(1) Sources of Malaysian Law

The term “Sources of Malaysian Law “refer to the legal sources, the legal rules that make up the

law in Malaysia. The main sources of Malaysian law comprise written and unwritten law.

Written law (largely comprising statute law and delegated legislation) and unwritten law (mainly

case or common law; judge-made law, also known as common law, and equity) are most

important.

Written law is the most important source of law. It refers to that portion of Malaysian law which

includes the following:

(1) The Federal and State Constitution – the Federal Constitution is the supreme law of the

land. There are also Constitution of the thirteen states comprising the Federation, which

form part of the written law in Malaysia.

(2) Legislation enacted by Parliament and the Sates Assemblies, (Acts of Parliament,

Ordinances, Enactments, etc.)

(3) Subsidiary legislation made by persons or bodies under powers conferred on them by

Acts of Parliament or State Assemblies (Rules and Regulation, By-laws, Guidelines, etc.)

Unwritten law is simply that portion of Malaysian law which is not written, law which is not

enacted by Parliament or the State Assemblies and which is not found in the written Federal and

State Constitution. Unwritten law is found in cases decided by the courts, local custom, etc.

Unwritten law comprises:

(1) Principles of English law applicable to local circumstances.

(2) Judicial decision of the superior courts, the High Courts, Court of Appeal and the Federal

Court.

(3) Customs of the local inhabitants, which have been accepted as law by the courts.

Islamic law applies to all persons who are Muslims and is of particular importance in matters

relating to family disputes (marriages and divorce) and issues to pertaining to estate matters such

as the division of property and assets upon person’s death.

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(2) Main Sources of Malaysian Law

(2.1) Written Law

Written law also referred to as statute law. This law is being made by Parliament and any

subordinate bodies to whom Parliament has delegated power to legislate. Statues assume the

existence of common law, and in many cases the reaffirm common law principles; for example,

the Sale of Goods Act 1957 and the Bills of Exchange Act 1949. Where statute law and common

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

Once an Act of Parliament comes into existence, it remains law until it is repealed by a later Act

of Parliament. Most Act of Parliament set out the law on particular matters in broad term. They

also contain a provision stating that details rules necessary to give effect to the legislation can be

found in the relevant regulations or guidelines. For example, under Banking and Financial

Institution Act 1989, the Finance Minister may make regulation and orders whilst Bank Negara

may issue guidelines.

(2.1.1) The Federal Constitution

Malaysia is a Federation of thirteen states with a written constitution, the Federal Constitution,

which is the supreme law of the country. Besides laying down the powers of the Federal and

State Governments, the Federal Constitution enshrines the basic or fundamental rights of the

individuals. These rights written into the Constitution can only be changed by a two-third

majority of the total number members of the legislature. This is in contrast to normal laws which

can amend by a simple majority.

The Federal Constitution comprises Articles which provides for the following:

(1) The name, States and territories of the Federation.

(2) Religion of Federation

(3) Supreme law of Federation.

(4) Fundamental liberties.

(5) Citizenship.

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(6) The Federation-the Yang di-Pertuan Agong, Rulers, the Executive, Federal Legislature,

legislative procedure.

(7) The States-Rulers and Yang di-Pertuan Negeri, Legislative Assembly

(8) Relationship between Federation and States,

(9) Financial provision.

(10)Election.

(11)The judiciary

(12)Public services.

(13)Special powers against subversion, emergency powers.

(14)General and miscellaneous, e.g. National Language, Federal Capital, Commonwealth

reciprocity, amendment of Constitution, etc.

(15)Additional protection for States of Sabah and Sarawak.

(16) Temporary and provisional provision.

(17)Saving for Rulers’ sovereignty, etc.

(2.1.2) State Constitution

Besides the Federal Constitution, which applies to all States in the Federation, each State also

possesses its own constitution regulating the government of that State. The State Contains

provisions which are enumerated in the Eight Schedule to the Federal Constitution. Some of

these provisions include matters of concerning the Ruler, the executive Council, the Legislature,

the Legislative Assembly, financial provision, State employees, and amendment to the

Constitution. If such 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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(2.1.3) Legislation

Legislation refers to law enacted by a body constituted for this purpose. In Malaysia, law is

legislated by Parliament at federal level and by various State Legislative Assemblies at State

level. Laws that enacted by Parliament after 1946 but before Malaysia’s Independence in 1957

are called Ordinances, but those made after 1957 are called Acts. On the other hands, laws made

by State Legislative Assemblies (except in Sarawak) are called Enactments. The laws in Sarawak

are called Ordinances.

