Malaysia Business Law

Topics: Common law, Law, Contract Pages: 12 (3848 words) Published: January 29, 2011
Name: Roderick Jay Yeastman

Student Number: 0050105177

Name of Course: Law5504-Comparative Law and Business

Name Of Course Leader: Associate Professor Anthony Gray

Assignment Number: 3

Overall Word Count: 2995 Words

Question 1: 1198 Words

Question 2: 1298 Words

Question 3: 499 Words

Question 1

The jurisdiction that I have chosen to write is Malaysia. Malaysia is a country which practices parliamentary democracy and is ruled by a constitutional monarchy headed by the Yang Di-Pertuan Agong.[1] Malaysia is also a federation of a number of independent states which comprise of Malacca, Penang, Selangor, Perak, Pahang, Negeri Sembilan, Kelantan, Kedah, Terengganu, Perlis, Sabah and Sarawak.[2]

Prior to colonial rule of British, the main sources of general law were adat, customary law and Islamic law.[3] That is why it may be said that the Malaysian legal system contains plural legal systems, which are formed from a mixture of the Islamic law, customs and English law.[4] The sources of Malaysian law can be classified into Written, Unwritten and Islamic law. Written law is laws which have been enacted in the constitution or in legislations by Parliament and State Assemblies. It is made up of Federal Constitution, State Constitutions, Legislation and Subsidiary Legislation.[5] The Federal Constitution, enforced on August 31st, 1957, is the supreme law of Malaysia.[6] It is a written constitution that consists of 15 parts, 183 articles and 13 schedules. The constitution was drafted by the Reid Commission in 1956 with five representatives from British, Pakistan, India and Australia.[7] The Federal Constitution clearly divides the law making authority of the federation into its legislative authority, judicial authority and executive authority. The separation of powers also occurs both at the federal and state levels. The federal laws enacted by the federal assembly, known as the Parliament of Malaysia, apply through out the country. There are also state laws governing local governments and Islamic law enacted by the state legislative assembly which applies in the particular state.[8] Like any other written constitution, the Federal Constitution can be amended.[9] Besides the Federal Constitution which applies to all states in the federation, each state also possesses its own constitution regulating the government of that state. The State Constitutions contains provisions which are enumerated in the Eighth Schedule to the Federal Constitution. Some of these provisions include matters concerning the Ruler, Legislature, Legislative assembly, Executive Council, financial provisions, State employee and amendment of the Constitution.[10] If such essential provisions are missing or if any provision is inconsistent with them, Parliament may make provision to give effect to them or to remove any inconsistencies.[11] Legislation is laws that are established by the Parliament at federal level and by State Legislative Assemblies at the state level. In Malaysia, the legislative gets its authority from the Federal Constitution. Legislative authority is the power to enact laws applicable to the federation as a whole.[12] It also mentions the scope of Parliament and the State Assembly, which is provided in the federal, state and concurrent list.[13] Concurrent list is in the scope of enactment by both Parliament and State assembly. All these lists are contained in the Ninth Schedule of Federal Constitution. If the Parliament or any state assembly makes a law which is not in their scope, the courts can declare it as null and void. Subsidiary legislation is defined as ‘rules, regulations, by laws, order, notifications made under legislations’.[14] Subsidiary Legislation is important as legislation by Parliament and the State Legislatures is insufficient to provide the laws required to govern everyday matters. As of this, it merely lays down the basic and main laws, leaving the details to persons and bodies to whom they...
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