Written Law

The written law is the most important source of Malaysian Law. The written Law is divided into 4, namely Federal Constitution, State Constitution, Legislation and Subsidiary Legislation. Federal Constitution The Federal Constitution is said to be the highest legal authority of land. The constitution was drafted by the Reid Commission in1956 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 federation and any law passed after Merdeka Day which is inconsistent with this constitution shall, to the maximum extent of

inconsistency, be void .Article 159 and 161E provides provisions to allow the constitution to be amended with the condition of 2/3rds majority in both houses of Parliament agreeing to the amendment. State Constitution State Constitution is the same as Federal Constitution, except it is set by the states in Malaysia. The 8th schedule of the Federal Constitution mentions certain provisions that are to be included in the State Constitutions such as state executive members, finance, the state legislative assembly, roles of the Sultan or Yang di-Pertua Negeri, and etc. Article 71 mentions that all state constitutions must contain their provisions, otherwise the Parliament can enforce those provisions or abolish any provision in the state constitution that contradict with those provisions. Legislation 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

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. State list. In this case. the federal law shall prevail and state law is void to the scope of inconsistency. federal list and the concurrent list are contained in the Ninth Schedule of Federal Constitution. This was provided by Article 75 of Federal Constitution. If there are any contradictions between federal and state laws. The appeal was dismissed. Concurrent list is in the scope of enactment by both parliament and state legislatives. due to some exception in Article 150 of Federal Constitution. due to some exception in Article 150 of Federal Constitution. even if there are any contradictions with the Federal Constitutions involved. even if there are any contradictions with the Federal Constitutions involved. The related case is Eng Keock Cheng v. Public Prosecutor.matters provided in the federal list and state legislatives may make law with referring to matter provided in the state list. It was held that Parliament may pass the power to legislate any subsidiary legislation during emergency. Subsidiary Legislation Parliament may pass the power to legislate any subsidiary legislation during emergency. . Eng Keock Cheng who was convicted committed 2 offences during emergency period and was ordered to put to death.

Malaysian government can set their own scope for the amended or repealed Common Law and Law of Equity in Malaysia . it is different from law. 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. judicial decisions and customs. Common Law is a major part of many States. these two laws should also take into account of changes in these laws in England. However. It is mainly made up of non-statutory laws. but their rights are in conflict. 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. 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. Thus. equality and justness. It comprises of English law (Common Law and Equity). Common law and law of equity in Malaysia should be developed and amended according to the local needs. Law of Equity resolves disputes between persons by referring to principles of fairness. In addition. which are the precedents derived from judgments given on real cases by judges. In these cases. nothing was done against the law by the parties to dispute. especially Commonwealth countries. 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.Unwritten Law Unwritten laws are laws that are not enacted and not found in any constitution.

It was held that the courts have the authority to put aside any Common Law or Law of Equity which cannot be applied in Malaysia.In the case Jamil bin Harun v. problem of double financing occurred when first purchaser¶s (UMBC Finance Bhd. The entire importation of English law means that the sovereignty of local race is affected. each possessing their own customs. it was held that the doctrine of sovereign or crown immunity which was developed in English Common Law after 1956 should apply in Malaysia. The case law related to the boundaries of application is. The English law is only meant to fill in the lacuna.In the case Commonwealth of Australia v. but the law in Peninsular Malaysia does not really require the endorsement to be attached with the registration card of vehicle. Local law is regarded highly that the English law. The plaintiff sued UMBC. Bhd.. It was held that the English law requires the endorsement of ownership claim in registration card. There are certain boundaries as to the application of Common Law and Law of Equity in Malaysia.Syarikat Batu Sinar Sdn. It was held that the criminal offences in Malaysia were provided by Criminal Procedure Code of Malaysia and therefore. in which the local legislation is not present.) endorsement of ownership claim was not included in the registration card of vehicle. It was said that any developments in English Common Law after 1956 should apply in Malaysia In the case Smith Kline & French Laboratories Ltd. Public Prosecutor. Malaysia is made up of different races. different from English law. v.. Only the relevant part which is suited to the local needs and circumstances applies. claiming that defendants were not entitled to the vehicle.. v. In the case Karpal Singh v. Midford (Malaysia) Sdn Bhd. It was decided that courts have the authority to decide whether to follow English Law (common law and law of equity) or Federal law. UMBC Finance Bhd. Common law can apply in the absence of local legislation. Salim (Malaysia) Sdn Bhd. In this case. UMBC tried to repossess the vehicle. Yang Kamsiah & Anor. The law regarding the . considering the circumstances and the scope the written law permits to do so. there is no allowance for English law to apply.

