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CHAPTER 2
Sources of Malaysian
Law
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This chapter:
provides basic knowledge on howMalaysian law evolved
identifies the sources of Malaysian law,
and explains where they can be found
OBJECTIVES
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PREVIEW
Meaning of Sources
Main Sources of Malaysian Law
- Written Law- Unwritten Law
- Islamic Law
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1. Historical sources
2. Legal sources
3. Places where the law can be found
Sources of Malaysian law:
1. Islamic law2. Written law
3. Unwritten law
MEANING OF SOURCES
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SOURCES OF MALAYSIAN LAW
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comprises of:
1. The Federal and State
2. Legislation enacted by Parliament and the State
Assemblies
3. Subsidiary legislation made by persons or bodies
under powers conferred on them
also referred to as statute law
law made by Parliament and any subordinate
bodies to whom Parliament has delegated
power to legislate
WRITTEN LAW
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where statute law and common law
conflict, statute law will prevail to the
extent of the conflict
when hearing cases, the courts are not
just performing an act of fact-finding; they
also interpret statutes
WRITTEN LAW (cont.)
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in interpreting statutes, courts are guided by:a) Interpretation Acts
b) Extrinsic materialsc) Common law rules of statutory interpretation
d) Precedent
courts interpret legislation to reflect the
apparent purpose or intention of thelegislators (a purposive construction)
WRITTEN LAW (cont.)
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inBirmingham vCorrective Services
Commission of New South Wales, 3 conditions:
1. It knows the mischief with which the Act was dealing2. It is satisfied that Parliament inadvertently
overlooked an eventuality which had to be dealt with
if the purpose of the Act was to be achieved
3. It can state with certainty the words that Parliamentwould have used to overcome the omission if its
attention had been drawn to the defect
WRITTEN LAW (cont.)
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if the words of the Act are clear, effect must be
given to them notwithstanding that the end result
may be absurd
courts use extrinsic (external) material in the
interpretation of statutes: some statutes set out their own definition or
interpretation common law rules of statutory interpretation and
precedent
WRITTEN LAW (cont.)
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3 main approaches to interpretation used by
the courts:
1. Literal or plain meaning approach2. Golden rule approach
3. Mischief approach
WRITTEN LAW (cont.)
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courts assume that the meaning andintention of the legislature is clearin thestatute to be interpreted
disadvantagewords can often have morethan one meaning, so the courts have to decidewhich approach should apply
the whole Act is read and understood before adetailed
examination of a section, or of particular wordsin a section, is begun
LITERAL OR PLAIN MEANING
APPROACH
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words and sections must be read in thecontext of the whole Act, rather than inisolation
seeFischer vBell
LITERAL OR PLAIN MEANING
APPROACH (cont.)
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takes the plain meaning of the words used
in the statute and adheres to that meaning
only a gloss of the literal or plain meaning rule
where the words in an Act are at variance with
the legislators intention or can lead to an
absurdity, injustice or repugnancy, the court will
attempt to choose a meaning that will avoidsuch a result
seeLee vKnapp
GOLDEN RULE APPROACH
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where the literal interpretation is notpossible, courts will:
1. Look at the law before the statute was passed
2. Look to the overall intention of the legislation asdiscovered from reading the Act as a whole
3. Ask: What mischief is it that this statute isintended to remedy? What was its socialpurpose?
where a statute provides a number of specificexamples, matters not stated are not covered
MISCHIEF APPROACH
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by going outside the text of the statute to
determine the Acts function, the mischief or
purpose approaches are significantly differentto the literal and golden rule approaches
see Smith vHughes
courts may also be assisted by maxims
MISCHIEF APPROACH (cont.)
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maxims are necessary to aid construction
because no drafter (of legislation) can define
words in such a manner that every possible
interpretation is covered and no definition can
be exclusive or perfectly describe a class of
people, things or acts
2 maxims commonly used by the courts are: noscitur a sociis
ejusdem generis
MISCHIEF APPROACH (cont.)
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meansit is known from its associates
used where a word is ambiguous or unclear
in a group of specific words. Its meaning islimited to the same class or types of things
as the specific words.
seePrior vSherwood
NOSCITUR A SOCIIS
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meansof the same kind, class, or nature
known asthe class rule
the broad, general word is limited to the same
class as the more specific words preceding it used to find a viable meaning for a broad
general word
written law in Malaysia:
1. The Federal Constitution2. State Constitutions
3. Legislation
4. Subsidiary legislation
EJUSDEM GENERIS
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supreme law of the country
applies to all States in the Federation
laying down the powers of the Federaland State Governments
enshrines the basic or fundamental rightsof the individual
THE FEDERAL CONSTITUTION
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each State possesses its own constitution
contain provisions which are enumerated
in the Eighth Schedule
Federal Constitution
some of these provisions include matters
concerning the Ruler
STATE CONSTITUTIONS
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the Executive Council, the Legislature, the
Legislative Assembly, financial provisions, State
employees, and amendment to the Constitution
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, as the case may be
Article 71, Federal Constitution
STATE CONSTITUTIONS (cont.)
