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TYPE OF MALAYSIAN LAW (UNWRITTEN LAW ( JUDICIAL DECISION (DOCTRINE OF…

- - - - WRITTEN LAW CONTAINED IN THE FEDERAL AND STATE CONSTITUTION, CODE OR STATU
        
        NFLUENCED BY ENGLISH LAWS OF WHICH THE MALAYSIAN LEGAL SYSTEM RETAINS MANY CHARACTERISTIC OF THE ENGLISH
        
        WRITTEN LAWS INCLUDE THE FEDERAL AND STATE CONSTITUTION, LEGISLATION AND SUBSIDIARY LEGISLATION
        
        SOME FEDERAL ACTS OF PARLIAMENT APPLY TO SABAH & SARAWAK DIFFERENTLY ON A NUMBER OF MATTERS, PARTICULARLY ON ISSUES RELATED TO IMMIGRATION, LAND AND NATURAL RESOURCE MANAGEMENT.
    - - WEST MALAYSIA - NATIONAL LAND CODE
      - SABAH- SABAH LAND ORDINANCE
      - SARAWAK- SARAWAK LAND CODE
  - - - THIS IS THE SUPREME LAW OF THE FEDERATION AND ANY LAW PASSED AFTER MERDEKA DAY.
      - ARTICLE 159 OF THE FEDERAL CONSTITUTION
        1) DEALS WITH CONSTITUTIONAL AMENDMENT/ POWER TO AMEND THE CONSTITUTION
        
        2)IN GENERAL, THE PROVISION STATES THAT THE PARLIAMENT CAN AMEND THE FEDERAL CONSTITUTION BY PASSING A LAW (FEDERAL LAW )
      - ARTICLE 4 (1): CONSIDERED AS THE SUPREME IN MALAYSIA
    - - ACTS
        
        LAWS ENACTED BY PARLIAMENT (DEWAN RAKYAT& DEWAN NEGARA
        
        ARTICLE 160(2) OF FEDERAL CONSTITUTION - " ACT OF PARLIAMENT MEANS A LAW MADE BY PARLIAMENT"
        
        AMENDENT ACT ( CHANGE IN PRINCIPAL ACT)
        
        EMPLOYMENT ACT 1955 (AMENDENT 2012)
        
        NATIONAL LIBRARY (AMENDENT) ACT 1987
        
        REVISED ACT (CHANGED MADE BY COMMISSIONERS OF LAW REFORM )
        
        CIVIL LAW ACT 1956
        (REVISED 1972)
        
        CENTRAL BANK OF MALAYSIA ACT 1958 (ACT 519) (REVISED 1994) (REVISED 1974)
        
        PRINCIPAL ACT (MAIN ACT)
        
        CONTRACTS ACT 1950
        
        COMPANIES ACT 2016
        
        SEDITION ACT 1948
        
        ADOPTION ACT 1952
        
        CONSOLIDATED ACT
        
        BRING TOGETHER SIMPLE ACT OR MORE ON SPECIFIC MATTERS SUCH AS INTERPRETATION ACTS 1948 AND 1989
      - ENACTMENT
        
        LAWS ENACTED BY STATE LEGISLATIVE ASSEMBLIES
        
        STATE LAW AND PUBLISHED IN THE STATE GAZETTES
      - ORDINANCE
        
        LAW MADE BY STATE lEGISLATIVE ASSEMBLY IN SARAWAK
        
        LAWS ENACTED BY THE FEDERAL LEGISLATIVE BETWEEN 1 APRIL 1946 - 10 SEPTEMBER 1959
        
        SABAH - LOCAL GOVERNMENT ORDINANCE 1961
        (OUTLINE THE RESPONSIBILITY AND FUNCTION OF LOCAL COUNCILS IN SABAH
        
        SARAWAK - LOCAL AUTHORITIES ORDINANCE 1996
      - STATE CONSTITUTION
        
        ARTICLE 71(4) SAYS THE FEDERAL CONSTITUTION HAS THE POWER TO AMEND STATE CONSTITUTION IF THEY DO NOT CONTAIN THE ESSENTIAL PROVISION
        
        EACH STATE HAS IT OWN DIFFERENT CONSTITUTION
      - LEGISLATIVE PROCESS
        
        FIRST READING
        
        WHEN A BILL IS FIRST INTRODUCE BY ONE OF THE TWO HOUSES, ONLY THE TITLE IS ACTUALLY READ
        
        AFTER THE BILL IS PASSED AT THIS STAGE, THE TEXT IS PRINTED AND DISTRIBUTE.
        
