LAW OF MALAYSIA

1.         INTRODUCTION & HISTORY

 * Based on the common law legal system. Laws of UK were imported and made into local legislation and adopted  in the process of decision making (case law)

 * Direct result of British colonisation between early 1800s to 1960s

eg, criminal procedure code imported from India, Contracts act imported from India

land law imported from Australia Torrens system.

 * Supreme law of Malaysia - Malaysian Constitution

- it sets out the legal framwork and rights of Malaysian citizens

 * Laws are enacted (made) by Parliament are called Federal lawsand applies nationwide

 * Laws enacted by state legislative assembly are called State laws and applies to a particular state

 * Constitution of Malaysia provides for for a unique dual justice system - Art 121(1A) FC:

i)   Secular laws

- criminal - public law

- civil - private law

 ii) Shariah law/ Muslim law

 2)         SUPREME LAW

 * Federal constitution aka the constitution of Malaysia 

- Provides for the legal framework of law, legislation, judiciary (court system)

- defines government & Monarch & their powers

- rights of citizens

 3)         COMMON  LAW & EQUITY

 * These are unwritten laws not contained in any statutes and are normally in case law basis.

* Laws of UK were imported and made into local legislation and adopted  in the process of decision making (case law)

* Certain instances where there is no Msian case law/ statute , then Common law can apply.

 4)         CUSTOMARY LAW

 - unwritten law

- applied by most ethnic groups in Msia. commonly referred to as adat perpatih/ Adat Temenggung

- based on local customs, practices

SOURCES OF MALAYSIAN LAW

 1.         INTRODUCTION

Sources of law means the legal rules that make up the law in Malaysia.

 2.         TYPES

 i)          WRITTEN LAW

 - Federal constitution

 - State constitution

 - Subsidiary legislation

 - Syariah law

 Federal Constitution

- highest law in msia

- sets out the legal framework and rights of Malaysian citizens

- provides for the legal framework of law, legislation, judiciary (court system)

- defines government & Monarch & their powers

- rights of citizens

 State Constitution

- state law

- governing laws in the particular state

 WRITTEN LAW (LEGISLATION )

 i)   Parliamentary legislation

- laws enacted by Parliament

- these laws are sublect to the FC

- these laws are not supreme

 ii)   Subsidiary Legislation

*  Definition

- order, regulation, notification, by- law, proclamation that have legislative effect

- Parlianment confers a power to make delegated legislation on a government minister or another person or body.    -

- Severaal thousand pieces of delegated  legislation are made each year, compared  with only a few dozen  Acts of Parliament

- Parliament lays down the guidelines to follow strictly by Local authorities

 * Purpose

- Pt has insufficient time and technical knowledge to enact all kinds of law. It allows laws relating to technical matters to be prepared by those  with the  relevant expert knowledge eg pensioner's scheme, road traffic signs

 * Advantages

- Flexible

- can be amended  or modified easily

- can be speedier to implement

- can be tailored to suit a particular situation

UNWRITTEN LAW

 i)    Unwritten law

  - adopts the English CL and Equity

- do not originate from malaysian law

- application of english law is specified in the statutes

- Msian courts very cautious in applying it

- only apply when there is no specific laws applicable to it

 ii)    Judicial Decisions

 - aka Doctrine of binding precedent/ stare decisis

- decisions of seperior courts binding on inferior/ lower courts

- Inferior courts must follow and they cannot question the law made by higher courts

- This is to ensure uniformity and certainty in the law.

 iii)    Customs