1 SOURCES OF LAW

 Meaning Of The Word ‘Sources’

i. Historical Sources – Factors That Have Influenced The
Development Of Law Although They Are Not Recognised
As Law E.G. Religious Beliefs, Local Customs And Opinion
Of Jurists.
ii. Places Where The Law Can Be Found E.G. Statute, Law
Reports, Books, Etc.
iii. Legal Sources – The Legal Rules That Make Up The Law
‘The Sources Of Malaysian Law’ Refers To The Legal
Sources I.E. The Legal Rules That Make Up The Law In
Malaysia.
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 SOURCES OF MALAYSIAN LAW

LEGAL
SOURCES

WRITTEN UNWRITTEN SYARIAH

Sources of Malaysian legal system
 WRITTEN LAW
Written law is the most important source of law in
Malaysia. It is in writing and includes the following :
1. The Federal and state constitutions.
2. Legislation enacted by parliament and the state
assemblies
3. Subsidiary legislation made by persons or bodies
under powers conferred on them.

Also referred as statute law

Law made by parliament and any subordinate bodies
to whom parliament has delegated power to legislate
 Federal Constitution
The meaning of the term ‘Constitution’
It is used in two senses:
 The body of legal and non-legal rules concerning the
government of a state
 A single written document having special legal status,
which establishes the state, and sets out the structure
and powers of the state

In Malaysia, there are 13 states and three federal territories

There is one Federal Constitution and 13 States
Constitutions
The Federal Constitution is the supreme law of the land.
- Federal Constitution is the supreme law of the country
and no law can go against it. It sets out the structure of
the government and states that Malaysia is a system of
parliamentary democracy with no separation of
legislative and executive branch. However, the judiciary
is a separate branch.
- The Federal Constitution also states the basic rights of
every citizens, such as rights to education, citizenship
rights and voting rights. There is also freedom to practice
one’s own religion, although Islam is the official religion of
the country
Malaysia is a Federation with 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 2/3 of the total numbers of
members of the legislature
 The general features of the Malaysian
Federal Constitution:
➢ 1. The Supremacy of the Federal Constitution.
- In Ah Thian v Government of Malaysia, Suffian LP pointed out that
the doctrine of Parliamentary Supremacy does not apply in
Malaysia. Here we have a written constitution. The power of
Parliament and state legislatures in Malaysia is limited by the
Constitution.
- The legislature, the executive and the judiciary and all institutions
created by the Federal Constitution and deriving their powers from
it are subject to the provisions of the Federal Constitution.
➢ 2. The YDPA
The Supreme Head of the Federation: Article 32 of FC.
As the Supreme Head the Constitution gives him
precedence over all Rulers.
He is the head of all three branches of the
government i.e. legislature, executive and judiciary
and the head of Islam.
Previously YDPA is immune from any proceeding in
court but amendment was made to be able to
subject the YDPA in his personal capacity, of
misconduct or misbehavior in a Special court (Art. 182)
 Even though he is a component member of
Parliament, he does not attend regular meeting of
the parliament. Nevertheless, he plays an important
constitutional role in the business of the Parliament.
Except in some circumstances when he can be by
passed, his assent is necessary before a bill passed
by the parliament becomes a law.
 A ruler elected as King by the Conference of Rulers
for 5 years.

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 ➢ 3. Conference of Rulers
11  Consisting of all 9 Rulers and all 4 Governors.
 Is the most prestigious assembly in the country.
 Among the functions:
-to elect and remove King and elect deputy King
-to deliberate on questions of national policy
-to give consent on any law and give advice on the
appointment of Chief Justice, the 2 Chief Judges
and the judges of Superior and Subordinate Courts,
on the advice of the PM

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 ➢ 4. The Executive
12  Consists of the Cabinet, the public service, the police
force and the armed forces. The King appoints the
Cabinet headed by the PM.
 No person may be appointed as PM or minister if he is
not a member of the Parliament.
 In a parliamentary system, the PM will have to resign if he
lost the confidence of the majority of the members of
the lower house. If he resigns, he must tender resignation
of his Cabinet and the King will appoint another PM who
is expected to form another government.
 The Malaysian Cabinet is responsible to the people’s
representatives in the parliament. It is collective
responsibility to the public.

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 ➢ 5. The Legislature.
13
 In Malaysia we have a federal legislature called
Parliament and each state has its own legislature
called State Legislative Assembly.
 The Parliament consists of : the YDPA and 2 Houses:
House of Senate & House of Representatives.
 The life of Parliament is 5 years from the date of its
first meeting. It stands dissolved by operation of law
at the end of 5 years, but it may be dissolved earlier
by the King if he accepts advice to dissolve it.

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  After the dissolution, a general election must be held within 60
14 days from the date of the dissolution and a new Parliament
must be summoned to meet not later than 120 days from the
date.
 Parliament is more than a body making laws. It is the only body
that may authorize the levy or increase the federal taxes and
the spending of federal money. It is also the highest forum
where member can air public grievances and asks questions
of a minister responsible for that matter.
 State legislature has functions, rights, privileges and powers
similar to those of the Federal parliament – but only in relation
to state subjects. A state legislature has only one
house/chamber- the State Legislature.

