LAW 245 – MALAYSIAN LEGAL SYSTEM

DISCUSS THE WRITTEN AND

UNWRITTEN THE SOURCES OF

MALAYSIAN LAW

PREPARED BY

MAZUWIN BT MOHAMAD YUSOF

STUDENT ID : 2010461676

GROUP: AAMP6A

PREPARED FOR

SIR AZHAN B JALALUDIN

UiTN CAMPUS SERI ISKANDAR, PERAK DARUL RIDZUAN

SEMESTER DECEMBER 2012 – MARCH 2013

CONTENTSIntroduction

1 The Sources of Malaysian Law 1

Meanings of Sources

Sources of Malaysian Law

2 Written Law

Federal Constitution

State Constitution

Legislation

Subsidiary Legislation

5

3 Unwritten Law

English Law

Judicial Precedent

Custom

Islamic Law

7

Bibliography

Introduction

The law of Malaysia is mainly based on the common law legal system. This was a

direct result of the colonization of Malaya, Sarawak, and North Borneo

by Britain between the early 19th century to 1960s. The supreme law of the land ,

the Constitution of Malaysia, sets out the legal framework and rights

of Malaysian citizens. Federal laws enacted by the Parliament of Malaysia apply

throughout the country. There are also state laws enacted by the State Legislative

Assemblies which applies in the particular state. The constitution of Malaysia also

provides for a unique dual justice system ;the secular laws (criminal and civil)

and sharia laws.

Prior to the independence in 1957, most of the laws of United Kingdom were

imported and either made into local legislation or simply applied as case laws.

Malaysian law is also based on other jurisdictions namely Australia and India.

The criminal law in Malaysia—the Criminal Procedure Code—was based on the

Indian criminal code. Similarly, the Contracts Act is based on the Indian model.

Malaysian land law is based on the Australian Torrens system.

The Federal Constitution is the supreme law of the land. It provides the legal

framework for the laws, legislation, courts, and other administrative aspects of the

law. It also defines the government and monarch, and their powers, as well as

the rights of the citizens

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.

Meaning of Sources

The term ‘sources of law’ has several meanings, the more common of which are as

follows:

(a) Historical sources, indicating the factors that have been influential in the

development of law but by themselves not recognised as law. Examples of

these factors that influence the development of the law are religious practices

and beliefs, local customs and opinion of jurists.

(b) It may also refer to places where the law can be found as for examples, in

statues, law report, textbooks and decisions of courts.

(c) In the most cases, however, it refers to legal sources, that is, the legal rules

that make up the law. This is the meaning that shall be adopted throughout

the book unless otherwise stated.

The Sources of Malaysian Law

The sources of Malaysian Law mean the legal rules that make the laws in Malaysia,

which can be classified into written and unwritten law. This classification should be

treated with a little caution as it is made for the sake of simplicity. It is by no means a

legal classification.

A references to the unwritten law does not mean that the law is literally unwritten. It

is a convenient references to that portion of Malaysian law which is not enacted by

the legislature ( Parliament and States Assemblies ) and which is not found in the

constitutions, both federal and the state. The unenacted law is found in cases

decided by the courts and local customs, that is, the whole of non-statutory laws.

Written law, on the other hand, refers to the law embodied in the Federal and State

Constitutions and in a code or a statute, including subsidiary or delegated legislation.

Written Law

The written law is the most important source of Malaysian Law. The written Law is

divided into four, namely Federal Constitution, State Constitution, Legislation and

Subsidiary Legislation.

Federal Constitution

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

constitution was drafted by the Reid Commission in1956 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 federation

and any law passed after Merdeka Day which is inconsistent with this constitution

shall, to the maximum extent of inconsistency, be void .Article 159 and 161E

provides provisions to allow the constitution to be amended with the condition of

2/3rds majority in both houses of Parliament agreeing to the amendment.

State Constitution

State Constitution is the same as Federal Constitution, except it is set by the states

in Malaysia. The 8th schedule of the Federal Constitution mentions certain

provisions that are to be included in the State Constitutions such as state executive

members, finance, the state legislative assembly, roles of the Sultan or Yang di-

Pertua Negeri, and etc. Article 71 mentions that all state constitutions must contain

their provisions, otherwise the Parliament can enforce those provisions or abolish

any provision in the state constitution that contradict with those provisions.

Legislation

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.

Subsidiary Legislation

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.

Unwritten Law

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.

