SOURCES OF
MALAYSIAN LAW
Written Law
Unwritten Law
Federal Constitution
State Constitution
Legislation
Subsidiary legislation
English Law
Judicial Precedents
Islamic Law
Customary Law
The supreme law of the land
establish organs of Federation (legislative body, executive body and judicial body)
governs relationship between the Federation and its
component states
provides fundamental rights of individuals (freedom of speech, assembly and association)
each state in Malaysia has its own constitution which
contains provisions to regulate the state government
matters concerning the ruler, executive council, legislature, legislative assembly, state employees
refers to laws enacted by legislative bodies
Parliament- legislate law at federal level (Acts)
State legislative assemblies- legislate law
at state level
Law made are called enactment for state except Sarawak
Law in Sarawak are called ordinances
.
Example of subsidiary legislation
Also referred to as delegated legislation, subordinate
legislation, secondary legislation
refers to rules and regulations enacted by an authority under powers conferred on it by a statute (parent legislation)
Parent Act- Employment Act 1995
Parent Act- Legal Profession Act 1976
Parent Act- Prevention and Control of Infectious Diseases Act 1998 (Act 342)
Parliament gives power to the Minister to make regulation (Employment (Termination and Lay-Off Benefits) Regulation 1980 is called subsidiary legislation)
Bar Council may, with the approval of the Attorney-General makes rules for regulating the professional practice, etiquette, conduct and discipline of advocates and solicitors. (The Legal Profession (Practice and Etiquette) Rules 1978 was made)
prescribe the measures to be taken to control or prevent the spread of any infectious disease within or from an infected local area. (The Prevention and Control of Infectious Diseases Regulation 2020)
English Law can be found in the English
common law and rules of equity.
However, not all of English law applicable in Malaysia. The application is based on section 3 and 5 of the Civil Law Act
General Rule
Decision of higher courts bind lower courts and
some courts are bound by their own decisions.
Types
Declaratory Precedent
Original Precedent
a judge applies an existing rule of
law withoutextending it
if the case before the judge is without precedent,
then the decision has to be made based on
justice, equity and good conscience
enforced by Shariah courts
Civil Jurisdiction
Bethrotal, marriage, divorce, nullity of marriage,
guardianship or custody of infants
Criminal Jurisdiction
matrimonial offences, offences relating to sex,
offences relating to intoxicating liquor
The application of Muslim law is limited to the
Muslims pertaining to personal law matters only.
Customary law can be found in the
customs of the local inhabitants
Type of Customary Law
Malay customary law
applicable to Malay only and is
enforced by the Syariah court
Native customary law
applicable to non-malay natives
and is enforced by the native court
Chinese customary law
applicable to Chinese in Sarawak
only and is enforced by civil court
Adat Perpatih (matrilineal system - Negeri Sembilan and Naning)
Adat Temenggong (patrilineal system)