With relevant examples describe the various sources of Malaysian law.
(20 marks, 2011 Q1)
The written law is the most important source of Malaysian Law. The written Law is divided into 4, namely Federal Constitution, State Constitution, Legislation and Subsidiary Legislation.
The Federal Constitution is said to be the highest legal authority of the land. The constitution was drafted by the Reid Commission in 1956 with 5 representatives from India, British, Pakistan and Australia. The constitution came into force following the independence on August 31, 1957. It consists of 15 parts, 183 articles and 13 Schedules. Article 4(1) state that the constitution is the supreme law of federation and any law passed after Merdeka Day which is inconsistent with this constitution shall, to the maximum extent of inconsistency, be void. Article 159 and 161E provides provisions to allow the constitution to be amended with the condition of 2/3rds majority in both houses of Parliament agreeing to the amendment.
State Constitution is the same as Federal Constitution, except it is set by the states in
Malaysia. The 8th schedule of the Federal Constitution mentions certain provisions that are to
be included in the State Constitutions such as state executive members, finance, the state legislative assembly, roles of the Sultan or Yang di-Pertua Negeri, and etc. Article 71 mentions that all state constitutions must contain their provisions, otherwise the Parliament can enforce those provisions or abolish any provision in the state constitution that contradict with those provisions.
Legislations are the laws that are established by the Parliaments at federal level and by the State Legislative Assemblies at the state level. In Malaysia, the legislative gets its authority from the Federal Constitution. It mentions the scope of the Parliament and the State Assembly. If the Parliament (or any State Assembly) makes a law which is not in its scope of authority or contradicts with the constitution, the courts can declare that as null and void. Article 74 of Federal Constitution states that parliament may make law with referring to matters provided in the federal list and state legislatives may make law with referring to matter provided in the state list. Concurrent list is in the scope of enactment by both parliament and state legislatives. State list, federal list and the concurrent list are contained in the Ninth Schedule of Federal Constitution.
If there are any contradictions between federal and state laws, the federal law shall prevail and state law is void to the scope of inconsistency. This was provided by Article 75 of Federal Constitution.
Parliament may pass the power to legislate any subsidiary legislation during emergency, even if there are any contradictions with the Federal Constitutions involved, due to some exception in Article 150 of Federal Constitution.
The related case is Eng Keock Cheng v. Public Prosecutor.
In this case, Eng Keock Cheng who was convicted committed 2 offences during emergency period and was ordered to put to death. He appealed on the ground that there were neither a preliminary enquiry nor a jury adopted by High Court which were required under Criminal Procedure Act and claimed that the procedures set out in Emergency (Criminal Trial) Regulations 1964 was invalid as it contradicts with Article 8 of Federal
Constitution. It was held that Parliament may pass the power to legislate any subsidiary
legislation during emergency, even if there are any contradictions with the Federal Constitutions involved, due to some exception in Article 150 of Federal Constitution. The appeal was dismissed.
Unwritten laws are laws that are not enacted and not found in any constitution. It comprises of English law (Common Law and Equity), judicial decisions and customs. Common Law is a major part of many States, especially Commonwealth countries. It is mainly made up of non-statutory laws, which are the precedents derived from judgments given on real cases by judges. Law of Equity resolves disputes between persons by referring to principles of fairness, equality and justness. In these cases, nothing was done against the law by the parties to dispute, but their rights are in conflict. Thus, it is different from law; both the Statutory Law enacted by Parliament and State Legislatives and Common Law which consists of precedents and opinions given on real cases by judges.
Section 3(1)(a) Civil Law Act 1956 states that courts in Peninsular Malaysia should apply Common Law and the Law of Equity as administered in England on 7th April 1956.
Section 3(1)(b) and Section 3(1)(c) of Civil Law Act 1956 states that courts in Sabah and Sarawak should apply common law and law of equity together with the statutes of general application as administered in England on 1st December 1951 and 12th December 1949 accordingly.
But it is not stated that the Common Law and Law of Equity in Malaysia should remain unmodified and follow the same law as administered in England.
Common law and law of equity in Malaysia should be developed and amended according to the local needs. In addition, these two laws should also take into account of changes in these laws in England.
However, Malaysian government can set their own scope for the amended or repealed Common Law and Law of Equity in Malaysia
In the case Commonwealth of Australia v. Midford (Malaysia) Sdn Bhd., it was held that the doctrine of sovereign or crown immunity which was developed in English Common Law after 1956 should apply in Malaysia. It was said that any developments in English Common Law after 1956 should apply in Malaysia
In the case Smith Kline & French Laboratories Ltd. v. Salim (Malaysia) Sdn Bhd., It was held that the courts have the authority to put aside any Common Law or Law of Equity which cannot be applied in Malaysia.
In the case Jamil bin Harun v. Yang Kamsiah & Anor. It was decided that courts have the authority to decide whether to follow English Law (common law and law of equity) or Federal law, considering the circumstances and the scope the written law permits to do so.
In the case Karpal Singh v. Public Prosecutor, It was held that the criminal offences in Malaysia were provided by Criminal Procedure Code of Malaysia and therefore, there is no allowance for English law to apply. There are certain boundaries as to the application of Common Law and Law of Equity in Malaysia.
Common law can apply in the absence of local legislation. Local law is regarded higher than that of the English law. The English law is only meant to fill in the lacuna, in which the local legislation is not present.
