Professional Documents
Culture Documents
1. Written Law
a) The Federal Constitution
b) State Constitution
c) Legislation
d) Subsidiary Legislation
2. Unwritten Law
a) English Law
b) Judicial Decisions
c) Customary Laws
3. Syariah Law
SOURCES OF MALAYSIAN LAW
WRITTEN
LAW
-Malaysia is a Federation of
thirteen
States with one written Constitution.
Article 4(1)
of the Federal Constitution declares the Constitution as the
supreme law of the land .
-It is essential to
stipulate the powers
of the Governments of Federal and State level.
-Federal Constitution enshrines the
fundamental rights of the individual.
-The rights written can only be amended by a special majority of
two-thirds
of the total number of members of the legislature.
a. Federal Constitution
b. State Constitution
-Besides Federal Constitution, each State also has its
own constitution
.
-These contain provisions which are counted in the
Eighth Schedule
to the Federal Constitution.
-According to
Article 71 of the Federal Constitution
, if such important provisions are missing, or if any provision is
inconsistent with them, Parliament can make provision to give effect to
them or to eliminate any inconsistencies.
c. Legislation
-Legislation comprises the laws passed by
Parliament at federal level
as well as the State
Legislative Assemblies at state level.
-Laws enacted by Parliament after 1946 but before Malayas
Independence in 1957 are called
Ordinances
while those made after 1957 are called
Acts.
-Moreover, the laws made by the State Legislative Assemblies (except
Sabah and Sarawak) are called
Enactments.
-The laws passed in Sabah and Sarawak are called
Ordinances.
d. Subsidiary or Delegated Legislation
-Subsidiary legislation is defined as
any proclamation, rule, regulation, order, notification, by-law or other
instrument made under any Ordinance, Enactment or other lawful
authority and having legislative effect.
-Essential source of law
as the Parliament and the State Legislatures
-This legislation gives
permission to amend
the law
-Instead of Parliament, the
Local Authority
can enact law to suits the local and will have the knowledge of locality.
-During
emergency,
this legislation can resolve the situation and problem as soon as possible
without waiting for Parliament to approve an act.
UNWRITTEN LAW
a. English Law
-Part of the Malaysian Law is formed by the
English Law.
Article 160
of Federal Constitution:
the common law in so far as it is in operation in the Federation or any
part thereof
Section 3(1)
of the Civil Law Act, 1956:
Application of English Law is subject for two restrictions.
Common Law
-The body of rules
formulated, developed and administered
by the English courts over many centuries.
-The
oldest
form of law.
-The English colonialists brought
common law principles
into our country.
-This law aids the formation of the
foundation of Malaysian legal system.
- Our legal system and the laws follow closely the
principles of English Common Law and apply judgements by the English
Courts
in case decision.
Equity
Syariah
Courts are the courts that enforces Syariah law.
-The Sultan is the head of Muslim.
-The Yang di-Pertuan Negeri is the head of Muslim for Sabah, Sarawak,
Penang and the Federal Territories.
Syariah Law
c. Custom Law
-Custom:
norm or habitual practice
-Custom law: practice that is being accepted as part of the community and
regarded as
legal requirement.
-Involves mostly the
indigenous people or the local communities.
-Cover several aspect like rights, obligations and responsibilities:
L
ands, properties, inheritance
Custom Law (cont'd)
In Malaysia:
-Malay customary law
-Chinese customary law
-Hindu customary law
-Orang Asli customary law
(Peninsular Malaysia)
-Native customary law
(non-muslim indigenous in Sabah and Sarawak)
-Muslim citizens applied the Islamic law or
the Syariah law
Custom Law (cont'd)
Custom Law (cont'd)
Malay customary law
Adat Perpatih (
Negeri Sembilan and certain areas of Naning in Malacca)
-Adat Temeggung
(areas that Adat Perpatih does not cover)
Chinese customary law
-Created during the British colonisation, because
laws from China
(Ching Dynasty) was not applicable.
-Consists of a