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Malaysia Legal System
Malaysia Legal System
Sources
Malaysian law is derived from various written and unwritten sources.
The following are the written sources:
1. The Federal Constitution: The Federal Constitution is the supreme law of Malaysia. It
provides for a democratic system of government and the powers of the Federal and State
Governments. It also establishes a constitutional monarchy and entrenches fundamental
rights/liberties of the individual. The Federal Constitution is not easily amended. It provides
for special majority of two-thirds of the total number of members of the legislature in order
to amend it.
2. The State Constitutions: Every state in Malaysia has its own State Constitution. These
contain provisions pertaining to state matters as provided under the Federal Constitution.
The States Constitution largely deals with land matters, agricultures, forestry, local
government and Islamic law.
3. Legislation: Legislation comprises the laws passed by Parliament as well as the State
Legislative Assemblies. The laws passed by Parliament since 1957 (ie. after Malaysias
independence) are called Acts while those passed by the State Legislative Assemblies
(except Sarawak) are called Enactments. The laws passed in Sarawak are called
Ordinances.
4. Subsidiary legislation: Subsidiary legislation (also known as delegated legislation) refers to
the rules and regulations which are passed by some person or body under some enabling
parent legislation.
The advantages of subsidiary legislation are the following:
i. Subsidiary legislation can be passed very quickly as it does not have to undergo the various
stages of procedure which has to be followed in Parliament or the State Legislative Assemblies.
ii. Parliament does not have sufficient time to deal with detailed rules necessary to implement the
law. Subsidiary legislation fulfils this need.
iii. Some matters require the special skill and knowledge of expert in that area. Parliament itself
may not have sufficient experts for this purpose. Thus, subsidiary legislation fulfils this need as
well.
However, subsidiary legislation has several disadvantages as follows:
i. The growth of subsidiary legislation goes against the doctrine of separation of powers. This is
because law is not being passed by persons elected for that purpose. Instead it is passed by
officers of government department.
ii. As parliament cannot effectively supervise the making of subsidiary legislation, many rules and
regulations may have been passed without proper consideration of some very important factors.
iii. Too much law is passed through subsidiary legislation.
Therefore, several forms of control over subsidiary legislation have been developed. The main ones
are consultation, parliamentary control, judicial review and publicity.
Unwritten law comprises the following:
1. English common law and the rules of equity: The reception of English common law and equity in
Malaysia is specifically permitted by virtue of s3(1) and s5(1) of the Civil Law Act 1956. However this is subject to
certain exceptions. In particular, English law may only be applied where (1) there is no local law governing the
matter and (2) if it is suitable for the local circumstances.
Bys3(1) of the Civil Law Act 1956, unless there is any other written law in force in Malaysia the
courts are required to apply English law as follows:
a. in West Malaysia or any part thereof, apply common law of England and the rules of equity as
administrated 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 administrated or in force in England on the 1 st day of December, 1951;
c. in Sarawak, apply the common law of England and the rules of equity, together with statutes
of general application, as administrated or in force in England on the 12th day of December,
1949.
The following points may be noted:
i. The relevant cut-off dates for the application of English law differ for West Malaysia, Sabah
and Sarawak.
ii. s3(1)(a) mentions only the application of common law and equity in West Malaysia whereas
s3(1)(b) and s3(1)(c) mention common law, rules of equity and statutes of general
application for Sabah and Sarawak.
iii. English law may only be applied in the absence of local statutes.
iv. In addition, English law may only be applied if it is suited to local circumstances. This is stated
in the proviso to s3(1) as follows: the said common law, rules of equity and statutes of
general application shall be applied so far only as the circumstances of the states of Malaysia
and their respective inhabitants permit and subject to such qualifications as local
circumstances render necessary.
The application of English law on commercial matter is governed by s5(1). The section restricts the
English law applicable to West Malaysia other than Penang and Malacca (ie. former Malay States) to
the law as administrated in England as at 7th April 1956 while for Penang, Malacca, Sabah and
Sarawak the English law is applicable so far as commercial matters are concerned. A point to note
is that s5 does not expressly state whether its application is subject to local circumstances (unlike
s3). However, the courts seem to be accepted that it is.
In conclusion, English law as at the relevant cut-off dates continues to be applicable as a source of
law in Malaysia. However, with the increasing number of statutes being passed by the Parliament
and State Legislative Assemblies, there is a declining dependence on English law.
