GENERAL PRINCIPLES OF LAW

(PLG0012)
Topic 1(Part B) : Types & Sources of Malaysian Law
a) Classification of Law
b) Sources of Malaysian Law – Written Sources
CLASSIFICATION
OF LAW
 LAW

National
Public Criminal Substantive
&
& & &
Internationa
Private Civil Procedural
l
National Law
(aka municipal law / domestic law)
 Pass by a state’s legislature & applies only
within the said sovereign state (i.e.
internal law of a state)

International Law
 Govern the conduct of independent states
in their external relationships with
another states and towards each other's
subjects based on treaties and
conventions.
Public Law
Regulates r/ship between citizen-state.

Private Law
Regulates r/ship between citizen-citizen.
 PUBLIC LAW VS PRIVATE LAW
Law

Public Private

Constitutional Administrative Criminal Contract Torts Family

Law Law Law Law Law Law
PUBLIC LAW
Constitutional Law (Federal Constitution)
 defines structure of government & rights of citizens

Administrative Law
 regulates duties & powers of administrative authority

Criminal Law (e.g. Penal Code, Dangerous Drugs Act 1952

etc.)
 defines offences & prohibited conducts threatens and
harms public safety (e.g. murder, theft, drug trafficking)
 establishes punishment to be imposed for the commission
of such offences
PRIVATE LAW
Contract Law (e.g. Contracts Act 1950)
• govern the formation and discharge of contract
(e.g. breach of contract etc.)

Family Law (e.g. Law Reform (Marriage and

Divorce) Act 1976)
• deals with family-related issues & domestic
relations (e.g divorce, maintenance, custody etc.)

Torts Law (e.g. Defamation Act 1957)

• imposes on individuals the obligation not to
commit a civil wrong (e.g. negligence, trespass,
nuisance etc.)
• compensation/damages
Substantive Law
vs
Procedural Law
Substantive Law
 Body of legal rules contained in all divisions
of law which guide the courts in decision-
makings.
 Dealswith rights, duties & all other matters
that are NOT matters of purely practice and
procedure.

e.g. Contracts Act 1950

Procedural Law
• Lays down the rules governing the manner &
procedure in which substantive laws are to
be administered & enforced by the legal
institutions.
• The rules are designed to ensure a fair and
consistent application of law to all cases
that come before a court.

e.g. Criminal Procedure Code

 Civil Law
vs
Criminal Law
Civil Law
 Non-criminal law (e.g. contract, torts,
property and includes also constitutional and
administrative law).
 Legalaction is begun by a private citizen to
establish their rights against another citizen.
Criminal Law
• Legal action is enforced on behalf of or in the
name of the state.
 Criminal Law Civil Law
Deals with offences. Disputes with liability.

State proceedings. Individual proceedings.

(e.g. PP v Dato’ Seri Anwar Ibrahim) (e.g. Donoghue v Stevenson;
Lim Kit Siang v Utusan Melayu (M)
Bhd)

Criminal Court. Civil Court.

To preserve order in the community by To remedy injuries suffered by the

punishing offenders. claimant.

A prosecutor prosecutes the offender. A plaintiff sues the defendant.

(PP v Accused) (Plaintiff v Defendant)

V = ‘against’ V = ‘and’
 Criminal Law Civil Law
The prosecutor must prove the case The claimant must prove the
beyond a reasonable doubt. claim on a balance of
probabilities.

The offender may be convicted, if A defendant will be found either

found to be guilty of the offence, liable or not liable for the claim.
or acquitted, if found to be not
guilty.

