GENERAL INTRODUCTION OF LAW:

Introduction to Law According to Oxford English

Dictionary, law is defined as ‘the body of enacted or customary rules recognized by a community
as binding’.The aim of the law is to attain justice in society.Justice is an abstract idea of right and
wrong, fairness and equality.Example: it is a rule of law that theft is a crime under Section 378 of
the Penal Code of Malaysia and is imprisonment or a fine or both.

 Malaysian Legal History 

Malaysian Legal HistoryMalaysia, which consist of Peninsular Malaysia, Sabah
& Sarawak is one political unit, but not governed by the same set of laws.There are, two
important links which unite the two parts of Malaysia – the Parliament and the Federal Court.The
Malaysian Parliament can and does legislate for the whole country while the Federal Court acts
as a final court of appeal for the whole country.Within Malaysia, there are thirteen states and
every state has a government and has rules which lay down who shall govern and how.

The Federal Constitution 

The Federal ConstitutionIs the supreme law of the land so that any general
law that is inconsistent with the Constitution is, to the extent of the inconsistency, void.Has the
capacity to amend the constitution under which it functions albeit by a two-third majority vote of
both chambers of Parliament.Establishes a constitutional monarchy and a federal system of
government. Under the federal system, there is a division of legislative powers between the
central Parliament and the State Assemblies.State may make laws includes Islamic laws, Malay
customs, land mining, forests, agriculture and local government.

FUNDAMENTAL LIBERTIES:

The usual constitutional guarantees in respect of fundamental liberties that

one would normally expect in a constitution of an independent nation come to be subject to the
overhanging dark cloud of special emergency powers and powers against subversion.The Article
149 Special Powers Against Subversion permit the violation of fundamental rights contained in
Articles 5,9,10,13. These powers which curtail fundamental liberties are triggered by the simple
expedient of a magical incantation in the form of a ‘recital’ in an Act of Parliament that ‘action
has been taken or threatened by any substantial body of persons whether within or outside the
federation.

ADMINISTRATIVE SYSTEM:

Malaysia is a constitutional monarchy, nominally headed by the Yang-di-

Pertuan Agong.King is the leader of the Islamic faith in Malaysia.Executive power is vested in
the cabinet led by the prime minister, the Malaysian constitution stipulates that the prime
minister must be member of the lower house of parliament.The bicameral parliament consist of
the Senate (Dewan Negara) and the House of Representatives (Dewan Rakyat).Legislative power
is divided between federal and state legislatures. 

THE HEAD OF THE JUDICIARY IS THE CHIEF JUSTICE:

JUDICIAL SYSTEM: The Federal Constitution provides that power is exercised by the
legislative, the executive and the judiciary. The judiciary has the power to hear and determine
civil and criminal matters.The judiciary power of Malaysia is vested in the Federal Court, the
Court of Appeal, the High Courts and subordinate courtsThe head of the judiciary is the Chief
Justice.

SOURCES OF MALAYSIAN LAW:

MAIN SOURCES OF MALAYSIAN LAW:

Written law,Unwritten law,Shariah law

WRITTEN LAW:

Written law is most important source of law.it refers to the portion of the
Malaysian law which includes the following:

1. The Federal Constitution

2. The State Constitution

3. Legislation

4. Subsidy Legislation
1.THE FEDERAL AND STATE CONSTITUTION:

Art 4-The supreme law of the land;any laws passed after Merdaka Day
which inconsistent with this constitution shall to the extend of inconsistency,be void.

The FC enshrines the basic or the fundamental rights of individuals.These

rights written in the constitution can only be changed by 2/3 majority of the total number of
members of the legislature.This is in contrast to normal laws which can be amended by a simple
majority.

2.THE STATE CONSTITUTION:

There are also constitution of the 13 states comprising the federation,which

forms part of written law in Malaysia.

Some of these provisions include matters concerning the Ruler,The

Executive Council,the Legislature,etc.

3.FEDERAL AND STATE LEGISLATION:

Legislation refers to law enacted by a body constituted for this purpose.In

Malaysia,laws are legislated by 1) parliament at the federal level and by 2) Various state
Legislative Assemblies at the state level.

Laws that are enacted by the parliament after 1946 but before Malaysia’s
Independence in 1957 are called ordinance,but those made after 1957 are called Acts,on the
other hand,laws made by the State Legislative Assemblies (except Sarawak) are called
Enactments.The laws in Sarawak are called Ordinances.

SUBSIDIARY LEGISLATION:

Interpredation Act 1948 and 1967 subsidiary legislation means any

proclamation, rule, regulation, order, notification, or other instrument made under any ordinance,
enactment or other lawful authority and having legislative effect.

Made by persons or bodies under powers conferred on them by the Act of

parliament of state Assemblies.
 Subsidiary Legislation is very important as Legislation by the parliament and the
state Legislatures is insufficient to provide the laws required to govern everyday
matters.subsidiary legislation deals with the details about which legislature has neither the time
nor the technical knowledge to enact laws.

