ACKNOWLEDEDGEMENT

Firstly, I would like to thank very much to my lecturer Sir Azhan Bin Jalaludin to teach
me give more information about assignment and guidance me and my friend. Also to
my dear husband Mohd Zaidi Bin Hassan n my kids M. Zarif Zharfan, M. Asyraaf
Hakimi and M. Afiq Aiman very cooperation to me until finish my first assignment
about Malaysian Legal System a written and unwritten sources of Malaysia law.
Than, i would like to take opportunity to thank to INED for offering this subject. It gave
me an opportunity to participate and learn about the legal system in Malaysia very detail
n very meanings full to study for me. Finally, an honourable mention to my dear family
and my dear friend for their understanding and supports me to completing this first
assignment. Without helps us is very difficulties to completing my fist assignment. I
expect to do my best for this assignment and I hope this assignment will benefit for
others InshaAllah.
Thank you.

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NO TITLE PAGE

ACKNOLWEDGEMENT 1
1
INTRODUCTION 3,4,5
2
SOURCES OF LAW
3
-UNWRITTEN SOURCES OF LAW

-ENGLISH LAW 6

-COMMERSIAL MATTERS 7

-SECTION 5 APPLICATION OF ENGLISH LAW 8

-CUSTOMARY LAW 8

-MALAY CUSTOMARY LAW IN WEST MALAYSIA 9&10

-ADAT PERPATIH 10&11

-ADAT TEMENGGUNG 11

-MALAYSIA CUSTOMARY LAW IN SABAH AND SARAWAK 12

-CHINIESE AND HINDU CUSTOMARY LAW 13

-ISLAM LAW 13

-SOURCES OF ISLAM LAW 14

-JUDICIAL DECISION 14&15

-DOCTRINE OF STARE DECISIS 16&15

-WRITTEN SOURCES OF LAW 16

4
-FEDERAL CONSTITUTION 16&17

-STATE CONSTITUTION 17

-LEGISLATION 18

-SUBSIDIARY SYSTEM 19

-CONCLUSION 20

-BILBILIOGRAPHY 21

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INTRODUCTION
Sources of law in its narrow sense means the origin of law, the binding rules governing
human conduct. More generally ,its means any premiss of a legal reasoning ,such
sources may be international ,national or religious.

The term sources of law also refers to the sovereign or the state from which the law
derives its force or validity. In civil law systems, one has only to look at the appropriate
code ,but it in common law systems one needs to look at legislation and at the decided
cases that comprise judicial precedent, where law is found example statutes, law
reports, legal textbook or judicial decisions. Legal sources is the legal rules that make
up the law.

Custom has been one of the oldest sources of law. In ancient times, social relations

gave rise to several usages, traditions and customs. These were used to settle and

decide disputes among the people. Customs were practiced habitually and violations of

customs were disapproved and punished by the society. Initially social institutions
began working on the basis of several accepted customs.

In different country, there are different types of legal system. Some county practices
a the mixture of two or more legal systems which is known as mixed legal system
while some country practices only one type of legal systems. Malaysia practices the
mixed legal system which consists of the Customary Law, Islamic Law and Common
Law. The sources of Malaysian legal system law are from two different laws which
are the Written and Unwritten law.

In Malaysian Legal System, the most important source of law is the Written Law
which comprises of The Federal Constitution, State Constitutions, Legislation and
Subsidiary Legislation. In another word, Written Law refers to the law stated in the
Federal Constitutions which is the supreme law of Malaysia and it enshrines the
basic or fundamental rights of the individual. The Federal Constitutions also
stipulates the Yang di-Pertuan Agong" who owes his position to the Constitution and

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act according to it. If the total number of members of the legislature and there is two-
thirds of majority of it, the Constitution can be change.

The Federal Constitution consists of many Articles prepositioning religion of the

federation, welfare of the aborigines and other connected subjects. Besides the Federal
Constitution, every state has their own constitution controlling the government of that
state which is known as the State Constitution. The provision comprises the Ruler, the
Executive Council, the legislature and other related subjects like the Legislative
Assembly, financial provisions, state employees, and amendment of the Constitution.

Another source of Malaysian legal system law is the Unwritten Law which consists of
English Law, judicial decision and customs. Part of the laws of Malaysia is formed by
the English Law. It can be found in rules of equity and English Common Law. However,
the application of the law is subject for two limitations where it is applied only in the
absence of local statutes on particular matters and only part of the English law that is
suited to local circumstances will be applied.