Only the relevant part which is suited to the local needs and circumstances applies. Malaysia is made up of different races, each possessing their own customs, different from English law. The entire importation of English law means that the sovereignty of local race is affected.
The case law related to the boundaries of application is Syarikat Batu Sinar Sdn. Bhd. v. UMBC Finance Bhd. In this case, problem of double financing occurred when first purchaser’s (UMBC Finance Bhd.) endorsement of ownership claim was not included in the registration card of vehicle. UMBC tried to repossess the vehicle. The plaintiff sued UMBC, claiming that defendants were not entitled to the vehicle.
It was held that the English law requires the endorsement of ownership claim in registration card, but the law in Peninsular Malaysia does not really require the endorsement to be attached with the registration card of vehicle. The law regarding the endorsement of ownership claims in Malaysia which applies to the local circumstances has to be distinguished from the English law.
English Commercial Law and English Land Law
Two components of English law are English commercial law and English land law.
English Commercial Law is provided by the section 5(1) and section 5(2) of Civil Law Act 1956. The principles of English commercial law apply in Peninsular Malaysia
except Penang and Malacca in absence of local legislations– Section 5(1). This includes laws regarding partnership, banking, principals and agents, life and insurance and soon. There is no entire dependence on English commercial law as only certain principles apply and many local statutes have been inserted to the English Commercial Law.
English Commercial Law applies in Penang, Malacca, Sabah and Sarawak as the law
administered in these states will be the same as law administered in England, in the like case at corresponding period – Section 5(2). These states are still dependant on the English Commercial Law.
In the case Koon Thean Soong v. Tan Eng Nam, it was held that English law of partnership was inapplicable as there is a local statute governing the partnership in Malaysia, which is Contract (Malay State) Ordinance.
As for the English Land Law, none of the English Land Law concerning the tenure, conveyance, assurance of or succession to any estate, right or interest therein applies in Malaysia. In Malaysia, the National Land Code is the law that governs the land matters and there is not any allowance for English land law, unless the National land code applies it for the judicial comity.
[In law, comity is legal reciprocity—the principle that one jurisdiction will extend certain courtesies to other nations (or other jurisdictions within the same nation), particularly by recognizing the validity and effect of their executive, legislative, and judicial acts. The term refers to the idea that courts should not act in a way that demeans the jurisdiction, laws, or judicial decisions of another jurisdiction. Part of the presumption of comity is that other jurisdictions will reciprocate the courtesy shown to them.] Ref: Wikipedia “comity” at http://en.wikipedia.org/wiki/Comity.
The case related is United Malayan Banking Corporation Bhd & Another v. Pemungut Hasil Tanah, Kota Tinggi. In this case, Johor State Authority transferred land to a proprietor with certain conditions and annual rent as consideration. The rent and penalties on arrear payments were not settled. Johor State Authority served a notice to forfeiture the land as the right of consequence of the offence. The appellant, Johor State Authority and the proprietor, appealed and they were granted relief against forfeiture. Collector of Land revenue appealed to federal court and the appellants appealed to Privy Council.
It was held that English land law concerning the relief against forfeiture is inapplicable in Malaysia. Relief against forfeiture means that order for forfeiture is cancelled and it was provided by Malaysian National Land Code.
Judicial decisions are based on ‘doctrine of binding precedent’. Precedents are the decisions made by judges previously in similar circumstances. There are two types of precedents.
Mandatory precedent is applied when the decisions of superior court are binding on lower courts or the superior courts are bound by their own decisions previously. However, the decisions of lower courts are not binding over superior courts. The lower courts must refer to the mandatory precedents of superior courts. However, judge of superior court will distinguish a case before him and the cases laying down the precedents and can decide not to follow the mandatory precedent if he thinks that the mandatory precedent is not related to the case before him. From this, an original precedent is formed.
Persuasive precedent is a precedent which is useful or relevant to a case. It is not mandatory for the judges to apply persuasive precedent. Persuasive precedent may be binding on lower courts if judges of superior court choose to apply persuasive precedent.
Customs are another important source of unwritten law. Customs are inherited from one generation to another generation. Every race has its own customs. Chinese and Hindus customs are governed by Chinese and Hindu Customary Law. Natives in Sabah and Sarawak have their own customary law which relates to the land and family matters. ‘Adat’ applies to malays. There are two types of Adat; Adat Perpatih and Adat Temenggung.
Adat Perpatih applies in Negeri Sembilan and Naning in Malacca. The unique characteristic of Adat Perpatih is matrilineal form of organization. It concerns with matters such as land tenure, lineage, inheritance and election of members of lembaga and YDP. Matrilineal is a system in which one belongs to mother's lineage; it generally involves the inheritance of property, names or titles from mother to daughters
Adat Temenggung applies in other states. It is based on the characteristic of patrilineal form of organization. Patrilineal is a system in which one belongs to father's lineage; it generally involves the inheritance of property, names or titles from father to sons.
After the establishment of Law Reform (Marriage and Divorce) Act 1976, the family law has been given enforcement on matters of marriage, divorce and inheritance. As a result, the Chinese and Hindu Customary Laws have lost its effect as an important source of unwritten law in Malaysia.
Islamic law, which is only applicable to Muslims, is enacted under the Federal Constitution. The state legislatures have the power and are permitted to make Islamic laws pertaining to persons professing the Islam religion. Such laws are administered by separate court system, Syariah Courts. State legislature also has the jurisdiction over the constitution, organization and procedures of Syariah Courts.