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 ➢ 6. The Judiciary
15
 The Constitution gives judicial power exclusively to the Superior
Courts and the Subordinate Courts. Judicial power means the
power to hear and determine in accordance with the
constitution and the law, disputes about legal rights and liabilities.
No other branches of government has this power, and in rare
cases where it is given this power, its decisions are subject to
review by judiciary.
 Feature: impartiality and independence of judiciary
Impartiality in the sense that there is a real separation of power
with the other 2 branches. It is important so that there is impartial
branch to judge disputes between the two branches, between
each or both of them and the citizen and between citizen and
citizen
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 Independence refers to freedom from control
by either of the 2 branches or by anybody. The
16

constitution secures this independence by

providing that among others: transfer of judges
from one place to another is decided not by
the government but by the respective Chief
Justice. So a judge who gives judgment
unpopular with the executive cannot be
suddenly transferred as a punishment.

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 ➢ 7. Fundamental Liberties/ Basic Human Rights
17
 The Constitution highlights and safeguards certain fundamental
human rights essential for the continuance of human race.
 The constitution protects our freedom and restrains any law or any
other power from encroaching and taking away our basic rights.
 Examples:
o Article 5 – No one shall be deprived of his life or personal liberty except
through the provisions of law. A person may not be unlawfully detained, he
must be informed of the ground of his arrest and must be produced before a
Magistrate within 24 hours.

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 State Constitution

- State Constitution also has its own

constitution
- The State constitution sets out the
structure of the state governments and
provides for the existence of a State
Legislative Assembly in each state. The
function of the state Legislative
Assembly is to enact laws for the state.
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.
 Legislation
- Legislation is enacted by the Parliament at
federal level and by the state Legislative
Assembly at the state level.
- The Federal and State legislatures are not
supreme as they can only enact laws in
accordance with the stipulated procedures
in the Federal and State Constitutions.
- Law made by the Parliament is called an
‘Act’ while law made by the State
Legislative Assemblies is called an
Enactment or Ordinance.
Law enacted by Parliament after 1946 but
before Malaya’s Independence are called
‘Ordinances’ while those made after 1957
are called ‘ Acts’
The laws made by the State Legislative
Assemblies (except Sabah and Sarawak)
are called ‘Enactments’
The laws passed in Sabah and Sarawak
are called ‘Ordinancies’
 Subsidiary legislation
- Subsidiary legislation is any proclamation, rule,
regulation, order, notification, by-law or other instruments
made under any Ordinance, Enactment or other lawful
authority and having legislative effect
- Subsidiary or delegated legislation arises when
parliament delegates its rights to make law to another
body such as the Minister concerned or a local authority.
- These laws are known as regulations or by-laws.
- There is a need for delegation as the Parliament’s time is
limited and sometimes specialized expertise in certain
areas of the law is required.
Essentials source of law as the Parliament
and the State Legislation
The legislation gives permission to amend
the law
Instead of Parliament, the local authority
can enact law to suits the local and will
have the acknowledgement of locality
During emergency, this legislation can
resolve the situation and problem as soon
as possible without waiting the Parliament
to approve an act
 UNWRITTEN LAW
i. English Law

 Part of Malaysian Law is formed by the English Law

 It can be found in Rules Of Equity and English Common Law. However, the application
of the law is subject for two limitations where it is applied only in the absence of local
statutes on particular matters and only part of the English law that is suited to local
circumstances will be applied.
 Starts with the informal reception in the Straits Settlement.Led to the Malay States
through the intervention of the British Resident and advisors.
 As for the Borneo states since they became British protectorates in 1888, they too
informally received English Law.
 The English Law was formally received through the legislation of three statutes:
 Civil Law Ordinance 1956 for Peninsular Malaysia
 Application of Laws Ordinance 1951 for Sabah
 Application of Laws Ordinance 1949 for Sarawak
 All the three statutes are now incorporated into the Civil Law Act 1956
 2 provisions of the CLA prescribe the application of English Law in Malaysia: Sec 3 &
Sec 5.
 ii. Judicial Decision / Judicial Precedent

 Judicial decisions of the High Court, Court of Appeal and Federal Court was
known as Judicial Precedent which is the basic decisions made by judges in
similar situations
 These courts were following the “doctrine of binding judicial precedent" which
means to stand by cases already decided
 A precedent is commonly defined as “ a judgment or decision of a court of
law cited as authority for the legal principle embodied in its decision”.
 The general rule regulating the doctrine of precedent is that the decisions of
higher courts bind lower courts and some courts are bound by their decision.
 This practice of following precedent is also known as stare decisis (stand by
what has been decided). It is a legacy of the English common law system.
 If a judge fails to follow a binding precedent, the decision will be legally wrong
and it is likely to be reversed on appeal. Where there is no appeal, it can be
overruled in a later case.
iii. Custom Law

 Custom is norm or habitual practices.

 Custom law is 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 aspects like rights, obligations and responsibilities.
 The regular pattern of social behaviour, accepted by a given society as binding upon
itself.
 Customs are proved through repeated acts practiced over a long period of time,
leading to the conclusion that by common consent they have become the accepted
norm, or the law of the place, to the exclusion of ordinary law.
 In Malaysia, the term is also known as adat or ‘native law & custom’
 Art 160 of FC includes ‘customs & usages having the force of law’ in the definition of
law.
 This definition distinguished between customs that have legal consequences and those
that do not.
SHARIA LAW

Related only to Muslims and is managed by a

different court system, the Syariah Courts.

It is the court which enforces the Islamic law

relating to marriage, divorce and family matters.

 The Federal Constitution provides that the States

have the power to administer Muslim Law