Judicial decisions of the High Court, Court of Appeal and Federal Court was known as
Judicial Precedent which is the basic decisions made by judges in similar
situations. These courts were following the doctrine of binding judicial precedent" which
means to stand by cases already decided. Judges always contribute to the growth of
unwritten law in Malaysia. Some customs of the local inhabitants such as Adat Perpatih,
Adat Temenggung and custom related to family law are given legal force by courts in
this country. In Sabah and Sarawak, land dealing over native customary lands and
family matters are applied by native custom-matters.

The third source is the Muslim Law which is relating only to Muslims and is managed by
a different court system, the Syariah Courts. It is the court which enforces the Islamic
law relating to marriage, divorce and family matters. It is bases on Quran and Hadith,
Fatwa and Ijma Ulama. The Federal Constitution provides that the States have the
power to administer Muslim Law. The State Legislature has power over the constitution,
organization and accepted way of the Syariah Courts and is also given permissions to
make Islamic laws connecting to persons professing the religion of Islam.

Legislation is laws enacted by Parliament at federal level and by the State Legislative
Assemblies at the state level. These laws are subject to the Federal Constitutions. Laws
are legislated by Parliament at federal level and various state assemblies at state
level. To fulfil the intention of the legislative body and ultimately the people, Legislation

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need to carry out law reform, and create, alter or revoke law. The functions of legislation
are revision consolidation of enactments and codification.

The revision of substantive rules of the common law may occur when the law has
become stale or incapable of adaption, or when an unpopular decision is made by the
courts. Revision can overcome the restrictive way the doctrine of precedent works,
thereby creating change. Also, where a certain area of law has developed piecemeal,
legislation may be passed to clarify and simplify the status of the law. Consolidation
does not, however, alter the substance of law but merely its form. Codification is being
almost same to consolidation, except that the latter only refers to statuses already
existing, whereas codification can make case law into statute.

The function of delegated legislation is it enables the Government to change a law

without having to wait for a new Act of Parliament to be approved. Delegated legislation
can be used to make practical changes to the law. For an example, such as altering
sanctions under a given statute. Also, Parliament does have neither the time nor the
expertise to examine the regulation of every industry or aspect of the community as
delegated legislation can be amended or made without having a pass an Act through
Parliament. This legislation is trying to regulate very complex matters such as
employment, social security, tax liability and economic management.

The similarities of Legislation and Delegated Legislation are these laws are subject to
the Federal Constitutions and these laws are not supreme. Both Legislation and
Delegated Legislation are made by Parliament and they have legislative effect.

However, there are a lot of differences in both Legislation and Delegated

Legislation. Firstly, for Legislation, two-thirds of majority of the total number of members
of the legislature is needed to modify the Constitution meanwhile the delegated
legislation can be amended easily and can be modified easily and it can be adapted to
be right for a particular situation and Government doesnt need to allows time to go by
for Parliament to pass an Act.

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UNWRITTEN SOURCES OF LAW

DEFINITION
Unwritten laws are laws that are not enacted and not found in any constitution. It
comprises of English law(common law and equity),judicial decisions and customs.
Common law is a major part of many states, expecially common wealth countries.
It is mainly made up of non- statutory laws, which are the precedents derived from
judgment given on real cases by judges. Law of equity resolves disputes between
persons by referring to principle of fairness, equity and justness.

In these cases, nothing was done against the law by the parties to dispute, but their
rights are in conflict. Thus, it is different from law, both the Statutory Law enacted by
Parliament and State Legislatives and Common Law which consists of precedents and
opinions given on real cases by judges. In situations where there is no law governing a
particular circumstance, Malaysian case law may apply. If there is no Malaysian case
law, English case law can be applied.

There are instances where Australian, Indian and Singaporean cases are used as
persuasive authorities. Section 3(1)(a) Civil Law Act 1956 states that courts in
Peninsular Malaysia should apply Common Law and the Law of Equity as administered
in England on 7th April1956.Section 3(1)(b) and Section 3(1)(c) of Civil Law Act 1956
states that courts in Sabah and Sarawak should apply common law and law of equity
together with the statutes of general application as administered in England on 1st
December 1951 and 12th December 1949 accordingly. But it is not stated that the
Common Law and Law of Equity in Malaysia should remain unmodified and follow the
same law as administered in England.

