MALAYSIAN LEGAL

SYSTEM
Introduction to law

 What is law?

 What do you understand by the term ‘law’ ?

 Example of law?
INTRODUCTION TO LAW

Definition of law

 The word ‘law’ has been given many definitions

by lawyers.
 To the layman , law is understood as being a
general rule of conduct
 In summary: law is a body of rules which are
recognized and enforced by the state for the
administration of justice to the people of a
INTRODUCTION TO LAW

 Why do we need law?

Functions of Law

1. Control social behaviour

-this is done by a formal and rationalized set of
rules that are enforced by a threat of punishment.
-this will protect rights and deter wrongdoing in the
society

2. Dispute resolution for contracting parties

-when parties encounter conflict and fail to reach
an agreement mutually, they may turn to law to
Functions of Law

3. Regulate peoples’ relationship

-this function is performed by providing a set
of rules of conduct by which relationships can
be structured.

-for example, the law of partnership enables

individuals to organize their business
relationships.
Sources of law

 What forms Malaysian law?

 Where all these laws come from?
 How do we search for Malaysian law?
 How to derive the law?
 SOURCES OF MALAYSIAN LAW

WRITTEN LAW UNWRITTEN LAW

The Federal Constitution English Law

The state constitutions Judicial Decision

Legislation enacted by Customary Law

Parliament and State
Legislative Assemblies
Subsidiary Legislation Islamic Law
SOURCES OF MALAYSIAN LAW

1. WRITTEN LAW
 Written law is the law being enacted by Parliament
(federal level) and State Legislative Assemblies (state
level).

 The written law in Malaysia comprises:

1) The Federal Constitution
2) The state constitutions
3) Legislation enacted by Parliament and State Legislative
assemblies
4) Subsidiary legislation
1. Federal Constitution

 Federal constitution is the supreme law of the land –

Article 4(1).
 The federal Constitutions among others
-establish the organs of the Federation that is legislative
body, executive body and judicial body.
-governs relationship between the Federation and its
component states particularly on distribution of powers
between federal and state government
-provides the fundamental rights of individuals (eg. Freedom
of speech, assembly and association)
2. State Constitutions

 each state in Malaysia has its own constitution which

contains provisions to regulate the state government

 The State Constitution contains provisions among others

on
-matters concerning the Ruler
-the Executive Council
-the Legislature
-the legislative assembly
- State employees
3. Legislation

 Legislation refers to laws enacted by legislative bodies.

 In Malaysia, laws are legislated by Parliament at federal
level and by the various State Legislative Assemblies at
state level.
 Parliament- legislate law at federal level (Acts)
-laws enacted by Parliament after 1957 are called Acts
-laws enacted by Parliament after 1946 but before 1957 are
called ordinances
Legislation

 Statelegislative assemblies- legislate law

at state level
-law made by State Legislative Assemblies
(except in Sarawak) are called Enactments.
-The laws in Sarawak are called ordinances
4.) Subsidiary legislation (delegated
legislation
 Subsidiary legislation refers to rules and regulations
enacted by an authority under powers conferred on it by a
statute (parent legislation)
 Also referred to as delegated legislation, subordinate
legislation, secondary legislation
 Parent Act- the Act, Enactment or Ordinance that confers
power to the relevant authority to make the subsidiary
legislation.
 The relevant authority then makes the subsidiary
legislation (either in the form of Rules, Regulations,
Orders, Notifications, By-law, etc) as stipulated by the
Subsidiary legislation
Example of subsidiary legislation
1. Parent Act- Employment Act 1955
-In Parent Act, the Parliament gives power to the
Minister to make regulation.
-the regulation made by the Minister that is the
Employment (Termination and Lay-Off Benefits)
Regulation 1980- is called subsidiary legislation.
Subsidiary legislation

Example of subsidiary legislation

2. Parent Act- Legal Profession Act 1976
-S.77 of the Legal Profession Act 1976 states that
the Bar Council may, with the approval of the
Attorney-General makes rules for regulating the
professional practice, etiquette, conduct, and
discipline of advocates and solicitors.

