Malaysian Legal System

Categorise of Law:-
Contract law
Tort Law
Criminal Law
Constitution Law
Property Law
Trust Law
Administrative Law
International Law
Etc.
Emphasised on the
‘general rule
of conduct’

Oxford English Dictionary (Lee Mei Pheng, 2005):
'the body of enacted or customary rules
recognised by a community as binding'
Sir John Salmond, Jurisprudence (Lee Mei Pheng,
2005):
'the body of principles recognised and applied by the
State in the administration of justice … law consists
of the rules recognised and acted on by courts of
justice.'

“Law” is generally the procedures and the rules
of conduct or act which one uses one’s every
senses in order to harmonise the convenient
of oneself and or another
Article 160(2) of the Federal Constitution :
- “Law” includes written law, the common law in so far
as it is in operation in the Federation or any part thereof,
and any custom or usage having the force in the
Federation or any part thereof.

The aims of law:-
• To attain justice
• To encourage the doing of what is right or
just in a particular set of circumstances

 Peninsular Malaysia, Sabah and Sarawak - one political unit,
but is not governed exactly the same set of laws
 Two important links-the Parliament and the Federal Court
 Originated from:-
- England : Common law
- India : Criminal law and Contract law
- Australia : Land law

- Supreme law that applies throughout the country is
known as the Constitution of Malaysia.
- This federal law (Constitution of Malaysia) constitutes:-
: Legislations
: Courts
: Administrative aspects of law
: Powers of the government
: The government monarchy
: Rights of the citizens
- The Federal Constitution of Malaysia:-
:Yand Di-Pertuan Agong – Act as the head of country
:Devided into three main authorities, which are...

The Executive
Involves in administering the nation and ensuring that government
policy will be carried out according to the law.
The government departments which assist in administering the nation
are part of the executive.
The duties must be done according to the power granted by the law so
that it will not be void and be held ultra vires/no effect.
The Legislative
Will enact law so that administration could run smoothly.
Cannot interfere as to the administration carried out by the executive.
Law will be enacted in accordance with the interest of the citizen.
Parliament will be the place where law will be enacted and the voice of
the people was heard through their representative.

Judiciary
The law which was enacted by the legislative will not only govern
the people but also the nation including the three government organ.
If dispute arise as to whether certain action contradict the law,
then it might be challenge in court.
The system of court is under this organ plays an important role in
determining as to whether action done is legal or illegal.
The judiciary will interpret the law enacted by the legislative and at
the same time applies the said law in arriving at their decision.
All parties will be treated equally and the judiciary is free to make
judgments without coercion, fear or favour.

The project
manager
M & E
engineer
Landscape
architect
C & S
engineer
Architect
Quantity
Surveyor
Main
contractor
Sub
contractor
Nom. Sub
contractor
suppliers
Bankers
Client
… and/or the community
THETHE
CONSTRUCTIONCONSTRUCTION
PROJECT TEAMPROJECT TEAM
Source: Azizan Supardi (2009)

- Sultan or Yang Di-Pertuan Negeri is the head of
state.
- Every State has a government and has a written
constitution which institute who shall govern and
how.
Article 160(2) of the Federal Constitution :
“State” means a state of Federation

Sinha & Dheeraj, Legal Dictionary, ILBS, Petaling Jaya, p. 44:
“Constitution” is the fundamental law of a state or nation.
Article 4(1) of the Federal Constitution states:
- This Constitution (the Federal Constitution) is the
supreme law of the Federation and any law
passed after Merdeka Day which is inconsistent with this
Constitution shall, to the extent of the inconsistency be
void.

Case Law:-
- R. Rethana v The Government of Malaysia & Another
[1988] 1 MLJ 133
- Repco Holdings Bhd v Public Prosecutor [1997] 3 MLJ 681

Article 73 of Federal Constitution states:
- In exercising the legislative powers conferred on it
by this Constitution:
(a) Parliament may make laws for the whole or
any part of the Federation and laws having
effect outside as well as within the
Federation;
(b) The legislature of a State may make laws for
the whole or any part of that State.

Federal
Goverment
Federal List
State List
Concurrent
List
Article 74 of Federal Constitution :
State Goverment
Federal
+ State
Goverment
-External affairs
-National defence
-Internal security
-Citizenship
-Etc.
-Islamic law
-Land
-Agriculture and
forestry
-Local services
-Etc.