In these cases , nothing was done against the law by the parties to dispute, but their
rights are in conflict. Thus, it is different from law ,both the Statutory Law enacted by
Parliament and State Legislatives and Common Law which consists of precedents and
opinions given on real cases by judges. In situations where there is no law governing a
particular circumstance, Malaysian case law may apply. If there is no Malaysian case
law, English case law can be applied. There are instances where Australian, Indian, and
Singaporean cases are used as persuasive authorities. Section 3(1)(a) Civil Law Act
1956 states that courts in Peninsular Malaysia should apply Common Law and the Law
of Equity as administered in England on 7th April1956.

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ENGLISH LAW
DEFINITION

English law means both principle of common law and equity made by the superior
courts of united kingdom. The main sources of English law in uk there are three main
sources of English law, legislation statue law, legislation (statue law, cammon law).
English law was historically based on customs and social traditions. Today customs and
social traditions, custom law is a part of common law, notably being in cases where
there was no judicial precedent but which were known to exist since time memorial.

Common law means rules of law that were made by royal judges based the customary
laws that were commonly applied by the people. According the English legal history the
early courts in England were established William conqueror. The courts sold writs to
those who wished to take their case before the court.

Among the common law courts established were hundred courts, country courts justices
of eyre, itinerent judges. Assizes, star chamber, kings Beach courts of exchequer and
court of common pleas. Equity are principle of law that were made by the lord
chancellor of the court of chancery.

Application of English law in Malaysia, Section 3(1)of civil law Act 1956(revised 1972),
In West Malaysia or any part there of apply the common law of England and rules of
equity as administered in England on the 7 day of April 1956.

Section 3(1) (b) and (c) apply the common law and equity together with statutes of
general application as administered in England on Sabah 1 December 1951 and
Sarawak 12 December 1949.

Section 5 (1) all statues apply English common law including statues on 7 April 1956.
Section 5 (2), Penang, Malacca , Sabah and Sarawak can use relevant and applicable
English common law continuously.

Provided always that the said common law, rules of equity and statutes of general
application shall be applied so far only as the circumstances of the States of Malaysia
and their respective inhabitants permit and subject to such qualifications as local
circumstances render necessary.

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Section 5. Application of English law in commercial matters.

In all questions or issues which arise or which have to be decided in the States of West
Malaysia other than Malacca and Penang with respect to the law of partnerships,
corporations, banks and banking, principals and agents, carriers by air, land and sea,
marine insurance, average, life and fire insurance, and with respect to mercantile law
generally, the law to be administered shall be the same as would be administered in
England in the like case at the date of the coming into force of this Act, if such question
or issue had arisen or had to be decided in England, unless in any case other provision
is or shall be made by any written law.

In all questions or issues which arise or which have to be decided in the States of
Malacca, Penang, Sabah and Sarawak with respect to the law concerning any of the
matters referred to in subsection (1), the law to be administered shall be the same as
would be administered in England in the like case at the corresponding period, if such
question or issue had arisen or had to be decided in England, unless in any case other
provision is or shall be made by any written law.

The debate over section 5(1) and section 5(2) is seen in the of Seng Djit Hin V.
Nagurdas Purchotumbas (1923) Ac 444 and Shaik Sahied bin Abdullah Bajerai V.
Sockalingam Chettiar (1933) 2 MLJ 81.

CUSTOMARY LAW

DEFINITION

Malay customary law or adat can be defined as customs and traditions in the Malay
community which in the course of time have obtained the character of laws and such
can be enforced by the chiefs or elders. Being the living law at a certain time in a certain
place adat is elastic and adaptable to social needs and as such is not suitable for
condition. The chiefs however are not given a free hand to make decisions. When the
Malays became muslims they adopted variations to suit their local circumstances. The
enforcement of selected customs by the council of elders give the legal status of law.

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Many writers claim that the personal law of the malays are a mixture of Hindu law and
Islamic laws.

A regular pattern of social behaviour which has been accepted by the bulk of a given
society as binding upon its members because such behaviour has been found to be beneficial
to them ,Custom rooted from the ancient custom of the people, It is the customs which
are accepted as binding and enforceable by the court.

