MALAYSIA

N LEGAL
SYSTEM
 "The first step
to excellence is
to have the right
attitude towards
yourself."
Introduction

 Law - a rule of life imposed on a person to discipline them and enforced on the
population of the country.
 Article 160, Federal Constitution
• Written laws, common law
• which is in force in the Federation, customs
• and prevalence that has power in
• any part of the Federation
Written Law

 Refers to the federal Constitution and laws approved by Parliament or DUN.

 Legislative body:
1. Parliament – ​K. Federation
2. DUN - K. Negeri
 Section 3, Interpretation Act 1967, written laws cover Federal Law & State Law as
well as minor laws made under it.
 Federal Constitution

- Acts of Parliament and bylaws

 State Constitution

- enactment (laws made by DUN except Sarawak)

- ordinances (laws made in the state of Sarawak)

- minor legislation (subsidiary)

• (any form of declaration (proclamation), rule, rule, order, notification, by-law or other instrument
made under any act, enactment, ordinance or other authority that is valid and has legal effect)
Federal Constitution

The main source of law in Malaysia

 Details of the powers of Parliament and DUN

 Laws that conflict with the Federal Law are null and void.

 Touched things;

1. YDPA as the head of the federation

2. ISLAM as the Federal religion

3. Basic freedom

4. Relations between the Federal Government

• with the State Government

State Constitution

 Article 7(4), Federal Law states that all State Laws contain the 'Essential Matters'
listed in the Eighth Schedule
 Parliament can make laws that give the state the power to make Necessary
Provisions or set aside any provisions that conflict with it
 Sabah and Sarawak got a constitution through the Malaysia Agreement which
gave additional provisions to the respective states
“Identify your
weaknesses and
act now.”
 Act implementation - a law that is enforced to
overcome a problem in the country.

 Acts enacted by parliament after

independence or since September 1959

 Enactment - laws enacted in every state

except Sarawak

 Ordinance

• - Laws enacted by the Sarawak State

Assembly

• - laws enacted by the legislature in

• central government level between 1946

• until September 1959

• - laws issued by the current YDPA

• emergency (Article 50, Federal Constitution)

By-laws

 Regulations, orders, notifications and declarations made by the authorities

authorized by Acts of Parliament and DUN enactments
 Held for:
1. Enabling authorities and agencies to make details of laws made by legislative
bodies such as Parliament & DUN
2. Enabling authorities and agencies to make laws that suit their respective fields
based on the master act enacted by the legislature
Easy to enact and flexible compared to the process Legislation can be declared ultra vires (outside the Example: Laws enacted by Local Governments
of enacting laws in parliament authority of the law) if the court finds that the law is
in conflict with an Act of Parliament or a DUN
Enactment
Subsidiary Law

Rules and methods made by a person such as a Example: Local Authority Bylaws
Minister or a body under the authority delegated by
an Act of Parliament or a DUN Enactment
  Give the meaning of the terms below:
i. Enactment
i. Ordinance

MIND TEST iii. It stands

iv. Minor Legislation
Unwritten Law

Laws that are

not enacted by Can not be
any legislative detected in any
body either Federal or State
Parliament or P
DUN

Laws that cover Is the second

culture and source of law in
customs Malaysia
 1. Customary Law

2. Islamic Law

Types:
3. English Common Law (Common
Law)

4. Judiciary First Doctrine

 Divided into two namely:

i. Temenggung Customs

i. Perpatih custom
• Symbolizing practice, discipline, and good manners in a society

Culture Law • Types of customary law:

i. Malay customs (Perpatih customs & Temenggung customs)

i. Bumiputera customs (Sabah & Sarawak)

iii. Chinese customs

iv. Indian customs

 Divided into two
namely:

Malay
Culture i. Temenggung Customs

i. Perpatih custom
 Founder - Datuk Practiced in all
Ketemenggungan states except N.
based in Sembilan &
Palembang Naning