Case Law:
- Mamat bin Daud & Others v Government of Malaysia
[1988] 1 MLJ 119
- Ketua Pengarah Jabatan Alam Sekitar & Anor V
Kajing Tubek & Ors and Other Appeals [1997] 3 MLJ
23

Article 75 of Federal Constitution:
- If any State law is inconsistent with a Federal
law, the Federal law shall prevail and the State law
shall, to the extent of the inconsistency, be void.
State
law? Federal
law?

PERCONTENTPER
SOURCES
PERENFORCEMENT
PER
CLASSIFICATION
SUBSTANTIVE
LAW
PROCEDURAL
LAW
HISTORICAL
SOURCES
LEGAL
SOURCES
SOURCESOF
REFERENCE
Custom
s
Trade
Usage
Authoritativ
eOpinions
INTERNATIONAL
LAW
PUBLIC
LAW
PRIVATE
LAW
Lawof
Contract
Lawof
Property
LawofTort
Commercial
Law
Constitutional
Law
Administrative
Law
CriminalLaw
Statute
Law
Reports/
Journals
Authoratativ
eTexts
Judgements
Unreported
Published
Syariah
Law
Written
Law
Unwritten
Law
Legislation
Subsidiary/
Delegated
Legislation
Customary
Law
Judicial
Decision
Applicable
English
Law
LAW OF MALAYSIA

SUBSTANTIVE LAW AND PROCEDURAL
LAW
- Substantive law concerns with the determination of
rights and legal powers.
- Procedural law concerns with the legal operations
by which these rights and powers are discovered and
enforced.

- SUBSTANTIVE LAW -
-Is the statutory or written law that governs the rights
and obligations of those who are subject to it
-It defines the legal relationship (right and obligations)
of people with other people or between them and the
state
- It refers to all categories of public and private law
- Some of substantive law was derived from principles
found in judicial decisions or in common-law

- PROCEDURAL LAW -
-It comprises the rule by which a court hears and
determines what happens in civil lawsuit or criminal
proceedings
-The rules are designed to ensure
a fair and consistent application
to all cases
-For example:
i. time allowed for one party
to sue another
ii. rules of law governing
the process of the lawsuit

- PUBLIC LAW -
- Public law is that branch of the law which is concerned with
the relations between:
. governmental divisions
. the organisations of government
. the relations between the individual
and the state

CONSTITUTIONCONSTITUTION
- - Describes the rights of
individuals in the state
- - Deals with matters such
as the supremacy of
parliament and the rights
of citizens
- - Includes the areas
dealing with state and
federal powers
CRIMINALCRIMINAL
- - Systemises the law against
criminal
- - Examples: criminal breach of
trust, murder, cheating, theft,
robbery, counterfeiting and
serious hurts to other individuals
- - Public prosecutors will give
punishment for inflicted crimes in
state level
- - There must be a ‘wrongful act’
and a ‘guilty mind’ in order to test
the crime offences
- PUBLIC LAW -

Sinha & Dheeraj, Legal Dictionary, ILBS,
Petaling Jaya, p. 163:
- Private law is that the branch of the law which is
concerned with the legal relations between
private individuals, as distinct from public law.
- PRIVATE LAW -

CONTRACTSCONTRACTS
- Based on the agreement
between two parties (offer and
acceptance)
- Must meet all essential
elements to form a contract
TORTSTORTS
- - No agreement between the
parties
- - For claims against the civil
wrong or breach of general
duty
- - The act or omission must be
wronged and must prove
three elements (duty of care,
breached to the duty and the
damages must not too
remote
- PRIVATE LAW -

Sinha & Dheeraj, Legal Dictionary,
ILBS, Petaling Jaya, p. 105
International law is a body of
rules and principles governing the
relations of nations between each
other. Since these rules could not
be enforced by any definite
supranational (international)
agency, their validity has long
depended on the extent to which
any particular nation chose to
recognise them.
- INTERNATIONAL LAW -

Topics covered in an international law:-
a. Treaties : Agreement between states dealing with any matter of
international concern
b. Jurisdiction : Power of a state to make and enforce its laws at
the international level
c. State responsibility for wrongful acts
d. Human rights
e. War and peace
- INTERNATIONAL LAW -

Ir Harbans Singh KS (2002), Engineering and
Construction Contract Management – Law and
Principles, LexisNexis, Singapore, p. 28:
“Public International Law is the corpus (main part) of
legal rules applying between sovereign states. It deals
with relationship between states”
Legal rules such as:
 Law of sea
 International criminal law
 International humanitarian law

Ir Harbans Singh KS (2002), Engineering and Construction
Contract Management – Law and Principles, LexisNexis,
Singapore, p. 28
“Private International Law… is the body of rights and duties
of citizens of different sovereign states towards one another.
It deals with that branch of the law that applies to individuals
or legal entities involved in legal disputes of an international
nature.”

