Modern Law

ATGB 1313 INTRODUCTION TO LAW

4.0 Modern Malaysia Law

Modern Malaysia law is the law which made after independence of Malaya when 1957.

i) Constitution (Supreme Law)

Constitution is the supreme law of the federation. Constitution is one of the

written law. The Constitution was drafted by the Reid Commission in 1956 with 5

representatives from India, British, Pakistan and Australia. It consists of 15 Parts,

183 Articles and 13 Schedule. Any law passed after 31 August 1957, which is

inconsistent with this constitution shall, to the maximum extent of inconsistency, be

void. But, Article 159 and 161E provides provisions to allow the constitution to be

amended with the condition of 2/3rds majority in both houses of Parliament agreeing

to the amendment. The constitution amended based on the needs of the current

situation of the country and the people to bring benefits, holiness and and goodness to

the public. It also lays the fundamental rights of individuals and the scope of powers

of the Federal and State governments.

The three elements of the Malaysian Constitution which are it is a Supreme Law

of Malaysia, Constitutional Monarchy and three branches of government. Based on

the constitutional monarchy, Yang di-Pertuan Agong (YDPA) is Malaysia’s Head of

State. YDPA is elected by the Conference of Rulers, by rotation from the 9 Malay

States and he is required to exercise his executive powers on the advice of cabinet.

The 3 branches of government is Legislature, Executive and Judiciary. Legislature

has the responsibility to make law, executive is in charged with the task of

administration and the judiciary is to interpret and apply the law. Parliament is a bi-

cameral legislature comprising of a lower house, Dewan Rakyat,an upper house

house known as Dewan Negara and YDPA. Legislations are the laws that are

established by the Parliaments at federal level and by the State Legislative

Assemblies at the state level. Based on Article 74 of Federal Constitution, parliament

may make law with referring to matters provided in the federal list and state

legislatives may make law with referring to matter provided in the state list.

Concurrent list is in the scope of enactment by both parliament and state legislatives.

If there are any contradictions between federal and state laws, the federal law shall

prevail and state law is void to the scope of inconsistency. Between, the judicial

decisions of the High Court, Court Of Appeal and Federal Court also can be a

Malaysia law. These decision is called as the “doctrine of binding judicial precedent”

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which the judges do not decide the case arbitrarily but follow the accepted principles

known as precedents. But judges may not follow the precedent if the earlier

precedent is laid down by the lower court, made per curiam1 and there are different

materials in fact.

ii) Criminal Law

Criminal law involves prosecution by the government of a person for an act that

has been classified as a crime. The burden is proof by the “Beyond a reasonable

doubt”. Penal Code is an act that consists of 511 sections that encompass the wide

range of criminal offences that are punishable in the court of law in Malaysia.

Generally the Criminal Procedure Code (CPC) was promulgated to regulate the

administration of the criminal justice or procedure in Malaysia. The CPC inter alia 2

provides the ways in which an arrest, search, police investigations and trials are to be

conducted throughout Malaysia. Based on the Section 79 and 81 in Penal Code,

nothing is an offence which is done by accident or misfortune, without any criminal

intention or to prevent the other harm. Besides, there was nothing is an offence when

the criminal is done by a child under 10 years old and a person who are unsound

mind.

The example of criminal cases is theft, assault, robbery, trafficking in controlled

substances, murder,etc. Among the criminal cases, murder is the most serious

offences against the people.So, whoever commits murder shall be punished with

death. But,whoever commits culpable homicide 3not amounting to murder shall be

punished with imprisonment for a term.

iii) Civil Law Act

Civil law is deals with the disputes between individuals, organizations, or

between the two, in which compensation is awarded to the victim. “Plaintiff” is the

person who feels he or she has not been treated fairly by another person and seeks a

solution in a civil court. This party has the burden of proving that he or she was

treated unfairly. “Defandant” is the person who the plantiff claims has treated him or

her unfairly.

1 Made in ignorance of a statue or a binding precedent. 2 Among other things3 refers to an unlawful killing which is not classified as murder due to the evil intention of killing being absent.



The proof of burden is based on the Preponderance of evidence. If the plaintiff

has the stronger evidence, then the plaintiff wins.It is same to the defentant. Example

of civil cases is landlord or tenant disputes, divorce proceedings, child custody

proceedings, property disputes,personal injury, etc.The type of punishment is usually

involves some type of compensation for injuries or damages as well as disposition of

property and other disputes.

iv) Islamic Law

All Malays in Malaysia are Muslims. The Federal Constitution of Malaysia

provides that Islam is the religion of the Federation, but other religions may be

practised in peace and harmony in any part of the Federation.

