MALAYSIAN LEGAL SYSTEM

MADAM NOORIMAH MISNAN

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 Learning Outcomes
At the end of this chapter, students should be able to:
1.Define law and explain the types of law.
2.Discuss the functions of law.
3.Distinguish the classification of law.
4.Explain various sources of law.
5.Discuss the system of courts in Malaysia.

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MAIN TOPICS

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 MALAYSIAN LEGAL SYSTEM
Definition of law
• Rule of conduct
• Oxford Dictionary : body of enacted or customary rules recognized by the community as
binding.
• John Austin : a command set by a superior being to an inferior and enforced by sanction.
• Salmond “Body of principles recognized and applied by the state in the administration of
justice”
• On the whole, law is a system of rule designed to ensure that people live in peace and
harmony. It includes rights, duties and obligations.

The purpose or function of law:

• to attain justice in the society
• what is right and what is wrong
• ensure peace and harmony in the society
• protect the citizen of the state from any harm, crime, wrongful act of the others

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 CLASSIFICATION OF LAW

PUBLIC LAW
Law that governs the PRIVATE LAW
relationship between laws involving relationships of
individual and the State rights and obligation between
Eg: individuals.
•Administrative law Affects the right and
•Constitutional law obligation of individual,
•Criminal law -enlists all families, businesses.
kinds of conduct that are Intended to give
unlawful or prohibited by the compensation to person
state and a person charged injured, to enable the property
and convicted will be to be recovered etc.
sentenced by the courts
accordingly.
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 CLASSIFICATION OF LAW

INTERNATIONAL LAW
NATIONAL Among the international offences
In a particular state or nation
recognized are piracy, terrorism
there are a variety of laws
enacted that could assure and genocide. The offenders can
peace and harmony e.g. the be tried by the countries that are
constitution, criminal law, affected. The International Court
marriage laws, law of contract,
administrative law and of Justice has been set up to hear
immigration laws. cases of disputes between states
or nations, for example disputes
over Pulau Sipadan, between
Malaysia and Indonesia.

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 CLASSIFICATION OF LAW

CIVIL
CRIMINAL
Civil law involves law relating Various offences committed by
to transactions and undertakings individuals against the State
among individuals. [contract, Obligation on individual not to
tort, family law, land, company commit
law, commercial law etc].
Parties could resolve their
matters out of court by way of
negotiation, arbitration or
conciliation OR proceed to the
courts and seek compensation
or obtain court orders such as
injunction, prohibition or
declaration.
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 LAW
LAW

PUBLIC LAW
PUBLIC LAW PRIVATE LAW
PRIVATE LAW

CONSTITUTIONAL ADMINISTRATIVE CRIMINAL FAMILY

LAW LAW LAW CONTRACT TORT TRUST
LAW

PROPERTY COMPANY
LAW LAW

INSURANCE SALE BILLS

OF GOODS OF EXCHANGE

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Written law : the law which is being enacted by the Parliament and
State Legislative Assemblies.

Unwritten law : Does not mean that the law is literally unwritten, but
its refer to the law which is not enacted by the legislature and not
found in the written Federal and State Constitution.
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1. WRITTEN LAW

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a) Federal Constitution
• Consists of powers of both Federal and State Governments.
• Applies to all states in Malaysia
• Art 4 Federal Constitution : Constitution is the supreme law of the
land means - any law passed which is inconsistent with the
constitution shall to the extent of the inconsistency, be void
• Article 32(1) - A constitutional monarchy and the supreme head of
the federation is called YDPA
• The Federal Constitution lays down powers of the federal
government and the state government. These powers are stated in
the federal list, state list or concurrent list.
• It also lays down fundamental rights of every citizen: Chapter 2 of
the Federal Constitution.**TASK
• Any clause of the Federal Constitution can be changed by two third
(2/3) majority votes of the total number of members of parliament.

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 Supremacy of FC
 Federal constitution is the supreme law of the land by virtue of
Article 4 FC.
 Supremacy of constitution :
• Any law passed which is inconsistence with the Federal
Constitution shall to the extend of the inconsistency, be void.
• Parliament is not supreme because it can covers matter
pertaining to federal only as stated in federal list and
concurrent list.
• State Assemblies can only covers matters as stated in state list
and concurrent list
• Court also not supreme because it can only declare invalid any
law made in ultra vires or inconsistence with the constitution.
• YDPA, Ruler, Head of Executive Judicial is also subject to
restriction provided in FC, hence, not supreme.
• Government is also not superior than FC since the FC provides
for separation of powers to executive, legislative and judiciary.
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Amendment
• Article 159 allows amendment to FC at any time (as in the
case of Stephen Kalong Ningkan V Government of
Malaysia) in the following situation :
• Where there is a hole in the present law.
• it is necessary to fulfilled the present demand in law.
b) State Constitution (Undang-Undang Tubuh Kerajaan Negeri)

• Each State in the Federation is governed by its own constitution.