In the case Commonwealth of Australia v. Midford (Malaysia) Sdn Bhd., it was held

that the doctrine of sovereign or crown immunity which was developed in English

Common Law after 1956 should apply in Malaysia.It was said that any developments

in English Common Law after 1956 should apply in Malaysia

In the case Smith Kline & French Laboratories Ltd. v. Salim (Malaysia) Sdn Bhd., It

was held that the courts have the authority to put aside any Common Law or Law of

Equity which cannot be applied in Malaysia..

In the case Jamil bin Harun v. Yang Kamsiah & Anor. It was decided that courts

have the authority to decide whether to follow English Law (common law and law of

equity) or Federal law, considering the circumstances and the scope the written law

permits to do so.

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.

The case law related to the boundaries of application is,Syarikat Batu Sinar Sdn.

Bhd. v. UMBC Finance Bhd. In this case, problem of double financing occurred

when first purchaser’s (UMBC Finance Bhd.) endorsement of ownership claim was

not included in the registration card of vehicle. UMBC tried to repossess the vehicle.

The plaintiff sued UMBC, claiming that defendants were not entitled to the vehicle.

It was held that the English law requires the endorsement of ownership claim in

registration card, but the law in Peninsular Malaysia does not really require the

endorsement to be attached with the registration card of vehicle. The law regarding

the endorsement of ownership claims in Malaysia which applies to the local

circumstances has to be distinguished from the English law.

English Commercial Law and English Land Law

Two components of English law are English commercial law and English land law.

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 soon. 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.

The case related is United Malayan Banking Coperation Bhd & Another v.

Pemungut Hasil Tanah, Kota Tinggi. In this case, Johor State Authority transferred

land to a proprietor with certain conditions and annual rent as consideration. The rent

and penalties on arrear payments were not settled. Johor State Authority served a

notice to forfeiture the land as the right of consequence of the offence. The

appellant, Johor State Authority and the proprietor, appealed and they were granted

relief against forfeiture. Collector of Land revenue appealed to federal court and the

appellants appealed to Privy Council.

It was held that English land law concerning the relief against forfeiture is

inapplicable in Malaysia. Relief against forfeiture means that order for forfeiture is

cancelled and it was provided by Malaysian National Land Code.

Judicial decisions

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.

Customs

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.

i. Adat Perpatih

Adat Perpatih applies in Negeri Sembilan and Naning in Malacca. The unique

characteristic of Adat Perpatih is matrilineal form of organization. It concerns with

matters such as land tenure, lineage, inheritance and election of members of

lembaga and YDP. Matrilineal is a system in which one belongs to mother's lineage;

it generally involves the inheritance of property, names or titles from mother to

daughters

ii. Adat Temenggung

Adat Temenggung applies in other states. It is based on the characteristic of

patrilineal form of organization. Patrilineal is a system in which one

belongs to father's lineage; it generally involves the inheritance of property,

names or titles from father to sons

After the establishment of Law Reform (Marriage and Divorce) Act 1976, the family

law has been given enforcement on matters of marriage, divorce and inheritance. As

a result, the Chinese and Hindu Customary Laws have lost its effect as an important

source of unwritten law in Malaysia.

Islamic Law

Syariah ( an Arabic word which menas, literally, the way to watering place) is the

sacred law of Islam as revealed through Prophet Muhammad pbuh in the Quran and

Sunnah. It is the totally od God’s commands that regulate the lives od Muslims in all

its aspets; their duties towards Allah (God), and their relations with one another and

the environment.

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. State legislature also has

the jurisdiction over the constitution, organization and procedures of Syariah Courts.

The Islamic law which applies in Malaysia is of the Shafii school od jurisprudence, as

modified by Malay adat (customary) law. The sources od Islamic law as applied in

Malaysia fall into two main categories:

1. Primary sources

(a) Qur’an : the Word of Allah; and

(b) Sunnah: rules deduced from the traditions, ie the syings or conduct of

Prophet Muhammad Pbuh.

2. Secondary sources ( which are not sources, but are rather the means for

discovering the law)

(c) Ijma’ : consensus of jurists of any particular era on a juridical rule; and

(d) Qiyas : deductions from reasoning by ijtihad or analogy

Bibliography

Aun, W. M. (1999). The Malaysian Legal System. Petaling Jaya: Longman.

Hamzah, W. A. (2009). A First Look at The Malaysian Legal System. Shah Alam: Oxford Fajar Sdn. Bhd.

Law from Malaysian Perspective. (n.d.). Retrieved January 25, 2013, from Mindrelief: http://www.mindrelief.net/law_from_malaysian_perspective.html

Law of Malaysia. (n.d.). Retrieved January 20, 2013, from Wikipedia: http://en.wikipedia.org/wiki/Law_of_Malaysia