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MAIN SOURCES OF MALAYSIAN LAW, Written law is the most important source of…
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Written law is the most important source of law. Written law refers to the law that is contained in a formal document
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Islam is not merely a religion, it encompasses the entire way of life, including legal, social, and moral orders.
Article 3 of the Federal Constitution provides Islam is the religion of the Federation, but other religions may practiced in peace and harmony in any part of the Federation.
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SECONDARY SOURCES: IJMA, QIYAS, IJTIHAD AND URF
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Refer to the aspect of Malaysia Law that is not enacted by the legislature and is not found in the Federal or State Constitutions.
1. English Law
- Began during British colonization, starting in Penang 1786.
- Section 3(1) of the Civil Law Act 1956 (Revised 1972): In Peninsular Malaysia, the court shall apply the common law of England and the rules of equity as administered in England on 7 April 1956.
- In Sabah and Sarawak, court shall apply the common law of England and the rules of equity, together with statutes of general application as in force in England on 1 December 1951 and 12 December 1949.
- 2 limitations in application law of England throughout Malaysia:
i) Only applied in the absence of local statutes on particular subjects. Local law takes precedence over English law as the latter is only meant to fill in the lacuna in the legal system in Malaysia.
ii) Only applied on that part of the English Law that suited to local circumstances.
- Section 5(1) of the Civil Law Act 1956 introduces into Peninsula Malaysia (except Penang and Malacca).
- Applicable only if a particular question or issue related to those matters have arisen.
- In Kon Thean Soong v. Tan Eng Nam (1982) 1 MLJ 323 the court held that English Law of Partnership not applicable in Malaysia since there is a local statute applicable, that is, the contracts (Malay States) Ordinance.
- Land law applicable in Malaysia is the Torrens system of South Australia as enacted in the National Land Code and the Sarawak land Code (Cap 8).
2. Case Law or Judicial Decisions
- Common Law practices the doctrine of ' stare decisis ' which applies when court hearing the case, it must refer to any previous case if the case has similar facts.
- The decisions of the High Court, Court of Appeal, Federal Court, Supreme Court and Juidicial Committee of Privy Council referred as 'doctrine of binding judicial precedent'. This were derived from Common Law.
Case Law / Judicial Decisions:
a) res judicata
b) ratio decidendi
c) obiter dictum
Judges may choose not to aply precedents under the following
circumstances:
a) Judges may ignore or overrule a precedent set by a lower court. when the case is on appeal.
b) Judges may refuse to apply an earlier precedent if it was arrived at per incuriam (i.e. made in ignorance of a statute or binding precedent.
c) Judges may distinguish the case them and the case tier set . his between the case before them and the case that set the precedent.
3. Custom
- In Malaysia, courts recognized the legal force of customers in matters family law.
- In Sabah Sarawak, native customary laws apply to land dealings involving native customary lands & family matters.
- In Peninsular Malaysia, two main types of Malay customary law are practiced: Adat Pepatih and Adat Temenggong
The Federal Constitution comprises many Articles concerning the religion of the federation, citizenship, supreme law of the Federation and many other related subjects
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-Subsidiary legislation is defined by Section 3 of the Interpretation Act 1967:
"any proclamation , rules , regulations , orders , notification , by-law or other instrument made under any Ordinance , Enactment or other lawful authority and having legislative effect."
- Subsidiary Legislation exists because law made by Parliament are too general for the public to understand.
- It will be void if it made in contravention of a Parent Act or Federal Constitution.
In the case of S. Kulasingam v. Commissioner of Land , Federal Territory [1982] 1MLJ 204 , Justine Hashim Yeop Sani was held that:
"there is nothing to prevent Parliament from delegating power to legislate on minor and administrative matters and for this very reason; we have in addition to statutes, innumerable subordinate or subsidiary legislation having the force of law. Without this subordinate or subsidiary legislation, the Government machinery will not be able to function effectively."
In the case of Teh Guat Hong v. Perbadanan Tabung Pendidikan Tinggi Nasional [2015] 3 MLRA 73 , the appellant obtained her LLB degree with the University of London after pursuing a course at a local college .In this case , Teh Guat Hong won her appeal in challenging the decision on the ground of discrimination to student.
Legislation enacted by the Parliament at the Federal level and by the various State Legislative Assemblies at the state level. The Parliament and State Legislatures are not supreme and so they have to enact laws subject to the provisions set out in the Federal and State Constitution.
The law passed at federal level bears the name Act. Law passed at state level by the State Legislative Assembly bears the name of Enactment and in Sarawak known as Ordinance. By virtue of Article 75 of the Federal Constitution, in the event of any conflict, Federal law will prevail over State Law.
In the case of Ketua Pengarah Jabatan Alam Sekitar & Another v. Kajing Tubek & Others and other appeals, the court in its decision noted that when determining the scope of Federal and State legislation upon a particular subject, the Court should ensure that the enactments of each legislative power was read so as to avoid inconsistency or repugnancy between them.
- Provides for the creation of each government in Malaysia
- Each State in Malaysia possesses its own constitution regulating the government of that state
- It is contain provisions that are enumerated in the 8th schedule of the Federal Constitution
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"this Constitution is the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void."
"any court or tribunal applying the provision of any existing law which has not been modified on or after Merdeka Day under this Article or otherwise may apply it with such modifications as may be necessary to bring it into accord with the provisions of this Constitution."
"If at any time the Constitution of any State does not contain the provisions set out in Part I of the Eighth Schedule, with or without the modifications allowed under Clause (5) (hereinafter referred to as "the essential provisions") or provisions substantially to the same effect, or contains provisions inconsistent with the essential provisions, Parliament may, notwithstanding anything in this Constitution, by law make provision for giving effect in that State to the essential provisions or for removing the inconsistent provisions."