MALAY CUSTOMARY LAW IN WEST MALAYSIA

Customary law is the law of the local people as developed and handed down from time
immemorial. A local word which is quite widely used in South-east Asia for recognised
customary behaviour is the word adat". Rural people in general have a high regard for
adat and usually expect persons from outside the locality to respect it. Owen Rutter
provides a distinction between a law and a customs by saying that strictly speaking the
difference between a law and a custom is that a law is a rule of which a judicial court
takes cognizance, punishing its infraction, whereas a custom is where it punishes in its
own manner those who disobeys it".

The effectiveness of the adat depends on its universal acceptance in the community,
the force of public opinion and the general attitude towards one who violates accepted
norms and the individuals susceptibility to feelings of human respect. In order for
customary laws to be recognised as law, four conditions must be met that is the native
law must be part of a long-established history, it must be continuous and not broken or
interrupted from one generation to the next, it must be adhered to be respected and
observed and the native law system must possess the authority to impose sentence on
an individual who violates those native laws.

Customary law (or adat, a Malay term) is an ancient unwritten laws that are found in
a particular place where no rules has ever been enacted by the legislative authority.
It is widely accepted that the original term for Malay customary law is adat. Adat or
customary laws are concerned mainly with matters of personal status (for example
land-holding and inheritance). In the past, customary laws (or adat) consists of a set
of unwritten laws or rules that have not been enacted by legislative authority or
formed as in the case of current legislation.

Hindu and Chinese customary law who a arrived as traders of sellers brought along with
them their customary law. The British administrators had to deal with customary laws
related to inheritance.

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Comprises of Adat Perpatih and adat Temenggong,adat perpatih apply Negeri
Sembilan some part of Naning in Melaka wheres adat Temenggong applies to the rest
of malay peninsula. Both Adat are believe to come the same source Minangkabau in
Sumatera Indonesia.

ADAT PERPATIH

The adat are so called for the two mythicallaw givers Dato Perpatih nan Sebatang and
Dato Katamanggungan . Both were half brothers where Dato Perpatih ruled over the
hilly region whereas latter ruled over the coastal regions. Adat Perpatih is characterized
as democratic because it exists in a peasant society whereas Adat Temenggung is
characterized asaristocratic and autocratic as their rules aredecreed by t rulers and they
tend to define a crime as and infringement of the rulers prerogative.

Adat pepatih is based on matrilineal (in favour of women in the distribution of

inheritance) and can be distinguished from the rest of the Malay customary law in that it
contains traditions that are customary sayings which have been passed down from
generation to generation. Adat Pepatih is not based on Islamic rules in land matters
unlike in the case of Adat Temenggong.

Under Adat Pepatih, there are two categories of inherited property that is ancestral
property (or tanah pesaka in Malay) and acquired property. Ancestral property is
property belonging to the tribe that is land, paddy fields and orchard). On the other
hand, acquired property refers to the property existing at the time of marriage and can
be divided into three categories ,harta sepencarian, harta pembawa and harta dapatan.

According to Adat Pepatih, ancestral property is passed on or are vested in the female
descendants of the tribe who hold the property in trust for the tribe. An important feature
is that these properties cannot be sold by any will and can be inherited by female tribe
members in equal share. In Munah v. Isam (1936) MLJ 42, the court ordered the return
of tanah pusaka, which had been transferred to a person outside the clan conditional
upon payment of a sum of money.

The men unfortunately do not have the right or title to claim the properties. In other
words, customary land can only be owned by female members of the tribe. Based on
Adat Pepatih, a man is considered a member of his mothers tribe until he marries and
is accepted into his wifes tribe. A man is considered as the salaried worker in the tribal

10
system. When a man marries into a female tribe, his wife already owns a piece of land
(foe example paddy field) as her share of the customary holding. The unmarried males
have the right to life occupancy over the property of their mothers. Where a female is
married, the property in the decendant line and lineage membership passes through the
women.

For acquired property based on Adat Pepatih, the customary laws rules are more
complicated than that of ancestral property depending of whether it is harta
sepencarian, harta pembawa or harta dapatan. In the case of harta sepencarian, these
are property acquired during their marriage, it depends on where the couple has
children or not. Where there are no children from the marriage, in the case of harta
sepencarian, the property will pass on to the wife upon her husbands death and vice
versa.

