SOURCES OF MALAYSIAN LAW

Introduction

The source of Malaysian law can be classified into :-

1. Written law,

2. Unwritten law, and

3. Islamic law.

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.

Written law is the law written and gazetted to be followed by the individuals of a State.

It is made up of :-

1. Federal constitution,

2. State constitutions,

3. Legislations / Statutes, and

4. Subsidiary legislations.

Federal Constitution & State Constitution

Federal Constitution is said to be the highest legal authority of land.

The Constitution was drafted by the Reid Commission in 1956 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 the federation and any law passed after Merdeka Day which is inconsistent with this constitution shall, to the maximum extent of inconsistency, be void.

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.

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.

Legislation / Statutesa) ActsActs are laws enacted by the Parliament. There are 4 types of Acts: the Principal Act, the Amendment Act, the Revised Act, and the Consolidated Act.

b) EnactmentsEnactments are laws enacted by State Legislative Assemblies. However, the State Legislative Assembly laws in Sarawak are known as ordinances.

b) OrdinancesOrdinances are laws enacted by the federal legislature between 1 April 1946 - 10 September 1959. Laws promulgated by the Yang Di-Pertuan Agong during an emergency proclaimed under Article 150 of the Federal Constitution are also known as ordinances. 

Delegated Legislation / Subsidiary Legislation

Subsidiary legislation is defined as secondary legislation made by a person or body besides Parliament. According to the Act of Parliament, they can authorize another person or body to make legislation. It creates the structure of a particular law and tends only to contain an outline of the purpose of the Act.

The function of subsidiary legislation is it allows the Government to modify a law without waiting for a new Act of Parliament to be passed.

The Interpretation Act 1967 defines subsidiary legislation as ‘any proclamation, regulation, order, notification, by-law or other lawful authority and having legislative effect’.

Subsidiary legislation is very important as legislation by Parliament and State Legislatures is insufficient to provide the laws required to govern everyday matters. It deals with the details which the legislature has neither the time nor the technical knowledge to enact laws. The legislature merely lays down the basic and main laws, leaving the details to persons or bodies to whom they delegate their legislative powers. 

It is more flexible, can be made, amended or modified easily and more speedily compared to ordinary legislation.

Usually the Parliament or the State Legislative Assemblies enunciates general principles and policies relating the subject matter in a particular legislation. By giving the power to other agencies/bodies to legislate further and fill in the details, the legislative time of the legislature is economized.

Moreover, delegated legislation can be used to make changes to the law for example, a Local Authority have the power that allows them to make delegated legislation and to make law which suits their area. Delegated legislation plays an important role in the making of law. On top of that, delegated legislation has the same legal standing as the Act of Parliament.

Moreover, delegated legislation can be used to make changes to the law for example, a Local Authority have the power that allows them to make delegated legislation and to make law which suits their area.

Delegated legislation plays an important role in the making of law. On top of that, delegated legislation has the same legal standing as the Act of Parliament.

UNWRITTEN LAWS

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.

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.

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 so on. 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.

Judicial decisions / Judicial Precedent

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.

Custom

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.

Islamic law

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.

Now, Islamic laws are increasingly applied in banking and land laws other than applied to family matters and estate matters. The YDPA is the head of Islam in his home state, Penang, Malacca, Sabah, Sarawak and Federal Territories. The head of Islam of other States is Sultan.