Sources of law

TOPIC 3
 Sources of Malaysian Law 2

 Meaning of sources may include:

Historical Place where

sources Legal the law can
sources be found
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 Legal sources (the rule that make up the law in Malaysia) can be classified into:
 Written law
 Unwritten law
 Written Law 4

 Written law comprises of:

a) The Federal Constitution
 Beside laying down the powers of the Federal and State Government, it
enshrines the basic or fundamental rights of the individual.
 The basic features of the Constitution:
 Malaysia as a federation (Art. 1 FC)
 Constitutional monarchy (Art. 39 & 40 FC)
 Parliamentary democracy (Art. 44 FC)
 Islam as the religion of the federation (Art. 3(1)
 Supremacy of the constitution (Art. 4(1) FC)
 Independence of judiciary (Art. 128 FC)
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b) State Constitution
- Each State possesses its own constitution regulating the government
of that State.
 Contains provisions which are enumerated in the Eight Schedule to
the FC.
c) Legislation
 Law enacted by a body constituted for this purpose.
 Laws are legislated by Parliament at a federal level (i.e ordinances
and acts) and by various State Legislative Assemblies at state level
(i.e enactment)
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d) Subsidiary Legislation define under Interpretation Act:

- Any proclamation, rule, regulation, order, notification, by-law or other instrument
made under any Ordinance, Enactment or other lawful authority and having
legislative effect
 Unwritten Law 7

 Unwritten law is mainly comprised of:

a) English law
 Forms part of laws of Malaysia
 Can be found in the English common law and rules of equity
 UNWRITTEN LAW
8

English Law

S 3(1) Civil Law Act 1956

Pen. Malaysia to apply Common Law & Equity
as administered in England on 7th April 1956
Sabah – as in England on 1st Dec 1951
Sarawak – as in England on 12 Dec 1949

Applied if lacunae in local statutes

(absence of local statutes)
 Only if the law is suited to local circumstances
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b) Judicial decisions
 Decisions on point of law by judges of the High Court that have not been
overruled or reversed by the Federal Court or Court of Appeal.
 Doctrine of judicial precedent/ doctrine of stare decisis
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c) Customs
 Refers to the local inhabitants in Malaysia
 Generally, customs relating to family law, i.e marriage, divorce and inheritance
are given legal force by the court in Malaysia.
 In Pen. M’sia, Malay customary law consists of adat Perpatih and adat
Temengung
 After the enforcement of the Law Reform (Marriage and Divorce) Act 1976 in
March 1982, Chinese and Hindu custom have become of little or no effect as a
source of Malaysian law.
 Islamic Law 11

 FC provides that States have the power to administer Muslim Law.

 The head of Muslim religion in a State (except for Penang, Malacca, Sabah,
Sarawak and the Federal Territories) is the Sultan
 In Penang, Malacca, Sabah, Sarawak and the Federal Territories, the YDPA is the
head.
 The court which enforces Muslim law in the country - Syariah Court.
 Muslim law applies to Muslim only.
Place where the law can be found 12

 Primary sources of law  Secondary sources of law

 Sources which are direct,  Sources which are not of a
authoritative and not influenced primary nature
by anybody’s opinion.  Also called reference materials
 The documents must be original
and prepared as of necessity.
 Examples:
 Kinds of primary sources:
 Articles from journals
 Statutes
 Books
 Cases
 Reports
 Others i.e treaties and other
 Opinions of experts
official publications  Interviews