 Also known as a ‘municipal law’ - every country may have its
own version of law
 The rules will guide the judge when the law in more than one
country affects a case (conflicts of law)
 Legal issues on:
- Civil or human rights
- Negligence
- Contract
 Not only between a government
and its own citizens but also in
how its citizens are treated by
other nations.

Wu Min Aun (2005), The Malaysian Legal System (3rd ed.), Longman
-Pearson Malaysia Sdn. Bhd., Petaling Jaya, p. 109:
The term “sources of law” has several meanings:
 Historical sources indicating the factors that have been influential in
the development of the law but by themselves not recognised as law. Such
as:-
- Religious practices and beliefs
- Local customs
- Opinions of jurists.
 It may also refer to places where the law can be found as for
example, in statutes, law reports, textbooks and decisions of courts.
 In most cases, however, it refers to legal sources, that is, the legal rules
that make up the law.

-The Syariah law only applies to the Muslims
- It is a sacred law of islam as revealed by Prophet Muhammad s.w.t.
- It is totally based on God’s commands on duties towards Allah and
relationship of one Muslim with another.
LEGALSOURCES

LEGALSOURCES
- The main sources:-
a. Al-Quran: the words of Allah
b. Sunnah: rules deduced from the traditions (such as sayings
or conduct of Prophet Muhammad s.w.t
- The secondary sources:-
a. Ijma: consensus of jurists of any particular judicial rule
b. Qiyas: deductions from reasoning by ijtihad or anology

Source: Abdullah Habib, S.N.H. and Abdul Rasyid, K. (2008), “A revised proposed methodology to investigate
shari’ah compliance in the formation of construction contract”, Research in the Malaysian Construction
Industry and Built Environment 2008”, IIUM, ISBN: 978 98J 3142

Article 3 of the Federal Constitution states:
“Islam is the religion of the Federation; but other
religions may be practiced in peace and harmony in any
part of the Federation”
The court that will enforce the Islamic law are the Syariah
Court for matters such as:-
- Family matters
- Marriage
- Divorce
LEGALSOURCES

Article 160(2) of the Federal Constitution:
“Written law” includes this constitution and the constitution of any state.
Section 3 of the Interpretation Acts 1948 and 1967 (Act 388) defines ‘written
law’ as:
The Federal Constitution and the Constitutions of the states and
subsidiary legislation made thereunder;
Acts of Parliament and subsidiary legislation made thereunder
Ordinance Enactments (including any federal or state law styling
itself and an Ordinance or Enactment) and subsidiary legislation
made thereunder; and;
 Any other legislative enactments or legislative instruments (i.e;
Acts of Parliament of the United Kingdom) which are in force in Malaysia or
any part thereof.
LEGALSOURCES

A. THE FEDERAL
CONSTITUTION
- Article 4(1) of the Federal Constitution:
“This constitution is the supreme law of the
Federation and any law passed after Merdeka Day
which is inconsistent with this Constitution shall, to
the extent of the inconsistency, be void”
- Is a supreme law of Malaysia
- The constitution’s supremacy is preserved by
allowing the courts to review legislative or executive
acts.
LEGALSOURCES

-When the legislative or executive acts violate the constitution, the court
may declare ultra vires (beyond the legal power) and void.
- Matters that can cause this violation are such as:-
a.Matters where the relevant legislature has no power to make law
(Mamat b Daud v Government of Malaysia [1988] 1 MLJ 119) - only
the Federal Court can review this ground
b.The law has not been enacted in conjunction with the procedure as
sets in the constitution (Public Prosecutor v Dato Yap Peng [1987] 2
MLJ311)
c.Any case of state law that the rules are inconsistent with the federal
law (City Council of Georgetown v Government of the State of
Penang[1967] 1 MLJ 169)
A. THE FEDERAL
CONSTITUTION

