Sources of Malaysian Law

1.10 SOURCES OF LAW

The main sources of law in Malaysia can be categories as follows

a. the Federal Constitution
b. the 13 Constitution of the States comprising the Federation
c. Federal law made by Parliament
d. State laws made by State Assemblies
e. Federal and State Subsidiary Legislation
f. Principles of English Law
g. Judicial Precedent/
h. Islamic Law

1.10.1 FEDERAL CONSTITUTION

Malaysia has a written constitution unlike the United Kingdom. The Federal Constitution is the supreme law of the land. Generally, any law which is inconsistent with the Federal Constitution is invalid. The Malaysian Parliament functions under a written constitution and is governed by it. Its law making power is limited by the provisions in the constitution. However our Parliament as a legislative body has the capacity to amend , repeal and make new constitution by way of two third majority vote of the both houses of Parliament. ( Dewan Negara & Dewan Rakyat). The Federal Constitution also establishes a constitutional Monarchy and a Federal System of Government.

In England Parliament is Supreme and has full power to make law on any matter.

According to Dicey:

‘ The Principle of Parliamentary sovereignty means neither more nor less than this, namely that Parliament has, under the English constitution, the right to make or unmake any law whatever; and further that no person or body is recognized by the law of England as having a right to override or set aside the legislation of Parliament’

How far is this true after the signing of treaty of Rome in 1972? How supreme is Parliament?

1.10.2 THE STATE CONSTITUTION

The 13 States of Malaysia have individual constitutions, which provide for a single chamber Legislative Assembly in each state. A Menteri Besar or a Chief Minister heads the government. (In the Malay States a cabinet known as the Executive Council assists the Menteri Besar) In Sabah & Sarawak, members of the Executive Council are known as State Ministers.

1.10.3 LEGISLATION

It refers to laws made by a person or body, which has power to make law. In Malaysia, Parliament and Legislative Assemblies have powers to enact laws in their respective areas. Laws made by Parliament may extend to the whole country. However, laws enacted by a State Assembly only apply to that particular state only.

Act - Federal Law made by Parliament
Enactment - State Law made by Legislative Assemblies
Ordinance - Law made by YDPA during Proclamation of an emergency when Parliament is not sitting concurrently.

1.10.4 ENGLISH LAW

The supremacy of English Law remains in Malaysia even after independence. The English Law is adopted so far as they were suitable to local conditions. Many of the local laws especially those affecting trade, commerce and banking were patterned on English Models (or in some instance other colonial laws) e.g. Section 3 and 5 of the Civil Law Act 1956 provide that English law relating to contract is applicable in Malaysia in relation to areas not covered by our legislation or our case law. Our courts have also tended to look towards the English Law to aid them in the interpretation of the Contract act.

1.10.5 SUBSIDIARY LEGISLATION/ DELEGATED LEGISLATION

Also known as delegated legislation. A statute will confer power on an authority for it to enact rules and regulation. An example of delegated legislation is the parking by laws enacted by various councils under powers conferred on them by the State Local Government Enactments.

1.10.6 THE COMMON LAW

Refers to law laid down by judges sitting in the Superior Courts as distinct from statute law enacted by the legislative.- Judge made law. This system was inherited from England

1.10.7 SYARIAH LAW

Is the body of Islamic law. The term means "way" or "path"; it is the legal framework within which the public and some private aspects of life are regulated for those living in a legal system based on Muslim principles of jurisprudence Applicable to Muslims only and administered in the Syariah Courts. The courts possess civil jurisdiction over offences by Muslim against the religion.

1.10.8 THE DOCTRINE OF STARE DECISIS ET NON QUIETA MOVERE / BINDING PRECEDENT

The doctrine of Stare Decisis is a Latin legal term, used in common law to express the notion that prior court decisions must be recognized as precedents, according to case law. More fully, the legal term is "stare decisis et non quieta movere" meaning "stand by decisions and do not move that which is quiet" (the phrase "quieta non movere" is itself a famous maxim akin to "let sleeping dogs lie").Why do lawyers cite previous cases from thick volumes in their arguments before the court? The answer is because the common law The doctrine of binding precedent or stare decisis is central to the English legal system, and to the legal systems that derived from it such as those of Australia, Canadaand New Zealand. A precedent is a statement made of the law by a Judge in deciding a case. The doctrine, states that within the hierarchy of the courts a decision by a higher court will be binding on those lower than it. This means that when judges try a case they will check to see if a similar case has come before a court previously, and if there was a precedent set by an equal or higher court, then the judge should follow that precedent. If there is a precedent set in a lower court, the judge does not have to follow it, but may consider it. The Federal Court however does not have to follow its own precedents.

