SOURCES OF LAW IN MALAYSIA
UNWRITTEN LAW
WRITTEN LAW
What is written law?
1) laws which have been enacted in constitution or legislations.
It refers to the laws contained in the Federal and State Constitutions and in a code or a statute.
INDICATOR:
what is unwritten law?
laws which are not contained in any statutes and can be found in case decisions. Also known as common law or case law
(Teacher, Law. (November 2013). Sources Of The Malaysian Legal System. Retrieved from https://www.lawteacher.net/free-law-essays/administrative-law/sources-of-the-malaysian-legal-system-administrative-law-essay.php?vref=1)
STRUCTURE / CONSIST OF
Federal Constitutions
State Constitutions
Legislation
Subsidiary Legislation
ACTS
ENACTMENTS
ORDINANCE
Laws enacted by Parliament (Dewan Rakyat & Dewan Negara)
Article 160(2) of Federal Constitution –“Act of Parliament means a law made by Parliament"
Principal Act (Main Act)
Amendment Act (Changes in Principal
Act)
Revised Act (Changes made by commissioners of law reform)
Consolidated Act
- Contracts Act 1950
- Companies Act
2016 - Sedition Act 1948
- Adoption Act 1952
- Employment Act 1955 (Amendment 2012)
- National Library (Amendment) Act 1987
- Civil Law Act 1956
(Revised 1972) - Central Bank of Malaysia Act 1958 (Act 519)(Revised 1994) (Revised 1974)
Bring together simple Act or more on specific matters such as Interpretation Acts 1948 and 1967 (Consolidated and Revised 1989)
simply that portion of Malaysian law which is not being enacted by Parliament or the State Assemblies and which is not found in the written Federal and State Constitutions. This category of law comes from cases decided by the Courts and the local customs, which is otherwise known as common law.
Laws enacted by State Legislative Assemblies
STRUCTURE/CONSIST OF
JUDICIAL DECISIONS/DOCTRINE OF STARE DECISIS
CUSTOMARY LAW
ENGLISH LAW
English Law can be found in the English Common Law & Rules of Equity.
English Law is part of Malaysian Law. Refer to the 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.
Common Law
Equity
Body of rules or judicial decisions developed by the old common law courts - Cour of Exchequer, Court of Common Plea and Court of King's Beach.
The rules laid down are based on customs and practices common throughout England.
In general, Common law is the unwritten or unenacted law of England which are solely based on the decisions of the court.
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 the birth of the common law system to resolve disputes where damages were an unsuitable remedy and to introduce fairness into the legal system.
It is based on a judicial assessment of fairness as opposed to the strict and rigid rule of common law.
Ratio Decidendi
Obiter Dictum
Judicial Precedent
statement of law that has been applied to the issue of that particular case.
It is basically the legal principle of the case.
Statement of law made by a judge as an additional illustration to the case.
A decision of a superior court of law, cited as an authority, in support of one's argument, to be adopted by a judge in making his decision.
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 behaviour which has been accepted by the bulk of a given society as binding upon its members.
Customary law of Malaysia
Malay
Chinese
Hindu
Orang Asli
Native - non muslim indigenous communities in Sabah & Sarawak.
Adat Perpatih and Adat Temenggung
Chinese in Perak and Selangor & Straits settlement were subject to Chinese officials or "Kapitan China".
The Chinese were allowed to follow Chinese customs in family matters.
Article 4(1): considered as the supreme law in Malaysia.
Matters of polygamous marriage and joint family property had been discussed by the judiciary.
The application of customary law is more extensive than in Peninsula Malaysia
Article 159 of Federal Constitution
1) deals with constitutional amendment
2) Parliament can amend the Federal Constitution by passing a law
each state has its own different constitutions
Laws made by State Legislative Assembly in Sarawak
Laws enacted by the Federal legislature between 1 April 1946 - 10 September 1959
Sabah- Local Government Ordinance 1961
(outlines the responsibility and function of local councils in Sabah)
Sarawak- Local Authorities Ordinance 1996
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 statue
Section 3 of Interpretation Act 1948 and 1967 defines subsidary legislation as 'any proclamation,rule,regulation,order,notification,by-law or other instrument made under any Act,Ordinance or other lawful authority and having legal effect'
Judicial Control
- Court has power to mak judicial review and declared the sl would be ultra vires either substantive and procedural
Legislative Control
- Legislature will delegated power by an enabling statue
Consultation
- Reference is made to professional bodies or experts
Publication of Subsidiary Legislation
state laws and published in the State Gazettes
Article 71(4) says that the federal constitution has the power to amend state constitutions if they do not contain the essential provisions
FROM LECTURE SLIDES
Decision made by a Court in response to a legal dispute.
When a Court interprets a statute, that interpretation becomes part of law and will be applied in later cases.
The doctrine states that where the facts are the same or almost alike, the previous judicial decisions must be followed.
Application of Doctrine
Vertical and Horizontal
Operation of Doctrine
Superior and Subordinate courts
Legislative Process
Pre- Parliamentary Stage
First Reading
- When a bill is first introduced 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 distributed.
Proposal discuss at ministry level
⬇
Experts and Interested outside bodies may be consulted
⬇
Sent the proposal to the Parliamentary Draft person in the Attorney
General's Chambers.
⬇
The proposal becomes Bill.
⬇
Cabinet gives approval for the Bill.
⬇
The Bill is ready to be introduced into Parliament.
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
proceed to Committee stage (simple majority of members
present.)
Committee Stage
- If the Bill required more detailed and scrutiny, the House may refer
the Bill to a select committee. - For a less formal discussion of the Bill
- The Minister moves the motion for the Bill to be reported to Dewan.
Third Reading
- Review of the Bill
- Substantive amendments are not allowed except with permission of the
Speaker of the Dewan - If agreed, the Bill will passed to Dewan Negara.