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The Sources Of Malaysian Legal System
In different country, there are different types of legal system. Some county practices a combination of two or more legal systems which is known as mixed legal system while some country practices only one type of legal systems. Malaysia practices the mixed legal system which consists of the Customary Law, Islamic Law and Common Law. The sources of Malaysian legal system law are from two different laws which are the Written and Unwritten law.
In 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. We have 13 states with a written constitution which is the Federal Constitution. 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. The Federal Constitutions also stipulates the “Yang di-Pertuan Agong" who owes his position to the Constitution and act according to it. If there is two-thirds of majority of the total number of members of the legislature, the Constitution can be change. The Federal Constitution consists of many Articles concerning religion of the federation, education, medicine and health, labour and social security, welfare of the aborigines and many other related subjects. Besides the Federal Constitution, every state has their own constitution regulating the government of that state which is knows as the State Constitution. The State Constitutions consists of provision listed in the 8th schedule. 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. At the federal level, laws are legislated by parliament and by state legislative assemblies at state level. In 1946, laws enacted by Parliament are called Ordinance. After Merdeka, laws enacted by Parliament are called Act; laws enacted by State Legislative Assemblies are called Enactment and in Sarawak are called Ordinance. Parliament and the State Legislatures are not supreme. They have to enact law according to the provision set out in the Federal and State Constitutions. Parliament can enact laws on matters enumerated in List I of the 9th schedule while state is competent to enact laws on matter in List II. List III are within the concurrent competence of both authorities. Delegated Legislation is a legislation made by individual or bodies under powers given on them by Act of Parliament. It is important because the legislation made by Parliament and the state is not enough to give the laws needed to govern everyday matters.
Another source of Malaysian legal system law is the Unwritten Law. Unwritten law consists of English Law, judicial decision and customs. Part of the laws of Malaysia is formed by the English Law. It can be found in rules of equity and English Common Law. 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. 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. These courts were following the “doctrine of binding judicial precedent" which means to stand by cases already decided. They use certain accepted principles and they do not decide case arbitrary. Judges always contribute to the growth of unwritten law in Malaysia. 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. In Sabah and Sarawak, land dealing over native customary lands and family matters are applied by native custom-matters.
The third source is the Muslim Law which is applicable only to Muslims and is administered by a separate court system, the Syariah Courts. Syariah Court is the court which enforces the Islamic law relating to marriage, divorce and family matters. It is bases on Quran and Hadith, Fatwa and Ijma Ulama. The Federal Constitution provides that the States have the power to administer Muslim Law. The State legislature has authority over the constitution, organization and procedure of the Syariah Courts and is also allowed to make Islamic laws pertaining to persons professing the religion of Islam.
Explain the function and differentiate between legislation and delegated legislation.
Legislation is laws enacted by Parliament. These laws are subject to the Federal Constitutions. Laws are legislated by Parliament at federal level and various state assemblies at state level. Delegated Legislation is a legislation made by individual or bodies under powers given on them by Act of Parliament. This legislation is trying to regulate very complex matters such as employment, social security, tax liability and economic management. Delegated legislation is important because Parliament does have neither the time nor the expertise to examine the regulation of every industry or aspect of the community. Delegated legislation confers powers to certain bodies, people, local authorities and government minister the right to make ‘legislation’.
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. 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 tailored to suit a particular situation. Parliament has insufficient time and technical knowledge to enact all kinds of law while Delegated Legislation only fills in the gap left by the Parliament. Delegated Legislation is more advantageous compared to Legislation.