SOURCES OF MALAYSIAN LAW

Mdm Namirah bt Mohd Akahsah

namirah @iic.edu.my

013-2755741

Topic 1

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What is law?What are classification of Law?

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

Meaning of sources?What are the main sources of Malaysian Law?

INTRO TO SOURCES OF LAW

Discussion Points

Sources the place of origin, place of reference, historical sourcesSources of law/ @Legal sources Law passed by Legislature, court decision and legal texts (law books, etc.

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 precedents

4. SUBSIDIARY LEGISLATIONS

Made by persons or bodies under power conferred on them by Acts of Parliament or State Assemblies.RULESREGULATIONSBY-LAWSORDERS

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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 applied

Judicial decision of the Hg ct, COA and the FCt.Judges do not decide solely on their own. They are bound to follow certain accepted principles known as the doctrine of binding precedent.The decisions of higher ct bind lower courts and some courts are bound by their own decisions.** when determining a dispute before the ct, judges will follow what their predecessors had earlier in a similar situation.Each ct is bound the decisions of ct of the same level or higher than it in same hierarchy of cts

2. JUDICIAL DECISIONS

DOCTRINE OF BINDING PRECEDENT??

Custom of the local inhabitans - source of law.Custom relating to family law are given legal force by the ct in Malaysia.(i) Sbah & Srwak : native customary laws apply in land dealings over native customary lands and family matters where natives subject themselves to native customary laws.(ii) Peninsular Msia : two main varieties of Malay Customary Laws

- 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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