B. THE CONSTITUTIONS OF THE
STATES
“The Federation shall guarantee the right of a Ruler of a State to
succeed and to hold, enjoy and exercise the constitutional rights and
privileges of Ruler of that State in accordance with the Constitution
of that State; but any dispute as to the title to the succession as
Ruler of any State shall be determined solely by such authorities and
in such manner as may be provided by the Constitution of that
State.”
It prescribes matters related to the Ruler (i.e; to act on advice), the
Executive Council, the Legislature, the Legislature Assembly, State
employees and amendment of the constitution and financial
provisions.
LEGAL SOURCESLEGALSOURCES

C. LEGISLATION
Act of Parliament
Article 73 of the Federal Constitution:
In exercising the legislative powers conferred on it by this Constitution:
(a) Parliament may make laws for the whole or any part of the
Federation and laws having effect outside as well as within the
Federation;
(b) The Legislature of a State may make laws for the whole or
any part of that State.
“Act of Parliament” means a law made by Parliament.

Act of Parliament
The process of approving the Bills:
- Drafting of Bill (after the proposal approved by
Cabinet) > First Reading (Minister will introduce the Bill in
Dewan Rakyat) > Second Reading (debate & voting) >
Committee Stage (detailed examination of the Bill. Amendment
will be carried out if necessary) > Third Reading (Further
debate and voting) > Dewan Negara (repeat the First, Second,
Committee Stage and Third Reading) > Royal Assent (within
thirty days, Yang Di Pertua Agong will give his royal assent in
form of Public Seal Bill)> Publication (the Act will come into
force).
C. LEGISLATION

Ordinance and Enactment
Section 3 of the Interpretation Acts 1948 and 1967 (Act 388):
State laws are called Enactments, including those made by the
former Malay States before Merdeka Day. The only exception to
this is the State of Sarawak whose laws are still termed Ordinance.
Article 160(2) of the Federation Constitution:
“Enactment”, where the expression occurs in the Eight Schedule,
means a law made by the Legislature of a State.
C. LEGISLATION

Ordinance and Enactment
- The laws made by the Parliament and State Legislatures must
comply with the manners and provisions laid out in the Federal
constitution.
-The divisions of legislation:-
List I of the Ninth Schedule are legislated by the Parliament
List II of the Ninth Schedule are legislated by the State Legislature
List III of the Ninth Schedule are concurrent matters shared by
the Parliament and State Legislatures
C. LEGISLATION

Section 3 of the Interpretation Acts 1948 and 1967 (Act 388):
‘Subsidiary legislation’ to mean any proclamation, rule,
regulation, order, notification,by-law or other instrument made
under any Act, Enactment, Ordinance or other lawful authority
and having legislative effect.
D. SUBSIDIARY
LEGISLATION

Reasons to have this delegation (Wan Arfah, 2006, p. 49):-
a.The legislature has insufficient time to enact the legislation
b.Many modern legislations involve technical matters therefore
experts must be referred to
c.When the laws need to be made or amended quickly
d.Persons or bodies where powers have been delegated to them
will have the authority to make the changes.
D. SUBSIDIARY
LEGISLATION

Ir Harbans Singh, K.S. (2002), p. 36:
Unwritten law constitutes that part of the local law that is not
recognised as ‘written law’ in the Malaysian context, i.e. it falls outside
the classification afforded under section 3 of the Interpretation Acts
1948 and 1967 (Act 388).
Unwritten law comprises the following:
(a) Case law or judicial decisions of the superior courts;
(b) English common law and equitable principles as applicable in
the local context; and
(c) Customs and usages that have been recognised as
applicable by the Malaysian courts.

A. JUDICIAL DECISION
Case law – The law which is created by and appears in the
decisions of the courts.
The decision made by the judge from these courts is known as
‘doctrine of binding judicial precedent’. It is also known as
‘doctrine of stare decisis’
Precedent means ‘decision made by the judge previously in similar
situation’

-A court must follow the prior decisions (‘ratio’or principle) of a
higher court for the same material facts.
-For example:
“The Supreme Court has made decision in 1987 (Case A).
In 1990, the same case facts and situations have been
brought to the High Court (Case B). The High Court must
therefore decide the case based on the principles governed
by the Supreme Court in 1987”. Under this doctrine,
decision made by higher courts will bind lower
courts” (Wan Arfah, 2006, pp.31-32)

