ATGB 1313 INTRODUCTION TO LAW

4.0 Modern Malaysia Law

Modern Malaysia law is the law which made after independence of Malaya when 1957.
i)

Constitution (Supreme Law)

Constitution is the supreme law of the federation. Constitution is one of the
written law. The Constitution was drafted by the Reid Commission in 1956 with 5
representatives from India, British, Pakistan and Australia. It consists of 15 Parts,
183 Articles and 13 Schedule. Any law passed after 31 August 1957, which is
inconsistent with this constitution shall, to the maximum extent of inconsistency, be
void. But, Article 159 and 161E provides provisions to allow the constitution to be
amended with the condition of 2/3rds majority in both houses of Parliament agreeing
to the amendment. The constitution amended based on the needs of the current
situation of the country and the people to bring benefits, holiness and and goodness
to the public. It also lays the fundamental rights of individuals and the scope of
powers of the Federal and State governments.
The three elements of the Malaysian Constitution which are it is a Supreme Law
of Malaysia, Constitutional Monarchy and three branches of government. Based on
the constitutional monarchy, Yang di-Pertuan Agong (YDPA) is Malaysias Head of
State. YDPA is elected by the Conference of Rulers, by rotation from the 9 Malay
States and he is required to exercise his executive powers on the advice of cabinet.
The 3 branches of government is Legislature, Executive and Judiciary. Legislature
has the responsibility to make law, executive is in charged with the task of
administration and the judiciary is to interpret and apply the law. Parliament is a bicameral legislature comprising of a lower house, Dewan Rakyat,an upper house
house known as Dewan Negara and YDPA. Legislations are the laws that are
established by the Parliaments at federal level and by the State Legislative
Assemblies at the state level. Based on Article 74 of Federal Constitution, parliament
may make law with referring to matters provided in the federal list and state
legislatives may make law with referring to matter provided in the state list.
Concurrent list is in the scope of enactment by both parliament and state legislatives.
If there are any contradictions between federal and state laws, the federal law shall
prevail and state law is void to the scope of inconsistency. Between, the judicial
decisions of the High Court, Court Of Appeal and Federal Court also can be a
Malaysia law. These decision is called as the doctrine of binding judicial precedent

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which the judges do not decide the case arbitrarily but follow the accepted principles
known as precedents. But judges may not follow the precedent if the earlier
precedent is laid down by the lower court, made per curiam1 and there are different
materials in fact.
ii)

Criminal Law
Criminal law involves prosecution by the government of a person for an act that
has been classified as a crime. The burden is proof by the Beyond a reasonable
doubt. Penal Code is an act that consists of 511 sections that encompass the wide
range of criminal offences that are punishable in the court of law in Malaysia.
Generally the Criminal Procedure Code (CPC) was promulgated to regulate the
administration of the criminal justice or procedure in Malaysia. The CPC inter alia 2
provides the ways in which an arrest, search, police investigations and trials are to be
conducted throughout Malaysia. Based on the Section 79 and 81 in Penal Code,
nothing is an offence which is done by accident or misfortune, without any criminal
intention or to prevent the other harm. Besides, there was nothing is an offence when
the criminal is done by a child under 10 years old and a person who are unsound
mind.
The example of criminal cases is theft, assault, robbery, trafficking in controlled
substances, murder,etc. Among the criminal cases, murder is the most serious
offences against the people.So, whoever commits murder shall be punished with
death. But,whoever commits culpable homicide 3not amounting to murder shall be
punished with imprisonment for a term.

iii)

Civil Law Act

Civil law is deals with the disputes between individuals, organizations, or
between the two, in which compensation is awarded to the victim. Plaintiff is the
person who feels he or she has not been treated fairly by another person and seeks a
solution in a civil court. This party has the burden of proving that he or she was

1 Made in ignorance of a statue or a binding precedent.

2 Among other things
3 refers to an unlawful killing which is not classified as murder due to the evil intention of killing
being absent.
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treated unfairly. Defandant is the person who the plantiff claims has treated him or
her unfairly.
The proof of burden is based on the Preponderance of evidence. If the plaintiff
has the stronger evidence, then the plaintiff wins.It is same to the defentant. Example
of civil cases is landlord or tenant disputes, divorce proceedings, child custody
proceedings, property disputes,personal injury, etc.The type of punishment is usually
involves some type of compensation for injuries or damages as well as disposition of
property and other disputes.
iv)

