTRACT, TORT AND CRIMINAL LAW. International Law Malaysia . page 48)(Industrial Law Journal, retrieved from http://ilj.oxfordjournals.org/content/42/4/409 full accessed on 23 Decembercenario given is mediation. This is because by using mediation the parties that involved would either reach a settlement according to the proposals of the mediator or the case will be brought to the court. Other than that, the types of disputes that is suitable for mediation are family disputes and business or trade disputes. As the scenario given was involving the employer and the employee so that the mediation will be suit to handle the case given. (Nuraisyah Chua Abdullah (2013), Questions & Answes on MALAYSIAN COURTS, STATUTES, CASES & CONTRACT, TORT AND Law Book Services. Selangor : Malaysia . page 48-49)TASK 3a)Liability in lawis an obligation of one party to another, usually to financially. It is a fundamental aspect of tort law, although liability may also arise from duties entered into byaspecial agreement as in a contract or in the carrying out of a fiduciary duty.The affixing of liability may once have been simply a peace-preserving alternative to the practice of an injured party taking vengeance.Based on the Law Dictionary, personal liability describes a personal wrong to a person such as an assault or the wrong resulting in damage of personal's feeling. thelaw's emphasis has long been that one who is able to pay (who, in modern terms has "deep pockets" ) should pay one who has lost something through an action of the payer, even if that action wasblameless. Under the principle vicarious liability, an employer may be jointly and severally liable with his employee for torts committed by the latter. Based on the Encyclopedia of Crime and Justice, vicarious liability, which is common in some areas of the law, refers to legal responsibility for the actions of another. Some of the rationales of the concept of vicarious liability are such follows :i.The employer must have been negligent in employing a negligent servant or) failing to control his servant.ii.Since the employer benefits from the employee's work, he should also bear the responsibility for damage caused by his employee.iii.The employer has the greater fund to pay damages to the injured party than the employee.iv.Usually the employer is not an individual, but an enterprise or undertaking, therefore, they can spread the loss. Moreover, they also have insurance coverage.However, if thee tort is committed by an independent contractor rather than bya n employee, the person who engages the independent contacrtor would not be liable for the tort committed by the latter. By the way, it can be argued that liability for the wrongs of independent contractors do exist on the grounds that he failed in his duty to ensure that competent conractor was employed and also where the operation is of a particularly dangerous nature a in the case of Honeywill & Stein v Larkin Bros[1934] 1 KB 191.Strict criminal liability is often confused with vicarious liability, with which Thus, if A, B's employee, knowingly serves liquor to a minor, and B is held liable, B is vicariously liable, but not strictly liable, since someone for whom he is held responsible acted withmensrea.If, however, A did not know his customer was a minor, and is nevertheless held liable, A is strictly liable. And if B is held liable as well, he is now vicariously and strictly liable. Many of the early cases understood to impose strict liability actually involved vicarious liability.Normally a defendant is not liable unless he does something wrong. There is one exception to this general rule where a defendant will be liable even though he violated no duty and did nothing wrong. This exception is sometimes called strict liability or absolute liability. (Nuraisyah Chua Abdullah (2013), Questions & Answes on CRIMINAL LAW. International Law Book Services. Selangor : Malaysia . page 163-165)( Encyclopedia of Crime and Justice, retrieved encyclopedia.com/topic/Strict_Liability.aspx accessed on 23rd December 2014)( Encyclopedia of Crime and Justice, retrieved from http://www encyclopedia.com/topic/Vicarious_Liability.aspxaccessed on 23rd December 2014)( Principles of Liability and Personality, retrieved from http://www lawteacher.net/free-law-dissertations/principles-of-liability-and-personality.php accessed on 23rd December 2014)b)Legal obligation of one party to a victim as aresultof a civil wrong or injury This action requires some form of remedy fromcourt system. A tort liability arises because of a combination of directly violating a person's rightand the transgression of a public oblication causing damage or a private wrong doing. evidence must be evaluated in a court hearing to identify who the tortfeasor/ liable party is in thecase."base on www.lawdictionary.com/defination/tort liability.html "Task 4a) Define the term contract1)Defined terms and definitions are used toarchitecture, a negative correlation was identified in respect of several variables, such as firm size, share of value added and productivity (value added per employee). Conversely, the correlation between RAs and sectoral performance