-The Legal Profession (Practice and Etiquette)

Subsidiary legislation

Example of subsidiary legislation

3. Parent Act- Prevention and Control of Infectious Diseases Act 1988 (Act
342)
-S.11(2) of the Act states that the Minister may, by regulations made
under this Act, prescribe the measures to be taken to control or prevent
the spread of any infectious disease within or from an infected local
area.
-The Prevention and Control of Infectious Diseases (Measures within
the Infected Local Areas) Regulations 2020 was made.
-control of movements is provided under regulation 3.
Subsidiary legislation

 Subsidiary legislation is very important as legislation by

Parliament and State Legislatures is insufficient to provide
the laws needed to govern everyday matters
 Subsidiary legislation deals with the details about which
legislature has nither the time nor the technical
knowledge to enact laws
 legislature merely lays down the basic and main laws,
leaving the details to persons or bodies to whom they
delegate their legislative powers. Such persons or bodies
include the Yang di-Pertuan Agong, Ministers and local
authorities.
SOURCES OF MALAYSIAN LAW

2. Unwritten law
 Law which is not enacted by either the Parliament or the
State Assemblies. Neither are they found in the Federal or
the State constitutions.

 Unwritten law comprises the followings:

1) English Law
2) Judicial Precedents
3) Islamic law
4) Customary law
English Law

 English Law forms part of the laws of Malaysia.

English law can be found in the English common
law and rules of equity.
 However, not all of English law applicable in
Malaysia.
 The application of English law in Malaysia is based
on section 3 and 5 of the Civil Law Act
English Law

English Law
Section 3 (1) Civil Law Act 1956
-in the absence of local legislation 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. In Sabah and Sarawak, the courts are required
to apply the English common law and rules of equity
together with statutes of general application, as
administered or in force in England on the 1st of December
1951 and the 12th of December 1949 respectively.
English law

 Proviso to section 3(1)

‘the said common law, rules of equity and statutes
of general application shall be applied so far only as
the circumstances of states of Malaysia and their
respective inhabitants permit and subject to such
qualifications as local circumstances render
necessary.
English Law

Based on the above provisions, in your

opinion, what is the conditions for the
application of English law in Malaysia?
English Law

 Therefore, the application of English law is

subject to two limitations:
1. Absence of local law
2. Suitability to local circumstances
English Commercial Law
 The application of English Commercial Law in Malaysia is based on section 5 of the
Civil Law Act 1956.

 Section 5(1) of the Civil Law Act 1956 which provides

as follows:
 With respect to mercantile law in the states of West
Malaysia other than the states of Penang and Malacca, the
principles of English commercial law to be administered
shall be the same as would be administered in England in
the like case at the date of the coming into force of this in
the absence of local legislation.
 So in West Malaysia, the principles of English
commercial law to be applied is as it stood on the 7th
April 1956
English Commercial Law

 Section 5(2) on the other hand provides that

 in the states of Penang, Malacca, Sabah and Sarawak,
the law to be administered in the matters of
commerce shall be the SAME as would be administered
in England at the corresponding period unless local
laws exist.
 Thus in Penang, Malacca, Sabah & Sarawak, the
law which is applicable in England at the same
period in which the case is heard will apply but
since we have many local statutes that relate to
commercial law they will apply not English law.
 Application of English Commercial
Law
 Kon Thean Soong v Tan Eng Nam [1982] 1 MLJ 323

 The court in this case had held that the English

Partnership law was NOT applicable in Malaysia
since we already have the Contracts (Malay
States) Ordinance to regulate the matter.