Only the statements of law are binding, this is known as the reason for the decision orratio decidendi, all other reasons are by the way or obiter dictum see Rondel v. Worsley (1969) 1 AC 191. A precedent does not bind a court if it was found there was a lack of care in the original “Per Incuriam”, for example if a statutory provision or precedent had not been brought to the court 's decision. If a court finds a material difference between cases then it can choose not to be bound by the precedent. Persuasive precedents are those that have been set by courts lower in the hierarchy, they may be persuasive but are not binding ,. Most importantly precedents can be overruled, by a subsequent decision by a higher court or Act of Parliament, Judicial ruling is retrospective, whereas Act’s of Parliament are always Prospective unless stated.

The last situation brings about the greatest problem of the precedent system, in that if a higher court overrules a precedent that is quite old, then it is very likely that many cases that have been decided upon that precedent will return to court. Therefore, it becomes increasingly unlikely that a precedent is overruled the older it is is found in decision of the superior court. Judges are obliged to decide the case before him by reference to a previous decision when the conditions for the operation of the doctrine of precedent are satisfied. These are the previous decision decided in the previous case, so far as its ratio decidendi is concerned, relevant to the determination of an issue of law in the case in question, and that the prior court’s decisions are authoritative for his court, it is a court which is superior to his hierarchy.

What about Malaysia? Do we adhere to these principles of judicial precedent? Even when we have statutes, we still look to the judges interpretation of the law. The statute must be read in the light of decided cases.

Judges are required to follow a system, which provides for consistency and certainty in decision. A judge’s decision in an earlier and similar case constitutes a precedent and may be binding depending on the hierarchy of the courts concerned. E.g. the decision of the Federal Court is binding on the other courts, but the decision of the High Court is binding on the lower courts and not on the Court of Appeal and Federal Court.

1.11 THE LEGAL INSTITUTION

YDPA

Legislative Executive Judiciary

Constitutional law is concerned with government in a state. If a question is asked what government is, we are likely to think of various official powers which are exercised over us or in short we can say they are the power organizing structure.

In Malaysia it would be simple enough to classify the activities referred to the above as legislative, executive or judicial. As the terms is generally employed, the legislative activity involves the enactment of general rules for the individuals and groups in society. The executive function is harder to define, but includes actions taken for the maintenance of order, in the implementation of the law, for the defense of the state, in the conduct of external affairs, and in the administration of internal policies. Finally the judicial function involves the determination of issues of fact and the interpretation of law and dealing with crimes or civil causes by the application of the law to them.

Sometimes the three functions may be viewed as a combination or sequence. For example it is the legislative power to increase income tax. Executive action will is involve in the collection of the arrangements for the tax collection and the judicial proceedings may be involved when persons are found evading tax payment. The three functions can be described as making law, applying law and enforcing law. But some of the activities which we would classify as executive, including the general conduct of foreign policy, do not involve the execution of law at all.

The terms which we have been using, which categorizes the functions of government as legislative, executive and judicial, has become commonplace in the description of constitutional arrangements. The terms have been derived from a doctrine which was developed in the seventeenth centuries in England and this doctrine is commonly known as doctrine of separation of powers. It is also natural to use the terms because in many states there seem to be institutions whose primary functions correspond to one of these three kinds of activity, whether it is under the influence of the doctrine or not.

Doctrine of Separation of Power

The doctrine of the separation of powers is most often associated with French writer Baron de Montesquieu but it would be a mistake to think that he invented it. The model was first developed by the ancient Greeks in the constitutions that governed their city-states. However, it first came into widespread use by the Roman Republic. It was outlined in theConstitution of the Roman Republic.The doctrine of the separation of power is not a legal principle, but a political theory.

The doctrine includes a proposition about the functions of government, and discussion of the forms and functions of government may be traced back to ancient Greece. In Aristotle’s politics, he distinguishes three elements in every constitution, which he classified as the deliberative, the magisterial, and the judicial

Judiciary hears and determines civil and criminal matters, and pronounces on the legality of legislative and executives acts. It may also interpret the Federal Constitution and State Constitution.

The High Court of Malaya and Sabah & Sarawak, the Court of Appeal and the Federal Court are superior courts. The general rule is that the Jurisdiction of the courts increases as one moves upwards .

