LECTURE 1

 MALAYSIAN LEGAL SYSTEM

Sources of Malaysian Law classified into: Written unwritten law

(i) Written law Malaysias most important source of law

The Federal Constitution supreme law of the land Acts of Parliament & Enactments

Subsidiary/delegated legislation by persons or bodies under powers conferred on them by Acts of Parliament or Enactments of State Assemblies

THE FEDERAL CONSTITUTION

Supreme law of the country

Any law which is inconsistent with the Constitution, is to that extent invalid. (Art 4(1) FC)

ACTS OF PARLIAMENT & ENACTMENTS Territorial Limits & Subject Matters The wholes or any part of the Federation

Art 73 Parliament may make laws (Act of Parliament) for:

The subject matters listed in the Federal List & Concurrent List in the Ninth Schedule to the FC

Sabah & Sarawak given wider power to safeguard their special interest (such as immigration, land matters) than those granted to the state in West Malaysia. 5

SUBSIDIARY/DELEGATED LEGISLATION
Assemblies may confer/delegate some of their legislative powers to a person or a body, usually YDA, a Minister or local authority such as a Town Council. Eg Insurance Act 1963 (Revised 1972)

S 3 Interpretation Acts 1948 & 1967 any proclamation, rule, regulation, order, notification, by-law or other instrument made under and Ordinance, Enactment or other lawful authority & having legislative effect.

Becoming increasingly importance as the business of government gets more complicated & expansive.

(ii) unwritten law not enacted by the legislature (Parliament & State Assemblies) Not found in the constitution, both federal & state.

Judicial decisions of the superior cts

Principles of English Law applicable to local circumstances

Customs of local inhabitants which have been accepted as law by the cts

SEPARATION OF POWERS

JUDICIAL DECISIONS

parliament

courts

judge

makes law

apply established principles interpret & give effect or rules to a new to the meaning of the words in the statute. situation or set of facts.

 ENGLISH LAW When English colonized Malaysia, they brought with them the only cultural & legal tradition they know i.e English common law & the rules of equity. English law is to be applied in accordance with the Civil Law Act 1956 (Revised 1972) only in the absence of local statutes on the particular subject matter.

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S3(1) of the CLA statutorily provides that only the part of the English Law that is suited to the local circumstances are to be applied: (i) West Malaysia the English common law and the rules of equity & statutes of general application in England as 1st December 1951.

(ii) Sabah the English common law, rules of equity & statutes of general application in England as at 1st December 1951. (iii) Sarawak the English common law, rules of equity & statutes of general application in England as at 12th December 1949. English laws subsequent to the said dates are not binding but of persuasive authority.

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POSITION OF SHARIAH LAW

Federal constitution confer the power to administer Shariah law to states but limited to family law, personal matter and such criminal law provided by Federal law Ninth Schedule, List II State List Eg: punishment of offences by Shariah Ct is limited to those professing the religion & in respect of offences conferred by federal law

The Constitution Amendment Act 1988, added new clause: Art 121(1A) High Ct & inferior ct established by federal law shall have no jurisdiction of the Shariah Cts. Effect: it removes civil cts jurisdiction in matters specified in the State List set out in Para 1. List II, Ninth Schedule of the Fed Consti.

Parties before Shariah Ct must be muslims Shariah has no jurisdiction if one of the parties is nonmuslim.

The hierarchy of courts in Malaysia

Federal Court

Court of Appeal

High Court

Sessions Court

Magistrate Court

M,S,H,A,F
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Law Reporting Carlill v Carbolic Smoke Ball Co [1983] 1 QB 256

against page Year of reporting

Queens Bench Report

plaintiff

defendant

volume

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