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MALAYSIAN LEGAL SYSTEM
To enable students to understand the sources of law, the Court’s system and the administration of justice in Malaysia.
SOURCES OF MALAYSIAN LAW
Meaning of Sources - legal sources i.e the legal rules that make up the law in Malaysia. - Malaysian law can be classified into: written law, unwritten law and Muslim law.
Malaysian Law Written Law Unwritten Law Islamic Law Federal Constitution State English Judicial Constitution Law Precedent Custom Legislation Common Law Equity Subsidiary Legislation .
Subsidiary legislation. . Legislation. The State Constitutions. It refers to that portion of Malaysian law which includes the following: The Federal Constitution.Written Law • • 1) 2) 3) 4) It is the most important source of law.
. This is in contrast to normal laws which can be amended by a simple majority. to the extent of the inconsistency. Besides laying down the powers of the Federal and State Governments.Written Law 1) The Federal Constitution The Federal Constitution is the supreme law of the country so that any general law that is inconsistent with the Constitution is. These rights written into the Constitution can only be changed by a two-thirds majority of the total number of members of the legislature. void. the FC enshrines the basic or fundamental rights of the individual.
.Cont’d The FC establishes a constitutional monarchy and a federal system of government. Under the federal system. Parliament may make laws for the whole of Malaysia. The State Legislature may make laws with respect to any of the matters enumerated in the State List or the Concurrent List. Art. there is a division of legislative powers between the central Parliament and the State Legislative Assemblies. 74 FC provides that Parliament may make laws with respect to any of the matters enumerated in the Federal List or the Concurrent List.
Federal List External affairs National defence Internal security Civil and criminal law Finance Trade. Land Local government State holidays. 4. Concurrent List Social welfare. 2. 2. children and young persons Scholarships Town and country planning Drainage and irrigation National Parks. protection of women. 3. 6. social services. 4. 2. 7. 5. etc. 1.etc . Malay customs. 5. etc 1. offences by Muslims. State List Islamic law and personal and family law of Muslims. 3. commerce. 3. industry Education. 4. Syariah Courts.1.
the Legislature. The State Constitution contains provisions which are enumerated in the Eighth Schedule to the Federal Constitution.2) The State Constitutions Each State possesses its own constitution regulating the government of that State. . financial provisions. and amendment of the Constitution. Some of these provisions include matters concerning the Ruler. the Legislative Assembly. the Executive Council.
In Malaysia. Laws made by Parliament may extend throughout the country and extra-territorially while laws enacted by a State Assembly can only apply to that State.3) Legislation Legislation refers to law enacted by a body constituted for this purpose. . Laws made by the SLA are called Enactments except in Sarawak (Ordinance). Laws that are enacted by Parliament after 1946 but before 1957 are called Ordinances. but those made after 1957 are called Acts. laws are legislated by Parliament at federal level and by the various State Legislative Assemblies at state level.
. enacting or codifying the law. It is being increasingly used as a means of repealing. The subject matter for legislation is divided between the Federal and State Governments as provided by the Ninth Schedule of the FC. amending. Legislature as a source of law has become more important than case law or precedents.Cont’d Parliament and the State Legislatures have to enact laws subject to the provisions set out in the Federal and State Constitutions.
defines subsidiary legislation as ‘any proclamation. The Interpretation Act 1967.4) Subsidiary Legislation SL is also known as subordinate legislation or delegated legislation. notification. . Enactment or other lawful authority and having legislative effect’. rule regulation. SL is very important as legislation by Parliament and the State Legislatures is insufficient to provide the laws required to govern everyday matters. by-law or other instrument made under any Ordinance. SL deals with the details about which legislature has neither the time nor the technical knowledge to enact laws. order.
Ministers and local authorities. leaving the details to persons or bodies to whom they delegate their legislative powers. An exception to this rule is the proclamation of emergency under Article 150 of the FC. among others. SL made in contravention of either a Parent Act or the Constitution is void. Such persons or bodies include the Yang diPertuan Agong.Cont’d Legislature merely lays down the basic and main laws. . A rule or regulation that is properly enacted is as much a law as the parent statute.
law which is not being enacted by Parliament or the State Assemblies and which is not found in the written Federal and State Constitutions.e. • It comprises of the following: 1) Principles of English law.Unwritten Law It is that portion of Malaysian law which is not written i. 2) Judicial decisions. 3) Customs. • .
However.Unwritten Law 1) English Law • • • English law forms part of the Malaysian laws. The application of English law in Malaysia is governed by the Civil Law Act 1956 (Revised 1972). not all of England’s common law and rules of equity form part of Malaysian law. . It can be found inter alia in the English common law and rules of equity.
in Peninsular Malaysia. • In Sabah. together with statutes of general application. • The dates specified for reception is important because later changes in English law are not automatically received. as administered in England on 1st December 1951 and in Sarawak. the courts shall apply the common law of England and the rules of equity as administered in England on the 7th day of April. 1956. the courts shall apply the common law and the rules of equity. .Cont’d • Section 3(1) of the Civil Law Act 1956 provides that. 12th December 1949.
