LAW 245 MALAYSIAN LEGAL SYSTEM

DISCUSS THE WRITTEN AND UNWRITTEN

THE SOURCES OF MALAYSIAN LAW

PREPARED BY
MAZUWIN BT MOHAMAD YUSOF
STUDENT ID : 2010461676
GROUP: AAMP6A

PREPARED FOR
SIR AZHAN B JALALUDIN
UiTN CAMPUS SERI ISKANDAR, PERAK DARUL RIDZUAN

SEMESTER DECEMBER 2012 MARCH 2013

CONTENTS
Introduction

1 The Sources of Malaysian Law 1

Meanings of Sources
Sources of Malaysian Law

2 Written Law 5

Federal Constitution
State Constitution
Legislation

Subsidiary Legislation
3 Unwritten Law 7

English Law

Judicial Precedent

Custom

Islamic Law
Bibliography

Introduction
The law of Malaysia is mainly based on the common law legal system. This was a
direct result of the colonization of Malaya, Sarawak, and North Borneo
by Britain between the early 19th century to 1960s. The supreme law of the land ,
the Constitution of Malaysia, sets out the legal framework and rights
of Malaysian citizens. Federal laws enacted by the Parliament of Malaysia apply
throughout the country. There are also state laws enacted by the State Legislative
Assemblies which applies in the particular state. The constitution of Malaysia also
provides for a unique dual justice system ;the secular laws (criminal and civil)
and sharia laws.

Prior to the independence in 1957, most of the laws of United Kingdom were
imported and either made into local legislation or simply applied as case laws.
Malaysian law is also based on other jurisdictions namely Australia and India.
The criminal law in Malaysiathe Criminal Procedure Codewas based on the
Indian criminal code. Similarly, the Contracts Act is based on the Indian model.
Malaysian land law is based on the Australian Torrens system.

The Federal Constitution is the supreme law of the land. It provides the legal
framework for the laws, legislation, courts, and other administrative aspects of the
law. It also defines the government and monarch, and their powers, as well as
the rights of the citizens

The laws of Malaysia can be divided into two types of laws, written 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.

Meaning of Sources
The term sources of law has several meanings, the more common of which are as
follows:
(a) Historical sources, indicating the factors that have been influential in
the development of law but by themselves not recognised as law. Examples
of these factors that influence the development of the law are religious
practices and beliefs, local customs and opinion of jurists.
(b) It may also refer to places where the law can be found as for examples,
in statues, law report, textbooks and decisions of courts.
(c) In the most cases, however, it refers to legal sources, that is, the legal
rules that make up the law. This is the meaning that shall be adopted
throughout the book unless otherwise stated.

The Sources of Malaysian Law

The sources of Malaysian Law mean the legal rules that make the laws in Malaysia,
which can be classified into written and unwritten law. This classification should be
treated with a little caution as it is made for the sake of simplicity. It is by no means a
legal classification.
A references to the unwritten law does not mean that the law is literally unwritten. It
is a convenient references to that portion of Malaysian law which is not enacted by
the legislature ( Parliament and States Assemblies ) and which is not found in the
constitutions, both federal and the state. The unenacted law is found in cases
decided by the courts and local customs, that is, the whole of non-statutory laws.
Written law, on the other hand, refers to the law embodied in the Federal and State
Constitutions and in a code or a statute, including subsidiary or delegated legislation.

Written Law
The written law is the most important source of Malaysian Law. The written Law is
divided into four, 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 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.

Subsidiary Legislation

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.

Unwritten Law
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.

In the case Commonwealth of Australia v. Midford (Malaysia) Sdn Bhd., it was held
that the doctrine of sovereign or crown immunity which was developed in English
Common Law after 1956 should apply in Malaysia.It was said that any developments
in English Common Law after 1956 should apply in Malaysia

In the case Smith Kline & French Laboratories Ltd. v. Salim (Malaysia) Sdn Bhd., 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. Yang Kamsiah & Anor. It was decided that courts
have the authority to decide whether to follow English Law (common law and law of
equity) or Federal law, considering the circumstances and the scope the written law
permits to do so.

