INTRODUCTION TO MALAYSIAN
LEGAL SYSTEM
Prepared by: Ms. Norazimah Mazlan
SOURCES OF MALAYSIAN LAW
Written Law
Unwritten Law
Federal & State
Constitution
English Law
(Common Law & Rules of
Equity)
Judicial decisions
Legislation
(enacted by Parliament
& the State Legislative
Assemblies)
Subsidiary Legislation
(made by persons or
bodies under powers
conferred on them by
federal & state
legislation)
Customs
Syariah Law
i. Federal Constitution
 The supreme law of the country.
 It lays down the powers of the Federal Government and
contains the basic or fundamental rights of individual.
 Any law which is inconsistent with the Federal Constitution
shall be void.
Article 4(1) of the Federal Constitution:
 “This constitution is the supreme law of the Federation
and any law passed after Merdeka Day which is
inconsistent with this Constitution shall, to the extent of the
inconsistency, be void”
 It provides for the establishment and the
organization of three main branches of the
government:
the legislative branch called the Parliament,
the executive branch led by the Prime Minister,
the judicial branch headed by the Federal Court.
ii. State Constitution
• Each of the Malaysian states also have its own
constitution regulating the government of that
state.
• It contains provision which are enumerated in the
eight schedule to the FC:
The Ruler
The Legislature of the state
The Legislative Assembly
The executive council
iii. Legislation
• Also referred to as the primary legislation.
• Article 73 of the Federal Constitution:
In exercising the legislative powers conferred on it
by this Constitution:
(a) Parliament may make laws for the whole or any part
of the Federation and laws having effect outside as well
as within the Federation;
(b) The Legislature of a State may make laws for the
whole or any part of that State.
• “Act of Parliament” means a law made by Parliament.
• Federal Legislation
 laws made by the legislature in Parliament
 are called as Acts (except those laws enacted prior
to 1957 are called Ordinances).
 Parliament can only enact laws on matters stated in
List I of the Ninth Schedule of FC.
• State Legislation
 laws enacted by the state legislature in the State
Assemblies.
 referred to as Enactments, except in Sarawak which
are called Ordinances.
 the State can elect laws on matters stated in List II
of the Ninth Schedule of FC.
• Matters stated in List III are within the
concurrent competence of both Federal and
States.
• Laws enacted by Parliament or State
Assemblies must be subject to the Federal
Constitution and State Constitutions.
iv. Subsidiary Legislation
• ‘Subsidiary legislation’ to mean any proclamation,
rule, regulation, order, notification, by-law or other
instrument made under any Act, Enactment, Ordinance
or other lawful authority and having legislative effect.
• These are legislation made by Ministers, statutory
bodies and local authorities under the power delegated
by the legislature and has legislative effect.
• Subsidiary legislation deals with details which the
legislative has neither the time nor the technical
knowledge to enact such laws or rules.
• Subsidiary legislation must not be made in
contravention of either :
the parent Act / Ordinance or
the Federal or State Constitution.
• In the event of any of the provisions in the
subsidiary legislation conflict with the parent Act
or Ordinance:
the Act or Ordinance shall prevail and
the provision of the subsidiary legislation will be void.
v. English Law
• English Law can be found in the English
Common Law & Rules of Equity
Common law
• Common law are actually rules or judicial
pronouncement or decisions developed and
laid down by the English courts. The rules laid
down are based on customs and practices
common throughout England.
Rules of Equity
• Equity is a branch of English law which developed hundreds of
years ago when litigants would go to the King and complain of
harsh or inflexible rules of common law which prevented
"justice" from prevailing.
• It was after the birth of the common law system to resolve
disputes where damages were an unsuitable remedy and to
introduce fairness into the legal system.
• Equity is based on a judicial assessment of fairness as
opposed to the strict and rigid rule of common law.
• The rules of equity grew up for the litigants who were
dissatisfied with the justice administered by the common
law courts.
• The Court of Chancery is the principal court of equity.
• The earliest jurisdiction of this court was to hear
petitions by litigants to:
– A person whom a remedy had been denied
– A person against whom an order had been unjustly
made at Common Law
– To recognise and enforce a diverse set of principles (
now known as rules of equity)
• English law forms part of the laws of Malaysia by virtue
of Section 3 and 5 of the Civil law Act 1956 (CLA).