(2.1.4) Subsidiary Legislation

The Interpretation Act 1967 defines subsidiary legislation as ‘any proclamation, rule, regulation,

order, notification, by-law or other instrument made under any Ordinance, Enactment or other

lawful authority and having legislative effect’.

Subsidiary legislation is very important as legislation by Parliament and the State legislatures is

insufficient to provide the laws required to govern everyday matters. Subsidiary legislation deals

with the details about which the legislature has neither the time nor the technical knowledge to

enact. Legislature merely lays down the basic and main laws, leaving the details to person or

bodies to whom they delegate their legislative powers. Such person or bodies include the Yang

di-Pertuan Agong, Ministers, Local Authorities, among others.

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(2.2) Unwritten Law

(2.2.1) English Law

English law form parts the laws of Malaysia. English law can be found inter alia in the English

common law and rules of equity. However, not all of England’s common law and rules of equity

art of Malaysian law. The application of the law of England throughout Malaysia is subject to

two limitations. First, it is applied only in the absence of local statutes on the particular subjects.

Local law take precedence over English law as the latter is only mean to fill in the lacuna in the

legal system in Malaysia. Secondly, only that part of English law that is suited to local

circumstances will be applied.

(2.2.2) Judicial Decision

Malaysian law also can be found in the judicial decision of the High Court, Court of Appeal and

the Federal Court, then Supreme Court and the Judicial Committee of the Privy Council.

Decisions of these courts were made and still are being made by what is called ‘doctrine of

binding precedent’.

The doctrine of precedent was instrumental in the evolution of and building up of both common

law and equity. A precedent is basically a judgment or decision of a court of law cited as an

authority for the legal principle embodied its decision. Thus, ‘following a precedent’ means that

a question should be resolved in a certain way today because a similar question has been so

decided before.

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(2.2.3) Custom

Customs of the local inhabitants in Malaysia are a source of law. Generally, customs relating to

family, 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 (Marriages 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 where natives subject themselves to native customary laws.

In peninsular Malaysia, there are two main varieties of Malays customary law: the adat pepatih

and the adat temenggung. The adat pepatih is prevalent among Malays in Negeri Sembilan and

Naning in Malacca and it’s effective in matters such as land tenure, lineage and the election of

lembaga, undang and the Yang di-Pertuan Besar. The adat pepatih is well known for its

matrilineal system of law. The adat temenggung, which originated from Palembang, Sumatra

expands a patrilineal system of law.

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(2.3) Islamic Law

The Federal Constitution provides that states have 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 Federal Territories,

the Yang di-Pertuan Agong is the head. Islamic law applies to Muslims only and does not apply

to non-Muslim.

(3) The Judicial System in Malaysia

(3.1) Overview about Our Judicial System

The Process of instituting and maintaining, or defending a legal action is both time consuming

and costly due to the complex procedural rules employed within the Malaysian Court System.

The higher the court in the court hierarchy, the greater the legal cost. The courts role is more in

administration of the law. The courts have both criminal and civil jurisdiction. Jurisdiction refers

to the cases or matters that a court can hear, and is established by statue.

The judicial power of Malaysia is vested in the Federal Court, the Court of Appeal, the High

Courts, and the Subordinate Courts. The head of the judiciary is the Chief of Justice.

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(3.2) Subordinate Courts in Peninsular Malaysia

The subordinates courts in peninsular Malaysia consist of the Penghulu’s, Magistrate Courts and

Session Courts. A subordinates court is any one of those courts established under section 3(2) of

the Subordinates Courts Act 1948:

There shall be established the following subordinates courts for the administration of civil and

criminal law:

(a) Session Courts.

(b) Magistrate Courts.

(c) (in west Malaysia only) Penghulu Courts.

(3.2.1) Penghulu’s Court

The Penghulu’s Courts is the lowest level of subordinate courts in Peninsular Malaysia. It is

presided over by a Penghulu or headman appointed by the State Government for a Mukim.

Wherever possible, Penghulu’s normally settle disputes informally.

The Penghulu is empowered to hear and determine original proceedings of a civil nature in

which the plaintiff seeks to recover a debt or liquidated demand in money not exceeding RM 50

and which all the parties to the proceeding are persons of an Asian race speaking and

understanding the Malay language. Penghulu Courts also is restricted to the trial offense of a

minor nature which specifically enumerated in his power jurisdiction and can be adequately

punish by a fine not exceeding RM 25.

