4.

The Various Sources of Malaysian Law

There have three sources of Malaysian Law. There are Written Law, Unwritten Law and Islamic Law. In Written Law, there is Federal Constitution. Federal Constitution is the supreme law of the federation. Federal Constitution provides for separation of power which there are the Executive, Legislature and Judiciary. This law lay down fundamental rights of every citizen to equality before the law. Islam is the religion of the federation in Art 3. Citizen have right of freedom to speech and expression, peaceful assembly and the formation af association. Malays as the National Languange but citizen may use other language. Federal Constitution can be made amendment. It can be made at any time. Art 159 allows amendment in the situation when there is a hole in the present law. It is necessary to fulfil the present demand law. Example are Art 182, Art 121 and Art 66. Amendment requiring a two-third majority. Most provision is the Federal Constitution can be amended by not less than 2/3 of the total number of members of each Dewan in Art 159(3). Amendment also requiring a simple majority. Certain can be amended by simplemajority in Art 159(4), which cover certain matters which are admission of any state to the Federation in Art 2, the Composition of Dewan Negara,and the rules concerning the election and retirement of its member in Art 45(4), restriction of freedom of movement within the federation and of freedom of speech,assembly and association in Art 9(2), 9(3), 10(2) and 10(3) and creation of inferior courts and the jurisdiction and power of the High court and inferior court in Art 121. Amendment requiring the consent of the Majlis Raja-raja, Rulers, privilege of Malays and Native of Sabah and Sarawak. Amendment also requiring the consent of the Yang Di-Pertua Negeri of Sabah and Sarawak. Second, there is State Constitutions in Written Law. Each state has its own constitution. This constitution is applicable to that particular state only. The provisions in the State Constitution are related to state matters, for example relating to ruler, financial, state employees and etc. Third, Legislation is include in Written Law. Legislation is the law enacted by the legislation, bodies and persons authorized by the legislature. In Malaysia, the power to enact law is vested in Parliament at the federal level and the State Legislative Assembly at the state level. These provisions are mainly concern with the basic and main laws. For the laws enacted between 1946 until 10 September 1957 are called Ordinances. Now, laws enacted by Parliament are called Act. Laws enacted by State Legislative Assembly are referred as to as Enactments, except in Sabah and Sarawak where they are knowns as Ordinances. There are four type of Acts which there are Principal Act, Amendment Act, Revised Act and Consolidated Act. Lastly, there is also Subsidiary Legislation. The Acts or Enactment may confer powers to specific bodies or persons in authority to make law. These laws are basically concern with everyday matters which is not covered by Parliament or State Assemblies. Normally, it relates to policies that known as rules or regulations.

In Unwritten Law, there is English Law. English Law forms part of the laws of Malaysia. English Law can be found in the common law and rules of equity. Section 5(1) of the Civil Law Act provides the application of English Law on matters pertaining to commerce. Application of principles of English Law in Commercial matters (partnership, banking and corporation) in Peninsular Malaysia except Penang, Malacca, Sabah & Sarawak in the absence of local legislation as at 7 April 1956. As for Penang, Malacca, Sabah & Sarawak, Section 5(2) provides that the application of English Law is still continue as it would apply in England if there is absence of local legislation. Second, there is Judicial Precedent in Unwritten Law. Under the common law,judicial decisions means the non-statutory law involved through judicial decisions. Doctorine of binding precedents or stare decisis means that in deciding cases before the courts, the judges are bound to follow the previous decision made by the previous judge. The content of judicial precedent are ratio decidendi (reason for deciding), for example the legal principles underlying the decision and obiter dicta (passing remarks). A judge may not wish to apply precedents in the circumstances which judgement may ignore or overrule a precedent laid down by a lower court, where the case is on appeal. They may refuse to apply the earlier precedent if it is arrived at per incuriam (made in ignorance of statute or a binding precedent). They may distinguish the case when they find there are material differences in facts between the case before them and the case laying down the precedent. There is also Customary Law that is the regular pattern of social behavior, accepted by a given society as binding upon itself. In Malaysia, the term customary law is used interchargeably with adat or native law and custom. Under Article 160 of the Federal Constitution includes customs and usages having force of law. Malay states is Malay adat. Malay customary law can be divided into adat Perpatih which a democratic matriarchal law and adat Temenggung which is an auroctratic patriarchal law. Borneo States is Sabah and Sarawak. There are Malay Customary Law and Native Customary Law. In Sarawak, there is Chinese Customary Law.

Lastly, the sources of Malaysian Law is Islamic Law. Islamic Law is applicable only to Muslim and administered in the Syariah Courts. Islamic Law falls under the state list, thus it is a state matter. It covers aspect of family law such as inheritance, matrimonial and tazir offence like drinking alcohol, failure to fasting during Ramadhan and khalwat. The cases will be heard in the Syariah Court. Syariah Court is a state court established by state law and has its own hierarchy namely Syariah Appeal Court, Syariah High Court and Syariah Subordinates Court. Articles 121(1A) of the Federal Constitution states that the civil court shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah Courts. The administrations of Islamic Law enactment were given to three principal authorities such as the Majlis Fatwa Agama Islam Negeri, the Mufti and the Syariah Court.