• This constitution is applicable to that particular state only.
• The provisions in the State Constitution are relating to state
matters, for example relating to ruler, financial, state employees
etc.
• There are some variations in the State Constitutions to cater for
local peculiarities (habit) such as succession to the throne but the
structure of government is largely similar.
• Provide State Legislative assembly to make law (Enactment)
• State government headed by Menteri Besar (with Sultan) and
Ketua Menteri (No Sultan)

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 C) Legislation
• Law enacted by the Parliament and the State
Assemblies
• The provisions - Basic and main laws
1.Act – law enacted from 1957 until today
2.Enactment – law enacted by State Legislative
assemblies
3.Ordinance – law enacted by the Parliament 1946-
1956 and law enacted by State Legislative Assembly
for Sarawak
4.Ordinance – laws made by the YDPA during
emergency.
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 Example of Legislation in Malaysia
• Contracts Act 1950
• Sale of Goods Act 1957
• Hire Purchase Act 1967
• Bill of Exchange Act 1949

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d) Subsidiary (SL) and delegated legislation
• Subsidiary legislation also known as rules ,regulations, order and by-law.
• The Acts or Enactments may confer powers to specific bodies or persons in
authority to make the subsidiary legislation.
• These laws are basically concerned with everyday matters, which are not
covered by Parliament or State Assemblies. Normally they relate to policies.
• Subsidiary legislation must be consistent with legislation or otherwise it will
be void.
• The process is faster than the procedure to make law either in the
Parliament or State Assemblies.
• The power to make subsidiary legislation is given to the Yang di-Pertuan
Agong, Minister and local authorities who are experts in specific areas.
• Example : Food Act 1983 ( legislation) - Food Regulation 1985 (SL)

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Law-making process / the legislative process
Pre-parliamantary stage Dewan Negara
First reading
Dewan Rakyat
Second reading
First reading Committee reading

Second reading Third reading

Committee reading Voting

Third reading Royal Assent

Voting Publication
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 2. UNWRITTEN LAW

a) English Common Law

• It can be found in English common law and equity

• * Common law means rules of law that were made by royal
judges based on the customary laws that were commonly applied
by the people of England
• *Equity is principles of law that were made by the Lord Chancellor
of the Court of Chancery. Equity is to supplement to the common
law. Equity does not contradict the common law but aims to
correct it rigidity (to balance the common law that sometimes
become too rigid).

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• The application of English law in Malaysia is based on the provisions of section
3 and 5 of the Civil Law Act 1956.

• Section 3(1) of CLA 1956 provides:

a) In West Malaysia and any part thereof apply the common law of England and
the rules of equity as administered in England on the 7th day of April 1956.
b) In Sabah, apply the common law of England and the rules of equity together
with statutes of general application, as administered in England on the 1st day
of December 1951.
c) In Sarawak, apply the common law of England and the rules of equity together
with the statutes of general application, as administered in England on the 12th
day of December 1949.

However, there are 2 limitations to this reception of English law:

1) Only English law which is suited to local circumstances where the Malaysian
written law permits will be applied.
2) It applies when there is no statute of particular law in Malaysia that deals with
that kind of situations
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• Section 5 provides the application of English law on matters pertaining to
commerce.
• Section 6 : English land law is not applicable because National Land Code is a
comprehensive land law in Malaysia.
• Where there are existing statute in Malaysia that govern particular matters of
law, the common law and rules of equity cannot be applied. Malaysian courts
must apply the existing statute.

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b) Judicial Precedent/Doctrine of Stare Decisis
• The decision of the Superior Courts namely:
- Federal Court
- Court of Appeal
- High Court
• Decisions of these courts were made and are still being made is known as
doctrine of binding judicial precedent or the rule of stare decisis [stand by
the decided].
• The doctrine of judicial binding precedent means that, in deciding cases
before the courts, the judges are bound to follow the previous decision
made by the previous judges.
• The effect of non-following the judicial precedent
1. The decision will be legally wrong. There is likely the decision will be
subject to appeal and overruled on appeal.
2. Where there is no appeal, it might be overruled in later cases.

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Contents of judicial precedents
1. Ratio Decidendi : means the legal reasoning and its binding.
2. Obiter Dicta : means the judge opinion. It is persuasive but not binding.

This doctrine works in 2 ways :

1. Vertically – higher court will bind the lower courts
2. Horizontally – courts are bound by :
- its own previous decisions
- the decisions of its predecessors
- the decisions of equal rank. Decisions of Federal Court
binds all lower courts
COA is bound by the decision of FC.
COA’s decision is binding on all lower
courts.
COA is also bound by its own decision
HC decision is binding on all
subordinate courts
Bound by the decisions of the superior
courts.

