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Sunday, 25 December 2016

Malaysian Legal System

Malaysian Legal System consist of three major parts to be discuss for our general knowledge and basic understanding of law system as a Malaysian. They are Sources of Law in Malaysia, Legislative process in Malaysia, and Administration of Justice.

Sources of Law in Malaysia can be divided into seven parts. They are Federal and State Constitution, Federal and State Legislation, Subsidiary Legislation, English Common Law and Equity, Customs, Judicial Precedent, and Islamic Law.

Legislative process in Malaysia will be discuss later meanwhile Administration of Justice can be divided into two parts. They are Hierarchy of the Courts and Jurisdiction of the Courts.

Sources of Malaysian Law or Legal sources of Malaysian Law can be divided into three main categories. They are Written Law, Unwritten Law, and Shariah Law.


Malaysian Legal System


Written Law


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

● Federal Constitution
● State Constitution
● Legislation
● Subsidiary Legislation

Federal Constitution (FC)


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

The Federal Constitution 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.

The State Constitution


There are also constitution of the 13 State comprising the Federation, which forms part of written law in Malaysia. Some of this provisions include matters concerning The Ruler, The Executive Council, and The Legislature.

Federal and State Legislation


Legislation refers to law enacted by a body constituted for this purpose. In Malaysia, laws are legislated by the Parliament at the Federal Level and by 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 Ordinance.

Legislation refers to law enacted by Parliament and State Legislative Assemblies.


Parliament


i) Enacts law at Federal level
ii) Within limits prescribed by Federal Constitution
iii) Law enacted before 31.08.1957 are called Ordinance
iv) Law enacted after 31.08.1957 are called Acts
v) Parliament can enact law in matters listed in List I of the Nine Schedule.

State Legislative Assemblies


i) Enacts law at State level
ii) Within limits prescribed by State Constitution
iii) Law enacted by State Assemblies are called Enactment except Sarawak laws are called Ordinance
iv) State Legislative Assembly can enact law in matters listed in List II of the Nine Schedule.

Subsidiary Legislation/ Delegated Legislation


Interpretation 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.

Subsidiary Legislation is very important as legislation by the Parliament and the State Legislatures in 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. For example 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. Unwritten law comprises the following:-

● English Law
● Customs
● Judicial Precedents

English Common Law and Equity


English law comprises of two parts which included the following:-

● Common law
● Equity

Sec 3(1) Civil Law Act 1956 - in West Malaysia, the courts shall apply the Common Law of England and the Rules of Equity as administered in England on the 07.04.1956 (cut off date).

In Sabah and Sarawak, the courts shall apply the English Common Law and Rules of Equity, together with statutes of general application, as administered of force in England on the 01.12.1951 and Sarawak 12.12.1949 respectively.

After the cut off date, English law doest not become law in Malaysia. Thus sec 3(1) connotes the strict application of the English law in Malaysia before cut off date.

Customs (Adat)


Custom is devided for three main races in Malaysia. They are Malay, Cina, and Indian. Adat Pepatih and Adat Temenggong are the customs shall be practice by Malay race while Cina and Indian they have Chinese Customary Law and Indian Customary Law respectively.


Judicial Precedents


Judicial Precedents are decisions made by a previous judge in previous cases that have similar situations.

Decisions of these courts were made, and still are being made systematically by the used of what is called the 'doctrine of binding judicial precedent' or the rule of stare decisis i.e. to stand by cases already decided.

Two categories of judicial precedents which included the following:-

● Binding
● Persuasive

Binding


All decisions of higher courts bind the lower courts. The higher courts are bound by their own decision.

Persuasive


High Court Judges are not bound to follow the decisions of another High Court Judges. Decisions from outside of the Malaysian Courts.

Source: Malaysian Legal System, Ahmad Waseem Dhihny bin Yunus, LL.M, LL.B(Hons), BLS(Hons), Lecturer, Faculty of Law, UiTM Shah Alam.


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