2. Judicial precedents: This refers to the law as developed through cases decided in the
superior courts. Sometimes referred to as judge made law. Under the doctrine of binding
judicial precedent, which is also observed in Malaysia, the decisions of the higher courts
must be followed by the lower courts in similar cases. This generally ensures a fairer and
uniform application of the law.
The doctrine of binding judicial precedent requires decisions of higher courts to be followed by
courts which are lower in the hierarchy of the court structure.
It must be noted that it is the ratio decidenci of a case that binds future courts. The ratio decidenci
refers to the rationale or principle of law on which the decision is based.
In order to better understand the operation of the doctrine, it is important to know the hierarchy of
the courts. In Malaysia, the highest court is the Federal court. Below is the Court of Appeal. Below
the Court of Appeal is the High Court. These three courts may be referred to as the superior courts.
Below the High Courts are the Sessions Courts, Magistrates Courts and the Penghulu Courts, which
are referred to as the subordinate courts.
The doctrine operates as follows:
i. Decisions of the Privy Council while the Privy Council was part of the hierarchy of Malaysian
courts are binding on all the courts in Malaysia.
ii. Decisions of the Federal Court are binding on all the courts below it. The Federal court is
probably not bound by its own decisions.
iii. Decisions of the Court of Appeal are binding on all the courts below it. It is bound by its own
previous decisions to the same extent as the latter. However this was subject to three
exceptions:
i. Where there are two conflicting decisions, the court may choose either.
ii. Where its previous decision cannot stand with a later decision the Court of Appeal is bound
to refuse to follow its own previous decision.
iii. Where its own previous decision was given per incurium it is not bound to follow the earlier
decision.
iv. Decisions of the High Courts are binding to all subordinate courts, but one High Court judge is
not bound to follow the decision of another.
v. Decisions of the subordinate courts have no binding force.
The advantages of the doctrine of judicial precedent are the following:
i. It ensures a uniform application of the law.
ii. The law developed through cases is more practical as it is based on actual situations.
iii. Flexibility in the application can be achieved. A judge may avoid following an earlier precedent if
the case was decided per incurium ie. without taking into account a relevant legal principle or
statute. He could also avoid it by distinguishing the precedent from the facts of the present
case.
3. Customs: This refers to the customs of the local inhabitants which have been accepted as
law. It mainly relates to family matters, eg. marriage, divorce and inheritance. The
customs of non-muslims are no longer of much importance since the passing of the Law
Reform (Marriage and Divorce) Act 1976 which abolish polygamous marriage among non-
muslims. However the customary laws of the Malays (also called adat law) continue to be
an important source of law.
4. Islamic law: It is only applicable to muslims. Islamic law is administered at state levels by a
separate system of courts called the syariah courts.
Statutory interpretation
i. The literal rule: This is a rule by which word or phrase is given its literal or ordinary grammatical
meaning. By this rule, if the words of the statute are in themselves precise and unambiguous they
must be expounded in their natural and ordinary sense. This rule is very commonly used and
sometimes appears to give a result contrary to the intention of parliament. In Fisher v Bell, a
shopkeeper was charged under the Restriction of Offensive Weapons Act 1959 for offering for
certain weapon, including flick knives, by displaying these knives in a shop window. The court held,
applying the literal rule, that the display was not an offer for sale but merely an invitation to treat.
Thus, the shopkeeper was held not guilty.
ii. Mischief rule: This is a rule that enables the court to interpret words or phrases which are unclear an
ambiguous of the statute as a whole. In such cases the court will enquire into the overall intention of
the legislature as discovered from a reading of the statute as a whole. In Lim Moh Joo v PP, the
Criminal Procedure Code required the Public Prosecutor to deliver a copy of a report to the accused
not less than ten clear days before the commencement of the trial. The issue was whether the same
procedure applied when the prosecutor was by a private person. The court held that it did, saying
that this was a case where court must modify the language of the law to meet what must have been
the intention of the legislature.
iii. The ejusdem generis rule: This is the rule by which where a general word follows a class of specific
words, the general word is interpreted to refer to words of that class only. For example, a statute may
prohibit the sale of beer, brandy, whisky, rum and other intoxicants. Here by applying the rule, other
intoxicants would be confined to the same class of intoxicating drinks and not all other form of
intoxicants.