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law enacted by a body constituted for this purpose
legislated by Parliament at federal level and by thevarious State Legislative Assemblies at state level
laws that are enacted by Parliament after 1946 butbefore Malaysias Independence in 1957 Ordinances
those made after 1957Acts
laws made by the State Legislative Assemblies(except in Sarawak)Enactments
laws in SarawakOrdinances
LEGISLATION
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Interpretation Act 1967: any proclamation, rule,regulation, order, notification, by-law or otherinstrument made under any Ordinance, Enactment or
other lawful authority and having legislative effect deals with the details about which the legislature has
neither the time nor the technical knowledge to enact
if made in contravention of either a parent Act or the
Constitution is voidan exception to this rule is theproclamation of emergency under Art 150 of theFederal Constitution
see Eng Keock Cheng vPublic Prosecutor
SUBSIDIARY LEGISLATION
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portion of Malaysian law which is not
written
comprises:1. English law
2. Judicial decisions
3. Customs
UNWRITTEN LAW
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ENGLISH LAW
English common law and rules of equity
subject to 2 limitations:
1. It is applied only in the absence of local statuteson the particular subjects
2. Only that part of the English law that is suited to
local circumstances will be applied
3. For Peninsular MalaysiaEnglish common lawand the rules of equity are applicable as they
stood on 7 April 1956
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4. For Sabah and SarawakEnglish common law
and the rules of equity together with statutes of
general application, as they stood on 1
December 1951 and 12 December 1949respectively, apply
5. For commercial mattersin Peninsular Malaysia
(other than Penang and Malacca), principles of
English commercial law as it stood on 7 April1956 are applicable in the absence of local
legislation
ENGLISH LAW (cont.)
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6. For Penang, Malacca, Sabah and SarawakEnglish
commercial law at the date on which the matter has
to be decided is applicable in the absence of local
legislation
7. However, since there are so many local statutes
already passed which deal with commercial subjects,
there is no total reliance on English commercial law,
e.g.: Companies Act 1965 (Revised 1973)
Partnership Act 1961 (Revised 1974)
ENGLISH LAW (cont.)
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Banking and Financial Institutions Act 1989
Contracts Act 1950 (Revised 1974)
Insurance Act 1963 (Revised 1972)
Bills of Exchange Act 1949 (Revised 1978)
seeKon Thean Soong vTan Eng Nam
ENGLISH LAW (cont.)
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section 6 of the Civil Law Act 1956
seeUnited Malayan Banking Corporation Bhd &
Anor vPemungut Hasil Tanah, Kota Tinggi
Conf l ic t between Common Law and Equi ty
section 3(2) of the Civil Law Act 1956in the event
of conflict or variance between the common law and
the rules of equity with reference to the same matter,
the rules of equity shall prevail
ENGLISH LAND LAW
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Malaysian law can also be found in the judicial
decisions of the High Court, Court of Appeal
and the Federal Court, the then SupremeCourt and the Judicial Committee of the Privy
Council
decisions of these courts were made and still
are being made by the doctrine of binding
precedent
JUDICIAL DECISIONS
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is basically a judgment or decision of a court of lawcited as an authority for the legal principleembodied in its decision
may comprise: res judicatafinal order of the court binding the
immediate parties to the decision
ratio decidendithe reason for the decision
obiter dictum (sayings by the way)no binding power,although it can exercise an extremely strong influencein a lower court, and even in a court of equivalentstanding, depending on the court and the judge
PRECEDENT
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following a precedent means that a questionshould be resolved in a certain way today becausea similar question has been so decided before
this process of following an established procedureis called stare decisis which literally meanstostand by a decision
advantages of precedents:
promote consistency, coherence and certainty
promote efficiency and justice, ensuring equality andfairness
PRECEDENT (cont.)
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disadvantages of precedents: certain precedent may not be relevant in todays
circumstances but the judge may have to neverthelessfollow it
may also be slow in responding to community changesand it is cumbersome to change them as they mayrequire an Act of Parliament
in applying binding precedents, Malaysian law can
be found in the judicial decisions of the High Court,Court of Appeal and the Federal Court and the thenSupreme Court, Federal Court and the JudicialCommittee of the Privy Council
PRECEDENT (cont.)
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decisions of these courts were made, and are still beingmade, systematically by the use of what is called thedoctrine of binding judicial precedent
in the case of a binding precedent (the ratio decidendi ofan earlier case decision), each court is bound by thedecisions of courts of the same level or higher than it, inthe same hierarchy of courts
if a judge applies an existing rule of law without extending
it, his decision may be called a declaratory precedent if the case before a judge is without precedent, then the
decision made by him may be called an originalprecedent
PRECEDENT (cont.)