Where there are children in the marriage, the property will pass on to the surviving
spouse or children. In the case of harta pembawa (property belonging to the husband
before marriage), the property shall go to (revert) his customary heirs upon his death.

ADAT TEMENGGUNG

It is strongly believed that Adat Temenggong which is found throughout Malaysia

(including Brunei) is based on Undang-Undang Melaka. This is evidenced by the
Pahang Digests of 1650, in particular the sections on port law, which are compiled when
Sultan Rijaluddin Muhammad Shah ruled Naga. Adat Temenggong (or patriarchal
Malay customary Malay law where the men are the head of the family) was the law of
the Sultan and originated during the time of the Melaka Sultanate. This customary law
was ordained by the rulers/Sultan and later adopted in the other regions of Penisular
Malaysia. It was the basis of the laws as found in the Malay legal digests complied
between the 15th and 19th centuries. Unlike the case of Adat Pepatih, Adat
Temenggong is based on patrilineal (in favour of men in the distribution of inheritance)
principles of customary laws and is fundamentally based on Islamic principles (or
Hukum Syariah). This helps to explain what Adat Temenggong is more acceptable by
the Malay community. Hence, Adat Temenggong is more favourable to the men when
compared with the Adat Pepatih.

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In the case of Adat Temenggong, the distribution of the deceased estate/property is a
daughter is entitled to half of the entitlement of the son (for example, if the son is entiled
to half share of the property, the daughter will only be entitled to a quarter share). If
there is no son, a daughter is entitled to half of the deceaseds estate,if the deceased
has two daughters and no son, the daughters will be entitled to two-thirds of the estate
in equal share.

The wife or wives of the deceased will be entitled to one quarter of the deceaseds
estate if there are no children in the marriage. If there are children, the wife or wives will
be eligible to only one-eighth of the estate. A husband is entitled to half of the wifes
estate if there are no children. If there are children, the husband will be eligible to a
quarter of the estate. The father or mother of the deceased who died leaving children is
entitled to one-sixth each of the deceaseds estate.

MALAY CUSTOMARY LAW IN SABAH AND SARAWAK

In Sabah, Malay adat is a mixture of Islamic law and adapt and is applicable in matters
concerning marriage, inheritance, division of of property , bethotral and the others.In
Matusin bin Simbi v. Kawang bt Abdullah(1953)SCR 106 a couple who resided with the
Bajau community in Sabah for forty years adopted three children in accordance to Bajau
customs. On his death a dispute arose as to how his property should be administered.

In Sarawak, Malay adat were codified by the Rajahs under undang-undang Mahkamah
Melayu Sarawak(1915) and the muslim wills ordinance 18969(cap 96)revised law laws
of 1958. In S.M Mahadar bin Datu Tuanku Mohammed v.Chee(1941)SCR 96 the court
upheld that according to custom that the oath of pregnant woman that the particular
man was the farher was acceptable through contrary to English law.

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CHINESE CUSTOMARY LAW
The Chinese CL in the Strait Settlements and Malay States were the creation of
the courts,It was difficult for the court to ascertain what the substantive principle of this
law should be;the law of China of the Ching were not considered as suitable to regulate
the affairs of the Chinese immigrants because of the differences in the social conditions.
The court then created a uniform body of law applicable to all persons of Chinese race.

HINDU CUSTOMARY LAW

The development of Hindu CL was the extension and adaptation of the Hindu CL in
India,The Hindu CL in Malaysia was not necessary the same as that in India thus, local
customs were recognised by the court provided that they were not contrary to reasons,
justice and general public policy,Contrary to the Chinese CL, the HinduCL did not
impose upon the courts in the Strait Settlements and Malay States the problem of
ascertaining its substantive principles

In ascertaining the principle of Hindu CL,the court could rely on the evidence of experts
on the local customs of the Hindu community and the authoritative texts of the 19th
century ,Mayne, Jolly and Mulla and precedents from India.

ISLAMIC LAW

Prior to 1887, it was not known that Islamic law had existed in Malaysia; in that year, a
rectangle shaped stone was found in Kuala Berang, Terangganu, with an inscription
which detailed a code of Islamic law. The stone was dated in the year 1303, hundred of
years earlier then the Law of Malacca Code was first introduced.

Islamic law was established in Malaysia by the fourteenth century. During the colonial
period, the British did not interfere with religion in the country. Islam was adopted as the
religion of the state, with the Constitution providing that the leader in each state must be
a Muslim. Yet, the Constitution also guarantees full religious freedom to members of all
faiths.

