ODUCTION TO MALAYSIAN LEGAL SYS

LECTURE 1

 MALAYSIAN LEGAL SYSTEM

Sources of
Malaysian Law
classified into:
Written

unwritte
n law
2

(i) Written law

Malaysias most important source of law

The Federal
Constitution
supreme
law of the
land

Acts of
Parliament
&
Enactment
s

Subsidiary/deleg
ated legislation
by persons or
bodies under
powers
conferred on
them by Acts of
Parliament or
Enactments of
State Assemblies

THE FEDERAL CONSTITUTION

Supreme law
of the country

Any law which is

inconsistent with
the Constitution, is
to that extent
invalid. (Art 4(1) FC)

ACTS OF PARLIAMENT & ENACTMENTS

Territorial
Limits &
Subject
Matters
The wholes
or any part
of the
Federation

Art 73 Parliament
may make
laws (Act of
Parliament)
for:
The subject
matters listed in
the Federal List
& Concurrent
List in the Ninth
Schedule to the

Sabah &
Sarawak
given wider
power to
safeguard
their special
interest
(such as
immigration,
land matters)
than those
granted to5the

SUBSIDIARY/DELEGATED LEGISLATION
S 3 Interpretation
Acts 1948 & 1967
any
proclamation, rule,
regulation, order,
notification, by-law
or other
instrument made
under and
Ordinance,
Enactment or
other lawful
authority & having

Becoming
increasingly
importance
as the
business of
government
gets more
complicated &
expansive.

Assemblies may
confer/delegate
some of their
legislative
powers to a
person or a
body, usually
YDA, a Minister
or local authority
such as a Town
Council.
Eg Insurance
Act 1963
6
(Revised 1972)

(ii) unwritten law

ot enacted by the legislature (Parliament & State Assemblies
Not found in the constitution, both federal & state.

Judicial
decisions of
the superior
cts

Principles of English
Law applicable to
local circumstances

Customs of
local
inhabitants
which have
been
accepted as
law by the cts

SEPARATION OF
POWERS

LEGISLATIVE
JUDICIARY
EXECUTIVE

JUDICIAL DECISIONS

parliament

courts

judge

apply established principles

makes law
interpret & give effect
or rules to a new
to the meaning of
situation or set of facts.
the words in the statute.

 ENGLISH LAW
When English colonized Malaysia,
they brought with them the only
cultural & legal tradition they know
i.e English common law & the rules
of equity.
English law is to be applied in
accordance with the Civil Law Act
1956 (Revised 1972) only in the
absence of local statutes on the
particular subject matter.
10

 S3(1) of the CLA statutorily

provides that only the part of the
English Law that is suited to the
local circumstances are to be
applied:
(i) West Malaysia the English
common law and the rules of
equity & statutes of general
application in England as 1st
December 1951.

(ii) Sabah the English common

law, rules of equity & statutes of
general application in England as
at 1st December 1951.
(iii) Sarawak the English common
law, rules of equity & statutes of
general application in England as
at 12th December 1949.
English laws subsequent to the
said dates are not binding but of
persuasive authority.
12

POSITION OF SHARIAH
LAW
Federal constitution
confer the power to
administer Shariah law
to states but limited to
family law, personal
matter and such
criminal law provided
by Federal law
Ninth Schedule, List II
State List
Eg: punishment of
offences by Shariah Ct
is limited to those
professing the religion
& in respect of offences
conferred by federal
law

The Constitution
Amendment Act 1988,
added new clause:
Art 121(1A) High Ct &
inferior ct established
by federal law shall
have no jurisdiction of
the Shariah Cts.
Effect: it removes civil
cts jurisdiction in
matters specified in
the State List set out in
Para 1. List II, Ninth
Schedule of the Fed
Consti.

Parties
before
Shariah Ct
must be
muslims
Shariah has
no
jurisdiction
if one of the
parties is
non-muslim.

 The hierarchy of courts in

Malaysia
Federal Court
Court of Appeal

High Court

Sessions Court

Magistrate Court

14

 Law Reporting
Carlill v Carbolic Smoke Ball Co
[1983] 1 QB 256
against

page

Year of
reporting

Queens Bench Report

plaintiff

defendant

volume

15