Malaysian Legal System: Written and Unwritten Law

Malaysia practices the mixed legal system which includes the Common Law, Islamic law and Customary Law. Malaysia’s legal system comprises laws which have arisen from three significant periods in Malaysian history dating from the Malacca Sultanate, to the spread of Islam to Southeast Asia, and following the absorption into the indigenous culture of British colonial rule which introduced a constitutional government and the common law. The Malaysian Legal System is based on English common law. The sources of Malaysian law means the legal rules that make the laws in Malaysia, which can be classified into written and unwritten law.

Written law is the most important source of law. It refers to the laws contained in the Federal and State Constitutions and in a code or a statute. The written laws are much influenced by English laws as the Malaysian legal system retains many characteristics of the English legal system. The Written law includes the Federal Constitution, State Constitutions, Legislation and Subsidiary legislation. Malaysia is a Federation of thirteen States with a written constitution, the Federal Constitution, which is the supreme law of the country. The Constitution can only be changed by a two-thirds majority of the total number of members of the legislature. The Federal Constitution comprises many Articles concerning the religion of the federation, citizenship, supreme law of the Federation and many other related subjects. Besides the Federal Constitution, there is a state constitution where each state has their own constitution regulating the government of that state.

Legislation refers to the law enacted by a body constituted for this purpose. The Parliament and State Legislatures are not supreme and so they have to enact laws subject to the provisions set out in the Federal and State Constitution. Parliament is competent to enact laws on matters enumerated in List I of the Ninth Schedule while the State can enact laws on matters enumerated in List II. List III are within the concurrent competence of both authorities. Subsidiary Legislations are made by the people or bodies who are authorized by the legislatures. Subsidiary Legislation is mainly legislated by Ministers and local authorities. It made in contravention of either a parent Act or the Constitution is void except in a proclamation of emergency under Article 150 of the Federal Constitution [1] .

Unwritten law is simply that portion of Malaysian law which is not being enacted by Parliament or the State Assemblies and which is not found in the written Federal and State Constitutions. This category of law comes from cases decided by the Courts and the local customs, which is otherwise known as common law. The unwritten law mainly comprised of the English law, judicial decisions and custom law.

English law forms part of the laws in Malaysia. English Law can be divided into two which are the English Commercial Law and English Land Law. In section 5(1) of the Civil Law Act 1956 provides that The English Commercial Law is applicable in Peninsular Malaysia except Penang and Malacca as it stood on 7 April 1956 in the absence of local legislation. On the other hand, Section 5(2) of the same act, 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. As for the English Land Law, none of the English Land Law concerning the tenure, conveyance, assurance of or succession to any immovable property or any estate, right or interest therein applies in Malaysia. In Malaysia, National Land Code is the law that governs the land matters. There is no any allowance for English land law, except in so far the National Land Code might expressly provide.

Approaching the judicial decision, judges do not decide arbitrarily. Instead, they are bound to follow certain accepted principles known as precedents. The system of binding judicial precedent is called stare decisis. It is created by the English judges and introduced into Malaysia upon colonization. Customs of the local inhabitants in Malaysia are also a source of law. Every race has its own customs. Hindu and Chinese customary law applied to the Hindus and Chinese respectively. Besides that, natives in Sabah and Sarawak have their own customary law which relates to the land and family matters. In Malaysia, there are two types of Adat which is the Adat Perpateh and Adat Temenggung. Adat Perpateh is practiced among the Malays in Negeri Sembilan and Nanning in Malacca. It uses the matrilineal system which belongs to mother’s lineage, meaning to say it involves the inheritance of property, names or titles from mother to daughters. It also concerns with matters such as land tenure, lineage, inheritance and election of members of lembaga and Yang di-Pertuan Besar. As for Adat Temenggung, it is practiced in other states and it uses the patrilineal system which belongs to father’s lineage.

Last but not least, Muslim law is also a major source of Malaysian law which is enacted under the Federal Constitution. It is only applicable to Muslims and is administered by a separate court system, the Syariah Courts. Muslim law applies to Muslims only and does not apply to non-muslim.

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(b) Explain the functions and differences between legislation and delegated legislation.

Legislation is written law. Legislation refers to the laws that are established by the Parliaments at federal level and by the State Legislative Assemblies at the state level. Laws that are enacted by Parliament after 1946 but before 1957 are called Ordinances. Those made after 1957 are called Acts. Besides that, laws made by State Legislative Assemblies except in Sarawak are called Enactments. The laws in Sarawak are called Ordinances.

The Parliament and State Legislatures are not supreme and so they have to enact laws subject to the provisions set out in the Federal and State Constitution. Parliament is competent to enact laws on matters enumerated in List I of the Ninth Schedule. On the other hand, the state may make law with referring to matter provided in List II. As for matters on List III which is the Concurrent list, are in the authority of both Parliament and State. Matters that are not in the lists are within the authority of the States.

Delegated legislation is legislation made by a person or body other than Parliament. Parliament, through an Act of Parliament, can permit another person or body such persons or bodies include the Yang di-Pertuan Agong, Ministers, local authorities to make legislation. As for the example of Eng Keock Cheng v. Public Prosecutor [2] , the Federal Court held that delegated legislation may still be valid, notwithstanding that it is inconsistent with the Constitution. The legislation created by delegated legislation must be made in accordance with the purposes laid down in the Act. This legislation is an attempt to regulate very complex matters such as employment, social security, tax liability and economic management. It is void if it contravenes the parent Act or the Constitution.

One of the functions of Delegated Legislation is to allow the Government to amend a law without having to wait for a new Act of Parliament to be passed. Furthermore, Delegated Legislation can be used to make technical changes to the law, such as altering sanctions under a given statute. Delegated Legislation allows law to be made by those who have the relevant expert knowledge. A particular Local Authority can make a law to suit local needs and that Local Authority will have the knowledge of what is best for the locality rather than Parliament. Besides that, Delegated Legislation can be used to cover a situation that Parliament had not anticipated at the time it enacted the piece of legislation, which makes it flexible and very useful to law-making.

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