CLASSIFICATION OF LAW
It governs the relationship between individuals
and the state
i) Constitutional Law
Lays down the right of indv. In the state.
Deals with questions such as
of Parliament & rights of
ii) Criminal Law
Codifies the various offences
by indv. against the state.
A body of law which is composed to lay down
principles and rules of conduct which the States
feel themselves need to observes in regulating
the relationship with each other.
i) Public International Law
The law that prevails between States
ii) Private International Law
Consists of the rules that guide a judge
when the laws of more than one country
are involve in a case.
Concerned with matters that affect the rights
and duties of individuals amongst themselves.
SOURCES OF LAW
Sources - a place which something comes or is
Source of law can be found in :
a) Historical sources – Religious belief, local
customs, opinion of jurists, historical
b) Legal sources – Formal sources that make law.
Sources of Malaysian Unwritten
Law consists of :
FEDERAL AND STATE CONSTITUTION
FEDERAL AND STATE LEGISLATION
FEDERAL & STATE
The body of legal and non-legal rules concerning
the government of a state.
A single written document having special legal
status, which establishes the state and sets out the
structure and powers of the state.
In Malaysia 2 types of constitution involves :
State Constitution ( Undang-Undang Tubuh Kerajaan
KEY ELEMENTS OF THE
Malaysia is a
Highest law of the land.
Article 4 mentioned about the Supremacy of
Case : Ah Thian v Government of Malaysia
Suffian LP pointed out ‘The doctrine of supremacy
of Parliament does not apply in Malaysia. Here we have
written constitution. The power of Parliament and of
State Legislatures in Malaysia is limited by the
Constitution and they cannot make any law as they
Called as Undang-Undang Tubuh Negeri. Have in 13
Provide State Legislative Assembly to make law
State Government headed by Menteri Besar (with
Sultan) and Ketua Menteri (no Sultan).
Malay Rulers may act under his discretion on following
Appointment of Menteri Besar
Witholding consent to request dissolution of Legislative
Head of Islam
Appointment of Heirs, Consort, Regent, Council of
Art 159 and Art 161E
2/3 majority of total members of Dewan Rakyat.
2/3 majority + Conference of Rulers
2/3 majority + Consent from YDP Negeri Sabah
Law enacted by the legislature and by bodies
and persons authorized by the legislature.
Legislatives bodies in Malaysia
: Parliament (Dewan Rakyat dan Dewan
Called as ACT
: Legislative Assembly
Called as Enactment and Ordinance
Word Ordinance also used for any law passed
4 types of Act.
Act – main Act like Contract Act 1950
Amendment Act – changes in Principal Act
Revised Act – changes made by Commisioner of
Law Reform such as Civil Law Act 1956 (Revised
Consolidated Act – bring together simple Act or
more on specific matters.
Before any law can be called as Act, they are
known as Bill.
Three types of Bill involved:
Bill - Matters concerning
defence, taxation, public order
Private Bill – local or private matters
Hybrid Bill – public matters that also affect private
LAW MAKING PROCESS IN
PARLIAMENT • Government Proposal (Discuss in ministry
• Sent the proposal to the Parliamentary Draft
person in the Attorney General’s Chambers.
• The proposal becomes Bill.
• Cabinet gives approval for the bill.
• When a bill is first introduced by one of the
two houses, only the title is actually read.
After the Bill is passed at this stage, the text
is printed and distributed.
• The minister will present the outline of the
• The house will debate on the principle
• If the bill receives the required number of
votes, it will proceed to committee stage
• If the Bill required more detailed and
scrutiny, the House may refer the Bill to a
selected committee but this rarely happen
House of Senate
• The bill is review again.
• Debates will centered on general principles.
• Substantives amendments are no longer
allowed except with permission of the
speaker to correct errors
• The Bill is passed to the House of Senate.
• Similar produces with Dewan rakyat
• Under Art. 66(4), the YDPA shall within 30
days after the Bill is presented to
him, assent to the Bill by causing the Public
Seal to be affixed thereto.
• If 30 days expire and no assent is given, the
Bill becomes law.
• Once the Bill is given Royal Assent, it
becomes an Act.
• An Act of Parliament only come into forces
upon it being published in gazette.
Law made through powers delegated by
legislature to a body/person via enabling or
Section 3 interpretation Act 1948 and 1967
defines as ‘any
proclamation, rule, regulation, order, notificatio
n, by-law or other instrument made under any
Act, Ordinance or other lawful authority and
having legal effect’
Example : Various parking rules made by
DISADVANTAGES OF SL
time for Legislatures
Flexibility and Convenience
Legislation can continue even not in sessions
Loss of Legislative control
Bulk and frequent changes
HOW TO CONROL SL?
Legislature will delegated power by an enabling
statute may repeal the statute or revoke or vary the
Court has power to make judicial review and declared
the SL would be ultra vires either substantive and
Refer to certain professional bodies
Publish the SL
Application of English Law in Malaysia
3 and Section 5 Civil Law Act 1956 stated
the application of English Common Law and Equity
in Peninsular Malaysia.
