SOURCES OF MALAYSIAN LAW

Question 1

2 sources of Malaysian law

Answer 1

1) WRITTEN LAW
2) UNWRITTEN LAW

Question 2

WRITTEN LAW

Law embodied in the Federal and State Constitution

Enacted by person or body which empowered to make law (legislature)

Examples of written law are :

(2 answer)

Answer 2

1) CONSTITUTION
- Federal
- State

2) LEGISLATION
- Legislation/ Statutes/ Parents Acts
- Subsidiary/ Delegated

Question 3

UNWRITTEN LAW

A non-statutory law

Not enacted by the legislature

Examples of unwritten law are:

(3 answer)

Answer 3

1) JUDICIAL DECISION
- decision made by the court for cases

2) CUSTOMS

3) SYARIAH LAW

Question 4

FEDERAL CONSTITUTION

The supreme law of the country

Cannot be altered unless 2/3 majority of the Parliament members agree

Enshrined in the Federal Constitution

Provide law for :
- mostly basic rights/law of the public (see answer)

Answer 4

1) The name, States and territories of the Federation

2) Religion of the Federation

3) Supreme Law of the Federation

4) Fundamental liberties (basic human rights)

5) Citizenship

6) Financial provisions

7) Elections

8) The Judiciary

9) Public services

10) Special powers against subversion, emergency powers

Question 5

Fundamental liberties may be overriden by:

(3 answer)

Answer 5

1) ARTICLE 149
- empower Parliament to make laws against subversion, whether or not not emergency is proclaimed

2) ARTICLE 150
- YDPA proclaim emergency. may proclaim Ordinance which would be valid even if they go against the constitutional.

3) ARTICLE 153
- allow special privileges to Bumiputera/ Malays

Question 6

Human Rights Commission of Malaysia (SUHAKAM)

Answer 6

Establish under the Human Rights Commission Act 1999

Adhere to the Universal Declaration of Human Rights (UDHR) to the extent that it is consistent with the Federal Constitution

Promote and protect human rights in Malaysia

Question 7

STATE CONSTITUTION

Provide provisions concerning : (see answer)

Answer 7

1) Ruler

2) Executive Council

3) Legislative Assembly

4) Financial provisions

5) State employees

6) Amendment to the State Constitution

7) matters as provided under the Federal Constitution

Question 8

LEGISLATION

Law enacted by the Parliament (kementerian affairs) / State Legislative Assembly (local goverment affairs)

3 terminologist of legislation:

Answer 8

1) ACT
- legislation enacted by the Parliament since 1957

2) ORDINANCE
- legislation enacted by the Parliament before independence
OR
- Sarawak’s enacted legislation (enactment)

3) ENACTMENT
- legislation enacted by all the State Legislative Assemblies

Question 9

LEGISLATIVE PROCESS

Process of making a law by the Parliament or by the State Legislative Assembly

• Federal Constitution
• Standing Orders of both Houses of the Parliament
  i. the House of Representatives (Dewan Rakyat)
  ii. the Senate (Dewan Negara).

What are the steps to enact a law?
(7 steps)

Answer 9

1) MInister prepares a BILL and introduce it at the Dewan

2) FIRST READING - only mentioned the title of the bill and give notice about the 2nd reading

3) SECOND READING - explain the purpose of the bill and the main policy involved. debate will be going on.

4) COMMITTEE STAGE - details of the bill are discussed in a less formal manner and amendment to the bill will be made if necessary

5) THIRD READING - move a motion that the bill bill be read for the third time and passed

6) Bill will be submitted to other house (Dewan).

7) Sent to YDPA for Royal Assent. After passes, the bill will become an Act of Parliament

Question 10

JUDICIAL PRECEDENT

Decision of the superior court which binds the lower courts (doctrine of judicial precedent)

doctrine of stare decisis (treating the cases alike)

Answer 10

WHAT BINDS?
- ratio decidendi (legal principle of the decision)

WHAT DOES NOT BIND?
- per incuriam (error judgement by judge)
- obiter dictum (things said by the way by the judge)

Question 11

Doctrine of Judicial Precedent

Who bounded by who?

Answer 11

1) Decisions of the Federal Court are binding on all courts below it. Federal Court is not bound by its own decisions

2) Decisions of the Courts of Appeal will be binding on all courts below it. Bound by its own previous decisions

3) Decisions of the High Court are binding on all Subordinate Courts. one High Court judge is not bound to follow the decision of another.

4) Subordinate Courts are bound by all precedents by the Superior Courts but their own decisions do not bind any court

Question 12

Some terminologies used on “Precedent”

PODD

(4 answer)

Answer 12

1) ORIGINAL

2) DECLARATORY - apply ratio decidendi without extending it

3) PERSUASIVE - there is an obiter dictum in the precedent

4) DISTINGUISHING - judge may not wish to apply the earlier precedent