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Transcript of SOURCES OF MALAYSIAN LAW

1. Written Law
a) The Federal Constitution
b) State Constitution
c) Legislation
d) Subsidiary Legislation
2. Unwritten Law
a) English Law
b) Judicial Decisions
c) Customary Laws
3. Syariah Law
SOURCES OF MALAYSIAN LAW
WRITTEN
LAW
-Malaysia is a Federation of
thirteen
States with one written Constitution.
Article 4(1)
of the Federal Constitution declares the Constitution as the
supreme law of the land .
-It is essential to
stipulate the powers
of the Governments of Federal and State level.
-Federal Constitution enshrines the
fundamental rights of the individual.
-The rights written can only be amended by a special majority of
two-thirds
of the total number of members of the legislature.
a. Federal Constitution
b. State Constitution
-Besides Federal Constitution, each State also has its
own constitution
.
-These contain provisions which are counted in the

Eighth Schedule
to the Federal Constitution.
-According to
Article 71 of the Federal Constitution
, if such important provisions are missing, or if any provision is
inconsistent with them, Parliament can make provision to give effect to
them or to eliminate any inconsistencies.
c. Legislation
-Legislation comprises the laws passed by
Parliament at federal level
as well as the State
Legislative Assemblies at state level.
-Laws enacted by Parliament after 1946 but before Malayas
Independence in 1957 are called
Ordinances
while those made after 1957 are called
Acts.
-Moreover, the laws made by the State Legislative Assemblies (except
Sabah and Sarawak) are called
Enactments.
-The laws passed in Sabah and Sarawak are called
Ordinances.
d. Subsidiary or Delegated Legislation
-Subsidiary legislation is defined as
any proclamation, rule, regulation, order, notification, by-law or other
instrument made under any Ordinance, Enactment or other lawful
authority and having legislative effect.
-Essential source of law
as the Parliament and the State Legislatures
-This legislation gives
permission to amend
the law
-Instead of Parliament, the
Local Authority

can enact law to suits the local and will have the knowledge of locality.
-During
emergency,
this legislation can resolve the situation and problem as soon as possible
without waiting for Parliament to approve an act.
UNWRITTEN LAW
a. English Law
-Part of the Malaysian Law is formed by the
English Law.
Article 160
of Federal Constitution:
the common law in so far as it is in operation in the Federation or any
part thereof
Section 3(1)
of the Civil Law Act, 1956:
Application of English Law is subject for two restrictions.
Common Law
-The body of rules
formulated, developed and administered
by the English courts over many centuries.
-The
oldest
form of law.
-The English colonialists brought
common law principles
into our country.
-This law aids the formation of the
foundation of Malaysian legal system.
- Our legal system and the laws follow closely the
principles of English Common Law and apply judgements by the English
Courts
in case decision.
Equity

Osborns Concise Law Dictionary:


primary fairness or natural justice.
Equity
is the body of rules developed by the
old Court of Chancery to supplement the rules and procedure of the
common law.
- A discretionary system of justice.
- Follows the law.
- Renders equality.
Equity (Cont'd)
English Judicature Acts of 1873 & 1875:
In the event of conflict between
common law and equity,
the latter prevails.
- He who comes to equity must come
with clean hands. - famous maxim
b. Judicial Decisions
Judicial decisions
are decisions of the
Superior Courts.
-Only the
decisions of the Superior Courts
are being refereed to and being regarded as the sources of law.
Judicial Decisions (Cont'd)
-The system of binding judicial precedent called
stare decisis.
-The
doctrine of
stare decisis
means in situations where the material fact are similar, a court must
follow the previous decision of a higher court or its own previous decision
as well as the previous decision of a court of the same level.

