Explain the Sources of Malaysian Legal System Essay
In different country, there are different types of legal system. Some county practices a the mixture 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.
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 the total number of members of the legislature and there is two-thirds of majority of it, the Constitution can be change. The Federal Constitution consists of many Articles prepositioning religion of the federation, welfare of the aborigines and other connected subjects.
Besides the Federal Constitution, every state has their own constitution controlling the government of that state which is known as the State Constitution. 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. 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 which 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 nown 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. 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 relating only to Muslims and is managed by a different court system, the Syariah Courts. It 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 power over the constitution, organization and accepted way of the Syariah Courts and is also given permissions to make Islamic laws connecting to persons professing the religion of Islam.