Tutorial 3

LIM TZE CHING UDE190175

1. Describe the various sources of Malaysia Law

 The sources of Malaysian legal system law are from two different laws which
are the Written and Unwritten law.
 In Malaysian Legal System, the most important source of law is the
Written Law which comprises of The Federal Constitution, State
Constitutions, Legislation and Subsidiary Legislation. We have 13 states with a
written constitution which is the Federal Constitution. In another word,
Written Law refers to the law stated in the Federal Constitutions which is the
supreme law of Malaysia and it enshrines the basic or fundamental rights of
the individual. The Federal Constitutions also stipulates the “Yang di-Pertuan
Agong” who owes his position to the Constitution and act according to it.

SOURCES
OF
MALAYSIA
N LAW
WRITTEN LAW
1
• FEDERAL
CONSTITUTION (FC)
-supreme law of the country based
on
Article 4(1) of FC and any law which
is inconsistent with the FC shall be
void to the extent of its
inconsistency.
-cover the basic or fundamental right
of the individual
-can only be changed by way of a
two-third majority of the total
number
of members of the legislature.
• STATE CONSTITUTION
-regulate the government of the state
-covers matters concerning the ruler,
the executive council, the legislature,
the legislative assembly
 FEDERAL CONSTITUTION (FC)

2
 supreme law of the country based on Article 4(1) of FC and any law
which is inconsistent with the FC shall be void to the extent of its
inconsistency.-cover the basic or fundamental right of the individual-
can only be changed by way of a two-third majority of the total
number of members of the legislature.
 STATE CONSTITUTION
State constitution is the system of government for the state. This
means that the state which was administered by the government of
the state and consists of a provision that was listed in 8 schedule. The
provisions include concerning the ruler, the executive council, the
legislature, the legislature Assembly, financial, state employees and
amendment of the constitution. All the state constitutions must
contain their provisions, otherwise, the Parliament can enforce those
provisions or abolish any provisions in the state constitution that
contradict those provisions.

 Unwritten law refers to the laws which are not enacted by the Legislature
and which are not found in the Federal and State constitutions. The
unwritten law consists of case law which is decisions of the superior courts
which are binding on the lower courts, customary law comprise of local
customs which have been accepted as law by the courts and applicable
principles of English common law and equity[2]. The rules of equity is not a
complete body of rules which can exist on its own. It merely filled the gaps in
the common law and softened the strict rules of common law[3]. In the event
that there is a conflict between common laws and equity, the equity should
always prevail
 LEGISLATION-law enacted by a body constituted forthe purpose of enacting
laws-at federal level, the laws are enacted by the parliament under List I,
Ninth Schedule of the Federal Constitution-at state level, the laws are
enacted bythe state legislative assembly under List II, Ninth Schedule of the
Federal Constitution

• CUSTOMS
-Malay customary law
-Natural law & custom of the natives of Sabah & Sarawak
-Chinese Customary law
Hindu Customary Law
-Muslim Law

Custom, in English law, an ancient rule of law for a particular locality as opposed to
the common law of the country. Customary law defined as an acceptable binding
social behavior of a society. For example in Malaysia for Malay Adat, Native,
Aboriginal, Chinese and Indian. With the culture ofthe modern age, custom as a

3
 force of law retains its validity, but inpractice, it has lost ground to common
law. Generally, customary law is related to family law such as marriage, divorce, and
inheritance. A local custom outside of common law has been considered valid if it
has been practiced peaceably and continuously from time immemorial. Next,
is reasonable, certain, and obligatory; and is confined to a specific locality.

2. “English Common Law and the rules of Equity form part of the law of Malaysia”
Discuss
 English law is a part of Malaysian law. English law means “the common law of
England “and the rules of equity. The common law is based essentially on
customers common throughout England ( hence the name “common law” ) in
contrast to local customs, which had applied in England before Norman
Conquesr in 1066.The common law is unwritten or unenacted law of England
which based solely decisions of the courts.
 Equity means ‘fairness’ and is the body of rules developed first by the Lord
Chancellor and by the old Court of Chancery in the end of the fifteenth
century. Equity, unlike the common law, is not a complete body of rules
which can exist on its own and it merely filled the gaps in the common law
and softened the strict rules of common law. Furthermore, equity is a
discretionary system of justice. An equitable remedy is not available as of
right; it may not be granted if the plaintiff considered morally undeserving.
The equitable remedies offered were injunction, specific performance,
rescission and rectification that the major contributions of equity are the
trust concept.

3. Written law is the most important source of law in Malaysia, what is written 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.

4. The principles of English Law are amongst the sources of law in the Malaysian legal
system. Discuss the introduction and application of English Law in Malaysia.