        SECOND READING
        
        THE MINISTER WILL PRESENT THE PRINCIPLES OUTLINE OF THE BILL.
        
        THE HOUSE WILL DEBATE ON THE PRINCIPLE
        
        IF THE BILL RECEIVES THE REQUIRED NUMBER OF VOTES, IT WILL PROCESS TO COMMITTEE STAGE (SIMPLY MAJORITY OF MEMBERS PRESENT)
        -
        
        COMMITTEE STAGE
        
        IF THE BILL REQUIRED MORE DETAIL AND SCRUTINY, THE HOUSE MAY REFER THE BILL TO A SELECT COMMITTEE
        -FOR A LESS FORMAL DISCUSSION OF THE BILL
        
        THE MINISTER MOVE THE MOTION FOR THE BILL TO BE REPORTED TO DEWAN
        
        THIRD READING
        
        REVIEW OF THE BILL
        
        SUBSTANTIVE AMENDMENTS ARE NOT ALLOWED EXCEPT WITH THE PERMISSION OF THE SPEAKER OF THE DEWAN RAKYAT
        
        IF AGREE, THE BILL WILL PASS TO DEWAN NEGARA
        
        PRE-PARLIAMENTARY STAGE
        
        PROPOSAL DISCUSS AT MINITRY LEVEL
        
        EXPERT AND INTERESTED OUTSIDE BODIES MAY BE CONSULTED
        
        SEND THE PROPOSAL TO THE PARLIAMENTARY DRAFT PERSON IN THE ATTORNEY GENERAL'S CHAMBER
        
        THE PROPOSAL BECOME BILLS
        
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    - - KNOWN AS DELEGATED LEGISLATION, SECONDARY LEGISLATION OR SUBORDINATE LEGISLATION
        
        LAW MADE BY AN AUTHORITY OTHER THAN THE LEGISLATURE UNDER POWERS GIVEN/ DELEGATED BY LEGISLATURE VIA ENABLING OR PARENT STATUTE
        
        SECTION 3 OF INTERPRETATION ACT 1948 AND 1967 DEFINES SUBSIDIARY LEGISLATION AS ' ANY PROCLAMATION, RULE, REGULATION, ORDER, NOTIFICATION, BY-LAW OR OTHER INSTRUMENT MADE UNDER ANY ACT, ORDINANCE OR OTHER LOWFUL AUTHORITY AND HAVING LEGAL EFFECT'
      - CONTROLS OVER SUBSIDIARY LEGISLATION
        
        JUDICIAL CONTROL
        COURT HAS POWER TO MAKE JUDICIAL REVIEW AND DECLARED THE SL WOULD BE ULTRA VIRES EITHER SUBSTANTIVE AND PROCEDURAL
        
        LEGISLATIVE CONTROL
        LEGISLATURE WILL DELEGATE POWER BY AN ENABLING STATUTE MAY REPEAL THE STATUTE OR EVOKE OR VARY THE DELEGATED POWER
        
        CONSULTATION
        REFERENCE IS MADE TO PROFESSIONAL BODIES OR EXPERTS
        
        PUBLICATION
        PUBLICATION OF SUBSIDIARY LEGISLATION
- - - - THE COURT'S ACTUAL DETERMINATION OF DISPUTE BETWEEN THE PARTIES (INTER PARTE)
        
        IMPORTANT DECISION & BINDING TO THE PARTIES ONLY
        
        ONCE THE COURT DECIDES ON THE CASE, THE MATTER BECOMES SETTLE TO DISPUTE ONCE AND FOR ALL ( RES JUDICATA)
    - - STATEMENT OF LAW MADE BY JUDGE AS AN ADDITIONAL ILLUSTRATION TO THE CASE.
        