(3.2.2) Magistrate Courts

The Magistrates Courts deal with the vast majority of cases, both civil and criminal, and sit in

almost all major towns in Malaysia. Magistrates are divided into First Class and Second Class

Magistrates, the former being legally qualified and having greater powers. Second Class

Magistrates are now not normally appointed. A Magistrates Court may hear a civil case when the

amount in dispute does not exceed RM 25,000. Where the amount claimed does not exceed RM

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5,000 you may wish to file your claim in the “Small Claims” division of the Magistrates Court. If

you do so, however, you must be prepared to conduct the case yourself, as legal representation is

not permitted. A Magistrates Court may hear criminal matters of the following nature:

i. Where the offense is punishable by a fine only – this would cover the majority of the traffic

offenses.

ii. Where the offense provides for a term of an imprisonment not exceeding (10) years. A

Magistrate may not, however, impose a term of imprisonment exceeding (5) years.

iii.

(3.2.3) Juvenile Courts

Juvenile Courts have been set up to deal with criminal offenders below the age of eighteen. A Juvenile Court consists of a first class magistrate who is assisted by two lay advisers, one of whom shall, if practicable, be a woman. The functions of the advisers are to inform and advise the court with respect to any consideration affecting the punishment or other treatment of any child or young person brought before it. Under section 4(4) of the Juvenile Courts Act 1947 (Revised 1972), the court is conferred jurisdiction to try all offenses except those punishable by death.

The court is closed to members of the public in order to protect the young offender from publicity. If the offender is found guilty, he or she may be sent to one of the approved institutions or schools where he or she is given corrective education. If the offense does not involve homicide, the court may discharge him or her on condition that he or she executes a bond, with or without sureties, to be of good behavior and to come up for sentencing when called upon. Such a bond may also contain other conditions; for example, the offender may be placed under the supervision of a probationary officer-Juvenile Courts Act 1947 (Revised 1972), Part IV.

If the offender is aggrieved by any finding or order of the court, he may appeal to the High

Court Against the finding or order.

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(3.2.3) Sessions Courts

The Sessions Courts hear all matters of which the claim exceeds RM25,000-00 but does not

exceed RM250,000-00 except in matters relating to motor vehicle accidents, landlord and tenant

and distress, where the Sessions Courts have unlimited jurisdiction. The Sessions Courts have

powers to hear all criminal matters except for offenses punishable with death and may pass any

sentences allowed by law except the sentence of death. Thus the following types of action, suits

or proceeding, an application has to made to the High Court:

(3.3) Subordinates Courts In East Malaysia's

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Prior to 1 June 1981,the subordinate courts in Malaysia consisted of the Native Courts and the Magistrates’ Courts. With effect from 1 june 1981 when the Subordinate Courts Act (Extension) Oder 1980 came into force, the Subordinate Courts Act 1948,with some modifications, was extended to Sabah and Sarawak. With this extension, the subordinate courts now consist of Native Courts, Session Courts, and Magistrates, Courts.

Native courts

The native court is peculiar only to Sabah and Sarawak. It exercise jurisdiction over matter affecting ‘native customs’ where the parties are native. In relation to Sarawak, a native is a person who is a citizen and is of a race indigenous to Sarawak (such as the Ibans, Bidayus, Kelabits,Kayans,Kenyahs, Muruts, Penans, Melanaus). In relation to Sabah, a native is a person who is a citizen, is the child or grandchild of a person of a race indigenous to sabah (such as the Kadazans and the Dusuns), and was born either in Sabah or to a father domiciled in sabah at the same time of birth. Previously,the Native Court also possessed jurisdiction over matter concerning Muslim law.Muslim law in Sabah and Sarawak is now administered by a separate system of Muslim Courts, the syariah courts.

Native Courts are empowered to try civil and criminal matters including the following:

(3) Cases arising from breach of native law or custom, e.g. those relating to religious or matrimonial matters

(4) Cases involving land where there is no title issued by the Land Office and in which all the parties are subject to the same native system of personal law

(5) Civil cases (excluding land) where the value of the subject- matter does not exceed RM 50 and all parties are subject to the same native system of personal law

In Sarawak,there are three Native Courts exercising original jurisdiction. These are the:

(d) District Native Court

(e) Native Officer’s Court or Chief’s court

(f) Headman’s Court

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In Sabah, original jurisdiction is exercised by the Native Court with the District Officer acting in a supervisory-cum-appellate capacity. All proceedings of a Native Court are subject to scrutiny by the District Officer who may quash or vary the proceedings or direct rehearing if he considers that such proceeding have been irregular, improper or unconscionable. No sentence of imprisonment can be effective without the indorsement of the District Officer. In his appellate capacity,the District officer hears appeals from any order of a Native Court of Appeal presided over by a judge of the High Court. The appeal Court also comprises the Resident of the residency in which the original proceeding took place and one native chief duly appointed.

