Sources Of Law In Malaysia

1263 Words6 Pages
a) Sources of law is the authority from which the law derives their forces. It also can define as legal rules that make up the laws in Malaysia. The sources of law in Malaysia can be divided into two types, which are written laws and unwritten laws. Written law is the law that has been enacted by the legislature or constitutions while unwritten law is the law that has not been enacted by any legislature or constitutions. Written law consists of three sources, which is Federal and State Constitution, Federal and State Legislation, and Subsidiary Legislation. Firstly, Federal Constitution is the supreme law of the land of the country by virtue of Article 4 of said constitution; any laws passed after Merdeka Day which is inconsistent…show more content…
English Law comprises of two parts which is common law and equity. The extent of the applications of English Law is prescribed in Section 3, and Section 5 of the Civil Law Act 1956. The application of English Law in Malaysia is not binding, but merely persuasive. The courts will have regard to the circumstance of the States of Malaysia. This was made clear by the Privy Council in Jamil bin Harun v Yang Kamsiah (1984) 1 MLJ 217 – “It is for the courts of Malaysia to decide, subject always to the statue of law of the Federation, whether to follow English Law. Modern English authorities may be persuasive, but are not binding”. In Section 5(1), all states apply English Common Law in including Statues on 7th April 1956 and in Section 5(2), Penang, Malacca, Sabah, and Sarawak can use applicable English Common Law continuously. In Section 3(1) CLA 1956 stated that in West Malaysia, the courts shall apply the Common Law of England and the Rules of Equity as administered in England on the 7th April 1956 (cutoff date) and in Sabah and Sarawak, the courts shall apply the English Common Law and Rules of Equity, together with statues of general applications, as administered or force in England on the 1st December 19951 and 12th December 1949 respectively. The case that are related, Mokhtar v Arumugam (1959) MLJ 23 which the judge refused to apply the…show more content…
Customs is the regular pattern of social behavior, accepted by a given society as binding upon itself and customs are proved through repeated acts practiced over long period of time, leading to conclusion that by common consent they have become accepted norm, or the law of the place, exclusion of ordinary law. Article 160 Federal Constitutions explain about the customs and usages having the force of law. In Malaysia, it refers to the customs of the local inhabitants which have been accepted as law by courts in Malaysia. Examples of Customary Law are Adat Pepatih, Adat Temenggung, Chinese and Indian customary law and native customs in Sabah and Sarawak. Beside customary law, there is also judicial decisions which the decision of high courts in previous cases must be followed by the lower courts in similar cases or situations. Judicial decisions can be obtained from the decision of the superior courts namely as Federal Court, Court of Appeal and High Court. Judicial decisions are divided to two categories which is binding and persuasive. In binding categories, all decisions of high courts bind the lower courts but the High Courts are bound by their own decisions. While in persuasive categories, High Court judges are not bound to follow the decisions of another High Court Judges but can refer to decisions from outside of the Malaysian courts (English Court). The judicial decisions of superior courts bind subordinate
Open Document