A few situations where the court may not apply the
earlier precedent can be due to:-
a.The judge in Superior Court overruled the precedence
decided by the lower courts
b. The earlier precedent was arrived at per incuriam
(made in ignorance of a statute or a binding precedent)
c.There are difference material facts between the case
established the precedent with the new one

- The application of law of England can only be subjected to two
limitations:-
a) With the absence of local statutes on the particular subjects,
English law is applied only to fill the missing part in the Malaysian
legal system
b) Only English Law that suited to local circumstances could be
applied.
- Section 3(1), Civil Law Act states:
“The said common law, rules and equity and statutes of general
application shall be applied so far only as the circumstances of
the States of Malaysia and their respectives inhabitants
permit and subject to such qualifications as local
circumstances...”
B. APPLICABLE ENGLISH LAW

(i) Common Law
Section 3 of the Interpretation Acts 1948 and 1967
(Act 388) defines ‘common law’ to mean the
common law of England.

(i) Common Law
-It is mainly made up of non–statutory (non written) laws, which are the
precedents derived from judgments given on real cases by judges (it is
purely from decisions of the courts).
-The British introduced this set of laws to Malaysia through various treaties
with local rulers followed by legislation and decisions by English judges or
judges trained in the English legal system.
- In the earlier time, courts were tasked with the responsibility of
interpreting the Federal Constitution. In undertaking that duty, common
law principles were applied. The words used in the Constitution and its
spirit were developed by judges deciding cases within the structure of the
common law system.

(i) Common Law
- As the law was stood up prior to Merdeka, this English common law was
only applicable “as the circumstances of the States of Malaysia and their
respective inhabitants permit and subjected to such qualifications as local
circumstances render necessary”.
- Malaysian Courts have a wide discretion whether to accept the common
law principle or not.
- When Malaysian judges accept such principles, they become part of
Malaysian common law and Malaysian law has developed in that manner.
- Almost all ex- British colonies have adopted the common law system.
But in each country, the Courts develop their own common law which may
not be identical or similar to the English common law.

(ii) Equity
(Sinha & Dheeraj, Legal Dictionary, ILBS, Petaling Jaya, p. 70):
- Is the body of law, formerly enforced in the Court of the Chancellor
of England, aiding, supplementing and correcting the common law.
- “Equity” applied the concept of “justice” or “fairness”. It is used in
common law decisions as a gauge of moral rightness in the
interpretation of statutes, and in the application of legal rules.

(ii) Equity
- Developed after many conflicts could not be redressed through the
common law - that is for the King to decide
- The King would refer the cases to his adviser or known as the King’s
Chancellors
- The King’s Chancellors did not apply the common law (judicial
precedents) but, they practiced the Christian precepts on fairness
(good faith)
- When there are conflicts between the Common
law and Equity law, the rules of equity shall prevail

(iii) Customary Law
Custom – is a rule of conduct which in a given place and
among given groups of persons has been followed for an
appreciable time.
Customs from the local inhabitants such as:-
a. Family law (marriage, divorce and inheritance)
b. Adat in the Malay community
c. Hindu and Chinese customs.
d. Native customary law (in Sabah and Sarawak)

1. Lee Mei Pheng (2005). General Principles of Malaysian Law (5th Ed.),
Penerbit Fajar Bakti Sdn Bhd., Shah Alam, pp. 1-2
2. Rau & Kumar (2005). General Principles of the Malaysia Legal System,
International Law Book Services., Petaling Jaya, pp.58-61.
3. Vijayalakshmi Venugopal (2001). Introduction to Law in Malaysia, Sweet
& Maxwell., Petaling Jaya, pp. 2-4
4. http://www.wisegeek.com/what-is-law.htm, search via: google.com
5. http://en.wikipedia.org/wiki/Law_of_Malaysia, search via: google.com
6.http://www1.mmu.edu.my/~husni/government_struc.ppt, search via:
google.com
7. http://en.wikipedia.org/wiki/Procedural_law, search via: google.com
8. http://en.wikipedia.org/wiki/Substantive_law, search via: google.com
9. http://legal-dictionary.thefreedictionary.com/Substantive+Law, search
via: google.com
10.http://www.worldlawdirect.com/article/839/What_is_international_law. html
11. http://topics.law.cornell.edu/wex/International_law
12.http://www.malaysianbar.org.my/press_statements/press_release_comm
on_law.html

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