The offender may be sentenced to The claimant may be awarded a

a penalty [e.g. fine, remedy which can be in the form of
imprisonment, whipping, death money compensation or an
sentence] equitable order of the court, such as
an injunction.
 VIDEO
https://www.youtube.com/watch?v=H64ATEzBwp4
 SOURCES OF
MALAYSIAN LAW
 SOURCES OF
MALAYSIAN
LAW
Primary
Secondary

Constitution Legislation English Law Judicial

Decision

Subsidiary Customs
Legislation
PRIMARY SOURCES
• Constitution
• Legislation
• Subsidiary Legislation
CONSTITUTION
 Federal Constitution (FC) State Constitution

 Supreme law (Article 4(1) • Each state has its own

of FC) & applicable to every constitution.
states. o e.g. The Constitution of
 Sets out the legal Selangor
framework of the federal • Sets out the legal framework
government. of a particular state
(e.g. matters concerning the government.
YDPA, the Executive, the o e.g: matters concerning
Legislative and judiciary
the Ruler of the state,
etc.)
the Executive Council,
 Enshrines the fundamental
the Legislative Assembly
rights of individual (citizen).
etc.)
LEGISLATION
 Laws made by the legislature (i.e. YDPA,
Parliament, or State Assemblies) under powers
conferred on them by the constitution.

 Divided into 2 types:

(i) Federal Legislation
(ii) State Legislation
 Federal Legislation  State Legislation

 enacted by Parliament • enacted by State Assemblies

 applicable to all states • applicable only to a particular
 Act = after 10/09/1959 state
e.g. Age of Majority Act 1971
Enactment
 Ordinance = before e.g. Environment Protection
10/09/1959 Enactment 2002 (Sabah)
e.g. Adoption Ordinance 1952 e.g. Native Courts Ordinance 1992
(Sarawak)
Subsidiary Legislation
 also known as delegated legislation.
 Laws made by persons/bodies (e.g. YDPA, ministers, directors, local authorities,
councils and boards) under powers delegated on them by the legislature via a
parent statute
 E.g. Registration of Businesses Act 1956 (Parent Statute)  Registration of
Businesses Rules 1957 (Subsidiary Legislation)
 E.g. Emergency (Criminal Trials) Regulation 1964 : made by YDPA under power
conferred by Parliament via Emergency (Essential Powers) Act 1964
 S.3 Interpretation Act –
‘any proclamation, rule, regulation, order, notification, by-law or other
instrument made under any Act, Enactment or other lawful authority and having
legislative effect’
SECONDARY SOURCES (UNWRITTEN
SOURCES)
• Judicial Decisions

• English Law

• Customary Law
JUDICIAL DECISION
 Legal principles formulated & laid downs by judges when
passing decisions.

 Decisions of the superior court (i.e. the High Court, Court of

Appeal & Federal Court) form part of Malaysian law.

 The decisions become precedents to be followed in future

similar cases - known as the doctrine of binding judicial
precedent or ‘stare decisis’

 Eg:
# Donoghue v Stevenson [1932] UKHL 100
# Carlill v Carbolic Smoke Ball Co [1892] EWCA Civ 1, [1893] 1 QB 256
#Karpal Singh & Anor v Public Prosecutor [1991] 2 MLJ 544
# Donoghue v Stevenson [1932] UKHL 100
# Carlill v Carbolic Smoke Ball Co [1892] EWCA Civ 1, [1893] 1 QB 256

citation
 Doctrine of Stare Decisis
(to stand by cases already decided)

A judge is bound to follow decision made by

previous higher court (and in some courts its own
prior decisions and prior decisions of a court of the
same level) where the material facts are the same.

 Ifhe fails to follow a binding precedent, the decision

will be legally wrong and it is likely to be reversed on
appeal.
 This doctrine depends on a court’s position
in the hierarchy of courts & works in 2 ways;
vertically and horizontally.

 It operates vertically downwards when a

precedent comes from a court superior in
the hierarchy to the court in which the
present case is being tried binds the
inferior court. The inferior court cannot
question its validity.

 It may also work horizontally in which a

superior court is bound by its own
previous decisions and the decisions of
courts of coordinate jurisdiction.

 Reason to use stare decisis is to ensure

uniformity and predictability of decisions.
ENGLISH LAW
 In Malaysia, English law were imported & adopted in the
process of decision making.