Islamic law is a major source of Malaysian law but it is only applicable to Muslims,

regardless of races.It is enacted under the Federal Constitution. The state legislatures

have the power and are permitted to make Islamic laws pertaining to persons

professing the Islam religion. The YDPA is the head of Islam in his home state,

Penang, Malacca, Sabah, Sarawak and Federal Territories of Kuala Lumpur and

Labuan. The head of Islam of other States is Sultan. The law as practiced in Malaysia

appears to be Islamic law according to the Shafi school and Malay adat as modified

by Muslim Law. The main source of Islamic law is from the Al-Quran, Hadis and

Sunnah. Islamic laws in Malaysia apply in the family laws in respect of marriage,

divorce, custody and guardianship, maintenance of children, matrimonial properties,

and alimony and probate and administration. Such laws are administered by separate

court system, Syariah Courts. A system of syariah courts, not wholly traditional in

the Islamic law, now operates in each state in Malaysia and in the Federal Territories

of Kuala Lumpur and Labuan. Detailed Islamic evidence, civil procedure and

criminal procedure laws have also been enacted in most states to govern their

proceedings. State legislature also has the jurisdiction over the constitution,

organization and procedures of Syariah Courts.

Now, Islamic laws are increasingly applied in banking and land laws other than

applied to family matters and estate matters. Under the constitution, State can only

make Islamic law in these area:-

Islamic law and personal and family law of Muslims.

Zakat, Fitrah and baitulmal

Mosques



Offences by Muslims against the percepts of Islam but not including matters

in the Federal List

Syariah courts

Determination of matters of Islamic law and doctrine

v) English Law

English law comprises Common law and equity. Common Law is a major part of

many States, especially Commonwealth countries. English common law and the rules

of equity suitable to local circumstances form part of the laws of Malaysia. It is

mainly made up of non – statutory laws, which are the precedents derived from

judgments given on real cases by judges. Law of Equity resolves disputes between

persons by referring to principles of fairness, equality and justness. In these cases,

nothing was done against the law by the parties to dispute, but their rights are in

conflict. Thus, it is different from law; both the Statutory Law enacted by Parliament

and State Legislatives and Common Law which consists of precedents and opinions

given on real cases by judges.

The English Law can be divided into two which are the English Commercial Law

and English Land Law.There is more extensive reference to English law in

commercial matters. In section 5(1) of the Civil Law Act 1956 provides that The

English Commercial Law is applicable in Peninsular Malaysia except Penang and

Malacca as it stood on 7 April 1956 in the absence of local legislation. On the other

hand, Section 5(2) of the same act, applies in Penang, Malacca, Sabah and Sarawak

as the law administered in these states will be the same as law administered in

England, in the like case at corresponding period. The Land Law, none of the English

Land Law concerning the tenure, conveyance, assurance of or succession to any

immovable property or any estate, right or interest therein applies in Malaysia. And

the National Land Code is the law that governs the land matters.

vi) Customary Law

Customs are another important source of unwritten law. Every race has its own

customs. Adat is applicable to Malays, native law and customs (also called adat)

apply to the natives of Sabah and Sarawak and Chinese and Hindu customary laws

have limited application to their respective communities. Custom is rooted from the

ancient custom of the people. It is the customs which are accepted as binding and

enforceable by the court. But nowadays, customary law is of little relevance to the



communities in West Malaysia . However, for the natives of Sabah and Sarawak,

customary law remains an important source of law, particularly as a means of social

control in remote communities and in the administration of estates, family law and

inheritance and as well as the election of traditional ruling chiefs.

But before 1978, Sabah and Sarawak administered the Islamic law and the Malay

customary law together as part of “native customs” by a system of Native Court with

limited jurisdiction over disputes. After the establishment of Syariah Court, it

provided a uniformity and consistency in administration in Islamic Law.

There are two types of Adat which is the Adat Perpateh and Adat Temenggung.

Adat Perpateh is practiced among the Malays in Negeri Sembilan and Nanning in

Malacca. It uses the matrilineal system which belongs to mother's lineage, meaning

to say it involves the inheritance of property, names or titles from mother to

daughters. It also concerns with matters such as land tenure, lineage, inheritance and

election of members of lembaga and Yang di-Pertuan Besar. As for Adat

Temenggung, it is practiced in other states and it uses the patrilineal system which

belongs to father's lineage.

vii) Sale Of Goods Act (SOGA)

Sale of goods in peninsular Malaysia is governed by the Sale of Goods Act 1957,

but the Sabah and Sarawak adopt the principle of English law relating with the sale of

goods.

Based on the Section 4(1)of SOGA , a contract of sale of goods is a contract

whereby the seller transfers or agrees to transfer the property in goods to the buyer

for a price. There may be a contract of sale between one part-owner and another.

“Sale” is the ownership of the goods is transferred from the seller to the buyer under

the contract of sale. If there is sale and the buyer failed to pay for the goods, the seller

may sue for the contract price as remedy.

“Agreement to Sell” is the owner of goods id to be transferred at a future time or

subject to some conditions to be fulfilled. Under the SOGA, the goods must be as

described, of satisfactory quality and fit for purpose. Beside, the goods should match

with the sample which shown in the brochure. If the goods are not as the described,

have the satisfactory quality and fix to the purpose, the retailer is in breach of

contract.



A contract of sale is a contract for sale by sample where there is a term in the contract

express or implied to that effect.


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Modern Law