Sources of Law in Malaysia

Sources of Law in Malaysia
In different countries, there are different types of legal system. Some countries practice a
combination of two or more legal systems which is known as mixed legal system while some
countries practice only one type of legal system. Malaysia practices the mixed legal system
which consists of the Customary Law, Islamic Law and Common Law. The sources of
Malaysian legal system law are from two different laws which are the Written and Unwritten
law.
In Malaysian Legal System, the most important source of law is the Written Law which
comprises of The Federal Constitution, State Constitutions, Legislation and Subsidiary
Legislation. We have 13 states with a written constitution which is the Federal Constitution.
In another word, Written Law refers to the law stated in the Federal Constitutions which is
the supreme law of Malaysia and it enshrines the basic or fundamental rights of the
individual. The Federal Constitutions also stipulates the “Yang di-Pertuan Agong” who owes
his position to the Constitution and act according to it. If there is two-thirds of majority of the
total number of members of the legislature, the Constitution can be change. The Federal
Constitution consists of many Articles concerning religion of the federation, education,
medicine and health, labour and social security, welfare of the aborigines and many other
related subjects. Besides the Federal Constitution, every state has their own constitution
regulating the government of that state which is knows as the State Constitution. The State
Constitutions consists of provision listed in the 8th schedule. The provision comprises the
Ruler, the Executive Council, the legislature and other related subjects like the Legislative
Assembly, financial provisions, State employees, and amendment of the Constitution. At the
federal level, laws are legislated by parliament and by state legislative assemblies at state
level. In 1946, laws enacted by Parliament are called Ordinance. After Merdeka, laws
enacted by Parliament are called Act; laws enacted by State Legislative Assemblies are
called Enactment and in Sarawak are called Ordinance. Parliament and the State
Legislatures are not supreme. They have to enact law according to the provision set out in
the Federal and State Constitutions. Parliament can enact laws on matters enumerated in
List I of the 9th schedule while state is competent to enact laws on matter in List II. List III
are within the concurrent competence of both authorities. Delegated Legislation is a
legislation made by individual or bodies under powers given on them by Act of Parliament. It
is important because the legislation made by Parliament and the state is not enough to give
the laws needed to govern everyday matters.
Another source of Malaysian legal system law is the Unwritten Law. Unwritten law consists
of English Law, judicial decision and customs. Part of the laws of Malaysia is formed by the
English Law. It can be found in rules of equity and English Common Law. However, the
application of the law is subject for two limitations where it is applied only in the absence of
local statutes on particular matters and only part of the English law that is suited to local
circumstances will be applied. Judicial decisions of the High Court, Court of Appeal and
Federal Court was known as Judicial Precedent which is the basic decisions made by judges
in similar situations. These courts were following the “doctrine of binding judicial precedent”
which means to stand by cases already decided. They use certain accepted principles and
they do not decide case arbitrary. Judges always contribute to the growth of unwritten law in
Malaysia. Some customs of the local inhabitants such as Adat Perpatih, Adat Temenggung
and custom related to family law are given legal force by courts in this country. In Sabah and
Sarawak, land dealing over native customary lands and family matters are applied by native
custom-matters.
The third source is the Muslim Law/ Islamic Law which is applicable only to Muslims and is
administered by a separate court system, the Syariah Courts. Syariah Court is the court
which enforces the Islamic law relating to marriage, divorce and family matters. It is bases
on Quran and Hadith, Fatwa and Ijma Ulama. The Federal Constitution provides that the
States have the power to administer Muslim Law. The State legislature has authority over
the constitution, organization and procedure of the Syariah Courts and is also allowed to
make Islamic laws pertaining to persons professing the religion of Islam.

Sources of Law in Malaysia

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Sources of Law in Malaysia

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