Sources of Law in Malaysia
The
Malaysian legal system is derived from multiple sources, reflecting the
country’s diverse history and legal heritage. The sources of law in
Malaysia can be broadly categorized into written law and unwritten
law, with additional influences from Islamic law and customary
law.
1. Written Law
Written
law refers to laws that are formally enacted and codified by the legislative
authorities. It is the primary source of law in Malaysia and consists of the
following:
A. The Federal Constitution
The Federal
Constitution of Malaysia is the supreme law of the country. Any law
that is inconsistent with the Constitution is deemed void.
Key Features:
- Supremacy of the
Constitution –
Article 4(1) states that the Constitution is the highest law. - Fundamental Liberties – Includes rights such as
equality before the law, freedom of speech, religion, and protection
against retrospective laws. - Separation of Powers – Divides government power
into the Legislative, Executive, and Judiciary
branches. - Federal and State
Jurisdictions –
Defines the distribution of powers between the Federal Government
and State Governments (Articles 73–79). - Amendment Process – Can only be amended
through a two-thirds majority in Parliament (Article 159).
B. State Constitutions
Each of
Malaysia’s 13 states has its own State Constitution, which governs
matters under the state's jurisdiction. However, State Constitutions must
not contradict the Federal Constitution.
C. Legislation (Statutory Law)
Legislation
is law enacted by Parliament or State Legislative Assemblies. It is also known
as statutes, acts, ordinances, or enactments.
Types of Legislation:
- Acts of Parliament – Laws passed by the
Malaysian Parliament (e.g., the Penal Code, Contracts Act 1950). - State Enactments – Laws passed by State
Legislative Assemblies (applicable only within the respective state). - Ordinances – Laws enacted in Sabah
and Sarawak, as they have special autonomy under the Malaysia
Agreement 1963.
Delegated Legislation
Delegated
legislation refers to laws made by authorities other than Parliament
under powers granted by an Act of Parliament. Examples include:
- Regulations
- Rules
- By-laws (e.g., local government
regulations on public health, traffic laws)
2. Unwritten Law
Unwritten
law consists of judicial decisions, customs, and legal principles that
are not formally codified. It plays a significant role in the Malaysian legal
system.
A. English Common Law and Equity
Malaysia
follows English common law due to its colonial history. This is
recognized under Section 3 of the Civil Law Act 1956, which allows the
application of English law where no specific Malaysian law exists.
Key Features:
- Common Law – Derived from judicial
decisions and precedents. - Doctrine of Judicial
Precedent –
Courts follow prior decisions of higher courts under the principle of stare
decisis. - Equity – Provides remedies where
common law may be rigid (e.g., injunctions, specific performance).
However, English
common law only applies if it suits local circumstances.
B. Judicial Precedents (Case Law)
Judicial
decisions of superior courts (Federal Court, Court of Appeal, and High Courts)
are binding on lower courts. These decisions form case law, which is an
important source of Malaysian law.
Hierarchy of Judicial Precedent:
- Federal Court – Highest authority;
binding on all lower courts. - Court of Appeal – Decisions bind the High
Court and lower courts. - High Court – Precedents are binding on
the Sessions and Magistrates' Courts.
C. Customs (Adat Law & Native Laws)
Customary
law applies in certain situations, especially for indigenous communities. It is
legally recognized and enforced in limited areas.
Types of Customary Law:
- Malay Customary Law
- Adat Perpatih (practiced in Negeri
Sembilan & parts of Malacca) – A matrilineal system of
inheritance. - Adat Temenggung (practiced in most of
Malaysia) – A patrilineal system influenced by Islamic law. - Native Laws of Sabah &
Sarawak - Govern land tenure,
marriage, and inheritance among indigenous groups (e.g., Iban,
Kadazan-Dusun). - The Native Court System
exists to handle disputes based on native customs. - Chinese and Hindu Customs
- Historically recognized in family
law matters (marriage, divorce, and succession). - Since 1976, non-Muslim
marriages are regulated under the Law Reform (Marriage and Divorce)
Act 1976.
3. Islamic Law (Syariah Law)
Islamic
law is a separate legal system applicable only to Muslims in
Malaysia. It governs personal and religious matters.
A. Sources of Islamic Law
- Al-Quran – The primary source of
Islamic teachings. - Hadith/Sunnah – The sayings and practices
of Prophet Muhammad. - Ijma’ – Consensus of Islamic
scholars. - Qiyas – Analogical reasoning in
Islamic jurisprudence.
B. Application of Islamic Law
- Each state has the power to
enact Syariah laws (under Article 121(1A) of the Federal
Constitution). - Syariah law governs family
law, inheritance, and religious offenses. - Syariah Courts handle Islamic law matters
but do not have jurisdiction over criminal or civil cases covered by
federal law.
4. International Law
Malaysia
is also influenced by international law, particularly treaties and
conventions.
- Dualist Approach – International treaties do
not automatically become law in Malaysia; they must be incorporated
into domestic legislation. - Examples of international
agreements Malaysia follows: - United Nations Conventions (e.g., Convention on the
Rights of the Child) - ASEAN Agreements
- World Trade Organization
(WTO) Agreements
Conclusion
The
Malaysian legal system is a hybrid system incorporating multiple sources
of law. The Federal Constitution remains the highest authority, while
statutory law, common law, Islamic law, and customary law all play significant
roles in shaping the legal landscape.
