Sources of Laws in Malaysia

CHAPTER 2 (Part A): Sources of Laws in Malaysia

1. An Introduction to Law

• Definition of Law:
  • Law is described as a set of rules developed over time to regulate interactions between people and set standards of conduct. It is enforceable through sanctions.
  • According to the Oxford English Dictionary, law is defined as "the body of enacted or customary rules recognized by a community as binding".

2. Functions of Law

• Law performs many essential functions in society:
  1. Regulates relations between citizens and the state.
  2. Regulates relations between individuals.

3. Classification of Law

• Law can be classified into three broad divisions:
  1. Public Law
  2. Private Law
  3. International Law
• Focus for our study: Public Law and Private Law.

a. Public Law

• Governs the relationship between individuals and the State (e.g., Malaysia and its citizens).
• Subdivided into: (i) Constitutional Law:
  • Lays down individual rights within the State (e.g., freedom of speech, freedom of religion).
  • Addresses issues like supremacy of Parliament and state powers.
    (ii) Administrative Law
    (iii) Criminal Law:
  • Codifies offenses against the state (e.g., murder, robbery, theft).
  • Aims to punish criminals and suppress crime, imposing an obligation on individuals to refrain from criminal acts.

b. Private Law

• Often referred to as Civil Law; concerns rights and duties of individuals among themselves.
• Governs individual interactions (inter se).
• Key areas of Private Law include:
  • Contract Law: Rights and obligations arising from agreements.
  • Tort Law: Offenses against individuals.
  • Trust Law: Addresses the relationship between a trustee and a beneficiary.

4. Sources of Malaysian Law

• Examines the evolution and origins of Malaysian laws.

Main Sources of Law in Malaysia

• Two primary sources:
  1. Written Law
  2. Unwritten Law
• Additional sources include: Islamic law and Native law.

Unwritten Law

• Refers to laws not made by Parliament nor constitutionally based. Also termed non-statutory law and include:
  1. English Law (used in Malaysia)
  2. Judicial Decisions (common law)
  3. Local Customs

Sources of Written Law

• Considered crucial and includes:
  1. Federal Constitution:
  • The supreme law applicable to all of Malaysia.
  • Defines federal and state powers and citizen rights; conflicts with it render laws invalid as per Article 4(1).
  1. Legislation (laws passed by Parliament).
  2. State Constitutions and Laws:
  • 13 states, each with its own constitution governing state matters.
  1. Subsidiary / Delegated Legislation:

Legislative Process

• Legislation occurs at both federal and state levels:
  • Acts: Laws enacted by Parliament.
  • Enactments: Laws enacted by State Assemblies, termed Ordinances in Sarawak.
• Supreme power lies with the Federal and State Constitutions; laws must conform to constitutional provisions.

Subsidiary or Delegated Legislation

• Also known as subordinate legislation.
• Important for daily governance, as legislation from Parliament and state assemblies may not cover all legal needs.
• Delegation occurs to authorized bodies, manifesting as regulations and by-laws (e.g., local council by-laws).

Reasons and Advantages for Delegated Legislation

• Reasons:
  1. Limited parliamentary time, preventing thorough legislative detail.
  2. Need for specialized expertise in specific areas of law.
• Advantages:
  1. Flexibility and speed.
  2. Accommodates changing societal needs.
  3. Reduces time required for enacting laws.
  4. Facilitates rapid response in emergencies (e.g., economic crises).

Disadvantages of Delegated Legislation

• Disadvantages:
  1. Lack of publicity for regulations.
  2. Complexity and bulkiness of law.
  3. Potential for abuse of power as more bodies are empowered to make laws.

5. Sources of Unwritten Law

English Law

• Embedded due to Malaysia's colonial past, adopted solely under conditions of local law gaps.

Conditions for Applying English Law

• Must fulfill two conditions:
  1. Utilized only in cases of lacuna in local laws (no Malaysian statute available).
  2. Only English law suitable for local context can be applied.

Judicial Precedent

• Definition: A judgment or decision from a higher court used as an authority for a legal principle that becomes binding on lower courts.
• Binding Precedent: Judges must adhere to precedents from superior courts, a practice known as "stare decisis" (to stand by past decisions).
• Example: The Federal Court’s decisions bind the Court of Appeal, High Courts, Session Courts, and Magistrate Courts.

Advantages and Disadvantages of Judicial Precedents

• Advantages:
  1. Certainty: Ensures consistent legal outcomes.
  2. Uniformity: Equal treatment under the law.
  3. Flexibility: Enables establishment of new legal principles based on facts.
  4. Minimizes judges' personal biases impacting decisions.
• Disadvantages:
  1. Rigidity: Judges required to follow binding precedents even if the outcomes are contrary to justice.
  2. Unpredictability: Difficulty in assessing which precedents are applicable in new cases.
  3. Overlooked authorities due to the growing number of cases.

Customs

• Local customs accepted as law; two main varieties in Peninsular Malaysia:
  1. Adat Perpatih: Matrilineal system observed in Negeri Sembilan.
  2. Adat Temenggong: Patrilineal system.

6. Other Sources of Law

Islamic Law

• Governed by the State, applicable only to Muslims, administered in Syariah Courts.
• Jurisdiction primarily lies with the states, with Syariah Courts established under state law.

Native Law

• Applicable to indigenous peoples of Sabah and Sarawak, governed by a hierarchy of Native Courts concerning personal laws, customs, religion, and matrimonial matters.

7. Statutory Interpretation

Judicial Role in Law

• Judges do not create laws; Parliament creates statute laws. Judges interpret and apply laws, which may seem like law-making.

Rules of Statutory Interpretation

1. Literal Rule: Interprets words literally; judges cannot modify the law but must clarify legislative terms.
   • Advantage: Respects parliamentary sovereignty.
   • Disadvantage: Can lead to absurd outcomes.
2. Golden Rule: Allows judges to modify legislation wording to prevent absurdity (established in Grey v. Pearson).
   • Advantage: Reduces absurd outcomes.
   • Disadvantage: Lack of clarity regarding what constitutes an absurd result.
3. Mischief Rule: Judges interpret statutes considering the mischief the statute addresses (based on Heydon's Case).
   • Judges examine past common law, identify problems, find remedies, and discern legislative intent.
4. Purpose Approach: Judges interpret laws by considering the overall intended purpose of the statute.

Legal Terminologies

• Ratio Decidendi: Binding legal reasoning in higher court decisions.
• Obiter Dictum: Incidental remarks or opinions not integral to a case’s legal reasoning.
• Binding Precedent: Precedents to be followed if case facts align.
• Overrule: Court declares an earlier decision erroneous.
• Reversed: Higher court overturns lower court’s decision upon appeal.
• Distinguishing: Agnostic method allowing avoidance of precedent based on factual differences.