        IT MAY ALSO BE MADE TO FURTHER EMPHASISE THE MAIN DECISION
    - - TO STANDARDISE THE LAW AND MAKE IT UNIFORM
        
        TO PREVENT UNCERTAINTY OF THE LAW
        
        TO ACHIEVE CONSISTENCY IN JUDICIAL DECISIONS
      - OPERATION OF DOCTRINE
        
        SUBORDINATE COURTS
        
        SESSION COURT
        
        MAGISTRATE COURT
        
        SUPERIOR COURTS
        
        FEDERAL COURT
        
        COURT OF APPEAL
        
        HIGH COURT
      - APPLICATION OF DOCTRINE
        
        VERTICAL APPLICATION
        
        THEY CAN ONLY FOLLOW WHAT HAS BEEN SET BY THE SUPERIOR COURTS.
        
        EACH COURT IN THE GROUP OF THE SUPERIOR COURTS IS BOUND BY THE DECISION MADE BY THE COURT HIGHER THAN IT
        
        HORIZONTAL APPLICATION
        
        CERTAIN COURTS ARE BOUND BY THEIR OWN PREVIOUS DECISION OR THE PREVIOUS DECISION OF A COURT OF THE SAME LEVEL OR BY A PREDECESSOR COURT
        
        THE COURTS ARE OF THE SAME STANDING SUCH AS THE HIGH COURT OF MALAYA AND THE HIGH COURT OF BORNEO. POSSESSED EQUAL JURISDICTION.
    - - DECISION OF SUPERIOR COURT OF LAW CITED AS AN AUTHORITY, IN SUPPORT OF ONE'S ARGUMENT, TO BE ADOPTED BY A JUDGE IN MAKING HIS
        
        CASE DECIDED BASED ON THE DECISION MADE ON A SIMILAR CASE THAT HAS BEEN DECIDED BEFORE
    - - IT IS THE STATEMENT OF LAW THAT HAS BEEN APPLIED TO THE ISSUE OF THAT PARTICULAR CASE.
        
        IT IS BASICALLY THE LEGAL PRINCIPAL OF THE CASE.
  - - - CUSTOMARY LAW ARE PERSONAL LAWS WHICH ARE APPLICABLE TO PARTICULAR RACIAL, RELIGIOUS OR ETHNIC GROUPS
        
        IT CAN BE DEFINE AS A REGULAR PATTERN OF SOCIAL BEHAVIOR WHICH HAS BEEN ACCEPTED BY THE BULK OF A GIVEN SOCIETY AS BINDING UPON ITS MEMBERS
    - - MALAY
        
        ADAT PEPATIH ( NEGERI SEMBILAN AND SOME AREA IN NANING, MELAKA )
        
        ADAT TEMENGGUNG ( OTHER STATES IN MALAYSIA EXCEPT SABAH & SARAWAK)
        
        ADAT PEPATIH
        
        ORIGINATED BY DATO' PARAPATIH NAN SABATANG
        
        POWER IN THE FAMILY LIES IN THE HANDS OF THE MAMAK ( MOTHER'S ELDER BROTHER)
        
        RECOGNISES MATRILINEAL SYSTEM INHERITS THE CUSTOMARY LAND ONLY TO DAUGHTERS AS ONLY FEMALE LINEAGE HAVE THE RIGHT TO INHERIT THIER FAMILY'S ANCESTRAL LAND "TANAH PESAKA"
        
        ADAT TEMENGGUNG
        
        ORIGINATED BY DATO' KATUMANGGUNGAN
        
        RECOGNISES PARTRILINEAL SYSTEM INHERITS THE PROPERTY OF DECEASED BASED ON THE SYARIAH LAW WHERE THE SON IS ENTITLE TO INHERITS IN A RATIO OF 2:1 FROM DAUGHTER
      - HINDU
        