With the exception of Putrajaya, the new administrative capital of Malaysia, each state
in Malaysia, including the Federal Territories (Kuala Lumpur and Labuan) has its own
religious Council. The function of this Council is to advise the ruler, or the king in non-
ruler states, on Muslim and Islamic matters. All of these Councils are established by
state law. The Federal Constitution also provides that a State Legislature has power to
enact laws relating to, inter alia, personal and family law for Muslims, Muslim Waqf,
Zakat, Fitrah, Baitul Mal, Mosques, the creation and punishment of offences by Muslims

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against precepts of Islam, Muslim Courts, the control and propagation of doctrines and
beliefs among Muslims, and the determination of matters of Muslim Law.

The Muslim courts established by State authorities have jurisdiction only over Muslims,
and have no jurisdiction over criminal offences, unless specifically conferred by federal
law. Most of the Islamic Law that has been enacted in the States of Malaysia has
developed into an independent legal system, substantially different from the strict
Islamic Law of the Shariah, except perhaps in family law.

Prior to independence, a constitutional amendment was passed which resolved any

questions of power or jurisdiction which might arise between the Shariah Court and the
Civil Court. This amendment stated that no court has jurisdiction in any matters which
are under the jurisdiction of the Shariah Court; in effect, the Civil court has no influence
on the jurisdiction of Shariah Court.

Sources of Islamic Law

The Quran is the primary source of Islamic law, as it contains all the fundamental
directives and instructions of God. The Sunnah is the second source of Islamic law.
Sunnah is an Arabic word which means Method, and it refers to the statements, actions,
and agreements of the Prophet Muhammad. Its authority is derived from the text of the
Quran. The Quran and the Sunnah are complimentary the laws described in the Quran
are general in nature, and the Sunnah makes them specific and particular. The Sunnah
explains the instructions of the Quran. The Quran injunction is sometimes implicit the
Sunnah makes it explicit by providing essential ingredients and details. Ijma (consensus
of opinion of scholars) and Qias(laws derived through analogical deduction) are the
secondary or dependent sources of Islamic law.

JUDICIAL DECISION
INTRODUCTION

Judges of the superior courts of Malaysia contribute to the creation of law of the
country. The superior courts of Malaysia consists of the high courts,courts of appeal and
the federal court. The decision of the superior courts are recorded. These courts
deliberated on question of law.

In judicial decision, there are ratio decidendi and and obiter dictum. The Ratio decidendi
are the legal principles of the decision and if these are new principles of law then they
will be a contribution of judges to the laws of the country.

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Obiter dictum however are merely remarks made by judges on the use of principle in
other possible situations. Obiter dictum may eventually become ratio decidendi in cases
which eventually adopt and apply it.

Precedent is basically a judgement or decisions at a court of law cited as an authority

for the legal principle embodied in its decisions. Comprise following a precedent means
that a question should be resolved in a certain way today because a similar question
has been so decided before.

Decision is binding on all subordinate courts but the high court judge is not bound to
follow the decision of another, however he may do as a matter of judicial comity.
Sessions court and magistrates courts are bound by precedent aid down by the superior
courts but their own decisions are not binding on any court. Subordinate courts
sometimes known as inferior courts of lower courts and penghuu court was abolished
in 2013.In addition the juvenile court,syariah court and native court are also recognized
as subordinate courts.

DOCTRINE OF STARE DECISIS

Judicial precedent is based on the three elements, there must be adequate and reliable
report of the earlier decisions ,there must be rules for extracting from each earlier
decision on a particular set of facts the legal principle to be applied in reaching decision
on a different set of facts and binding precedents must be differentiate from as those
which are merely persuasive.

The common law system relies heavily on case law or judicial opinions. In such a
system, it is crucial for the administration of justice that like cases should be treated
alike; otherwise, the system becomes a fertile breeding ground for unfairness. Stare
decisis which means to stand by decisions previously made, serves a useful purpose in
this regard, as its application would ensure a measure of certainty in the law and it
promotes a systematic and logical development of the common law. However, a strict
adherence to the doctrine could also cripple the development of the common law,
particularly when faced with new situations, which never existed before.

