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Published: Fri, 02 Feb 2018
The Sources Of Malaysian Legal System
Every single country has its own legal system. These days, there are several types of legal systems such as civil law, common law, customary law, religious law, socialist and mixed law systems. Some country practices one type of legal system and some practices the mixed legal system. Malaysia for example, practices the mixed legal system which includes the Common Law, Customary Law and Islamic law. Malaysia’s legal system contain laws which have taken place from three momentous periods in Malaysian history from the Malacca Sultanate, to the raise of Islam to Asia, then the indigenous culture of British colonial rule which introduced a constitutional government and the common law. The law of Malaysia is primarily come from the common law legal system. The sources of Malaysian Law can be classified into two different laws which are written and unwritten.
Written law is the most essential source of law which includes Federal and State Constitutions, Legislation and Subsidiary legislation. The Federal Constitution of Malaysia is the supreme law of Malaysia. The Constitution came into force right after the Independence Day on August 31, 1957 which includes 15 Parts, 183 Articles and 13 Schedules. Another written law is State Constitutions that are constitutions of the 13 States in the federation. It contains provisions listed in the 8th schedule that are to be include in the State Constitution such as the Ruler, the Executive Council and the Legislature, etc.
Third written law is Legislation which refers to law that recognized by the Parliament and State Legislative Assemblies. If the Parliament or any State Assembly makes a law which is not in its scope of authority with the constitution, the courts can declare that as null and void. Final law under written law is Subsidiary Legislations that refers to the people or bodies who are authorized by the legislatures. It is important to provide the laws required to govern common matters. The related case is case Eng Keock Cheng which then the matter was pass to legislate any subsidiary legislation during emergency even if there’s involvement of Federal Constitution, due to exception in Article 150  . The appeal was then dismissed.
On the other hand, unwritten laws are laws which can be found in case decisions. This includes English law, judicial decisions and customs. It is not endorsed by the Legislature which is not found in Federal and State constitutions. The English Law can be divided into two which are the English Commercial Law and English Land Law. Section 3(1) (a) Civil Law Act 1956 provides that The English Commercial Law is applicable in Peninsular Malaysia and Civil Law under same section states that east of Malaysia should apply common law and law of equity together with statutes of general application as administered in England.
Judicial decisions are based on ‘doctrine of binding precedent’. Precedents are the decisions made by judges previously in similar circumstances. Precedents are a judgement or decision of a court of law as an authority for the legal principle embodied in its decision. Customs are another important source under unwritten law. Customs are inherited from previous generation. Every race has its own customs. Customs which have been accepted as law by courts are Adat pepatih, Adat Temenggung and Law reform. In Malaysian there is one law that plays a major role to the Muslims which is the Islamic law but it is slowly immersing in the local law.
(b) Explain the functions and differences between legislation and delegated legislation.
According to Wikipedia, Legislation is law which has been disseminated by a legislature or other governing body, or the process of making it. Before an item of legislation becomes law it may be known as a bill, and may referred to as “legislation”. There are many function of legislation: to regulate, to authorize, to proscribe, to provide (funds), to sanction, to grant, to declare or to restrict. Employment Act 1955 is listed as, governing the labour market and employment relationship in Malaysia and other related legal regulations. The principal legislation governing the labour market and employment relationship in Malaysia is the Employment Act 1955.
Delegated legislation is defined as secondary legislation made by a person or body besides Parliament. According to the Act of Parliament, they can authorize another person or body to make legislation. It creates the structure of a particular law and tends only to contain an outline of the purpose of the Act. The function of delegated legislation is it allows the Government to modify a law without waiting for a new Act of Parliament to be passed. Moreover, delegated legislation can be used to make changes to the law for example, a Local Authority have the power that allows them to make delegated legislation and to make law which suits their area. Delegated legislation plays an important role in the making of law. On top of that, delegated legislation has the same legal standing as the Act of Parliament.
There are a total of three main types of delegated legislation which is by law, statutory instruments and orders in councils. Bye-Laws are made by local authorities to cover matters within their own area. Statutory Instruments are regulations made by Government Ministers and Departments. Orders in Council are laws made by Her Majesty’s Privy Council and are used when Parliament is not sitting. They can be used by the Government in emergency situations.
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