5. One of the sources of Malaysian law is derived from judicial decision, Explain how
judicial decision form part of the law of Malaysia

6. Malaysian Law can be classified into written and unwritten law, Explain and
elaborate the meaning of unwritten law in Malaysia.

4
 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.

7. Discuss the application of the doctrine of judicial binding precedent by reference to

(a) Original precedent

Original precedent means a precedent that creates and applies a new legal rule.
An original precedent is made when there is no previous judicial decision on a
point of law. When the court has to form an original precedent, a judge will come
to their decision by analogy. That is, by considering the cases that are nearest to
it in principle. Original precedents are responsible for the creation of new laws.
(b) Persuasive presidents
A persuasive precedent is a type of precedent where the judge is not required to
follow the precedent in a legal matter but will take the precedent heavily into
consideration. So a persuasive precedent is not a direct source of law but is
considered a historical source of law. In India, the decisions of one high court can
act as persuasive precedents in other high courts.

8. The Hierarchy of the courts in Malaysia

There are generally two types of trials, criminal and civil. The hierarchy of courts
begins from the Magistrates' Court, Sessions Court, High Court, Court of Appeal, and
finally, the Federal Court. The jurisdiction of the courts in civil or criminal matters are
contained in the Subordinate Courts Act 1948 and the Courts of Judicature Act 1964.
Article 121 of the Constitution provides for two High Courts of co-ordinate
jurisdiction, the High Court in Malaya, and the High Court in Sabah and Sarawak.
Thus this creates two separate local jurisdiction of the courts – for Peninsular
Malaysia and for East Malaysia. The highest position in the judiciary of Malaysia is
the Chief Justice of the Federal Court of Malaysia (also known as the Chief Justice of
Malaysia), followed by the President of the Court of Appeal, the Chief Judge of
Malaya, and the Chief Judge of Sabah and Sarawak. The superior courts are the High
Court, Court of Appeal, and the Federal Court, while the Magistrates' Courts and the
Sessions Courts are classified as subordinate courts.
9. Explain the process of legislation
In Malaysia, the legislative authority at the Federal level, is vested in Parliament.
Parliament Legislation is enacted by Parliament by introducing a Bill which is passed
by both Dewan Rakyat and Dewan Negara, and assented to by the Yang di-Pertuan
Agong.
In Malaysia, there are four types of legislation considered by Parliament. These are:
Public or government Bill. Public bills include bills on matters of general public
interest such as national defence, public order and taxation.

5
 i. Private Bills – deal with matters of Local and Personal concern. Private Bills
are those affecting limited or particular persons or group of persons, associations,
organisations or bodies.
ii. Private Members’ Bill
Private Member’s Bill are those introduced by any member of the legislature other
than a minister or assistant minister.
iii. Hybrid Bills
Hybrid Bills may be of general application and are introduced by either a minister or
private member but they belong to that class of Bills which, in the opinion of the
speaker as the case may be appear to affect individual rights or interests adversely.

Procedure for the enactment of an Act of Parliament

There are two main stages in the process: Pre-parliamentary and Parliamentary.
1. Pre-parliamentary Stage
This covers the proposal, consultation and drafting stage. The proposal may come
from organizations, bodies or government after taking account some events or
considerations. Such as before General Election, Barisan Nasional in their manifesto
promised to make law set up a commission to prevent corruption. Therefore, after
they become Government, they have to make law to set up the agency.
Government will make consultation with bodies related, get opinions from expert
and make research including get other countries’ experience. After completion this
stage, the matters to be include in the law will sent to AG Chambers for drafting.
After approval by the cabinet, the Bill is ready to be introduced into Parliament.

2. Parliamentary Stage

             
The procedure is set out in Chapter 5, Part IV of the Federal Constitution and
Standing Orders of Dewan Rakyat and Dewan Negara. The Standing Orders regulate
the actual procedure in the passage of a Bill in Parliament. These rules have been