UNWRITTEN LAW:

Unwritten law is simply that portion of the Malaysian law which is not written.

i.e. Law which is not being enacted by the parliament or state assemblies and which is not
found in the written federal and state constitutions.

Unwritten law is found in cases decided by the courts, local customs,etc..,The

Unwritten law comprises the following.

Principles of English Law applicable to Local circumstances

Judicial precedents (decisions by the superior courts)

SHARIA LAW:

Primary Sources: Al-Quran & Sunnah

Secondary Sources: Ijma’, Qiyas, Ijtihad etc.

Ramah v. Laton (1927) 6 FMSLR 1278; Islamic law is not foreign law but local
law and the law of the land.

Art 3 FC- Islam is the religion of the Federation,but other religious may be
practiced in peace and harmony in any part of the Federation.

Artice 11 of the federal constitution provides that every person has the right to
profess and practice his religion.

Ramah V Laton
Fact:the respondent was
another widow of Mat Dawi who
sued the appellant for a
declaration that all
movable n immovable
property was 'Harta
Syarikat' n she is also
entitled to a one half
share in the property.
Principle:Muslim law is
not a foreign law but local
law n the law of the land.
Decision:the court held
that...the respondent is
entitled to a one half
share on the
'Harta Syarikat' according
2 Muhammadan Law.
Muslim law is not a foreign
law but local law n the law
of the land n the local law
is a
matter of which the court
must take judicial notice.
The court must propound
Ramah V Laton
Fact:the respondent was
another widow of Mat Dawi who
sued the appellant for a
declaration that all
movable n immovable
property was 'Harta
Syarikat' n she is also
entitled to a one half
share in the property.
Principle:Muslim law is
not a foreign law but local
law n the law of the land.
Decision:the court held
that...the respondent is
entitled to a one half
share on the
'Harta Syarikat' according
2 Muhammadan Law.
Muslim law is not a foreign
law but local law n the law
of the land n the local law
is a
matter of which the court
must take judicial notice.
The court must propound
The FC sets out that Islamic law in Malaysia is confined to the personal laws and
within the powers of the state.

It can be said that the jurisdiction given by the State and Sharia courts is limited.
1.FEDERAL CONSTITUTION Art 4(1) CASE STUDY:

FACT: Loh Kooi Choon v Government of Malaysia (1977) 2 MLJ 187 is a case decided in
the Federal Court of Malaysia concerning the rights and freedoms guaranteed by
the Constitution, and also involving the extent to which Parliament can amend the Constitution.

PRINCIPLE :

Before the Federal Court, Loh's counsel argued against the amendment and
its retrospective effect on the grounds that it was not permissible for the Constitution to be
amended in such a way that its "basic structure" was destroyed. Loh referred to Article 4(1),
which specifies that the Constitution is "the supreme law of the Federation", and to the Basic
Structure doctrine of Indian case law, to argue that the amendment had contravened the spirit and
basic structure of the Constitution by invalidating the right of habeas corpus.
 DECISOIN:

Federal Justice Raja Azlan Shah rejected the argument of the appellant, stating that
although Article 4(1) declared that any unconstitutional law passed after independence would be
void, this did not apply to the Constitution itself, The Constitution could not be internally
inconsistent. In his judgement, he stated that law made under ordinary legislative power, and law
in the form of Constitutional amendments, were two different things, and as such constitutional
amendments were not subject to the inconsistency clause of Article 4(1).

This reasoning, in my view, is based on the premise that the Constitution as the supreme law,
unchangeable by ordinary means, is distinct from ordinary law and as such cannot be
inconsistent with itself.

2.SHARIA LAW CASE STUDY :

RAMAH V LATON

FACT: The respondent was another widow of Mat Dawi who sued the appellant for a
declaration that all movable n immovable property was n she is also entitled to a one half share
in the property.

PRINCIPLE: Muslim law is not a foreign law but local law n the law of the land.

DECISION: The court held that...the respondent is entitled to a one half share on the according
2 Muhammadan Law. Muslim law is not a foreign law but local law n the law of the land n the
local law is a matter of which the court must take judicial notice. The court must propound or
consider the law..

ENACTMENT PROCESS OF LAW IN MALAYSIA:

In Malaysia, the legislative authority at the Federal level, is vested in Parliament. Parliament
Legislation is enacted by Parliament by introducing a Bill which is passed by both Dewan
Rakyat and Dewan Negara, and assented to by the Yang di-Pertuan Agong.

