Unwritten Law In Peninsular Malaysia

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Unwritten law does not mean that the law is literally unwritten. Judicial decisions for example can be referred in writing in judicial reports, as well as common English law. Unwritten laws are laws that are not enacted and are not found in any constitution. It comprises of English law (Common Law and Equity), judicial decisions and customs. The general law is a major part of many countries, notably the Commonwealth country. It is primarily composed of non-statutory law, which is an advance derived from the judgment given to the actual cases by the judge. The Law of Equality resolves disputes between people by reference to the principles of fairness, equality and justice. In these cases, nothing is done against the law by the parties to dispute,…show more content…
in section 3 (1) (b) and 3 (1) (c) of civil law act 1956 states that courts in Sabah and Sarawak have to use common-law and English equity together with the general application of statutes in force in England on the 1st of December 1951 (Sabah) and 12th December 1949 (Sarawak). Attention should be paid to the above mentioned dates as the courts are only bound by common-law and British equity and the general application of statutes (Sabah & Sarawak) which take effect on that date. As we know the principles of English law have grown since the following dates. But it is not stated that the Common Law and Law of Equity in Malaysia should remain unmodified and follow the same law as administered in England. Common law and law of equity in Malaysia should be developed and amended according to the local needs. In addition, these two laws should also take into account of changes in these laws in England. However, Malaysian government can set their own scope for the amended or repealed Common Law and Law of Equity in Malaysia. In case Jamal bin Harun v. Yang Kamsiah & Anor [1984] 1 CLJ 215, the court ruled that it was not binding but had a high influence…show more content…
Only the decision of the superior courts is source of law, as it is these court that decide on matters of law, whereas subordinate courts generally decide on matters of fact. The decision of Superior Courts namely as Federal Court, Court of Appeal and High Court. The judicial decision is based on ‘doctrine of binding precedent’. Precedents are the decisions made by previous judges in the same circumstances. There are two types of precedents. There are vertical and horizontal. Prelude mandatory is applied when the superior court decision binds to lower courts or superior courts bound by their own previous decision. However, the low court decision does not bind the superior court. The lower courts must refer to the mandatory precedents of superior courts. However, the superior court judge will differentiate the case before him and the cases that put the precedent and may decide not to comply with mandatory preceding if he considers that the compulsory precedent is unrelated to the case before him. From this, original precursors are formed. Persuasive precedent is a precedent which is useful or relevant to a case. It is not mandatory for the judges to apply persuasive precedent. Persuasive first may be tied to lower courts if superior court judges choose to apply persuasive

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