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the functioning of the system of precedents is based on thehierarchy of decisions
although the Federal Court and the Judicial Committeeof the Privy Council do not form part of the present
judicial system, they were part of the judicial system until 31December 1986 and decisions made by them are still bindingon the present courts
the Supreme Court was part of the judicial system from 1January 1987 to 23 June 1994
the general rule regulating the hierarchy of precedents isbased on the principle that decisions of higher courts bindlower courts, and some courts are bound by their owndecisions
HIERARCHY OF PRECEDENTS
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The present court system is as follows:
THE JUDICIAL SYSTEM
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Between the period of 1 January 1987 and 23
June 1994, the Court system was as follows:
PREVIOUS JUDICIAL SYSTEMS
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Prior to 1 January 1987, however, the court
system was as follows:
PREVIOUS JUDICIAL SYSTEMS
(cont.)
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was the final court of appeal of Malaysia prior to 1January 1987
its decision was in the form of an advice to the Yangdi-Pertuan Agong who was obliged to give effect to it
appeals to the Privy Council on criminal andconstitutional matters were abolished on 1 January1987
effective 1 January 1987, no more appeals could bemade to the Privy Council, and the highest court ofappeal was then the Supreme Court
JUDICIAL COMMITTEE OF THE
PRIVY COUNCIL
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abolished on 1 Jan 1987
in its stead, the Supreme Court was set up and
was the highest court until 23 June 1994
now it is the highest court
appeals from the High Court can be made to the
Court of Appeal the Supreme Court has, therefore, been abolished
since 24 June 1994
FEDERAL COURT
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decision is binding on all subordinate courts but theHigh Court judge is not bound to follow thedecision of another
however, he may do so as a matter of judicialcomity
Sessions Courts and the Magistrates Courts
are bound by precedents laid down by the superiorcourts but their own decisions are not binding onany court
HIGH COURT
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decisions of the Judicial Committee are bindingon all courts in Malaysia in the followingcircumstances:
1. If the law decided is given on appeal fromMalaysia
2. If the decision is given on appeal from anotherCommonwealth country and the law is inpari
materia or similar to that of the law in Malaysia
seeKhalid Panjang & Ors v Public Prosecutor
HIGH COURT (cont.)
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it is not in every case that judges apply earlierprecedents
a judge may not wish to apply precedents in thefollowing circumstances:
1. The precedent is laid down by a lower court,where thecase is on appeal
2. The earlier precedent is arrived at per incur iam(i.e.made in ignorance of a statute or a binding
precedent)3. There are material differences in facts between
the case before them and the case laying downthe precedent
DISTINGUISHING PRECEDENTS
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advantages in applying the system of bindingjudicial precedents:
1. The law evolved is a result of an actual disputerather than a hypothetical situation
2. It is more flexible when compared to statute lawenacted by Parliament
3. Case-law is richer in legal detail than statute law
DISTINGUISHING PRECEDENTS
(cont.)
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disadvantages in applying the system of bindingjudicial precedents:
1. There is a tendency to overlook some authoritiesinadvertentlytoo many cases
2. It is sometimes difficult to tell whether a particularstatement in a judgment is ratioor dicta. It is theratio decidendiof a case which makes the decisiona precedent for the future while an obiter dictumisnot binding as a precedent
DISTINGUISHING PRECEDENTS
(cont.)
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generally, customs relating to family law, i.e.marriage, divorce and inheritance, are given legalforce by the courts in Malaysia
adat applies to Malays prior to the enforcement of the Law Reform
(Marriage and Divorce) Act 1976, Hindu andChinese customary law applied to the Hindus and
Chinese respectively in Sabah and Sarawak, native customary laws
apply in land dealings over native customary landsand family matters
CUSTOMS
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in Peninsular Malaysia there are two main varieties ofMalay customary law: the adat perpatih and the adattemenggong
Adat Perpatih
prevalent among Malays in Negeri Sembilan and Naningin Malacca
effective in matters such as land tenure, lineage and theelection of lembaga, undang and the Yang di-PertuanBesar
noted for its matrilineal system
CUSTOMS (cont.)
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Adat Temenggong
practised by the other states
originated from Palembang, Sumatra
patrilineal systemof law
CUSTOMS (cont.)
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each State has the power to administer Islamic Law
the head of the Muslim religion in a state (except for
Penang,Malacca, Sabah, Sarawak and the Federal
Territories) is the Sultan
in Penang, Malacca, Sabah, Sarawak and the Federal
Territories, the Yang di-Pertua Negeri is the head
the courts enforcing Islamic lawthe Syariah Courts
Islamiclaw applies to Muslims only
in businesses, esp. areas of banking and finance,Islamic principles are increasingly relevant in lending
and investments
ISLAMIC LAW
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REVIEW
Meaning of Sources
Main Sources of Malaysian Law
- Written Law (components)- Unwritten Law (components)
- Islamic Law