 Conditions before English law may be applied (S 3 (1) Civil

Law Act 1956):
a. where there is lacuna (gaps) in the local system i.e.
absence of specific local laws/Malaysian case law
applicable to that particular subject /issue;
b. the law to be applied must not contrary to any provisions
of any Malaysian written law;
c. if the circumstances of the states of Malaysia & their
respective inhabitants permit & subject to such
qualifications as local circumstances render necessary.
CUSTOMARY LAW
 Customs of the local inhabitants in Malaysia which have
been accepted as law by the courts forms part of
unwritten law in Malaysia.
 Customary law consists of customs and traditions of the
local people and applied by most ethnic groups in
Malaysia.
 The customary laws that survive to this day are:
a. Malay customary law or adat applicable to the Malays;
b. Hindu customary law applicable to followers of
Hinduism;
c. Chinese customary law applicable to the Chinese;
d. Native customary law applicable to the non-Muslim
indigenous communities in Sabah and Sarawak; and
e. Orang Asli or Aborigines customary law applicable to
the Orang Asli in Peninsular Malaysia.
 Adat Temenggung Adat Perpatih

Introduced by Kei Introduced by Parapatih nan

Tamanggungan. Sabatang.
Based on the patrilineal system Based on the matrilineal system
and autocratic in nature. and democratic in nature.

Adopted in all Malay states Adopted in Negeri Sembilan

except Negeri Sembilan. only.
Rules governing Adat Rules relating to Adat Perpatih
Temenggung are in written are in unwritten form and can
form and can be found in be found in customary saying
various legal codes or digest (perbilangan/kata adat) handed
e.g. Hukum Kanun Melaka, down from generation to
Undang-undang Laut Melaka and generation.
Undang-Undang 99 Perak.
Hindu Customary Law
 The development of Hindu law in Malaysia was a
continuation and an adaptation of Hindu law from India.

 Indian Hindu customary laws were judicially recognized in

matters such as marriage customs, marriage brokerage
contracts, divorce, inheritance, the Hindu joint family
and property system and money lending contracts in the
Chettiar community.

 With the implementation of the Law Reform (Marriage

and Divorce) Act 1976 [Act 164], Indian personal laws
relating to marriage, divorce and ancillary matters ceased
to apply in Malaysia.
Chinese Customary Law
 The Chinese have migrated to Malaysia for many centuries
from the early days of the Malacca Sultanate in the 15th
century and brought with them their customs as practiced
in China.

 They observed their own customs in succession, trust and

family matters such as polygamous marriage, divorce,
legitimacy and adoption.

 Similar with Hindu law, with the implementation of the

Law Reform (Marriage and Divorce) Act 1976, Chinese
personal laws relating to marriage, divorce and ancillary
matters ceased to apply in Malaysia.
 Native Customary Law
 Among the non-Muslim indigenous people, native customary
law was the law of general application.
 A large part of the substantive content of native customary
law in Sabah and Sarawak is found in codes. The codes
were summaries of the customary laws.

Sabah
 One of the the best known codes are ‘Woolley’s Codes’.
 Comprising seven (7) sets, they set out certain features of
the customary laws of the Dusun, Murut and Kwijau.
 These compilations cover a common set of subjects such as
marriage, divorce, inheritance and compensation for
wrongdoing.
Sarawak
 Sarawak has more native customary law codes then Sabah.

 There are codes which have been incorporated into

subsidiary legislation by orders made under the Native
Customary Laws Ordinance 1955
Example: The Sea Dayak (Iban) Fines (Tusun Tunggu) of the
Third Division.

 There are also 2 texts which have been published under an

administrative order:
- Dayak (Iban) Adat Law in the Second Division (published
1963);and - The First Division Dayak (Bidayuh) Adat Law
(published 1964).

 In 1977, the Majlis Adat Istiadat Sarawak was established

under the Majlis Adat Istiadat Ordinance 1977
ISLAMIC LAW
 Applicable only to Muslim & administered in the Syariah Court.
 The power to administer Islamic law is primarily of the states
 The Islamic law which applies in Malaysia is of the Shafii
School of jurisprudence, as modified by Malay adat.
 Has its own sources – may be classified into 2 main categories:
a. Primary Sources
(a) Qur’an: The Word of God
(b) Hadith: Rules deduced from the saying or conduct of
Prophet
b. Secondary Sources
(a) Ijma’: Consensus of jurist on a judicial rule
(b) Qiyas: Deductions by way analogy
THE END