Please enable JavaScript.

Coggle requires JavaScript to display documents.

SOURCES OF LAW IN MALAYSIA (UNWRITTEN LAW (STRUCTURE/CONSIST OF (JUDICIAL…

- - - - Ratio Decidendi
        
        statement of law that has been applied to the issue of that particular case.
        It is basically the legal principle of the case.
      - Obiter Dictum
        
        Statement of law made by a judge as an additional illustration to the case.
      - Judicial Precedent
        
        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.
      - 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
    - - 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
        
        Adat Perpatih and Adat Temenggung
        
        Chinese
        
        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.
        
        Hindu
        
        Matters of polygamous marriage and joint family property had been discussed by the judiciary.
        
        Orang Asli
        
        Native - non muslim indigenous communities in Sabah & Sarawak.
        
        The application of customary law is more extensive than in Peninsula Malaysia
    - - 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
        
        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
        
        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.
- - - - Article 4(1): considered as the supreme law in 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
      - Article 71(4) says that the federal constitution has the power to amend state constitutions if they do not contain the essential provisions
    - - ACTS
        
        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)
        
        Contracts Act 1950
        
        Companies Act
        2016
        
        Sedition Act 1948
        
        Adoption Act 1952
        
        Amendment Act (Changes in Principal
        Act)
        
        Employment Act 1955 (Amendment 2012)
        
        National Library (Amendment) Act 1987
        
        Revised Act (Changes made by commissioners of law reform)
        
        Civil Law Act 1956
        (Revised 1972)
        
        Central Bank of Malaysia Act 1958 (Act 519)(Revised 1994) (Revised 1974)
        
        Consolidated Act
        
        Bring together simple Act or more on specific matters such as Interpretation Acts 1948 and 1967 (Consolidated and Revised 1989)
      - ENACTMENTS
        
        Laws enacted by State Legislative Assemblies
        
        state laws and published in the State Gazettes
      - ORDINANCE
        
        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
      - Legislative Process
        
        Pre- Parliamentary Stage
        
        Proposal discuss at ministry level
        :arrow_down:
        Experts and Interested outside bodies may be consulted
        :arrow_down:
        Sent the proposal to the Parliamentary Draft person in the Attorney
        General's Chambers.
        :arrow_down:
        The proposal becomes Bill.
        :arrow_down:
        Cabinet gives approval for the Bill.
        :arrow_down:
        The Bill is ready to be introduced into Parliament.
        
        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.
        
        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.
    - - 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