Section 3 (1) (a), West Malaysia apply common law
and equity as administered in England on 7th April
Section 3 (1) (b) and (c), apply the common law and
equity together with statutes of general application
as administered in England on
[1st December 1951]
Sarawak [12th December 1949]
Section 5 (1), all states apply English Common
Law including Statutes on 7th April 1956
Section 5 (2), Penang, Malacca, Sabah and
Sarawak can use relevant and applicable
English Common Law continously.
SITUATIONS THAT ENGLISH
LAW CAN APPLY
Suitable for local circumstances
: Syarikat Batu Sinar v UMBC Finance as
the Judge said that ‘…we have to develop our
own common law…by directing our minds to the
‘local circumstances’ and ‘local inhabitants.’
Case : Leong Bee v Liang Nam Rubber Works.
The use of Section 3 must be permitted by local
Absence of local laws
: AG Malaysia v manjeet Singh Dillon.
Absence of local legislation on contempt of court
must be referred to the English Common Law.
Cut off date
: Lee Kee Cheong v Empat Nombor Ekor
Sdn. Bhd. Cut off date must be followed
Case : Jamil Harun v Yang Kamsiah. Any
changes after this date would only rendered as
persuasive and not binding.
SITUATIONS THAT ENGLISH
LAW CAN APPLY
Section 5 (1) and (2)
: Seng Djit Hin v Nagurdas Purshotumdas.
The application of statutes administered in
could be allowed if failure to deliver goods (sugar)
causes damages. Two English statutes were
applied in SS
However, in Sheikh Sahied Abdullah Bajerai v
Sockalingam Chettiar. The use of statutesin
moneyhandling transaction was not allowed since
it only to control activities in England.
Law can be created through decisions made
by judges of Superior Courts and Subordinate
HIGH COURT OF
Where material facts are the same, court must
follow prior decisions, its own prior decisions.
The judicial decision that binds called as ‘ratio
decidendi’ (reason for decision) extract from
‘obiter dictum’ (remark in passing judgement)
The judicial decisions of superior courts
binding subordinate courts in the doctrine of
judicial binding precedent or ‘stare decisis’
Rationale – justice; similar material
facts, certainty, development of law.
Disadvantage – rigid, illogical, complexity of
When the cases having same material facts,
the subordinate court must follow prior
decision of higher court, its own prior decision
or the same level of courts’ decision.
Two ways operation:
– a court bound by decision of higher
Horizontal – some courts bound by its own
previous decision, decision of predecessor, court
with coordinate jurisdiction.
CASES OF STARE DECISIS
This doctrine affirms to the case of PP v Datuk
Tan Cheng Swee. Chang Min Tatt FJ stated ‘…
it is however necessary to reaffirm the doctrine
of stare decisis which the Federal Court
accepts unreservedly and which it expects the
High Courts and other inferior courts in
common law such as ours, to follow
When two conflicting decision of Federal
Court, follow the later decision – Dalip
Bhagwan Singh v PP.
EXCEPTION OF STARE
Judge would not applied early precedents if :
laid down by lower court where case
Per Incurium ( wrongfully decided)
Material differences in the fact of case.
The regular pattern of behaviour accepted by a
given society as binding upon itself.
Customs are proved through repeated acts
practised 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 – Customs and usages having the
force of law.
APPLICATION OF CUSTOMARY
Sahrip v Mitchell and Endain – test on
reasonableness of customs, used in proving
English customs, to determine if a custom
Malay Custom on land tenure which provided
payment of tithe of 1/10 of total produce was
good and reasonable custom.
Maxwell CJ affirm the existance of the customs
must be based on :
Reasonable and well suited
To late to question the existence of customs
WRITING OF JURISTS
Would become references in deciding cases and
references of future laws
Islamic Law matters – Prof Hashim Kamali used
in deciding several cases like Meor
Attiqurrahman (serban’s case)
Others – MB Hooker, RJ Wilkinson, Prof Ahmad
ISLAMIC LAW (SYARIAH)
Sacred law of Islam revealed through Prophet
Muhammad (p.b.u.h) in the Quran and Sunnah.
Malay-Muslim Law was the basic law of the land
before British intervention.
After British intervention, Muslim Law had been
reduced to manage personal matters.
However, civil courts still acknowledged the
importance of Islamic Law to local circumstances
and not as foreign law. (Ramah v Laton)
Syariah courts dealing with matters of Islamic Law
like family, dividing property, maintenance.
Administration of Islamic Law – Majlis Agama
Islam, Mufti, National Fatwa Committee.
APPLICATION OF ISLAMIC LAW
IN FEDERAL CONSTITUTION
Article 3 – Islam religion of the Federation. But
in Che Omar Che Soh, Article 3 does not
establish Malaysia as Islamic State.
Article 11(4) – restrict the propagation of other
religion to muslims
Article 12 (2) lawfully to maintain Islamic
Article 121(1A) – High Court cannot interfere
with matters in Syariah Court
Paragraph 1 List II Ninth Schedule – Permits
state power to create and punish offences
related to Islam