1.7 Sources of Malaysian Law

1.7 SOURCES OF MALAYSIAN LAW

 The term “Sources of Malaysian Law’ means the legal sources, i.e. the legal rules that make up the law in Malaysia.  The main sources of Malaysian law comprise: written law and unwritten law.  Written law comprises statute law and subsidiary legislation; whilst unwritten law comprises case law or common law; judge-made law, i.e. common law and equity. International treaties are another source of law.  Islamic law also one of the main sources in Malaysian Legal system.

Written Law Unwritten Law Islamic Law

1.7.1 Written Law

 Written law is also referred to as statute law. This is law made by Parliament and any subordinate bodies to whim Parliament has delegated power to legislate.  Once an Act of Parliament comes into existence, it remains law until it is repealed by a later Act of Parliament.  Whenever there are doubts or disputes about the meaning of a word or phrase in a statute which arise or where there are ambiguities or any other matter that requires the courts to interpret statutes, courts play an important role in interpreting statutes.  Written law in Malaysia may be found in the following:

The Federal Constitution State Constitutions Legislation Subsidiary Legislation

The Federal Constitution

 Malaysia is a Federation of thirteen states with a written constitution, the

Federal Constitution, which is the supreme law of the country.  Besides laying down the powers of the Federal and State Governments, the

Federal Constitution enshrines the basic fundamental rights of the individual.  The rights written into the Constitution can only be changed by a two-thirds majority of the total number of members of the legislature.  The Federal Constitution comprises Articles which provide some of the following: 1) The name, states and territories of the Federation 2) Religion of the Federation 3) Supreme law of the Federation 4) Fundamentals liberties

5) Citizenship 6) The Federation – the Yang di-Pertuan Agong, Rulers, the Executive,

Federal Legislature, legislative procedure 7) The states – Rulers and Yang di-Pertuan Negeri, Legislative Assembly 8) Relations between the Federation and the States 9) Financial Provisions 10)Elections 11)The Judiciary 12)Public Services 13)Special powers against subversion, emergency powers 14)General and miscellaneous, e.g. National Language, Federal Capital,

Commonwealth reciprocity, amendment of Constitutions, etc. 15)Additional protection for states of Sabah and Sarawak 16)Temporary and transitional provisions 17)Saving for Rulers’ sovereignty, etc.

State Constitutions

 Besides the Federal Constitution, which applies to all States within the

Federation, each state also possesses its own constitution regulating the government of that state.  The State Constitution contains provisions which are enumerated in the

Eighth Schedule to the Federal Constitution.  Some of these provisions include matters concerning the Ruler, the Executive

Council, the Legislature, the Legislative Assembly, financial provisions, state employees, and amendments to the Constitution. If such essential provisions are missing, or if any provision is inconsistent with them, Parliament may make provisions to give effect to them or to remove any inconsistencies.

Legislation (Parliament)

 Legislation refers to law enacted by a body constituted for this purpose. In

Malaysia, laws are legislated by Parliament at Federal level and by any various

State Legislative Assemblies at state level.  Law that are enacted by Parliament after 1946 but before Malaysia’s

Independence in 1957 are called Ordinances, but those made after 1957 are called Acts. But in the other hand, law made by the State Legislative

Assemblies (except in Sarawak) are called Enactments. The law in Sarawak are called Ordinances.  Parliament and the state legislature are not supreme and they have to enact laws subject to the provisions set out in the Federal and State Constitutions.

Subsidiary Legislation

 The Interpretation Act 1967 defines subsidiary legislation 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’.  Subsidiary legislation is very important as legislation by Parliament and the state legislatures is insufficient to provide the laws required to govern everyday matters. Subsidiary legislation deals with the details about which the legislature has neither the time nor the technical knowledge to enact.  Legislature merely lays down the basic and main law, leaving the details to persons or bodies to whom they delegate their legislative powers. Such persons, or bodies include the Yang di-Pertuan Agong, Ministers and local authorities etc.

1.7.2 Unwritten Law

 Unwritten law is mainly comprised of:

English Law Judicial Decisions Customs

English Law

 English law form part of the laws of Malaysia. English law can be found inter alia in the English common law and rules of equity.  However, the application of the law of England throughout Malaysia is subject to two limitations: i. It is applied only in the absence of local statues on the particular subject ii. Only that part of the English law that is suited to local circumstances will be applied

Judicial Decisions

 Malaysian law can also be found in the judicial decision of the High Court,

Court of Appeal and the Federal Court, the then Supreme Court and the

Judicial Committee of the Privy Council.  The decisions of these courts were made and are still being made by what is called the ‘doctrine of binding precedent’.  This doctrine means that a question should be resolved in a certain way today because a similar question has been so decided before.