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 The Application of Judicial Precedent
in Hierarchy of Courts in Malaysia

Superior
Horizontal
Vertical
relationship
Courts
relationship

Subordinate
Courts

[1995 until today] 27

c) Customary Law
•CL is the regular pattern of social behavior, accepted by a given society as
binding upon itself. It prescribes behavior that has been found to be beneficial
as a means of generating harmonious interpersonal relations and to solve
conflict.
•Some of the customs of local inhabitants have been accepted as law by the
court

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 Malay Customary Law in West Malaysia.
Adat Temenggung Adat Perpatih
1. The autocratic patriarchal 1. The democratic matriarchal
adat law (patrilineal system) adat law (matrilineal system)
2. Practiced by most Malay 2. Practised in Negeri Sembilan
states of the Peninsular and Naning in Melacca
3. property could be inherited 3. customary land is inherited
by both male and female but by woman only.
the portion of the male will 4. Customary Tenure Enactment
be more than the female. and National Land Code
4. 99 Laws of Perak, law-digests (Penang and Malacca Title)
of Malacca, Pahang, Kedah Act 1963 ancestral land must
and Johore. be endorsed as “customary
law”.
Adat Temenggung Adat Perpatih
• Criminal law = principles of • Criminal law = offender would
retaliation be in the first place judge by
• Civil law = land his own family.
Case : Laton V Ramah (1927) • Civil law = land - ancestral land
must be endorsed as
Where a husband and wife
“customary land” on the title.
acquired property and one of
them dies, such property is Case: Hajjah Sitam V Hassan
divided equally between heirs (1973) – if the land is under
of the deceased. customary law it cannot be
transferred, charged, leased.
 Malay customary Law in Sabah and Sarawak.
• Sabah = Malay adat + Islamic Law
 marriage, inheritance, division of property, etc
• Sarawak = UU Mahkamah Melayu Sarawak 1915 &
Muslim Wills Ordinance 1896.
• In Sheripah Unci and Sheripah Ta’siah v Mas Poeti
(1949),a child adopted under adat was recognised as
the legitimate child of the couple.(and this is contrary
to Islamic Law)
• In S.M Mahadar bin Datu Tuanku Mohamad v Chee
(1915), the Oath of a pregnant woman that the
particular man was the father was acceptable(and
this is contrary to English Law).
 Hindu and Chinese Customary Law
Chinese Polygamous marriage was recognised in :
1. Choo Ang chee v Nao Chan Neo (Six Widows) (1911)
2. Dorothy Yee Yeng Nam V Lee Fah Kooi(1956)
Law Reform (Marriage and Divorce) Act 1976.
• The marriage must be registered and recorded. The couple
could than proceed to perform a Church wedding or a
temple ceremony or Chinese tea ceremony.
• Male will be bestowed with property since the male carry
on the family name.
• Distribution of property to any member of the family by will
/ succession law.
 Native customary laws of Sabah
Sabah
• Native Affairs Buletin on Adat Timogun, Adat
Tuaran, Adat Murut, Adat Dusun, Adat Kwijau and
Adat Dusun in Putatan District.
• inheritance, marriages, divorce and compensation.
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 Native customary laws of Sarawak
• The Ondang-Ondang Lapan of 1843 was the first
codification of native law.
• In 1955, the Native Customary Laws Ordinance was
passed.
• There are compilation of Dayak (Iban) Adat Law 1963
and Dayak (Bidayuh) Adat Law 1964, which now replaced
by the Adat Iban 1993 and The Adat Bidayuh 1994.
• It covers : the long house construction and rules of social
behavior for members of visitors of the long house
communities, custom relating to farming, gardening,
ritual associations, conduct of marriages according to
adat, matrimonial, sexual offences, custom relating to
property, death & community cemetery.
 ISLAMIC/SYARIAH LAW

• Islamic/Syariah law is the fundamental religious concept of Islam revealed

through the Prophet Muhammad (peace be upon him) in the Quran and
Sunnah.
• The totality of God commands that regulate the life of Muslims in all its
aspects, their duties towards Allah, their relationship with one another and
the environment.
• Islamic Law has become a major source of law in Malaysia. However, the
Islamic law applied in Malaysia has been modified to adapt to the needs
and temper of society.
• Islamic law only applies to Muslims.
• Islamic law is administered in every state in the Federation by its
respective Syariah Courts system at state levels and in the Federal
Territories of Kuala Lumpur and Labuan.
• Covers the aspect of family law e.g inheritance, matrimonial and ta’zir
offences
• Sources of Islamic Law are divided into primary and secondary sources.
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Islamic Law under Federal Constitution
• There is a number of Enactments enacted to regulate the administration of Islamic
Law.
• Islamic law falls under the state list, thus, it is a state matter
• Under Article 3 of the Federal Constitution Islam is the religion of the Federation
but other religions may be practiced in peace and harmony.
• Article 11 provides that every citizen has a right to profess and practice his religion
• The cases will be heard before a Syari’ah Court namely Syariah Appeal Court,
Syariah Subordinate Court.
• The administration of Islamic Enactments were given to three principal authorities
i.e the Majlis Agama Islam Negeri, the Mufti and the Syariah Courts.

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