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SOURCES OF MALAYSIAN

LAW

Introduction
The source of Malaysian law can be classified into :1.
2.
3.

Written law,
Unwritten law, and
Islamic law.

The laws of Malaysia can be divided into two types of lawswritten

law and unwritten law.


Written laws are laws which have been enacted in the constitution

or in legislations.
Unwritten laws are laws which are not contained in any statutes

and can be found in case decisions. This is known as the common


law or case law . In situations where there is no law governing a
particular circumstance, Malaysian case law may apply. If there is
no Malaysian case law, English case law can be applied. There are
instances where Australian, Indian, and Singaporean cases are
used as persuasive authorities.

Written law is the law written and gazetted to be followed

by the individuals of a State.


It is made up of :1.
2.
3.
4.

Federal constitution,
State constitutions,
Legislations / Statutes, and
Subsidiary legislations.

Federal Constitution & State Constitution


Federal Constitution is said to be the highest legal authority of

land.
The Constitution was drafted by the Reid Commission in 1956

with 5 representatives from India, British, Pakistan and Australia.


The Constitution came into force following the independence on

August 31, 1957. It consists of 15 Parts, 183 Articles and 13


Schedules.
Article 4(1) state that the constitution is the supreme law of the

federation and any law passed after Merdeka Day which is


inconsistent with this constitution shall, to the maximum extent of
inconsistency, be void.

Legislations are the laws that are established by the

Parliaments at federal level and by the State Legislative


Assemblies at the state level.
In Malaysia, the legislative gets its authority from the

Federal Constitution. It mentions the scope of the


Parliament and the State Assembly.
If the Parliament (or any State Assembly) makes a law

which is not in its scope of authority or contradicts with the


constitution, the courts can declare that as null and void.

Article 74 of Federal Constitution states that parliament may

make law with referring to matters provided in the federal list


and state legislatives may make law with referring to matter
provided in the state list.
Concurrent list is in the scope of enactment by both

parliament and state legislatives. State list, federal list and the
concurrent list are contained in the Ninth Schedule of Federal
Constitution.
If there are any contradictions between federal and state

laws, the federal law shall prevail and state law is void to the
scope of inconsistency. This was provided by Article 75 of
Federal Constitution.

Parliament may pass the power to legislate any subsidiary

legislation during emergency, even if there are any contradictions


with the Federal Constitutions involved, due to some exception in
Article 150 of Federal Constitution.
The related case is
Eng Keock Cheng v. Public Prosecutor.
In this case, Eng Keock Cheng who was convicted committed 2
offences during emergency period and was ordered to put to
death.

He appealed on the ground that there were neither a


preliminary enquiry nor a jury adopted by High Court which
were required under Criminal Procedure Act and claimed
that the procedures set out in Emergency (Criminal Trial)
Regulations 1964 was invalid as it contradicts with Article 8
of Federal Constitution.
It was held that Parliament may pass the power to legislate
any subsidiary legislation during emergency, even if there
are any contradictions with the Federal Constitutions
involved, due to some exception in Article 150 of Federal
Constitution. The appeal was dismissed.

Legislation / Statutes
a) Acts
Acts are laws enacted by the Parliament. There are 4 types of
Acts: the Principal Act, the Amendment Act, the Revised Act, and
the Consolidated Act.
b) Enactments
Enactments are laws enacted by State Legislative Assemblies.
However, the State Legislative Assembly laws in Sarawak are
known as ordinances.
b) Ordinances
Ordinances are laws enacted by the federal legislature between
1 April 1946 - 10 September 1959. Laws promulgated by the
Yang Di-Pertuan Agong during an emergency proclaimed under
Article 150 of the Federal Constitution are also known as
ordinances.

Delegated Legislation / Subsidiary Legislation


Subsidiary legislation is defined as secondary legislation made

by a person or body besides Parliament. According to the Act of


Parliament, they can authorize another person or body to make
legislation. It creates the structure of a particular law and tends
only to contain an outline of the purpose of the Act.
The function of subsidiary legislation is it allows the Government

to modify a law without waiting for a new Act of Parliament to be


passed.

The Interpretation Act 1967 defines subsidiary legislation as any

proclamation, regulation, order, notification, by-law or other


lawful authority and having legislative effect.

Subsidiary

legislation is very important as legislation by


Parliament and State Legislatures is insufficient to provide the
laws required to govern everyday matters. It deals with the
details which the legislature has neither the time nor the
technical knowledge to enact laws. The legislature merely lays
down the basic and main laws, leaving the details to persons or
bodies to whom they delegate their legislative powers.

It is more flexible, can be made, amended or modified

easily and more speedily compared to ordinary legislation.


Usually the Parliament or the State Legislative Assemblies

enunciates general principles and policies relating the


subject matter in a particular legislation. By giving the
power to other agencies/bodies to legislate further and fill in
the details, the legislative time of the legislature is
economized.

