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Explain the sources of Malaysian legal system

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02/02/18 Free Law Essays Reference this

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Explain the sources of Malaysian legal system

In different country, there are different types of legal system. [2] Some county practices a the mixture of two or more legal systems which is known as mixed legal system while some country practices only one type of legal systems. [3] Malaysia practices the mixed legal system which consists of the Customary Law, Islamic Law and Common Law. [4] The sources of Malaysian legal system law are from two different laws which are the Written and Unwritten law.

5In 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. [6] 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. [7] The Federal Constitutions also stipulates the “Yang di-Pertuan Agong” who owes his position to the Constitution and act according to it. [8] If the total number of members of the legislature and there is two-thirds of majority of it, the Constitution can be change. [9] The Federal Constitution consists of many Articles prepositioning religion of the federation, welfare of the aborigines and other connected subjects. [10] Besides the Federal Constitution, every state has their own constitution controlling the government of that state which is known as the State Constitution. [11] The provision comprises the Ruler, the Executive Council, the legislature and other related subjects like the Legislative Assembly, financial provisions, state employees, and amendment of the Constitution. [12] Delegated Legislation is a legislation made by individual or bodies under powers given on them by Act of Parliament. [13] It is important because the legislation made by Parliament and the state is not enough to give the laws needed to govern everyday matters.

14Another source of Malaysian legal system law is the Unwritten Law which consists of English Law, judicial decision and customs. [15] Part of the laws of Malaysia is formed by the English Law. [16] It can be found in rules of equity and English Common Law. [17] However, the application of the law is subject for two limitations where it is applied only in the absence of local statutes on particular matters and only part of the English law that is suited to local circumstances will be applied. [18] Judicial decisions of the High Court, Court of Appeal and Federal Court was known as Judicial Precedent which is the basic decisions made by judges in similar situations. [19] These courts were following the “doctrine of binding judicial precedent” which means to stand by cases already decided. [20] Judges always contribute to the growth of unwritten law in Malaysia. [21] Some customs of the local inhabitants such as Adat Perpatih, Adat Temenggung and custom related to family law are given legal force by courts in this country. [22] In Sabah and Sarawak, land dealing over native customary lands and family matters are applied by native custom-matters.

23The third source is the Muslim Law which is relating only to Muslims and is managed by a different court system, the Syariah Courts. [24] It is the court which enforces the Islamic law relating to marriage, divorce and family matters. [25] It is bases on Quran and Hadith, Fatwa and Ijma Ulama. [26] The Federal Constitution provides that the States have the power to administer Muslim Law. [27] The State Legislature has power over the constitution, organization and accepted way of the Syariah Courts and is also given permissions to make Islamic laws connecting to persons professing the religion of Islam.

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Explain the function and differentiate between legislation and delegated legislation.

28Legislation is laws enacted by Parliament at federal level and by the State Legislative Assemblies at the state level. [29] These laws are subject to the Federal Constitutions. [30] Laws are legislated by Parliament at federal level and various state assemblies at state level. [31] To fulfil the intention of the legislative body and ultimately the people, Legislation need to carry out law reform, and create, alter or revoke law. The functions of legislation are revision consolidation of enactments and codification. [32] The revision of substantive rules of the common law may occur when the law has become stale or incapable of adaption, or when an unpopular decision is made by the courts. [33] Revision can overcome the restrictive way the doctrine of precedent works, thereby creating change. [34] Also, where a certain area of law has developed piecemeal, legislation may be passed to clarify and simplify the status of the law. [35] Consolidation does not, however, alter the substance of law but merely its form. [36] Codification is being almost same to consolidation, except that the latter only refers to statuses already existing, whereas codification can make case law into statute.

37The function of delegated legislation is it enables the Government to change a law without having to wait for a new Act of Parliament to be approved. [38] Delegated legislation can be used to make practical changes to the law. [39] For an example, such as altering sanctions under a given statute. [40] Also, Parliament does have neither the time nor the expertise to examine the regulation of every industry or aspect of the community as delegated legislation can be amended or made without having a pass an Act through Parliament. [41] This legislation is trying to regulate very complex matters such as employment, social security, tax liability and economic management.

The similarities of Legislation and Delegated Legislation are these laws are subject to the Federal Constitutions and these laws are not supreme. Both Legislation and Delegated Legislation are made by Parliament and they have legislative effect.

However, there are a lot of differences in both Legislation and Delegated Legislation. [42] Firstly, for Legislation, two-thirds of majority of the total number of members of the legislature is needed to modify the Constitution meanwhile the delegated legislation can be amended easily and can be modified easily and it can be adapted to be right for a particular situation and Government doesn’t need to allows time to go by for Parliament to pass an Act. [43] Secondly, Parliament has limited time and practical knowledge to make all kinds of law while Delegated Legislation only fills in the gap left by the Parliament. [44] Delegated legislation gives permission to change the law which is made by someone who has the correct or suitable expert knowledge. [45] To show the meaning more clearly, a local authority can make law in following or obeying with what their locality needs instead of having the same law which may not suitable for them. [46] A particular Local Authority can make a law to tailored need by local and will have the information of what is best for the locality instead of Parliament. In some special case, an emergency situation can be settled by Delegated Legislation without waiting for Parliament to approve an act to deal with the problem of the special situation. Delegated legislation can be used to place over a situation that Parliament had not expected at the time it enacted the piece of legislation, which cause it changeable and very effective to law-making. [47] Delegated Legislation is more advantageous compared to Legislation.

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