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Chapter 4

The document discusses the legal system of Malaysia. It began as a British colony and inherited many aspects of the British legal system, including a parliamentary democracy and constitutional monarchy. The legal system is comprised of written laws like the Federal Constitution and state constitutions, unwritten laws like common law and judicial decisions, and Islamic law. The legal system is divided between Peninsular Malaysia and East Malaysia, though they share the Supreme Court and Court of Appeal. The Federal Constitution is the supreme law of the land.

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46 views

Chapter 4

The document discusses the legal system of Malaysia. It began as a British colony and inherited many aspects of the British legal system, including a parliamentary democracy and constitutional monarchy. The legal system is comprised of written laws like the Federal Constitution and state constitutions, unwritten laws like common law and judicial decisions, and Islamic law. The legal system is divided between Peninsular Malaysia and East Malaysia, though they share the Supreme Court and Court of Appeal. The Federal Constitution is the supreme law of the land.

Uploaded by

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© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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4

The Legal System of


Malaysia

Bahma Sivasubramaniam

Like many Commonwealth countries, Malaysia inherited its political, legal


and administrative systems from England. To a large extent therefore, there
are many similarities between the legal systems of both these countries.
Malaysia practises a parliamentary democracy and has a constitutional
monarchy, just as the United Kingdom. The principal law-making body is
Parliament. The Government is comprised of three arms: the Legislature,
the Executive and the Judiciary, in common with other parliamentary
democracies such as the United Kingdom.
In Chapter 2 and Chapter 3 we explored the Scottish legal system and
that of the United Arab Emirates. This chapter will focus on the Malaysian
legal system, in particular the sources of law and the structure and the
hierarchy of the courts.

Role of history and geography on current legal system


Malaysia became independent in 1957, part of the country, Malaya, having
previously been a British protectorate. The law prevalent in Malaysia
comprises of local laws and laws of England received into the Malaysian
Legal System through the doctrine of reception. This doctrine alludes to
the practice whereby a former colony of England consciously and will-
ingly adopts its laws (Rheinstein, M, 1956). Malaysia has also adopted its
criminal laws from India and its land laws from Australia, both of which are
Commonwealth countries. From this it can be seen that the Malaysian legal
system belongs in large part to the common law family of legal systems
discussed in Chapter 1.
50 Commercial Law in a Global Context

It should be noted that Malaysia is geographically divided into two. The


first part is what is known as the Peninsular Malaysia, comprising of eleven
States and two Federal Territories. It is where the capital of the country is and
is the seat of the Federal Parliament. East Malaysia, which is in the Borneo
subcontinent across the South China Sea, is made up of Sabah, Sarawak
and the Federal Territory of Labuan. Although the differences of the legal
systems in Peninsular Malaysia and East Malaysia are not substantial, both
2 parts have
Introducing their own
Management in acourts. They do however have the Supreme Court and
Global Context
the Court of Appeal in common. For the purposes of this chapter, the focus
will be on the system as applied and practised in Peninsular Malaysia unless
otherwise stated.

Formal sources of law

SOURCES OF MALAYSIAN LAW

Written Law Unwritten Law Islamic Law

Federal State
Constitution Constitutions

English Law Judicial Decisions Customs

Legislation

Subsidiary Legislation Common Law Equity

Figure 4.1: Formal sources of law

Sources of law insofar as relevant to this chapter simply mean where law
originates from. These include constitutions, legislation, judgments of courts
and secondary sources such as practice, customs, and tradition. Islamic Law
is another source of law. Thus the laws in Malaysia may be categorised into
three main groups: written, unwritten, and Islamic laws.
The Legal System of Malaysia 51

„„ Written Law
Written laws are laws that are contained in formal instruments such as
Constitutions and Legislation. The primary source of written law in the
country is the Federal Constitution. State Constitutions too are sources of
written law in Malaysia.

� Federal Constitution
The Federal Constitution of Malaysia is the foremost legal instrument and
contains 181 provisions, called Articles. These Articles cover a myriad of
issues such as the structures of the Federal and State Governments, the 4
legislative powers of Parliament and State Legislative Assemblies, the fun-
damental rights of the individual, the jurisdiction of the superior courts and
many more.
The Federal Constitution is the supreme law of the land. Any law passed
must be consistent with the Federal Constitution.

Article 4 states:
Supreme Law of the Federation
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.
*Merdeka Day – Independence Day – 31st August 1957

The powers of Parliament to legislate are contained within the parameters of


the Federal Constitution. Its powers to legislate are not unfettered. Should
Parliament pass any law that is ultra vires (beyond its powers) under the
Federal Constitution, it can be challenged in a court of law. Should the court
find that the challenged Act is unconstitutional, that Act (or parts of it as the
case may be) can be struck down. Unlike the United Kingdom parliament,
the doctrine of parliamentary supremacy is not applicable in Malaysia. In
the case of AJ Thian v Government of Malaysia [1976] 2 M.L.J. 112, 113 the Lord
President (as the Head of Judiciary was then known) Tun Suffian had this
to say:
“The doctrine of supremacy of Parliament does not apply to
Malaysia. Here we have a written constitution. The power of
Parliament and State Legislatures in Malaysia is limited by the
Constitution and they cannot make any law as they please.”

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