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SOURCES OF MALAYSIAN LAW
Mdm Namirah bt Mohd Akahsah
namirah @iic.edu.my
013-2755741
Topic 1
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INTRO TO CONCEPT OF LAW
Discussion Points
What is Law ?
LAW IS A SET OF RULES THAT GOVERN AND REGULATE HUMAN BEHAVIOUR The body of principles recognized and applied by the State in the administration of justice (Sir John Salmond)A command set by superior being to an inferior and enforced by sanctions. (John Austin).LAW
JUSTICE
ETHICS
Public Law
Private Law
International Law
Administrative
Criminal
Constitutional
Law
Industrial
Contract
Tort
Trust
Public IL
Private IL
Classification of Law
Islamic Law
Common Law
INTRO TO SOURCES OF LAW
Discussion Points
Source of law - Definition
Why we need to master about legal sources?
It determines what and which legal provisions @ legal principles should be applied/ referred
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Federal Constitution
State Constitution
Subsidiary Legislation
Principles of English Law
Judicial Decisions (Precedent)
Custom
Islamic Law applies to all persons who are Muslims and is of particular importance in matters relating to family disputes or estate matters such as the division of the property
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Hierarchy of Sources of law
(Written Law)
Subsidiary legislation
Statutes
Federal Constitution
Written Law statute law
FC- Supreme law of the country : Article 4(1) of the Federal Constitution: Any laws which is inconsistent with the FC is void
Contains : - (1) Powers of Federal and state governments; (2) Enshrines the basic or fundamental rights of the individual
Eg: religion of the federation
Fundamental liberties
Elections
Public services
Citizenship
1. FEDERAL CONSTITUTION
2. STATE CONSTITUTION
Each states possesses its own constitution regulating the government of that state.
Contains : - matters concerning the Ruler, Executive council, the legislature, the legislative assemblies, financial provisions etc.
Provided that they are consistent with the Federal Constitution : Article 75 : in the event of conflict between state laws and federal laws, federal laws shall prevail.
3. LEGISLATIONS
Refers to laws enacted by a body constituted for this purpose.Laws are legislated by Parliament at Federal Level and by the various state legislative Assemblies at the State Level.IMPORTANT source of law than case law or precedents4. SUBSIDIARY LEGISLATIONS
Made by persons or bodies under power conferred on them by Acts of Parliament or State Assemblies.RULESREGULATIONSBY-LAWSORDERS*
What is unwritten law? it is portion of Malaysian law which is not written and is found in cases decided by the courts, local customs and etc
Unwritten law
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1. ENGLISH LAW
Sect 3(1) of Civil Law Act 1956 in Peninsular Malaysia, the courts shall apply the common law of England and the rules of equity as administered in England on 7 April 1956.In Sabah & Sarawak courts shall apply the common law of England and rules of equity together with statutes of general application as administered in England on 1 December 1951 and 12 December 1949.HW, the application of law of England in Malaysia is subject to two limitation (proviso sect 3(1) Civil Law Act) :1) applied only in the absence of local statutes on the particular subjects (local law takes precedence over English Law as the latter is only to fill in the lacuna in the legal system in Malaysia)2) Only part of EL that is suited to local circumstances will be applied2. JUDICIAL DECISIONS
DOCTRINE OF BINDING PRECEDENT??
- ADAT PERPATIH : prevalent in N9 & Naning,Malacca, matters such as land tenure, lineage, the election of lembaga, undang, Yg Di pertuan besar MATRILINEAL SYSTEM
- ADAT TEMENGGONG : originated from Palembang, Sumatra, PATRILINEAL SYSTEM
3. CUSTOMS
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ISLAMIC LAW
Part of Malaysian law especially on family and religious matters.
FC provides each state has the power to administer Muslim Law
Head of religion in a state is SULTAN
HW, for penang, malacca, sabah Sarawak and the Federal Territories - YANG DIPERTUAN AGUNG
Court which enforce Muslim law Syariah court
APPLIIES TO MUSLIMS ONLY
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