Sources of Law

Sources of Malaysian Law

Weeks 3 & 4

• The sources of Malaysian Law mean the legal rules that make the laws in Malaysia, which can be classified into written and unwritten law. Written Law
• Is the most important source of law, includes the following:
1. Federal and State Constitutions.
Federal Constitution
– Is the supreme law of the land (Article 4 states that any law passed after Merdeka Day which is inconsistent with the constitution shall, to the extent of inconsistency, be void) by virtue of the case, Suderinder Singh v. Government of Federation of Malaya (1962) M.L.J 169.
– Enshrines the basic or fundamental rights of the individual
(Articles 5, 9, 10 or 13)
– Amendments requiring two-third majority (Article 159)
– Amendment requiring simple majority
– Amendment requiring consent of Majlis Raja-Raja

State Constitutions
• There are also constitutions of the 13 States in the federation
• State constitution contains provisions listed in the 8th schedule
• The provisions include matters concerning the Ruler, the Executive
Council and the Legislature, etc
• Article 71 states that if any provision is inconsistent with them, parliament may remove any inconsistency
• In Malaysia, laws are legislated by parliament at the federal level and by state legislative assemblies at state level. Laws that are enacted by parliament after 1946 are called Ordinances, after
Merdeka are called Acts (Please refer to the procedures for the enactment of an act of parliament)
• Laws made by the state legislative assembly are called Enactments
(laws in Sarawak are called Ordinances)
• Parliament and the State Legislatures are not supreme

• Parliament is competent to enact laws on matters enumerated in List I of the 9th schedule while states can enact laws on matters in List II
• List III are within the concurrent competence of both authorities Subsidiary Legislation (SL)
• Is a legislation made by persons or bodies under powers conferred on them by Acts of parliament or state assemblies
• SL is important as legislation made by parliament and the state is insufficient to provide the laws required to govern everyday matters

Unwritten Law
Law which is not written, found in cases decided by the courts, local customs etc English Law
• English Common Law and rules of equity
• S3 (1) of the Civil Law Act 1956 provides that in Peninsular Malaysia, the courts shall apply the common law of England and the rules of equity as administered in England on the 7th of April 1956
• Please refer to the general rules application of English Law : Civil Law Act
1956
Judicial Precedents
• Judicial decisions of the high courts, COA and Federal Court previously was known as the Judicial Committee of the Privy Council

Stare Decisis –
Doctrine of binding judicial precedent
• Means to stand by cases already decided
• Vertically: the superior courts bind all courts subordinate to it
• Horizontally: a court (usually an appellate court) is bound by
i) Its own previous decisions ii) The decisions of its predecessor and the iii) Decisions of courts of coordinate jurisdiction

Customs of the local inhabitants, which have been accepted as law by the courts
• Adat pepatih
• Adat Temenggung
• Law reform (Marriage and Divorce Act) 1976
Islamic Law
• Apply only to Muslims
• The courts which enforce the Islamic law are the Syariah
Courts (laws relating to family matters, marriage and divorce)
• Based on Quran and Hadith , Fatwa and Ijma Ulama