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CHAPTER

Sources of Malaysian
Law

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OBJECTIVES
This chapter:

provides basic knowledge on how

Malaysian law evolved

identifies the sources of Malaysian law,

and explains where they can be found

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PREVIEW

Meaning of Sources
Main Sources of Malaysian Law
- Written Law
- Unwritten Law
- Islamic Law

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MEANING OF SOURCES
1. Historical sources
2. Legal sources
3. Places where the law can be found
Sources of Malaysian law:
1. Islamic law
2. Written law
3. Unwritten law
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SOURCES OF MALAYSIAN LAW

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WRITTEN LAW

comprises of:
1. The Federal and State
2. Legislation enacted by Parliament and the State
Assemblies
3. Subsidiary legislation made by persons or bodies
under powers conferred on them

also referred to as statute law

law made by Parliament and any subordinate
bodies to whom Parliament has delegated
power to legislate

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WRITTEN LAW (cont.)

where statute law and common law

conflict, statute law will prevail to the
extent of the conflict

when hearing cases, the courts are not

just performing an act of fact-finding; they
also interpret statutes

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WRITTEN LAW (cont.)

in interpreting statutes, courts are guided by:

a)
b)
c)
d)

Interpretation Acts
Extrinsic materials
Common law rules of statutory interpretation
Precedent

courts interpret legislation to reflect the

apparent purpose or intention of the
legislators (a purposive construction)

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WRITTEN LAW (cont.)

if the words of the Act are clear, effect must be

given to them notwithstanding that the end result
may be absurd

courts use extrinsic (external) material in the

interpretation of statutes:
some statutes set out their own definition or
interpretation
common law rules of statutory interpretation and
precedent

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THE FEDERAL CONSTITUTION

supreme law of the country

applies to all States in the Federation
laying down the powers of the Federal
and State Governments
enshrines the basic or fundamental rights
of the individual

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STATE CONSTITUTIONS

each State possesses its own constitution

contain provisions which are enumerated

in the Eighth Schedule

Federal Constitution

some of these provisions include matters

concerning the Ruler

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STATE CONSTITUTIONS (cont.)

the Executive Council, the Legislature, the

Legislative Assembly, financial provisions, State
employees, and amendment to the Constitution

if such essential provisions are missing, or if any

provision is inconsistent with them, Parliament
may make provision to give effect to them or to
remove any inconsistencies, as the case may be
Article 71, Federal Constitution

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LEGISLATION

law enacted by a body constituted for this purpose

legislated by Parliament at federal level and by the
various State Legislative Assemblies at state level
laws that are enacted by Parliament after 1946 but
before Malaysias Independence in 1957
Ordinances
those made after 1957 Acts
laws made by the State Legislative Assemblies
(except in Sarawak) Enactments
laws in Sarawak Ordinances

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SUBSIDIARY LEGISLATION

Interpretation Act 1967 defines: any proclamation,

rule, regulation, order, notification, by-law or other
instrument made under any Ordinance, Enactment
or other lawful authority and having legislative
effect
Also known as delegated legislation and subordinate
legislation.
Cannot be made in contravention of either a parent Act
or the Constitution.If there is contravention then it is
void an exception to this rule is the proclamation of
emergency under Art 150 of the Federal Constitution

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see Eng Keock Cheng v Public Prosecutor

Held: The subsidiary legislation, may still be valid,
nothwistanding that it is inconsistent with the
Constitution.Subject to certain exceptions set out in
Article 150 (FC), Parliament has, during an
emergency, power to legislate on any subject and
to any effect, even if inconsistencies with Articles of
Constitution are involved.

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UNWRITTEN LAW

Unwritten law does not mean that the law

is literally unwritten.
portion of Malaysian law which is not
written
comprises:
1. English law
2. Judicial decisions
3. Customs

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ENGLISH LAW
English Law comprises of common law and
rules of equity
subject to 2 limitations:

1. It is applied only in the absence of local statutes

on the particular subjects
2. Only that part of the English law that is suited to
local circumstances will be applied
3. For Peninsular Malaysia English common law
and the rules of equity are applicable as they
stood on 7 April 1956
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ENGLISH LAW (cont.)

4. For Sabah and Sarawak English common law
and the rules of equity together with statutes of
general application, as they stood on 1
December 1951 and 12 December 1949
respectively, apply
5. For commercial matters in Peninsular Malaysia
(other than Penang and Malacca), principles of
English commercial law as it stood on 7 April
1956 are applicable in the absence of local
legislation
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ENGLISH LAW (cont.)

6. For Penang, Malacca, Sabah and Sarawak English
commercial law at the date on which the matter has
to be decided is applicable in the absence of local
legislation
7. However, since there are so many local statutes
already passed which deal with commercial subjects,
there is no total reliance on English commercial law,
e.g.:
Companies Act 1965 (Revised 1973)
Partnership Act 1961 (Revised 1974)
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ENGLISH LAW (cont.)

Banking and Financial Institutions Act 1989

Contracts Act 1950 (Revised 1974)
Insurance Act 1963 (Revised 1972)
Bills of Exchange Act 1949 (Revised 1978)

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ENGLISH LAND LAW

section 6 of the Civil Law Act 1956
see United Malayan Banking Corporation Bhd & Anor v
Pemungut Hasil Tanah, Kota Tinggi
Held: The National Land Code is a complete and
comprehensive code of law governing the tenure of
land in Malaysia.