Furthermore, in Sarawak, the Headman’s Court consists of a headman and two assessors. It has the power to impose a fine not exceeding RM50. The Native Officer’s or Chief and two assessors. It has the power to impose a term of imprisonment six month and a fine not exceeding RM100. The District Native Court, comprising a Magistrate,s Native Officer and two assessors, possesses the widest jurisdiction. It may impose a term of imprisonment not exceeding two years and a fine not exceeding RM200.

Any party who is aggrieved by the decision of any Native Court may appeal to a higher court, i.e. from the:

1. Headman’s Court to the Native Officer’s of Chief’s Court

2. Native Officer’s or Chief’s Court to the District Native Court

3. District Native Court to a Resident’s Native Court

4. Resident’s Native Court to the Native of Appeal by way of a cese stated on a point of law native customs

The Resident’s Native Court and Native Court of Appeal exercise only appellate jurisdiction. The Native Court of Appeal is presided over by a judge with power similar to those of a High Court judge.

The unique position and jurisdiction of native courts are clearly spelt out in the case, Ongkong anak salleh V David Panggau Sandin & Anor which held that the District Native Court is not court subordinate to the High Court and High Court does not exercise supervisory power over it.

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(3.3.2) Magistrates’, Juvenile and Sessions Courts

The Magistrates’ Court, Juvenile Court and Sessions Court basically operate in a way similar to

their counterparts in Penisular Malaysia and are governed by the same statutes.

(3.4) Superior Court In Malaysia's

(3.4.1) High Court

The High Court has jurisdiction to try all civil matters but generally confines itself to matters on

which the Magistrates and Sessions Courts have no jurisdiction. These include matters relating to

divorce and matrimonial cases, appointment of guardians of infants, the granting of probate of

wills and testaments and letters of administration of the estate of deceased persons, bankruptcy,

and other civil claims where the amount in dispute exceeds RM 250,000. The High Court may

hear all matters but generally confines itself to offenses on which the Magistrates and Sessions

Courts have no jurisdiction, for instance, offenses which carry the death penalty. The High Court

may hear appeals from the Magistrates and Sessions Courts in both civil and criminal matters.

(3.4.2) The Industrial Court

In addition to the ordinary law courts, there are also other tribunals such as the Special Commissioners of Income Tax and the Industrial Court which exercise judicial or quasi-judicial functions. These tribunals have been established to relieve the ordinary courts of some of their work and to provide specialized ad-junction of disputes of a technical character.

The industrial Court, constituted under the Industrial Relations Act 1976, deals primarily with trade disputed and therefore has jurisdiction over matter concerning employers, employees and trade unions.

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The Industrial Court consist of a President appointed by the Yang di- Pertuan Agong and a

panel of persons appointed by the Minister of Law. This panel consists of a group representing

workmen. In hearing any trade dispute, the court to be constituted necessary consists of the

President and two members drawn from the panel-one each group.

(3.4.3) Court of Appeal

The Court of Appeal generally hears all civil appeals against decisions of the High Courts except

where against judgment or orders made by consent. In cases where the claim is less than RM250,

000, the judgment or order relates to costs only, and the appeal is against a decision of a judge in

chambers on an inter-pleader summons on undisputed facts, the leave of the Court of Appeal

must first be obtained. The Court of Appeal also hears appeals of criminal decisions of the High

Court. It is the court of final jurisdiction for cases which began in any subordinate courts.

(3.4.4) Federal Courts

The Federal Court is the highest court in Malaysia .The Federal Court consists of the Chief

Justice , the President of the Court of Appeal ,the Chief Judge of Malaysia and Chief Judge of

Sabah and Sarawak , and six Federal Court judges .Every proceeding in the Federal Court shall

be heard and disposed of by three judges or such greater uneven number of judges as the Chief

Justice may in any particular case determine .

The Federal Court has jurisdiction in matters including the following :

5. To hear civil and criminal appeals from the Court of appeal . This appellate function occupies the bulk of the court`s work. In civil appeals a litigant may appeal on appoint of law or upon the rejection or admission of evidence in a lower court in criminal cases , an appeal may be made against acquittal or conviction or against sentence on a point of law or fact

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6. To exercise exclusive original jurisdiction on those matters conferred on it under Article128(1) and(2) of the federal Constitution .It can hear disputes on any matter between any State and the federal Government . it can also pronounce on the validity of any federal or state legislation as being in excess of power

7. To determine constitutional questions which have arisen in the proceedings of the High Court but referrer to the Federal Court for a decision

8. To give its opinions on any question referred to it by the Yang di- Pertuan Agong concerning the effect of any provision of the Constitution which has already arisen or appears likely to arise. This was done in the case of Government of Malaysia V Government of the State of Kelantan.

Reference

http://en.wikipedia.org/wiki/Judiciary_of_Malaysia

Business Law Book

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