Cont’d However. 2. It is applied only in the absence of local statutes on the particular subjects. • . Civil Law Act. Local law takes precedence over English law as the latter is only meant to fill in the lacuna in the legal system in Malaysia. 1. Only that part of the English law that is suited to local circumstances will be applied – proviso to section 3(1). the application of English law throughout Malaysia is subject to two limitations.
• Decisions of these courts were made. and still are being made. . and the then Supreme Court. • Precedents are basically decision made by judges previously in similar situations. systematically by the use of what is called the ‘doctrine of binding judicial precedent’. Court of Appeal and the Federal Court.2) Judicial Decision / Precedent • Malaysian law can also be found in the judicial decisions of the High Court. Federal Court and the Judicial Committee of the Privy Council.
: If the Supreme Court made a certain decision in 1987 and assuming the facts and situation before a High Court judge deciding a case in 1990 are similar to the said Supreme Court case. • In English law. the system of binding judicial precedent is called as stare decisis.Cont’d • Eg. the High Court judge must decide the case before him by applying the principles laid down by the Supreme Court in 1987. .
Cont’d • If a judge applies an existing rule of law without extending it. judges are constantly contributing to the growth of unwritten law in this country. • If the case before him is without precedent. then the decision made by him may be called an original precedent. . • In this way. his decision may be called a declaratory precedent.
one should first understand the court system in Malaysia. • To understand this principle. • General rule: decisions of higher courts bind lower courts and some courts are bound by their own decisions. .Hierarchy of Precedents • It is based on the hierarchy of courts.
.............................THE JUDICIAL SYSTEM Federal Court Court of Appeal High Court (Sabah & Sarawak) High Court (Malaya) -....................Native Syariah Court & Court Syariah Court Sessions Court Sessions Court Magistrates’ Court Penghulu’s Court # The present Court system Magistrates’ Court ...........
....PREVIOUS JUDICIAL SYSTEM Between the period of 1 January 1987 and 23 June 1994............................. the Court system was as follows: Supreme Court High Court (Malaya) Syariah Court High Court (Borneo) SUPERIOR COURTS SUBORDINATE COURTS ..........-Native Court & Syariah Court Sessions Court Magistrates’ Court Sessions Court Magistrates’ Court Penghulu’s Court ..........-.........
Prior to 1 January 1987. the court system was as follows: PRIVY COUNCIL* (civil cases only) Federal Court High Court (Malaya) High Court (Borneo) SUPERIOR COURTS -----------------------------------------------------------Syariah Court Native Court & Syariah Court SUBORDINATE COURTS Sessions Court Sessions Court Magistrates’ Court Penghulu’s Court *through the YDPA Magistrates’ Court . however.
where the case is on appeal. It is not in every case that judges apply earlier precedents. A judge may not wish to apply precedents in the following circumstances: Judges may ignore or overrule a precedent laid down by a lower court. . 3. made in ignorance of a statute or a binding precedent).Distinguishing Precedents • 1. They may refuse to apply the earlier precedent if it is arrived at per incuriam (i. 2.e. They may distinguish the case when they find there are material differences in facts between the case before them and the case laying down the precedent.
3. 2. It is more flexible compared to statute law.Advantages • 1. . There are advantages in applying the system of binding judicial precedents: The law evolved is more practical since it evolved through actual experiences. Case law is richer in legal detail than statute law.
It is sometimes difficult to distinguish whether a particular statement in a judgment is ratio or dicta. As the number of cases decided can only increase. An obiter dictum is not binding as a precedent. 2. It is the ratio decidendi of a case which makes the decision a precedent for the future. • . there is a tendency to overlook some authorities inadvertently due to the mass of material to be digested.Disadvantages There are disadvantages in applying the system of binding judicial precedents: 1.
‘Adat’ applies to Malays i. divorce and inheritance. i. Hindu and Chinese customary law applied to the Hindus and Chinese respectively. marriage. customs relating to family law. However. are given legal force by the courts in Malaysia. after the enforcement of the Act. Prior to the enforcement of the Law Reform (Marriage and Divorce) Act 1976.e. adat perpatih and adat temenggung.3) Customs • Customs of the local inhabitants in Malaysia are • • • • also a source of law. Generally. . polygamous marriages were abolished.e.
.Cont’d • Since then. Chinese and Hindu customs have become of little or no effect as a source of law in Malaysia. • In Sabah and Sarawak. native customary laws apply in land dealings over native customary lands and family matters where natives subject themselves to native customary laws.
Islamic Law • The Federal Constitution provides that States have the power to administer Muslim Law. • The head of the Muslim religion in a State (except for Penang. in which the Yang di-Pertua Negeri is the head ) is the Sultan. Sarawak and the Federal Territories. . • Muslim law applies to Muslims only and it is enforced by the Syariah Courts. Malacca. Sabah.
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