Malaysian Law Analysis

Sources of Malaysian Law

Malaysia has been practicing mixed law which includes Customary Law, Common Law and Islamic Law. Three momentous periods in Malaysian history had contributed laws towards Malaysia’s legal system which were the Malacca Sultanate, to the raise of Islam to Asia, then the indigenous culture of British colonial rule introducing a constitutional government and the common law. Most of the laws implied in Malaysia’s legal system is primarily from the common law which can be classified into two, written and unwritten law.

The most essential source of law is the written law. Written law includes the Federal and State Constitutions, Legislation and Subsidiary legislation. Malaysia has 13 states with a written constitution which

Besides the Federal Constitution, the State Constitution is a constitution that is owned by each states to regulate the government of the state. The State Constitutions consists of provision listed in the 8th schedule such as the Ruler, the Executive Council, the legislature and other related subjects like the Legislative Assembly, financial provisions, State employees, and amendment of the Constitution. Next on the list of written law is the Legislations which refers to law that recognized by the Parliament and State Legislative Assemblies. At the federal level, laws are legislated by parliament and by state legislative assemblies at state level. In 1946, laws enacted by Parliament are called Ordinance. After independence in 1957, the laws enacted by Parliament are called Act, while the laws enacted by State Legislative Assemblies are called Enactment and in Sarawak are called Ordinance. If the Parliament or any State Assembly makes a law which is not in its scope of authority with the constitution, the courts can declare that as null and void. Parliament and the State Legislatures are not supreme, hence they have to enact law

Unwritten law constitutes local law that is simply that portion of Malaysian law which is not being enacted by Parliament or the State Assemblies and is not found in the written Federal and State Constitutions. It includes English Law, judicial decision and custom law. Part of Malaysian law is English law, which consists of English common law and the rules of equity. This is also a very important source of Malaysian law. Nevertheless, the application of the law is subject for two limitations where it is only applied in the absence of local statutes on particular matters and just certain part of the English law that is suited for local circumstances will be applied. Sections 3(1) and 5(1) of the Civil Law Act 1956 specifically permit the reception of English common law and equity in Malaysia subject to the limitations contained there. English Common Law is mainly made up of non-written laws, which the ones that the precedents had derived from judgments given on real cases by the judges. It can be divided into two which are the English Commercial Law and English Land Law. 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 7th 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