Lecture 4

SOURCE OF MALAYSIAN LAW

Legal System
A Legal System is the framework of
rules and institutions within a nation
regulating individual's relations with
one another and between them and
the government

Malaysia's Legal System

Malaysia practices the mixed legal system
which includes the Common Law, Islamic
law and Customary Law.
Malaysia's unique legal system is designed
to balance the delicate racial and religious
needs of its heterogeneous people.
The Malaysian legal system law can be
classified into two categories which is the
Written and Unwritten law.

The Source of Malaysian

Law

Law ???

Law
Rules and regulation
the body of enacted or customary
rules recognized by a community as
binding
Oxford English Dictionary

the body of priciples recognized and

applied by the state in the
administration of justice
John Salmond

The Source of Malaysia Law

UNWRITTEN LAW
English Common Law
Judiciary Decision/ Malaysian Court
Customary Law

English Common Law

The essence of English common law is
that it is made by judges sitting in
courts, applying legal precedent (stare
decisis) to the facts before them. A
decision of the Supreme Court of the
United Kingdom, the highest civil appeal
court of the United Kingdom, is binding
on every other court.
English Commercial Law
English Land Law.

Judiciary Decision/ Malaysian Court

Precedents are defined as a judgement or
decision of a court of law cited as an
authority for the legal principle embodied in
its decision.
DOCTRINE OF JUDICIAL PRECEDENT
Keputusan kehakiman adalah juga dikenali
sebagai undang-undang kes (case laws). Ia
merujuk kepada keadaan yang mana
mahkamah merujuk kepada keputusankeputusan kes terdahulu bagi menyelesaikan
pertikaian dihadapan mereka

Customary Law
Every race has its own customs.
Hindu and Chinese customary law applied to the Hindus and
Chinese respectively.
Besides that, natives in Sabah and Sarawak have their own
customary law which relates to the land and family matters.
In Malaysia, there are two types of Adat which is the Adat
Perpateh and Adat Temenggung. Adat Perpateh is practiced
among the Malays in Negeri Sembilan and Nanning in
Malacca. It uses the matrilineal system which belongs to
mother's lineage, meaning to say it involves the inheritance
of property, names or titles from mother to daughters. It
also concerns with matters such as land tenure, lineage,
inheritance and election of members of lembaga and Yang
di-Pertuan Besar. As for Adat Temenggung, it is practiced in
other states and it uses the patrilineal system which
belongs to father's lineage.

 Constitution
a body of fundamental principles or established precedents according
to which a state or other organization is acknowledged to be
governed.
The Federal Constitution of Malaysia, which came into force in 1957, is
the supreme law of Malaysia.
The Federation was initially called the Federation of Malaya (in Malay,
Persekutuan Tanah Melayu) and it adopted its present name,
Malaysia, when the States of Sabah, Sarawak and Singapore (now
independent) joined the Federation.
The Constitution establishes the Federation as a constitutional
monarchy having the Yang di-Pertuan Agong as the Head of State
whose roles are largely ceremonial.
It provides for the establishment and the organisation of three main
branches of the government: the bicameral legislative branch called
the Parliament, which consists of the House of Representatives (in
Malay, Dewan Rakyat) and the Senate (Dewan Negara); the
executive branch led by the Prime Minister and his Cabinet
Ministers; and the judicial branch headed by the Federal Court.

 Legislation
Legislations refers to the laws that are established by the
Parliaments at federal level and by the State Legislative
Assemblies at the state level
a) Acts
Acts are laws enacted by the Parliament. There are 4 types of Acts:
the Principal Act, the Amendment Act, the Revised Act, and the
Consolidated Act.
b) Ordinances
Ordinances are laws enacted by the federal legislature between 1
April 1946 - 10 September 1959. Laws promulgated by the Yang
Di-Pertuan Agong during an emergency proclaimed under Article
150 of the Federal Constitution are also known as ordinances.
c) Enactments
Enactments are laws enacted by State Legislative Assemblies.
However, the State Legislative Assembly laws in Sarawak are
known as ordinances.

 Islamic Law
Last but not least, Islamic law is also a
major source of Malaysian law which is
enacted under the Federal Constitution. It is
only applicable to Muslims and is
administered by a separate court system,
the Syariah Courts. The State legislature has
authority over the constitution, organization
and procedure of the Syariah Courts and is
also allowed to make Islamic laws pertaining
to persons professing the religion of Islam.