There are also several specialised tribunals exercising judicial and quasi judicial functions eg. Industrial Court and Court Martial. These courts provide an inexpensive and specialised means of settling disputes between the parties.

1.12 THE LAGISLATIVE PROCESS IN THE MALAYSIAN PARLIAMENT

The Bill introduced to parliament may be classified as:

a) Private Bill’s
b) Private Member Bills
c) Hybrid Bills
d) Government Bills

The Bill is normally presented by the Minister to the Parliament A Bill introduced in either House in accordance with Parliamentary procedure as prescribed by the Standing Orders usually goes through 4 stages:

1.The First Reading
2. The Second Reading
3. The Committee Stage
4. The Third Reading

To introduce a bill, it is required to give notice to the Clerk of the relevant House before which he intents to introduce it. Bills may be classified as Private Bills, private member’s Bills, hybrid bills or government Bills.

At the first reading, the Minister merely mention the title of the Bill and then proceeds to give oral notice as to when he wishes to move the Second Reading. There is a debate or amendment at this stage of the proceeding which are but a mere formality.

This motion, moved by the Minister, requires to be seconded. By the time this motion is move, the Bill will have been printed and circulated to all members of the House. Otherwise, the Bill cannot be presented. It is as this stage that debate on the Bill is carried out.

At the end of the Second Reading, the Bill is committed Committee of the whole House. In effect, the House resolve itself into a Committee on the Bill. This is called a Committee Stage and it is intended to allow members the opportunity to discuss detail of the Bill and to propose amendment in a less formal proceeding. When discussion is completed in Committee, the Minister move a motion to report the bill under consideration to the House. If the motion is accepted, the House will resume sitting and this brings the Committee Stage to an end.

When the house resume sitting, the minister reports that the Bill has been considered and accepted by the Committee with or without amendment. When a Bill has been passed in the manner describe above in either House, it is then transmitted or send to the other House for Consideration. When the has been considered by the other House in a similar fashion, it is return to the House from which it originated. The motion is the final step and article 68 of the Federal Constitution will become operative.

According to article 68, the Bill may be presented to the Yang di-Pertuan Agong for his assent after the lapse of one month if it is a Money Bill and twelve months if it is not a Money Bill. However, this primacy of the House of Representatives over the Senate does not exist in the event of a Bill amending the Constitution. Constitutional amendment requires the concurrence of both chambers. The function of the Senate is general legislation is of a revising nature with no real authority to reject measures passed by the House of Representative.

Although a Minister normally introduces a Bill, there is nothing to prevent any member either of the government or the opposition from introducing a Bill, but such a move is unlikely to succeed unless it commands the support of the government. Bill may originate from either House with the exception of a Bill or and amendment concerning any of the matters enumerated in article 67, such a taxation and expenditure, which must be moved by a minister in the House of Representative.

The legislative procedure in the State Assemblies is almost similar to that in the Federal Parliament with some local variations. Bill are passed by the one-chamber by Legislative Assembly and assented to by the Ruler or Yang di-Pertua Negeri before becoming law, and no law can come into force until it is published. Bills requiring expenditure from the Consolidated Funds have to be introduced by a member of the Executive Council. State Constitution, with certain exceptions may also be amended on the same format as an amendment of the Federal Constitution, that is, supported on the second and third reading by at least two-third of the total number of members. The constitutional provisions affecting succession to the throne in the Malay State may not be the subjects of amendment by the State Legislature.

1.12.1 Voting

A Bill is adopted by a simple majority vote of those members present and voting. There are several exception to this rules, the most significant being constitutional amendment in accordance with article 159 of Federal Constitution. Bill shall not been passed in either House of Parliament unless it has been supported on the second and third readings by the votes of not less than two-third of the total number of members of that House.

1.12.2 Royal Assent

The Yang di-Pertuan Agong is an integral part of Parliament. His assent is normally before a Bill becomes law. Royal Assent is not effect within a time specified, the Bill becomes law as if it had been assented. Prior to the amendment, there was no evidence to suggest that the Royal veto over a proposed federal law has ever been official existed.

References:
1. S.S. Ahmad, 1999, Malaysian legal system, Malayan Law Journal Sdn. Bhd, Malaysia

References: 1. S.S. Ahmad, 1999, Malaysian legal system, Malayan Law Journal Sdn. Bhd, Malaysia