Adat
Patriarchal ( in
Temenggung favor of men)
Includes:

/
Temenggung i. Family system
i. Property
inheritance system
Customs
iii. Government &
political system
 Has the influence of
Marriage between
Covers all civil & Hindu law (Manu
cousins ​is
criminal cases law) & Islamic law
encouraged
(Shafie School)

Islamic law is given Prioritizing men -

priority if there is a head of the family &
Autocratic
conflict with preference to own an
customary law inheritance
The earliest Malay law books related to
temenggung customs:

i . Melaka Sea Laws

• (shipping & port laws – ways control the ship of punishment upwards next)

ii. Melaka Canon Law

• (government power & people - 44 clauses)

iii. Laws of Johor, Laws of Pahang & Law 99 Perak

• (government power & responsibility)

  Founder – Datuk Perpatih Nan
Sebatang
 Center – Pagar Ruyung
 Practiced in Negeri Sembilan Naning
 Martiarchal (in favor of women)

Adat Perpatih/  Democratic in nature

Perpatih Customs  Lots of Hindu & Islamic influences

 Forbid marriage between cousins ​&
tribes
 Punishment based on customary
sources & sharia law
• Be more considerate – prioritize
recovery with reparations
Property ownership:

i . Findings or acquisitions
• the assets owned by women are the same by work or wealth
accumulation while single
ii. Heritage - descent
iii. Marriage - husband and wife
iv. Carrier
• property brought by husband and wife. In case divorce can be taken
back the property
Adat Bummiputera

 Based on the practices of each tribe

 Influenced by Islam
 Laws that are not related to Islam are considered Bumiputera Customary
Ordinances
 The trial at the Bumiputera Court, includes:
- property inheritance
- land
- punishment based on error
- marriage & divorce
Adat India

 Influence from India

 Not changed by the English T.Malay government
 Elements:
- property ownership
- marriage
- divorce
- death
 Received recognition from the Judiciary
 Discussed at the High Court
Adat Cina

 Influence from China

 Not changed by the English T.Malay government
 Elements:
- property ownership
- marriage
- divorce
- death
 Discussed at the High Court
Islamic Law

 Implemented based on the Al-Quran, hadith and sunnah managed by the Islamic
Religious Council
 Role:
i. Issuing a fatwa
ii. Manage waqf
iii. Give advice to the sultan & the Muslim community
 Matters related to zakat collection & fitrah management of Baitulmal and property
management are managed by the Department of Religious Affairs
 Any case related to Muslims is handled by the Syariah Court which consists of:
i. Kadi Court
ii. Grand Kadi Court
iii. Syariah Court of Appeal (Appellate Board)
 In Sabah & Sarawak, operated by Sabah Native Court & Sarawak Native Court
 Implemented under the 1977 Enactment and 1978 Ordinance (administered by
the Sharia Court)
Determined items:

i. Marriage ii. Divorce iii. Adoption

iv. Inheritance
v. Errors in
of land and
Islamic law
property
Common Law

 Laws used by British people as a legal guide

 Section 3 and Section 5 , Civil Law Act 1956
 Conditions for the application of English law in Malaysia Malaysian Constitution:
according to Section 3,
i. A last resort where no local statute can be used in resolving the matter.
ii. Only the parts of the law that suit the local situation are used to fill the
gaps in the local legal system
Doctrine of Precedent

 Laws approved by the High Court & Federal Court

 Be a guide to handling cases and punishments
 Referred to if there is no written regulation @ undan2 about a case (not
enshrined in Federal Law & State Law)
 The trial uses the discretion of the legislators from the highest court about a case
 The decision of the Lower Court should be guided by the decision of the Supreme
Court
 1. What are the characteristics of
unwritten law? (4 features)
2. List 6 differences between written
law and unwritten law.

MIND TEST 3. State the eight characteristics of

Temenggung Customs.
4. State the eight characteristics of
Perpatih Customs.
END