Written law comprises The Federal Constitution which is the supreme law of the land and State Constitution, a range of constitutions regulating the governments of thirteen states in Malaysia. Second written law is the Legislation law which is endorsed by Parliament and Legislative Assemblies at the federal and state level respectively. Final source of written law is the Subsidiary legislation as states in the Interpretation Act ‘any proclamation, rule, regulation, order, notification, by-law or other instrument made under any Ordinance, Enactment or other lawful authority and having legislative effect’. Malaysia has huge amount of subsidiary legislation. Subsidiary legislation is referred to law made through powers delegated by the legislature mainly Ministers and local authorities. Only Subsidiary legislation made in a proclamation of emergency under Article 150 of the Federal Constitution is accepted , other breaching of either a parent Act or the Constitution is voided.
Unwritten law under the Malaysian law is the law which is not written or found in Federal and State Constitutions. It is also not endorsed by the Parliament or the State Assemblies. Unwritten law comprises of Judicial decisions of the superior courts Principles of English Law and Customs law. Judicial decisions using the systematical method called `doctrine of binding judicial precedent` at the High Court, Court of Appeal and the Federal Court followed by Supreme Court can still be found in Malaysian law.
Nevertheless the decisions made by Federal Court and Judicial Committee of the Privy Council are still binding on the present court. Binding or persuasive is a process of adjudication, this is after argument and before the judge reaches the conclusion. The judge will formulate and apply a legal principle in accordance with certain rules to form a guide for future. The judge will provide reason for reaching a decision or the legal principles behind the decision; this may bind other similar disputes in future. Binding precedents depends on the court’s position in the hierarchy of the courts. These are binding until they are reversed or overruled, where else persuasive precedents are those which are not binding authorities.
Another important unwritten law is the Principles of English Law. It consists of Common Law and Equity. The common Law is the body of rules developed by the old common law courts of England which no longer exist. It is established on customs common throughout England. On the other hand, Equity is the body of incomplete rules developed as a supplement to Common Law to correct defects and to reduce the harshness.
Even though English Law forms part of the Malaysian law, the facts and rules stated are only part of the entire law of English common law and rules of Equity. Principles of English Common Law and rules of Equity received and applied in Malaysia Legal System is by virtue of the Civil Law Act 1956 (Revised01972) . Under Section 3(1) of the Civil Law Act, 1995 states that in Peninsular Malaysia, the courts shall apply the common law of England and the rules of equity as administrated in England on 7th April, 1956. As for Sabah and Sarawak, the courts shall apply the common law of England and the rules of equity, together with statutes of general application, as administrated or in force in England on 1st December 1951 and 12 December 1949 respectively.
Application of common law of England is subjected to two limitations; firstly Local law takes priority over common law. Common Law is applied only in the absence of local statues. It is only meant to fill up gaps...