Written Law In Malaysia

Question 1:

The laws in Malaysia can be broken into two, which are written and unwritten laws. Written laws are the most crucial source of law in Malaysia. Written law consists of:

(i) The Federal Constitution is the supreme law in the country.

(ii) The State Constitution that comprises the 13 states of Malaysia and each possesses their own constitution, which governs that state. The 8th Schedule of The Federal Constitution recognizes the State Constitution.

(iii) Legislation are laws made by Parliament. It is increasingly becoming an important source of law than case- law or precedents.

(iv) Subsidiary Legislation that can be defined by The Interpretation Act 1967 that are made by bodies under power such as the Yang Di Pertuan- Agong, Ministers

These normally relate to family laws.

Islamic law is also a source of Malaysian law and is only applicable to Muslims. They are also conducted in Shariah courts that are designated only for them.

Unwritten laws are legislation which are not found in the Federal and State Constitutions. Case law is encoparated in unwritten law which binds the decisions or the superior courts to the lower courts. The principles of English law which consists of the common law and equity, have been accepted as law by the local customs in Malaysia. Under the common law system, there is private law, public law, civil law and criminal law.

The rules of equity do not stand on its own. It solely supplements and fills in the gaps in common law. The reason behind this is because the common law is seen as excessively rigid and inflexible. Damages that are claimed from court are most often an inadequate remedy for the plaintiff or litigant. “It is merely a gloss on the common law.”

(b) Ratio Decidendi (reason for the decision) which uses the principle of law when deciding. When the judge makes a decision, he or she outlines the facts proven by the evidence provided in court. Then those facts are applied with the law and help the judge reach a decision for which he or she gives the reason (ratio decidendi)

(c) Obiter Dictum (sayings by the way) has no binding power however it has a strong influence on subordinate courts.

Ratio decidendi is the binding part of a judicial precedent and an obiter dictum is not because it is not relevant to the original case. But, the obiter dictum is a persuasive precedent. This means judges can be ‘persuaded’ by the reasoning of the decision in cases.

For precedent to work, there needs to be a hierarchy of courts. Where the lower courts, which can be called subordinate courts, are bound by the higher courts, which are superior courts.

This means that judges are continually contributing to the development of the unwritten law in Malaysia.

Judicial decisions are made in: o High