Topic 1

Mdm Namirah bt
Mohd Akahsah
namirah @iic.edu.my
013-2755741

SOURCES OF
MALAYSIAN LAW

INTRO
TO
CONCEP
T OF
LAW
Discussio
n Points

What is law?
What are classification of Law?

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).
JUSTICE

LAW

ETHICS

Classification of Law
Common Law

Islamic Law

Public Law
Administrative

Private Law
International Law

Criminal

Contract

Constitutional
Law

Tort

Public IL

Industrial

Trust

Private IL

INTRO
TO
SOURCE
S OF
LAW
Discussio
n Points

Meaning of sources?
What are the main sources of

Malaysian Law?

Source of law - Definition

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

Why we need to master about legal sources?

It determines what and which legal provisions @
legal principles should be applied/ referred

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

Hierarchy of Sources of law

(Written
Law)
Federal Constitution

Statutes
Subsidiary legislation

Written Law statute law

1. FEDERAL CONSTITUTION
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

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
4. SUBSIDIARY
LEGISLATIONS
precedents
Made by persons or bodies under power
conferred on them by Acts of Parliament or
State Assemblies.
- RULES
- REGULATIONS
- BY-LAWS

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

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

2. JUDICIAL DECISIONS
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.

DOCTRINE OF
BINDING
The decisions of higher ct bind lower courts and some
PRECEDENT??
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

3. CUSTOMS
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

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