Malacca. life and insurance and soon. This includes laws regarding partnership. These states are still dependant on the English Commercial Law. Johor State Authority and the proprietor. In this case. appealed . right or interest therein applies in Malaysia. 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. National Land Code is the law that governs the land matters and there is no any allowance for English land law. The rent and penalties on arrear payments were not settled. Kota Tinggi. in the like case at corresponding period ± Section 5(2). English Commercial Law is provided by the section 5(1) and section 5(2) of Civil Law Act 1956. assurance of or succession to any estate. Johor State Authority transferred land to a proprietor with certain conditions and annual rent as consideration.endorsement of ownership claims in Malaysia which applies to the local circumstances has to be distinguished from the English law. English Commercial Law applies in Penang. Pemungut Hasil Tanah. The case related is United Malayan Banking Coperation Bhd & Another v. principals and agents. Johor State Authority served a notice to forfeiture the land as the right of consequence of the offence. unless the National land code applies it for the judicial comity. In the case Koon Thean Soong v. banking. The principles of English commercial law apply in Peninsular Malaysia except Penang and Malacca in absence of local legislations± Section 5(1). The appellant. As for the English Land Law. none of the English Land Law concerning the tenure. conveyance. 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. Tan Eng Nam. English Commercial Law and English Land Law Two components of English law are English commercial law and English land law. Sabah and Sarawak as the law administered in these states will be the same as law administered in England. In Malaysia.

It was held that English land law concerning the relief against forfeiture is inapplicable in Malaysia. Judicial decisions Judicial decisions are based on µdoctrine of binding precedent¶. Persuasive precedent may be binding on lower courts if judges of superior court choose to apply persuasive precedent. Persuasive precedent is a precedent which is useful or relevant to a case. 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. Precedents are the decisions made by judges previously in similar circumstances.and they were granted relief against forfeiture. Relief against forfeiture means that order for forfeiture is cancelled and it was provided by Malaysian National Land Code. However. . There are two types of precedents. From this. Collector of Land revenue appealed to federal court and the appellants appealed to Privy Council. The lower courts must refer to the mandatory precedents of superior courts. Natives in Sabah and Sarawak have their own customary law which relates to the land and family matters.There are two types of Adat. Customs are inherited from one generation to another generation. Customs Customs are another important source of unwritten law. It is not mandatory for the judges to apply persuasive precedent. Adat Perpatih and Adat Temenggung. the decisions of lower courts are not binding over superior courts. Chinese and Hindus customs are governed by Chinese and Hindu Customary Law. an original precedent is formed. 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. Every race has its own customs. µAdat¶ applies to malays.

the Chinese and Hindu Customary Laws have lost its effect as an important source of unwritten law in Malaysia. lineage. Syariah Courts. Such laws are administered by separate court system. is enacted under the Federal Constitution. organization and procedures of Syariah Courts. it generally involves the inheritance of property. divorce and inheritance. The unique characteristic of Adat Perpatih is matrilineal form of organization. . the family law has been given enforcement on matters of marriage. The state legislatures have the power and are permitted to make Islamic laws pertaining to persons professing the Islam religion. which is only applicable to Muslims. Matrilineal is a system in which one belongs to mother's lineage. State legislature also has the jurisdiction over the constitution. As a result. It is based on the characteristic of patrilineal belongs to form of organization. Patrilineal is a system in which one father's lineage. inheritance and election of members of lembaga and YDP. names or titles from mother to daughters Adat Temenggung Adat Temenggung applies in other states. Islamic Law Islamic law.Adat Perpatih Adat Perpatih applies in Negeri Sembilan and Naning in Malacca. it generally involves the inheritance of property. names or titles from father to sons After the establishment of Law Reform (Marriage and Divorce) Act 1976. It concerns with matters such as land tenure.

GENERAL PRINCIPLE OF LAW (II) SAM 2283 ASSIGNMENT ON SOURCES OF MALAYSIAN LAW LECTURER: MADAM BADARIAH BINTI HAJI SADIN GROUP MEMBERS: FAIZUL HADI BIN SEENI KADER FARUQ BIN OMAR 095845 095850 .

Index Written Law y y y y Federal Constitution State Constitution Legislation Subsidiary Legislation Unwritten Law y y y y English Law Judicial Precedent Custom Islamic Law .

Sign up to vote on this title
UsefulNot useful