        MATTERS OF POLYGAMOUS MARRIAGE AND JOINT FAMILY PROPERTY HAD BEEN DISCUSSED BY THE JIDICIARY
      - CHINESE
        
        THE CHINESE IN PERAK AND SELANGOR & STRAITS SETTLEMENT WERE SUBJECT TO CHINESE OFFICIALS OR "KAPITAN CHINA"
        
        THE CHINESE WERE ALLOWED TO FOLLOW CHINESE CUSTOM IN FAMILY MATTERS
      - ORANG ASLI
      - NATIVE - NON MUSLIM INDIGENOUS IN SABAH AND SARAWAK
        
        THE APPLICATION OF CUSTOMARY LAW IS MORE EXTENSIVE THAN IN PENINSULA MALAYSIA
        
        ENGLISH LAW IN SABAH (1938) AND SARAWAK (1928) WAS MORE PROTECTIVE OF CUTOMARY THAN THE CHARTER TO STRAITS SETTLEMENT.
        
        SABAH & SARAWAK COURTS WERE MORE ORIENTED ON CUSTOMARY LAWS COMPARED TO COURT IN PENINSULA MALAYSIA
        
        SARAWAK HAS A MECHANISM ESTABLISHED BY STATUTE TO CONTINUE, TO PRESERVE AND TO DEVELOP THE CUSTOMARY LAW
        
        LEGISLATION IN NORTH BORNEO SUPPLEMENTS THE CODIFICATION TO PRESERVE AND DEVELOP CUSTOMARY LAWS ( MALAY, NATIVE AND CHINESE CUSTOMARY LAW)
  - - - ENGLISH LAW CAN BE FOUND IN THE ENGLISH COMMON LAW & RULES OF EQUITY
        
        ENGLISH LAW IS PART OF MALAYSIAN LAW. REFER TO ARTICLE 160 OF THE FEDERAL CONSTITUTION: DEFINITION OF LAW INCLUDES " THE COMMON LAW IN SO FAR AS IT IS IN OPERATION IN THE FEDERATION OR ANY PART THEREOF"
        
        TO WHAT EXTEND THE ENGLISH LAW IS APPLICABLE - REFER TO SECTION 3 AND SECTION 5 OF THE CIVIL LAW ACT 1956
    - - EQUITY IS A BRANCH OF ENGLISH LAW WHICH DEVELOPED HUNDREDS OF YEARS AGO WHEN LITIGANTS WOULD GO TO THE KING AND COMPLAIN OF HARSH OR INFLEXIBLE RULES OF COMMON LAW WHICH PREVENTED "JUSTICE" FROM PREVAILING
        
        IT WAS AFTER BIRTH OF THE COMMON LAW SYSTEM TO RESOLVE DISPUTES WHERE DAMAGES WERE AN UNSUITABLE REMEDY AND TO INTRODUCE FAIRNESS INTO THE LEGAL SYSTEM
        
        EQUITY IS BASED ON A JUDICIAL ASSESSMENT OF FAIRNESS AS OPPOSED TO THE STRICT AND RIGID RULE OF COMMON LAW
        
        THE RULES OF EQUITY GREW UP FOR THE LITIGANTS WHO WERE DISSATISFIED WITH THE JUSTICE ADMINISTERED BY THE COMMON LAW COURTS
    - - BODY OF RULES OR JUDICIAL DECISION DEVELOPED BY THE OLD COMMON LAW COURTS- COURT OF EXCHEQUER, COURT OF COMMON PLEA AND COURT OF KING'S BENCH
        
        THE RULES LAID DOWN ARE BASED ON CUSTOMS AND PRACTICES COMMON THROUGHOUT ENGLAND
        
        IN GENERAL, COMMON LAW IS THE UNWRITTEN OR ENACTED LAW OF ENGLAND WHICH ARE SOLELY BASED ON THE DECISION OF THE COURTS