In Malaysia, there are four types of legislation considered by Parliament. These are:
i. Public or government Bill 
 Public bills include bills on matters of general public interest such as national defence, public
order and taxation.

      ii. Private Bills – deal with matters of Local and Personal concern. Private Bills are those
affecting limited or particular persons or group of persons, associations, organisations or bodies.

     iii. Private Members’ Bill

Private Member’s Bill are those introduced by any member of the legislature other than a
minister or assistant minister.
Only twice private member’s Bill been introduced and both unsuccessfully:
a.    By Dr Lim Chong Eu (MP for Tanjung) on 15 June 1966 to amend the Federal Constitution. He
was granted leave to introduce the Constitution and Malaysia Act (Amendment) Bill to amend
Article 159(3) of the Federal Constitution by providing for a mandatory interval of at least one
month between the date of introduction of a Bill amending federal Constitution and the date
upon which such Bill was to be taken through its second reading.
b.    By Tengku Razaleigh Hamzah (MP for Gua Musang)  in 1988 to amend the Societies Act to
reinstate the UMNO following it’s deregistration after being declared illegal by the High Court.

iv. Hybrid Bills may be of general application and are introduced by either a minister or
private member but they belong to that class of Bills which, in the opinion of the speaker as the
case may be appear to affect individual rights or interests adversely.

Procedure for the enactment of an Act of Parliament

There are two main stages in the process: Pre-parliamentary and Parliamentary.
1. Pre-parliamentary Stage
This covers the proposal, consultation and drafting stage. The proposal may come from
organizations, bodies or government after taking account some events or considerations. Such as
before General Election, Barisan Nasional in their manifesto promised to make law set up a
commission to prevent corruption. Therefore, after they become Government, they have to make
law to set up the agency.
Government will make consultation with bodies related, get opinions from expert and make
research including get other countries’ experience. After completion this stage, the matters to be
include in the law will sent to AG Chambers for drafting. After approval by the cabinet, the Bill
is ready to be introduced into Parliament.

2. Parliamentary Stage

The procedure is set out in Chapter 5, Part IV of the Federal Constitution and
Standing Orders of Dewan Rakyat and Dewan Negara. The Standing Orders regulate the actual
procedure in the passage of a Bill in Parliament. These rules have been drawn up under powers
conferred by Article 62 of Constitution which empowers each House to regulate its own
procedure.

First Reading This is a mere formality and may take place even if the Bills has not been printed
and circulated.
The minister presents the Bill by having its short title read by the clerk of the Dewan. There is no
debate or amendment at this stage of the proceedings.

Second Reading
It occurs only when the bill is printed and circulated. The Second reading is
preceded by a motion to this effect:
“Mr Speaker, Sir, I beg to move that a Bill (name of the bIll) be now read a second time.”
This motion requires to be seconded. The minister outlines the main principles of the bill. A
debate on principles ensues. If the bill receives the requisite number of votes, it proceeds to
Committee Stage.

Committee Stage
At the end of the Second reading, the Bill is committed to a committee of the
whole of House. In effect, the House resolves itself into a Committee on the Bill. This is called
the Committee Stage and it is intended to allow members the opportunity to discuss details of the
Bill and to propose amendments in a less formal proceeding.
When discussion is completed in Committee, the minister moves 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.
Sometimes a Bill is not considered by the Committee of the whole House  but by a Special Select
Committee.  This is an ad hoc Committee appointed for a particular purpose. The size and
members to be nominated to the Committee will be determined by a Committee of Selection.

Third Reading 
When the House resumes sitting, the minister reports that the Bills has been
considered and accepted by the Committee with or without amendments. He then moves a
motion that the Bill be read a third time and passed. If the motion is accepted, the Bill is
considered passed. The formal motion is as follows:
“Mr. Speaker, sir, I beg to report that (name of the Bill) has been considered in committee and
has been agreed to with (or without) amendments. Sir, I beg to move that the Bill be now read a
third time and passed.”

Other House
When a Bill has been passed in the manner described above in either House, it
is then transmitted or sent to the other House for consideration.
When the Bill has been considered by the other House in a similar fashion, it is returned to the
House from which it originated.
Royal Assent
The Yang Dipertuan Agong is an integral part of parliament. His assent is normally
required before a Bill becomes law. Clause 4 of article 66 reads:
“The Yang Dipertuan Agong shall within thirty days after a Bill is presented to him assent to the
Bill by causing the Public seal to be affixed thereto”.
This clause did not exist in the original version of the Constitution (1957 and 1963 version). It
was a later addition which was first came into force from 20 January 1984 and later further
strengthened. Where the royal assent is not affected within a time specified, the Bill becomes law
as if it had been assented. This new provision clearly took away the Royal discretion and
imposed a time frame for approval. The time frame is one month for Money Bill and twelve
months if it is not Money Bill.
CONCLUSION:
Law can be derived from the various sources.
Malaysian laws are largely influenced by the English law and Islamic law.
The application of English law throughout Malaysia is conditional.
Law can be classified in many ways: according to purpose, punishment, nature
etc.