Law 446 (Tutorial 1)

QUESTION 1 :
The sources of Malaysian Law refer to the legal rules that make up the law in
Malaysia. It consists of written law as well as unwritten law. Elaborate on unwritten
law as a source of law in Malaysia.
Answer
Sources of law means the legal source or the rules that make up the law in
Malaysia. The law in Malaysia an be classified into written and unwritten. Unwritten
Law is refer to the law which is not enacted by the legislature and not found in the
written Federal and State Constitution. It consists of Judicial Decisions, Principles of
English Law as well as Customary Law.
Judicial Decisions. Decisions refer to the court judgment or determination of the

dispute between the parties. The decisions only made by superior courts which is
High Court, Court of Appeal and Federal Court are source of law. The doctrine of
judicial precedent has two ways of operation which is vertical and horizontal. In
arriving at the decisions, the judges have to follow certain accepted principal known
as precedents. The judges have to follow the decisions make by predecessor on the
same cases in similar situation. All decision of higher court bind the lower court and it
is persuasive to high court judges are not bound to follow the decisions of another
high court judges.
English Law. In the Section 3 of the Civil Law Act 1956 (Revised 1972) gives
the meaning of the English law which means ‘the common law of England and the
rules of equity’ and, in prescribed circumstances, English statutes. English law is
applicable in Malaysia if there are absence of local legislation and local circumstances.
Section 3(1) states in written law that the courts in Malaysia shall apply the
common law and rules of equity existing in in England on 7th April 1956 in West
Malaysia, 1st December 1951 in Sabah and 12th December 1949 in Sarawak.
Mokhtar v Arumugan (1959) 1 MLJ 232, it is quite clear that in England the
power of the court to award damages in the nature of interest for delay in returning
specific goods is a remedy conferred by statue and not one available at common law.
This relief, being a creature of English statue, is not available here. It was held that
Malaysian courts are not bound to follow the position of the law in England after the
cut off date as state, as example 7th April 1956.
Section 5 provides for specific application of the english law in the following
areas : partnership, corporations, bank & banking, principal & agents, carriers by land,
air and sea, marine insurance, average life and fire insurance and mercantile law
generally. In addition, section 6 expressly excludes the application in Malaysia of the
English law concerning land tenure.
Customary Law. Custom can be said to be an ancient rule of law for a particular
locality. Its followed by one generation to another generation. System of adat which
are recognized as widely practiced among Malays is Adat Temenggung and Adat
Perpatih. As far as Chinese and Indians are concerned, after the enforcement of the
Law Reform ( Marriage and Divorce) Act 1976 on March 1982, polygamous
marriages were abolished. Since then, Chinese and Hindu customs have become of
little or no effect as a source of law in Malaysia. But valid customs must be proved to
exist, reasonable, certain and be a custom from time immemorial.
QUESTION 2 :
Explain the application of English Law in Malaysia
Answer
English Law. In the Section 3 of the Civil Law Act 1956 (Revised 1972) gives
the meaning of the English law which means ‘the common law of England and the
rules of equity’ and, in prescribed circumstances, English statutes. English law is
applicable in Malaysia if there are absence of local legislation and local
circumstances.
Section 3(1) states in written law that the courts in Malaysia shall apply the
common law and rules of equity existing in in England on 7th April 1956 in West
Malaysia, 1st December 1951 in Sabah and 12th December 1949 in Sarawak.
Mokhtar v Arumugan (1959) 1 MLJ 232, it is quite clear that in England the
power of the court to award damages in the nature of interest for delay in returning
specific goods is a remedy conferred by statue and not one available at common law.
This relief, being a creature of English statue, is not available here. It was held that
Malaysian courts are not bound to follow the position of the law in England after the
cut off date as state, as example 7th April 1956.
However in the case of Commonwealth of Australia v Mlidford Sdn Bhd [1990]
it was held that the development of common law after 1956 may well be applicable in
Malaysia as the cut off date under section3(1) does not mean that the common law
and rules of equity as applied in Malaysia must remain static and not develop.
Section 5 provides for specific application of the english law in the following
areas : partnership, corporations, bank & banking, principal & agents, carriers by land,
air and sea, marine insurance, average life and fire insurance and mercantile law
generally. In addition, section 6 expressly excludes the application in Malaysia of the
English law concerning land tenure.
QUESTION 3 :
Discuss the application of subsidiary legislation as one of the source of law in

Malaysia.
Answer
The interpretation Act 1967 defines subsidiary legislation to mean any

proclamation, rule, regulation, by-law or other instrument made under any Act,
Enactment, Ordinance or other lawful authority and having legislative effect.
Subsidiary legislation is also known as delegated legislation or subordinate

legislation. They are rules or orders created by subordinate bodies under specific
powers delegated to those bodies by the parliament.
Subsidiary legislation made in contravention of either a Parent Act or the

Constitution is void. In Eng Keock Cheng v Public Prosecutor the federal court held
that subsidiary legislation may still be valid, notwithstanding that it is inconsistent
with the Constitution.
Subsidiary legislation controlled with consultation, publication, parliamentary
control and judicial review.
QUESTION 4 :
Explain the meaning of Doctrine of Judicial Precedent and how this Doctrine operate
in Malaysia.
Answer
Judicial Decisions. Decisions refer to the court judgment or determination of the

dispute between the parties. The decisions only made by superior courts which is
High Court, Court of Appeal and Federal Court are source of law. The doctrine of
judicial precedent has two ways of operation which is vertical and horizontal.
Judicial decisions can be done if there are exist reliable reports of cases and there
must be settled judicial hierarchy to determine whose decisions bind whom.
In arriving at the decisions, the judges have to follow certain accepted principal
known as precedents. The judges have to follow the decisions make by predecessor on
the same cases in similar situation. All decision of higher court bind the lower court
and it is persuasive to high court judges are not bound to follow the decisions of
another high court judges.
The decisions of the Federal Court bind all courts. The Court of Appeal is bound
by the Federal Court and its decisions bind the High Courts and the Subordinate
Courts. The high court are bound by the decisions of the Federal Court and the Court
of Appeal and their decisions bind the subordinate courts. The decisions of the
subordinate which are Session Court and Magistrates Court, are not binding.
The reasons for binding judicial precedent are to provide a guide for future
conduct and to create uniformity, consistency, and certainty.

Law 446 (Tutorial 1)

Uploaded by

Copyright:

Available Formats

Law 446 (Tutorial 1)

Uploaded by

Document Information

Original Description:

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Law 446 (Tutorial 1)

Uploaded by

Copyright:

Available Formats

QUESTION 1 :

Judicial Decisions. Decisions refer to the court judgment or determination of the

Explain the application of English Law in Malaysia

Discuss the application of subsidiary legislation as one of the source of law in

The interpretation Act 1967 defines subsidiary legislation to mean any

Subsidiary legislation is also known as delegated legislation or subordinate

Subsidiary legislation made in contravention of either a Parent Act or the

Judicial Decisions. Decisions refer to the court judgment or determination of the

You might also like