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Application of English Commercial Law

 Shaik Sahied b Abdullah Bajerai v Sockalingam Chettiar

[1933] MLJ 81

 Section 5 is silent on matters relating to suitability (of

English commercial law) to local circumstances unlike
section 3 of the Civil Law Act.
 In the above case, the Privy Council held that the English
Moneylenders’ Act was not applicable to the Straits
Settlements.
 So based on the above case it can be concluded that
English Commercial law is still required to suit the local
circumstances.
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Judicial Decisions

 Malaysian law can also be found in the judicial decisions

of the High ourt, Court of Appeal and the Federal Court.
 Judicial decisions are based on the doctrine of binding
judicial precedent

What is precedent?
 Precedents are basically decisions made by judges
previously in similar situations. A judge must apply the
principles laid down by judges previously in similar
situations.
Judicial Precedent

General Rule of judicial precedent

 Decision of higher courts bind lower courts and
some courts are bound by their own decisions.

 Types of judicial precedent

1. Declaratory Precedent
2. Original Precedent
1. Declaratory precedent
- a judge applies an existing rule of law without
extending it

2. Original precedent
-if the case before the judge is without precedent,
then the decision has to be made based on justice,
equity and good conscience.
Islamic law

 The application of Muslim law is limited to the

Muslims pertaining to personal law matters only.
 Personal laws refer to a body of principles that
apply to a particular group only, be it based on
race or religion.

Which court enforce Islamic law?

Islamic law

 Islamic law is enforced by the Shariah

courts

 What is the jurisdiction of Shariah courts?

Islamic law

 Syariah courts posses civil & criminal jurisdiction

 Examples of civil jurisdiction of Syariah courts

-betrothal, marriage, divorce, nullity of marriage,
guardianship or custody of infants
 Examples of criminal jurisdiction
-matrimonial offences, offences relating to sex,
offences relating to intoxicating liqour
Islamic law

 What punishment can be imposed by

the Syariah court?
Islamic law

 The maximum punishment can be imposed

by Syariah courts is
-imprisonment up to 3 years or
- fine up to RM5000 or
- Whipping up to six strokes or
- Combination of all these
Customary law

 Customary law can be found in the customs of the local

inhabitants
-customs of the local inhabitants in Malaysia are also a
source of law.

 Only custom which is recognized and enforced by the

courts is accepted as one of the sources of law
-generally, customs relating to family law (marriage,
divorce, inheritance) are given legal force by the court in
Malaysia.
Customary law

 Application of customary law in west Malaysia

 In west Malaysia, adat applies to Malays. Prior to the
enforcement of Law reform (Marriage and Divorce ) Act
1976, Hindu and Chinese Customary law applied to the
Hindus and Chinese respectively.

- In west Malaysia, Malay customs still have legal

consequences
- However they are limited to a narrow field on matters
pertaining to inheritance, marriage and divorce.
- The Malay customary law can be divided into adat
perpatih and adat temenggong.
Customary law

 Canyou differentiate between adat

perpatih and adat temenggong?
 What are the main differences?
Customary law

 Adat perpatih
- based on matrilineal system. Ancestral property is only be inherited
by the female descendants of the deceased holder

- It deals with land tenure, lineage and election of Lembaga, Undang

and the Yang di-Pertuan Besar.

- Broadly applied by the Malays in Negeri Sembilan and Naning in

Malacca

 Adat temenggong
-is based on patrilineal system which is practised in the rest of the states
Customary law

 In west Malaysia, Chinese and Indian customs have become less

important after the enforcement of the Law Reform (Marriage and
Divorce) Act 1976
-this Act takes effect on 1 March 1982
-as far as Chinese and Indians are concerned , after the enforcement of
the Act, polygamous marriage were abolished.
-since then Chinese and Hindu Customs have become of little or no
effect as a source of law in Malaysia.
Customary law

 Application of customary law in East Malaysia

-in East Malaysia customary law can be divided into Malay
customary law, native customary law and Chinese customary
law.
Customary law

1. Malay customary law- applicable to Malay only and is

enforced by the Syariah court

2. Native customary law- applicable to non-malay natives

and is enforced by the native court

3. Chinese customary law- applicable to Chinese in Sarawak

only and is enforced by the civil court