6
drawn up under powers conferred by Article 62 of Constitution which empowers
each House to regulate its own procedure.
First Reading
This is a mere formality and may take place even if the Bills has not been printed and
circulated. The minister presents the Bill by having its short title read by the clerk of
the Dewan. There is no debate or amendment at this stage of the proceedings.
Second Reading
It occurs only when the bill is printed and circulated. The Second reading is preceded
by a motion to this effect:
“Mr Speaker, Sir, I beg to move that a Bill (name of the bIll) be now read a second
time.”
This motion requires to be seconded. The minister outlines the main principles of the
bill. A debate on principles ensues. If the bill receives the requisite number of votes,
it proceeds to Committee Stage.
Committee Stage
At the end of the Second reading, the Bill is committed to a committee of the whole
of House. In effect, the House resolves itself into a Committee on the Bill. This is
called the Committee Stage and it is intended to allow members the opportunity to
discuss details of the Bill and to propose amendments in a less formal proceeding.
When discussion is completed in Committee, the minister moves a motion to report
the Bill under consideration to the House. If the motion is accepted, the House will
resume sitting and this brings the Committee Stage to an end.
Sometimes a Bill is not considered by the Committee of the whole House  but by a
Special Select Committee.  This is an ad hoc Committee appointed for a particular
purpose. The size and members to be nominated to the Committee will be
determined by a Committee of Selection.
Third Reading 
When the House resumes sitting, the minister reports that the Bills has been
considered and accepted by the Committee with or without amendments. He then
moves a motion that the Bill be read a third time and passed. If the motion is
accepted, the Bill is considered passed. The formal motion is as follows:
“Mr. Speaker, sir, I beg to report that (name of the Bill) has been considered in
committee and has been agreed to with (or without) amendments. Sir, I beg to move
that the Bill be now read a third time and passed.”
Other House
When a Bill has been passed in the manner described above in either House, it is
then transmitted or sent to the other House for consideration. When the Bill has
been considered by the other House in a similar fashion, it is returned to the House
from which it originated
Royal Assent
The Yang Dipertuan Agong is an integral part of parliament. His assent is normally
required before a Bill becomes law. Clause 4 of article 66 reads:
“The Yang Dipertuan Agong shall within thirty days after a Bill is presented to him
assent to the Bill by causing the Public seal to be affixed thereto”.

7
10. Explain the meaning of judicial precedent
Judicial precedent means the process whereby judges follow previously decided
cases where the facts are of sufficient similarity. The doctrine of judicial precedent
involves an application of the principle of stare decisis ie, to stand by the decided. In
practice, this means that inferior courts are bound to apply the legal principles set
down by superior courts in earlier cases. This provides consistency and predictability
in the law.
 Lower courts have to follow the decisions of higher courts. This is called
judicial precedent, binding precedent or precedent.

11. What do you understand by the legislation, Explain the legislative process in the
Malaysian Parliament?

In Malaysia, there are the lower house known as the Dewan Rakyat or House of
Representatives and the upper house known as the Dewan Negara or Senate. The
Parliament will exercise its power to make laws by the passing of Bills in both houses.

A Bill may originate in either of the House. However, there is one exception with the
“Money Bill”. Subject to Article 67 of the Federal Constitution, the “Money Bill” must
originate in the House of Representatives and can only be introduced by a Minister.

The House, which a Bill is originated, shall send it to the other House once the Bill
has been passed. After the other Houses passed the Bill, it must then be presented
to the Yang di-Pertuan Agong for his assent under the Article 66(3) of the Federal
Constitution.

A Bill goes through several stages of “Reading”, in both the Houses of Parliament. At
the First Reading stage, only the long title will be read. This is a formality when the
Bill is first introduced to the House. The most important stage is the Second Reading.
The contents of the Bill are debated at length and discussed by all members of the
House. After that the Bill goes through a Committee Stage. The committees are
normally the Committee of the whole House as opposed to special select
committees. Special technical details of the Bill may be discussed at this stage.
Finally, the Bill is returned to the House for its Third Reading. Again this is a
formality.

Under the Article 66(4) of the Federal Constitution, the Yang di-Pertuan Agong must
assent to the Bill by causing the Public Seal to be affixed thereto. This must be done
within 30 days from the date a Bill is being presented to him. The nation Constitution
provides that a Bill will become law at the expiration of the 30 days period specified
in the like manner as if he had assented thereto, should the Yang di-Pertuan Agong,
for whatever reason, fails to give his assent to the Bill within the specified period.

8
 A Bill assented by the Yang di-Pertuan shall become Law. However, no laws shall
come into force until it has been gazetted or published under the Article 66(5) of the
Federal Constitution. (C2)
12. What do you understand by subsidiary legislation? Explain the type of control that
exist to stop the abuse of the delegated legislation,
Subsidiary legislation means 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.

 Preliminary control
By consulting the effected groups and advisory bodies before making the
subsidiary legislation. This is more common in UK and Us. In Malaysia, the
Parent Act determines whether consultation is mandatory or merely
recommended.
 Parliamentary control
Parliament can revoke or rescind the subsidiary legislation by repealing the
Parent Act ( Since it was Parliament that authorised subsidiary legislation.)
However, in practice this seldom happens.
 Judicial control
Control by courts by applying the doctrine of ultra vires ( in latin “beyond
powers”).The rule under the doctrine of ultra vires is that no one may
overstep the boundaries of the power conferred to him. It is the power of the
high court to exercise judicial review under the following grounds:
i. Subsidiary legislation is unconstitutional
ii. Parent Act is unconstitutional
iii. Substantive ultra vires
iv. Procedures ultra vires