Equity was not a complete system of law as it merely

filled the gaps in the common law and softened the
strict rules of common law.

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Conflict between Common Law and Equity

section 3(2) of the Civil Law Act 1956 in the event of
conflict or variance between the common law and the
rules of equity with reference to the same matter, the
rules of equity shall prevail.
Equity developed maxims to ensure that decisions are
morally fair
He who comes to equity must come with clean hands
Delay defeats equities

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JUDICIAL DECISIONS

Malaysian law can also be found in the judicial

decisions of the High Court, Court of Appeal
and the Federal Court, the then Supreme
Court and the Judicial Committee of the Privy
Council

decisions of these courts were made and still

are being made by the doctrine of binding
precedent

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JUDICIAL DECISIONS

Present court system

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PRECEDENTS

Judicial

precedents mean the decision of

the higher courts automatically binds all
lower court.For example, a Federal court
decision automatically binds the Court of
Appeal, High Court, Session Court,
Magistrates Court and the Small Claims
Court.

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PRECEDENT (cont.)
it is basically a judgment or decision of a court of
law cited as an authority for the legal principle
embodied in its decision
may comprise:

res judicata final order of the court binding the

immediate parties to the decision
ratio decidendi the reason for the decision
obiter dictum (sayings by the way) no binding power,
although it can exercise an extremely strong influence
in a lower court, and even in a court of equivalent
standing, depending on the court and the judge
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PRECEDENT (cont.)
following a precedent means that a question
should be resolved in a certain way today because
a similar question has been so decided before
this process of following an established procedure
is called stare decisis which literally means to
stand by a decision
advantages of precedents:

promote consistency, coherence and certainty

promote efficiency and justice, ensuring equality and
fairness
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PRECEDENT (cont.)

disadvantages of precedents:
certain precedent may not be relevant in todays
circumstances but the judge may have to nevertheless
follow it
may also be slow in responding to community changes
and it is cumbersome to change them as they may
require an Act of Parliament

in applying binding precedents, Malaysian law can

be found in the judicial decisions of the High Court,
Court of Appeal and the Federal Court and the then
Supreme Court, Federal Court and the Judicial
Committee of the Privy Council

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PRECEDENT (cont.)

decisions of these courts were made, and are still being

made, systematically by the use of what is called the
doctrine of binding judicial precedent
in the case of a binding precedent (the ratio decidendi of
an earlier case decision), each court is bound by the
decisions of courts of the same level or higher than it, in
the same hierarchy of courts
if a judge applies an existing rule of law without extending
it, his decision may be called a declaratory precedent
if the case before a judge is without precedent, then the
decision made by him may be called an original
precedent

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PRECEDENT (cont.)
Persuasive precedent- this is a precedent
that is not binding on the court, but judge
may consider it and decide that it is a
correct principle so he is persuaded that he
should follow it.
Declaratory precedent- means a judge
merely applying an existing law

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HIERARCHY OF PRECEDENTS

the functioning of the system of precedents is based on the

hierarchy of decisions
although the Judicial Committee of the Privy Council do
not form part of the present judicial system, they were
part of the judicial system until 31 December 1986 and
decisions made by them are still binding on the present
courts
the Supreme Court was part of the judicial system from 1
January 1987 to 23 June 1994
the GENERAL RULE regulating the hierarchy of precedents
is based on the principle that decisions of higher courts bind
lower courts, and some courts are bound by their own
decisions

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PREVIOUS JUDICIAL SYSTEMS

Between the period of 1 January 1987 and 23
June 1994, the Court system was as follows:

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PREVIOUS JUDICIAL SYSTEMS

(cont.)
Prior to 1 January 1987, however, the court
system was as follows:

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CUSTOMS
generally, customs relating to family law, i.e.
marriage, divorce and inheritance, are given legal
force by the courts in Malaysia
adat applies to Malays
prior to the enforcement of the Law Reform
(Marriage and Divorce) Act 1976, Hindu and
Chinese customary law applied to the Hindus and
Chinese respectively
in Sabah and Sarawak, native customary laws
apply in land dealings over native customary lands
and family matters

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CUSTOMS (cont.)

in Peninsular Malaysia there are two main varieties of

Malay customary law: the adat perpatih and the adat
temenggong

Adat Perpatih

prevalent among Malays in Negeri Sembilan and Naning

in Malacca
effective in matters such as land tenure, lineage and the
election of lembaga, undang and the Yang di-Pertuan
Besar
noted for its matrilineal system

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CUSTOMS (cont.)

Adat Temenggong
practised by the other states
originated from Palembang, Sumatra
patrilineal system of law

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ISLAMIC LAW

each State has the power to administer Islamic Law

the head of the Muslim religion in a state (except for
Penang,Malacca, Sabah, Sarawak and the Federal
Territories) is the Sultan
in Penang, Malacca, Sabah, Sarawak and the Federal
Territories, the Yang di-Pertua Negeri is the head
the courts enforcing Islamic law the Syariah Courts
Islamic law applies to Muslims only
in businesses, esp. areas of banking and finance,
Islamic principles are increasingly relevant in lending
and investments

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