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.

The case law related to the boundaries of application is,Syarikat Batu Sinar Sdn.
Bhd. v. UMBC Finance Bhd. In this case, problem of double financing occurred
when first purchasers (UMBC Finance Bhd.) endorsement of ownership claim was
not included in the registration card of vehicle. UMBC tried to repossess the vehicle.
The plaintiff sued UMBC, claiming that defendants were not entitled to the vehicle.
It was held that the English law requires the endorsement of ownership claim in
registration card, but the law in Peninsular Malaysia does not really require the
endorsement to be attached with the registration card of vehicle. The law regarding
the endorsement of ownership claims in Malaysia which applies to the local
circumstances has to be distinguished from the English law.

English Commercial Law and English Land Law

Two components of English law are English commercial law and English land law.

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 soon. 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.

The case related is United Malayan Banking Coperation Bhd & Another v.
Pemungut Hasil Tanah, Kota Tinggi. In this case, Johor State Authority transferred
land to a proprietor with certain conditions and annual rent as consideration. The rent
and penalties on arrear payments were not settled. Johor State Authority served a
notice to forfeiture the land as the right of consequence of the offence. The
appellant, Johor State Authority and the proprietor, appealed and they were granted
relief against forfeiture. Collector of Land revenue appealed to federal court and the
appellants appealed to Privy Council.
It was held that English land law concerning the relief against forfeiture is
inapplicable in Malaysia. Relief against forfeiture means that order for forfeiture is
cancelled and it was provided by Malaysian National Land Code.

Judicial decisions

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.

Customs

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.
 i. Adat Perpatih

Adat Perpatih applies in Negeri Sembilan and Naning in Malacca. The unique
characteristic of Adat Perpatih is matrilineal form of organization. It concerns with
matters such as land tenure, lineage, inheritance and election of members of
lembaga and YDP. Matrilineal is a system in which one belongs to mother's lineage;
it generally involves the inheritance of property, names or titles from mother to
daughters

ii. Adat Temenggung

Adat Temenggung applies in other states. It is based on the characteristic of

patrilineal form of organization. Patrilineal is a system in which one
belongs to father's lineage; 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, the family
law has been given enforcement on matters of marriage, divorce and inheritance. As
a result, the Chinese and Hindu Customary Laws have lost its effect as an important
source of unwritten law in Malaysia.

Islamic Law

Syariah ( an Arabic word which menas, literally, the way to watering place) is the
sacred law of Islam as revealed through Prophet Muhammad pbuh in the Quran and
Sunnah. It is the totally od Gods commands that regulate the lives od Muslims in all
its aspets; their duties towards Allah (God), and their relations with one another and
the environment.

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. State legislature also has
the jurisdiction over the constitution, organization and procedures of Syariah Courts.
The Islamic law which applies in Malaysia is of the Shafii school od jurisprudence, as
modified by Malay adat (customary) law. The sources od Islamic law as applied in
Malaysia fall into two main categories:

1. Primary sources

(a) Quran : the Word of Allah; and

(b) Sunnah: rules deduced from the traditions, ie the syings or conduct of
Prophet Muhammad Pbuh.

2. Secondary sources ( which are not sources, but are rather the means for
discovering the law)

(c) Ijma : consensus of jurists of any particular era on a juridical rule; and
(d) Qiyas : deductions from reasoning by ijtihad or analogy
Bibliography

Aun, W. M. (1999). The Malaysian Legal System. Petaling Jaya: Longman.

Hamzah, W. A. (2009). A First Look at The Malaysian Legal System. Shah Alam:
Oxford Fajar Sdn. Bhd.

Law from Malaysian Perspective. (n.d.). Retrieved January 25, 2013, from
Mindrelief:
http://www.mindrelief.net/law_from_malaysian_perspective.html

Law of Malaysia. (n.d.). Retrieved January 20, 2013, from Wikipedia:

http://en.wikipedia.org/wiki/Law_of_Malaysia