• Section 3(1) of CLA provides that:
 In Peninsula Malaysia, the courts shall apply the common
law of England and the rules of equity as administered in
England on 7th of April 1956.
 In Sabah and Sarawak, the courts shall apply the common
law of England and the rules of equity, together with the
statutes of general application, as administered or in force
in England on 1 December 1951 and the 12 December
1949 respectively.
COMPARISON
Peninsular Malaysia
Common law of England
Rules of equity
application
Cut-off date:
7 April 1956
Sabah & Sarawak
Common law of England
Rules of equity
statutes of general
Cut-off date:
1 December 1951 (Sabah)
12 December 1949 (Sarawak)
• Section 5(1) Civil Law Act 1956 introduces into
Peninsula Malaysia principles of English
commercial law as it stood on April 1956 in the
absence of local legislation (except the States of
Penang and Malacca)
• In Penang, Malacca, Sabah and Sarawak, there is
still a continuing reception of English commercial
law in the absence of local legislation.
Proviso to Section 3(1) Civil Law Act
• Application of English Law of England
throughout Malaysia is subject to 2
limitations:
It is applied only in the absence of local statutes
on the particular subject
Only part of the English Law which is suited to
local circumstances will be applied.
vi. Judicial decisions
• These are the decisions (judicial decisions) made by the
Superior Court (Federal Court, Court of Appeal) and the
Subordinate Court (Session Court and the Magistrate
Courts).
• These decisions are part of Malaysian law and are
made and followed by the Malaysian courts under the
doctrine of ‘binding judicial precedent’.
• The ‘doctrine of binding precedent’ is applicable where
the decisions or case law binds the immediate parties
to the decisions or proceedings.
• Judge does not decide case arbitrarily and
follow principle/decision made by judges
previously in similar situations.
• The binding principle based on the hierarchy
of courts.
• The general rule is the decision of higher
courts bind lower courts and some courts are
bound by their own decisions.
HEIRARCHY OF MALAYSIAN COURTS
• ‘ratio decidendi’ is the reason for the decision or
(legal reasoning). It may be used by Judges in future
cases with similar facts.
• In all judicial precedents the courts have to state the
legal reasoning for the decision.
• This is actually a statement of principles of law to
the legal problem presented before the court and
would be binding upon the court.
• Obiter dictum.
A judge may express an opinion on question of not
directly relevant to the case.
It is not binding on courts but it may have a
persuasive authority.
vii. Customary Law
• In Malaysia the customary laws are: Malay customary law applicable to Malays;
Chinese customary law applicable to Chinese;
Hindu customary law applicable to followers of
Hinduism;
Orang Asli customary law applicable to Orang Asli
in Peninsula Malaysia; and
Native customary law applicable to the nonMuslim indigenous communities in Sabah &
Sarawak.
• Generally customs relating to family law, i.e. marriage, divorce
and inheritance, are given legal force by the courts in
Malaysia.
• Before the introduction of the Law Reform (Marriage and
Divorce) Act 1976, Hindu and Chinese customary law applied
to the Hindus and Chinese respectively.
• After the enforcement of the 1976 Act in 1982 which is
applicable only to non-Muslim, polygamous marriage were
abolished.
• In Sabah and Sarawak, native customary laws apply in land
dealings over native customary lands and family matters
where natives subject themselves to native customary laws.
viii. Syariah Law
• Article 3 of the Federal Constitution states:
“Islam is the religion of the Federation; but other religions may be
practiced in peace and harmony in any part of the Federation”
• Muslims are compulsorily subjected to the Syariah and to the
jurisdiction of the Syariah courts in personal law and a few other
enumerated matters.
• The Syariah is not applied to non‐Muslims and no non‐Muslim is
subject to the jurisdiction of the Syariah courts.
• The Federal Constitution provides that the States
have the power to administer Islamic Law.
• The head of the Muslim religion in a state is the
Sultan (except for Penang, Malacca, Sabah and
Sarawak and the Federal Territories). In Penang,
Malacca, Sabah and Sarawak the head is the Yang
di Pertuan Negeri and Federal Territories is the
Yang Di Pertuan Agong.
REFERENCES
• Lee Mei Pheng, (2005). General Principles of
Malaysian Law. 5th Ed. MY: Penerbit Fajar
Bakti.