Thus, although the Federal Court had expressed that the principle of stare decisis is a
cornerstone of our system of jurisprudence,it also recognised that there is a need for
the Court to depart from precedence when a previous decision was wrong, uncertain,
unjust, outmoded or obsolete under modern conditions. Similarly, the current Malaysian
superior courts do not consider themselves bound by previous decisions of the Privy
Council, even though they may be given on appeal from Malaysia.
Just like any other common law jurisdiction, as Malaysian law relies heavily on judicial
decisions or case law, a good system of law reporting is essential. Law reporting in
Malaysia began in the latter part of the nineteenth century. Early law reports record

15
decisions of the Straits Settlements and Federated Malay States judiciary, Straits
Settlements Law Reports, 1893-1931; Federated Malay States Law Reports.

WRITTEN SOURCES OF LAW

INTRODUCTION

Written law are law has been enacted in the constitution or in legislation Written law
refer to law contained in the federal and the state constitution, code or statute.The
written law are much influenced by inglish law by the Malaysian legal system. Written
law are include the federal, federal constituition, state constitution,legislation, subsidiary
legislation.

Malaysian written law are contained code, statues and known as act, ordinances and
enactment. Act is the enacted by the parliament, there are four type of act is principle
act, Amendment act, the revised act and the consolidated act.

Ordinances are laws enacted by the federal legislature between 1 april 1946-10
September 1959. Law promulgated by Yang di Pertuan Agung during the emergency
proclaimed under article 150 of the federal constitution are also known are ordinances.

Enactment are laws enacted by the state legislative assemblies. However the state
assembly law in Sarawak are known as ordinances. The parliament and state
legislature are not supreme. They have to act the law subject to provisions set out in to
the state and federal constitution.

THE FEDERAL CONSTITUTION

Under Article 162(6), any court or tribunal applying the provision of any existing law
which has not been modified on or after Merdeka Day may apply it with such
modification as may be necessary to bring it into accord with the provisions of the
Constitution.

Malaysia is a federation with a strong central government at its core and 13 state
governments. Power is divided between the federal government and the various state

16
governments in accordance with Part VI of the Federal Constitution, which addresses
the issue of relations between the Federation and the States.

With regard to the legislative power of the Federation and the States, Article 74(1)
provides that Parliament may make laws with respect to any of the matters enumerated
under the Federal List or the Concurrent List of the Ninth Schedule. Article 74(2)
provides that the Legislature of a State may make laws with respect to any of the
matters enumerated in the State List or the Concurrent List of the Ninth
Schedule. Article 75 provides that if any State law is inconsistent with a federal law, the
federal law shall prevail and the State law shall, to the extent of the inconsistency

The Federal Constitution is the supreme law of the country. It lays down the powers of
the Federal and State Governments, and enshrines the basic or fundamental rights of
the individual citizen. The rights written in the Constitution can only be changed by two-
thirds majority of the total number of the legislature members (in contrast to normal laws
which can be amended by a simple majority).

STATE CONSTITUTION

Besides the Federal Constitution which applies to all States in the Federation, each
state also possesses its own constitution regulating the government of that State. This
includes matters concerning the Ruler, the Executive Council, the Legislature, the
Legislative Assembly, financial provisions, State employees,and amendments of the
Constitution.

The Federation shall guarantee the right of a Ruler of a State to succeed and to hold,
enjoy and exercise the constitutional rights and privileges of Ruler of that State in
accordance with the Constitution of that State but any dispute as to the title to the
succession as Ruler of any State shall be determined solely by such authorities and in
such manner as may be provided by the Constitution of that State. Clause shall, with
the necessary modifications, apply in relation to a Ruling Chief of Negeri Sembilan as it
applies to the Ruler of a State. If it appears to Parliament that in any State any provision
of this Constitution or of the Constitution of that State is being habitually disregarded,
Parliament may, not with standing anything in this Constitution, by law make provision
for securing compliance with those provisions.

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LEGISLATION

DEFINITION

Legislation can be defined as law enacted by the legislature and any bodies or persons
so autorised by the legislature. In Malaysia, The power to enact laws at federal level is
vested in parliament and the power to enact state laws is vested legislative assembly.
Under the federal constitution,legislative list are provided which entitle what each could
legislate.