Moreover, delegated legislation can be used to make changes to

the law for example, a Local Authority have the power that allows
them to make delegated legislation and to make law which suits
their area. Delegated legislation plays an important role in the
making of law. On top of that, delegated legislation has the same
legal standing as the Act of Parliament.
Moreover, delegated legislation can be used to make changes to

the law for example, a Local Authority have the power that allows
them to make delegated legislation and to make law which suits
their area.
Delegated legislation plays an important role in the making of

law. On top of that, delegated legislation has the same legal


standing as the Act of Parliament.

UNWRITTEN LAWS
Unwritten laws are laws that are not enacted and not found in

any constitution. It comprises of English law (Common Law and


Equity), judicial decisions and customs.
Common Law is a major part of many States, especially
Commonwealth countries. It is mainly made up of non statutory
laws, which are the precedents derived from judgments given on
real cases by judges.
Law of Equity resolves disputes between persons by referring to

principles of fairness, equality and justness. In these cases,


nothing was done against the law by the parties to dispute, but
their rights are in conflict. Thus, it is different from law; both the
Statutory Law enacted by Parliament and State Legislatives and
Common Law which consists of precedents and opinions given
on real cases by judges.

English Law
Section 3(1)(a) Civil Law Act 1956 states that courts in

Peninsular Malaysia should apply Common Law and the


Law of Equity as administered in England on 7th April 1956.
Section 3(1)(b) and Section 3(1)(c) of Civil Law Act 1956

states that courts in Sabah and Sarawak should apply


common law and law of equity together with the statutes of
general application as administered in England on 1st
December 1951 and 12th December 1949 accordingly.

But it is not stated that the Common Law and Law of Equity in

Malaysia should remain unmodified and follow the same law


as administered in England.
Common law and law of equity in Malaysia should be

developed and amended according to the local needs. In


addition, these two laws should also take into account of
changes in these laws in England.
However, Malaysian government can set their own scope for

the amended or repealed Common Law and Law of Equity in


Malaysia.

Common law can apply in the absence of local

legislation. Local law is regarded highly that the


English law. The English law is only meant to fill in the
lacuna, in which the local legislation is not present.
Only the relevant part which is suited to the local needs

and circumstances applies. Malaysia is made up of


different races, each possessing their own customs,
different from English law. The entire importation of
English law means that the sovereignty of local race is
affected.

English Commercial Law is provided by the section 5(1)

and section 5(2) of Civil Law Act 1956. The principles of


English commercial law apply in Peninsular Malaysia
except Penang and Malacca in absence of local
legislations.
Section 5(1). This includes laws regarding partnership,

banking, principals and agents, life and insurance and so


on. There is no entire dependence on English commercial
law as only certain principles apply and many local statutes
have been inserted to the English Commercial Law.

English Commercial Law applies in Penang, Malacca,

Sabah and Sarawak as the law administered in these


states will be the same as law administered in England, in
the like case at corresponding period Section 5(2). These
states are still dependant on the English Commercial Law.
In the case Koon Thean Soong v. Tan Eng Nam, it was

held that English law of partnership was inapplicable as


there is a local statute governing the partnership in
Malaysia, which is Contract (Malay State) Ordinance.

As for the English Land Law, none of the English Land Law

concerning the tenure, conveyance, assurance of or


succession to any estate, right or interest therein applies in
Malaysia. In Malaysia, National Land Code is the law that
governs the land matters and there is no any allowance for
English land law, unless the National land code applies it
for the judicial comity.

Judicial decisions / Judicial Precedent


Judicial decisions are based on doctrine of binding precedent.

Precedents are the decisions made by judges previously in


similar circumstances. There are two types of precedents.
Mandatory precedent is applied when the decisions of superior

court are binding on lower courts or the superior courts are


bound by their own decisions previously. However, the decisions
of lower courts are not binding over superior courts. The lower
courts must refer to the mandatory precedents of superior
courts.

However, judge of superior court will distinguish a case

before him and the cases laying down the precedents and
can decide not to follow the mandatory precedent if he
thinks that the mandatory precedent is not related to the
case before him. From this, an original precedent is
formed.

Persuasive precedent is a precedent which is useful or

relevant to a case. It is not mandatory for the judges to


apply persuasive precedent. Persuasive precedent may be
binding on lower courts if judges of superior court choose
to apply persuasive precedent.

Custom
Customs are another important source of unwritten law.

Customs are inherited from one generation to another


generation.
Every race has its own customs. Chinese and Hindus

customs are governed by Chinese and Hindu Customary


Law. Natives in Sabah and Sarawak have their own
customary law which relates to the land and family matters.
Adat applies to malays. There are two types of Adat; Adat

Perpatih and Adat Temenggung.

Islamic law
Islamic law, which is only applicable to Muslims, is enacted

under the Federal Constitution. The state legislatures have the


power and are permitted to make Islamic laws pertaining to
persons professing the Islam religion. Such laws are
administered by separate court system, Syariah Courts.
Now, Islamic laws are increasingly applied in banking and land

laws other than applied to family matters and estate matters. The
YDPA is the head of Islam in his home state, Penang, Malacca,
Sabah, Sarawak and Federal Territories. The head of Islam of
other States is Sultan.