-The precedent must include


ratio decidendi
and
obiter dictum.
Ratio decidendi
is the legal principle or reason behind a decision.
Obiter dictum
translates as a remark in passing.
Operation of Stare Decisis in Malaysia
-Stare Decisis
is one of the fundamental doctrines in the English common law system
and is
being applied in Malaysia.
-Although
stare decisis
are being applied in both Malaysia and the United Kingdom, the Malaysian
practice is more complicated.
Status of Decisions of Privy Council
-The
Privy Council
was the final court of appeal for Malaysia as of 31 December 1984 where
it was then abolished.
-However, after being abolished, the decisions of Privy Council
continue to be binding
in Malaysia
under two circumstances:
a)The decision was in case
on appeal in Malaysia
b) The decision was in case
on appeal from another common law country
and the law in point is the same in Malaysia.
-As provided in
Khalid Panjang & Ors v PP [1964] MLJ 108,
the Federal Court laid down that a Privy Council decision in an appeal from
another
country is binding in courts of Malaysia.
Status of Decision of Predecessor Courts
- The decisions of the predecessor courts are binding and will remain
binding until

overruled by the current Federal Court.


-Anchorage Sdn Bhd v Irama Team (M) Sdn Bhd& Anor [2001] 2 MLJ 520
Decisions from Other Common Law Countries
-The Federal Court decision followed the House of Lords decision, however,
the Modern English authorities may be
persuasive but definitely not binding.
- Lim Poh Choo v Camden and Islington Area Health Authority [1980] AC
174
Landmark Cases
a)Khalid Panjang & Ors v Public Prosecutor [1964] MLJ 108
Vertical operation of stare decisis.
- In this case, High Court judge refused to go with the decision of the Privy
Council in the case of
Mirza Akbar v The King-Emperor.
-Judicial precedents
can only be made by the Superior Courts
which are the two High Courts, Court of Appeal and the Federal Court.
-The
personal opinions of the judge shall be disregarded.
b) Hendry v. De Cruz [1949] 15 M.L.J Supp. 25
Horizontal operation of stare decisis.
-The question of this case is whether the Court of Appeal in England
should be bound to its own decisions.
-This question remained in doubt until 1944 where it was settled in Young
v. Bristol Aeroplane Company Limited [1944] 1 K.B. 718.
-As provided in Section 16(ii) of Federated Malay States Courts Enactment,
the Court of Appeal in England is
bound to its own decisions .
SYARIAH
LAW
-Adat: customary laws.
-Influenced by Hinduism.
-Later versions of Laws of Malacca
included both customary laws and Syariah laws.
-After the coming of the British
The Syariah law was implemented only for personal matters.
-Became the Muslims personal law (eg. family matters).
-Not applicable on non-Muslims.
-

Syariah
Courts are the courts that enforces Syariah law.
-The Sultan is the head of Muslim.
-The Yang di-Pertuan Negeri is the head of Muslim for Sabah, Sarawak,
Penang and the Federal Territories.
Syariah Law
c. Custom Law
-Custom:
norm or habitual practice
-Custom law: practice that is being accepted as part of the community and
regarded as
legal requirement.
-Involves mostly the
indigenous people or the local communities.
-Cover several aspect like rights, obligations and responsibilities:
L
ands, properties, inheritance
Custom Law (cont'd)
In Malaysia:
-Malay customary law
-Chinese customary law
-Hindu customary law
-Orang Asli customary law
(Peninsular Malaysia)
-Native customary law
(non-muslim indigenous in Sabah and Sarawak)
-Muslim citizens applied the Islamic law or
the Syariah law
Custom Law (cont'd)
Custom Law (cont'd)
Malay customary law
Adat Perpatih (
Negeri Sembilan and certain areas of Naning in Malacca)
-Adat Temeggung
(areas that Adat Perpatih does not cover)
Chinese customary law
-Created during the British colonisation, because
laws from China
(Ching Dynasty) was not applicable.
-Consists of a

mixed of both Chinese customs and English law


Hindu customary law
-Law practiced in India
Native customary law
-Existed before the ruling of James Brooke.
-James Brooke modified the law after achieving stability of ruling.
-Culture: headhunting, retaliatory wars, trials by ordeal, unjustified
homicide and slavery (Banned)
-British promised to uphold the native customary law with the exchange of
their support in joining Malaysia
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