SOURCES OF LAW
INTRODUCTION TO THE MALAYSIAN LEGAL SYSTEM
SOURCES OF LAW
The sources of Malaysian law refer to the legal sources i.e. the legal rules that make up the law in Malaysia. The sources of Malaysian law comprise: 1)Written law; and 2)Unwritten law
Federal and State Constitutions Written Legislations & Delegated Legislations
SOURCES OF MALAYSIAN
Unwritten Islamic law
SOURCES OF LAW: UNWRITTEN LAW
Unwritten law is the portion of Malaysian law which is not being enacted by the Parliament or State Legislative Assemblies and is not found in the Federal & State Constitutions. It is found in cases decided by the courts, local customs etc. - The unwritten law comprises the following: -
i. Principles of English law applicable to the local
circumstances. ii. Judicial decisions of a superior courts e.g. the High Courts, Courts of Appeal and the Federal Court. iii. Customs of the local inhabitants which have been accepted as law by the courts. iv. Islamic law
UNWRITTEN LAW – ENGLISH LAW English law comprises of the common law, the rules of equity and statutes :The common law is the unwritten law which was developed by judges in England based on customs and usages of the society. The common law is recognized and enforced through decisions of courts rather than through parliament or the executive branch of the government. The rules of equity is a body of legal rules formulated and administered by the Court of Chancery in England to supplement the rules and procedures of the common law. Statutes are the laws which are enacted by the legislature/parliament.
Reception and Application of English Law in Malaysia
Started with the informal reception in the Straits
Settlement. Led to the Malay States through the intervention of the British Resident and advisors. As for the Borneo states since they became British protectorates in 1888, they too informally received English Law. The English Law was formally received under three statutes: Civil Law Ordinance 1956 for Peninsular Malaysia Application of Laws Ordinance 1951 for Sabah Application of Laws Ordinance 1949 for Sarawak
All the three statutes are now incorporated into the Civil
Law Act 1956 The principles of English law can be applied in Malaysia by virtue of section 3 and 5 of the Civil Law Act 1956. It provides for the application of the principles of English law in Malaysian courts provided that: i) there is a lacuna in law, and ii)the principles of English law is suitable to the local circumstances.
Lacuna = a blank gap or missing part
Sec. 3(1)(a) of the Civil Law Act 1956 provides
that the Court shall in West Malaysia apply the English common law and rules of equity as administered in England on 7 April 1956. This means that only English law, which was used in England as at 7 April 1956 can be used in West Malaysia. Further development of English law after this date cannot be so applied. However, they may be persuasive, especially in the absence of local statutory provisions or case law.
Sec. 3(1(b) of the the Civil Law Act 1956
provides that the Court shall in Sabah apply the English common law, rules of equity and statutes of general application as administered or in force in England on 1 December 1951. As for Sarawak , sec. 3(1)(c) of the Civil Law Act 1956 allows the Court to use English common law, rules of equity and statutes of general application in force in England on 12 December 1949.
English Commercial Law As for English commercial law, sec. 5(1) of the Civil Law Act 1956
provides that for West Malaysia (except for Penang and Malacca), the principles of English commercial law as at 7 April 1956 shall be applied in the absence of local legislation. As for the states of Penang, Malacca, Sabah & Sarawak – sec. 5(2) of the
Civil Law Act 1956 provides that the principles of English commercial law as at the...
Please join StudyMode to read the full document