across key indicators was positive in professions such as engineering (employment, turnover and value added) and within specialised construction activities (no. of employees employment, turnover and value added). While this finding is the opposite of what might be expected, there may be other unidentified variables that influence sectoral performance in the countries within scope. The rank correlation and regression analysis found that the exclusive reserve of icant at conventional confidence levelsactivities within engineering, architecture and building services may lower productivity compared with EU countries in which the same professions do not have specific qualifications requirements. "Based on http://www.law.cornell.edu/wex/legal_systemsmethod of resolving disputes other than by litigation. Abbreviated as ADR. the Public courts may be asked review the validity of ADR methods, but they will rarely overturn ADR decisions and awards if the disputing parties formed a valid contract to abide by them. the Arbitration and mediation are the two major forms ofADR.Arbitration, a widely used form of ADR, is a kind of dispute resolution method that the disputes arising between the parties are resolved by the arbitrators appointed by them instead of state's legal bodies. the Mediation, a wide applicable form of ADR, is a method in which the mediator provides better communication between the parties of the dispute. then The mediator does not guide or direct the parties, or gives an advice or gives a binding decision like an arbitrator or a judge. then The mediator only contents with asking directive questions to the parties' better communication with each other.In case an agreement is not reached at the end of mediation process, the information and documents obtained from the deliberations cannot be used as evidence in a possible, future lawsuit.TheTribunal ProcessAlthough some employees and employers can now choose to follow an alternative dispute resolution procedure, most employee complaints are still heard at an employment tribunal. but You need to take tribunals seriously. because If you have well-thought-out procedures, and follow them, you can prepare good evidence making it easy to defend your actions.The interpretation of employment law is moving in favour of the 2009" b) Identify the parties involved in the senario 3 with the help of a proper diagram and their responsibilities.BankThe banker is to advise companies, institutions and governments on how to achieve their financial goals and implement long and short-term financial plans Corporate investment bankers work in dedicated teams, focusing on specific transactions or market sectors. then They also work alongside other related professionals such as lawyers and accountants. A typical corporate finance deal involves two stages:Origination: assessing a deal's desirability which is sometimes an innovative idea from the bank rather than the client. Financial models are used to simulate possible outcomes. This requires a deep understanding of a sector.Execution: structuring and negotiating the detailed terms of a deal, often in liaison with other professionalsAlthough dealing with different, specific business areas, project teams liaise with one another during the two phases of a deal in order to obtain relevant specialist information and market intelligence.Typicalactivities on a day-to-day basis include:*thoroughly researching market conditions and developments;*identifying new business opportunities;*carrying outfinancial modelling, then developing and of presenting appropriate financial solutions to clients;*liaisingwith the chief executive and chief finance officers of large organisations;*co-ordinating teams of professionals including accountants, lawyers and PR consultants and working closely with them.ClientTheclientshould ensure the following concerning the principle contractor:* that the potential principal contractor to be appointed has the necessary competencies and the resources to carry out the construction work safely.* ensure prior to work commencing on site that every principal contractor is registered and in good standing with the compensation fund or employee, and awards are increasing, so it is important to understand to the system and the way tribunals operate.This briefing covers:1.The tribunal process, from the start to finish.2.How to defend a case.3.How to prevent disputes arising. the Employment tribunalhearings usually take place before a legally qualified employment judge and two lay members, one nominated by anemployers'organisation and the other from a union oremployees'body.The employment tribunal process is impartial, but in an unfair dismissal claim it does generally start by assuming that there is a case for the employer to answer._Tribunals try to be guided by what is reasonable. They will take into account prevailing standards and practices in your industry and recognise that special difficulties can arise in smaller firms._Awards made by the tribunal are aimed at compensating the employee, not punishing the employer.b)The selectionof ADR b
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