RIENAH BINTI SANARI

2019231122
BA2431A

Malaysian Legal System

1) Explain briefly on the unwritten law as one of the sources of law in Malaysia.

(5 Marks)

Law is a general rule of conduct. According to the Oxford English Dictionary law means
“the body of enacted or customary rules recognized by a community as binding”. A set of rules,
developed over a long period of time that regulates interactions that people have with each other,
and which sets standards of conduct between individuals and between individuals and the
government and which are enforceable through sanction. The purpose or function of law are to
attain justice in the society, what is right and what is wrong, ensure peace and harmony in the
society and then to protect the citizen of the state from any harm, crime, wrongful act of the others.

Unwritten law as one of the sources of law in Malaysia. Unwritten law is simply that
portion of the Malaysian law which is not written. Law which is not being enacted by the
Parliament or State Assemblies and which is not found in the written Federal and State
Constitutions. Unwritten law is found in cases decided by the courts, local customs, etc. The
unwritten law comprises the following, English Law, Customs and Judicial Precedents.

English law from part of the Malaysia law. It can be found in English common law and
equity. Common law has been described as judge-made law, for it is the law that has evolved
through the years from the decisions of judges. Principles of English law applicable to local
circumstances. There are two conditions to apply English law in Malaysia which are there is
lacunae in the local statutes covering the same matter and the law suits local circumstances.

However, not all English common law and rules of equity form part of Malaysia. There is
cut off date stipulated in the Civil Law Act 1956. According to the Section 3(1) Civil Law Act
1956, in West Malaysia, the courts shall apply the Common Law of England and the Rules of
Equity as administered in England on the 7th April 1956. For the case Mokhtar v Arumugam (
1959 ), it was held that Malaysian courts are not bound to follow the position of the law in England
after the cut off date is 7th April 1956.

Then, under Section 3(1)(b)(c) Civil Law Act in Sabah and Sarawak the court shall apply
the common law and rules of equity together with statute of general application as administered
or in force in England on the 1st December 1951 and the 12th December 1949. After the cut off
date, English law does not become law in Malaysia. Thus, Section 3 (1) connotes the strict
application of the English law in Malaysia before the cut of date.
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2019231122
BA2431A

Customary law is the regular pattern of social behavior, accepted by a given society as
binding upon itself. It prescribes behavior that has been found to be beneficial as a means of
generating harmonious interpersonal relations and to solve conflict. Some of the customs of local
inhabitants have been accepted as law by the court

CUSTOMS

MALAY CHINESE INDIAN

- Adat - Chinese - Indians
Perpatih customary customary
- Adat Law Law
Temenggong

Lastly, judicial precedent are decisions made by a previous judge in previous cases that
have similar situations. Decisions of these courts were made, and still are being made
systematically by the use of what is called the ‘doctrine of binding judicial precedent’ or the
rule of stare decisis i.e. to stand by cases already decided. Judicial precedent can be obtained
from the decision of the superior courts namely, Federal Court, Court of Appeal and High
Court.

Two categories of judicial precedents which are binding and persuasive. The binding is
all decisions of higher courts bind the lower courts and the higher courts are bound by their
own decision. Next, persuasive is High Court Judges are not bound to follow the decisions of
another High Court Judges and decisions from outside of the Malaysian Courts.
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2019231122
BA2431A

Decisions of Federal Court

binds all lower courts

COA is bound by the decision of FC.

COA’s decision is binding on all lower
courts.
COA is also bound by its own decision

HC decision is binding on all subordinate

courts

Bound by the decisions of the superior

courts.
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2019231122
BA2431A

2) By referring to the Malaysian Subordinate Court Act, explain the Civil and Criminal
Jurisdiction (power to sentence) of the Session courts. (5 Marks)

A Sessions Court is under the charge of a Sessions Court judge. Under Section 54 of
the Subordinate Courts Act, the SC assumes a limited supervisory role over the Magistrates’
and Penghulu’s courts. The purpose for such action is to ensure the correctness, legality or
propriety of the decision recorded or arrived at, and the regularity of the proceedings.

There are two types under Sessions Court which are Criminal Jurisdiction and Civil
Jurisdiction. Criminal jurisdiction are all offences other than punishable with death. May pass
sentence allowed by law other than the death sentence.

Last, Civil jurisdiction are try all actions and suits of a civil nature where the amount in
dispute or value of the subject-matter does not exceed RM1,000,000.