Legislation also is enacted by every level of government in Canada, the federal

government, the provinces and territories, cities and other municipalities - and forms a
major body of law. Our elected representatives introduce and debate proposed laws
dealing with matters within their jurisdiction. The federal government, for instance is
responsible for criminal law, so Parliament makes changes to the Criminal Code, the
statute that defines crimes and how the courts handle criminal cases. The provinces
and territories create laws to regulate public activity in the many areas that are within
provincial jurisdiction, including such things as highway traffic matters, education and
the use of natural resources. Municipalities enforce bylaws and ordinances that deal
with local issues, ranging from urban development to dog control. Whatever its source,
this legislation forms a large body of written law that governs how Canadians live and
work.

Parliament has the exclusive power to make laws over matters falling under the Federal
List (such as citizenship, defence, internal security, civil and criminal law, finance, trade,
commerce and industry, education, labour, and tourism) whereas each State, through
its Legislative Assembly, has legislative power over matters under the State List (such
as land, local government, Syariah law and Syariah courts, State holidays and State
public works). Parliament and State legislatures share the power to make laws over
matters under the Concurrent List (such as water supplies and housing) but Article 75
provides that in the event of conflict, Federal law will prevail over State law.

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SUBSIDIARY LEGISLATION

The Interpretation Act 1967 defines subsidiary legislation as any proclamation,

regulation, order, notification, by-law or other lawful authority and having legislative
effect.

Subsidiary legislation is very important as legislation by Parliament and State

Legislatures is insufficient to provide the laws required to govern everyday matters. It
deals with the details which the legislature has neither the time nor the technical
knowledge to enact laws. The legislature merely lays down the basic and main laws,
leaving the details to persons or bodies to whom they delegate their legislative powers.

Subsidiary legislation refer to the rules, regulations by law, orders instruments made by
a person or body in accordance with the powers delegated to him or it under and
enabling legislation. Such legislation is an increasing important sources of law because
parliament and the state legislature lack the time and expertise to deal with specific
technical details.

It is more flexible, can be made, amended or modified easily and more speedily
compared to ordinary legislation.

Usually the Parliament or the State Legislative Assemblies enunciates general

principles and policies relating the subject matter in a particular legislation. By giving the
power to other agencies/bodies to legislate further and fill in the details, the legislative
time of the legislature is economized.

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CONCLUSION
If observed since centuries problems of governance and administrative pattern
corresponding to a particular country has been debated. Everything must be based on a
law that can be shared so that all the people not to quarrel and to practice tolerance in
any matter or issue arising. Each government is responsible to bring prosperity and
wealth to the masses in general. This fact has to do with our relationship with the
Parliament and the Shura Council. This is because we actually have a close relationship
with these two institutions in everyday life.
Both these institutes that regulate us in driving our lives based on the law and the
statutes. It also gives us the right to vote and cast a glance if emerging issues that arise
that will threaten global prosperity. Based on its own Parliament, any member involved
can formulate a bill on the regulation is gonna be done for the good of the people.
The common law will continue to play a significant role in the modern Malaysian State
although many new pieces of legislation have been enacted and many more are in the
pipeline. Many of these new written laws are based upon or adapted from similar
legislation in other Commonwealth countries. The role of judges in interpreting and
giving the desired meaning to the written word is still important.

However the court system lightens the burden of the country and eases the process of
legal system due to different kind of cases will be tried in different courts where it will
bring fairness and justice to whom that brings the case for legal actions. By having the
proper hierarchy of the court system, the process of running legal actions is in the
proper channel and it would not burden or cause any inconvenience to any party or the
country.
Besides this,It is clear that the system of government provide welfare and security to the
nation.

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Bibliography

Wikipedia.org/wiki/Malaysian legal system

http;//en Wikipedia.org/wiki/written and unwritten
www.nyulaw global/.org/global lex
www.marked by teacher law
Dictionary by farlex
www.study mode.com
www.slide share net./robin kapoor/sources of law-presentation
en.wikipedia.org/wiki/sources of law
www.law teacher.net
www.juc.gov.my/federal constitution
www.slideshare.net/sharifahnaina /malaysian-legal-system
openlibrary.org/books/OL 3612649m.an introduction-of Malaysian-legal-system
Books ,sue valquis md.mashhor azni mohd dian
www.world cat.org/title/introduction-to-malaysian-legal-system
www.slidehare./net /safadhiya/sources of law
wu.min Aun,introduction to Malaysian legal system,3rd Edition

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