Islamic Law
All Malays in Malaysia are Muslims. The Federal Constitution of Malaysia
provides that Islam is the religion of the Federation, but other religions may be
practised in peace and harmony in any part of the Federation.
Islamic law is a major source of Malaysian law but it is only applicable to Muslims,
regardless of races.It is enacted under the Federal Constitution. The state legislatures
have the power and are permitted to make Islamic laws pertaining to persons
professing the Islam religion. The YDPA is the head of Islam in his home state,
Penang, Malacca, Sabah, Sarawak and Federal Territories of Kuala Lumpur and
Labuan. The head of Islam of other States is Sultan. The law as practiced in Malaysia
appears to be Islamic law according to the Shafi school and Malay adat as modified
by Muslim Law. The main source of Islamic law is from the Al-Quran, Hadis and
Sunnah. Islamic laws in Malaysia apply in the family laws in respect of marriage,
divorce, custody and guardianship, maintenance of children, matrimonial properties,
and alimony and probate and administration. Such laws are administered by separate
court system, Syariah Courts. A system of syariah courts, not wholly traditional in the
Islamic law, now operates in each state in Malaysia and in the Federal Territories of
Kuala Lumpur and Labuan. Detailed Islamic evidence, civil procedure and criminal
procedure laws have also been enacted in most states to govern their proceedings.
State legislature also has the jurisdiction over the constitution, organization and
procedures of Syariah Courts.
Now, Islamic laws are increasingly applied in banking and land laws other than
applied to family matters and estate matters. Under the constitution, State can only
make Islamic law in these area: Islamic law and personal and family law of Muslims.
Zakat, Fitrah and baitulmal
Mosques

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v)

Offences by Muslims against the percepts of Islam but not including matters

in the Federal List

Syariah courts
Determination of matters of Islamic law and doctrine
English Law
English law comprises Common law and equity. Common Law is a major part of
many States, especially Commonwealth countries. English common law and the rules
of equity suitable to local circumstances form part of the laws of Malaysia. It is
mainly made up of non statutory laws, which are the precedents derived from
judgments given on real cases by judges. Law of Equity resolves disputes between
persons by referring to principles of fairness, equality and justness. In these cases,
nothing was done against the law by the parties to dispute, but their rights are in
conflict. Thus, it is different from law; both the Statutory Law enacted by Parliament
and State Legislatives and Common Law which consists of precedents and opinions
given on real cases by judges.
The English Law can be divided into two which are the English Commercial Law
and English Land Law.There is more extensive reference to English law in
commercial matters. In section 5(1) of the Civil Law Act 1956 provides that The
English Commercial Law is applicable in Peninsular Malaysia except Penang and
Malacca as it stood on 7 April 1956 in the absence of local legislation. On the other
hand, Section 5(2) of the same act, applies in Penang, Malacca, Sabah and Sarawak
as the law administered in these states will be the same as law administered in
England, in the like case at corresponding period. The Land Law, none of the English
Land Law concerning the tenure, conveyance, assurance of or succession to any
immovable property or any estate, right or interest therein applies in Malaysia. And
the National Land Code is the law that governs the land matters.

vi)

Customary Law
Customs are another important source of unwritten law. Every race has its own
customs. Adat is applicable to Malays, native law and customs (also called adat)
apply to the natives of Sabah and Sarawak and Chinese and Hindu customary laws
have limited application to their respective communities. Custom is rooted from the
ancient custom of the people. It is the customs which are accepted as binding and
enforceable by the court. But nowadays, customary law is of little relevance to the
communities in West Malaysia . However, for the natives of Sabah and Sarawak,
customary law remains an important source of law, particularly as a means of social

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control in remote communities and in the administration of estates, family law and
inheritance and as well as the election of traditional ruling chiefs.
But before 1978, Sabah and Sarawak administered the Islamic law and the Malay
customary law together as part of native customs by a system of Native Court with
limited jurisdiction over disputes. After the establishment of Syariah Court, it
provided a uniformity and consistency in administration in Islamic Law.
There are two types of Adat which is the Adat Perpateh and Adat Temenggung.
Adat Perpateh is practiced among the Malays in Negeri Sembilan and Nanning in
Malacca. It uses the matrilineal system which belongs to mother's lineage, meaning
to say it involves the inheritance of property, names or titles from mother to
daughters. It also concerns with matters such as land tenure, lineage, inheritance and
election of members of lembaga and Yang di-Pertuan Besar. As for Adat
Temenggung, it is practiced in other states and it uses the patrilineal system which
belongs to father's lineage.
vii)

Sale Of Goods Act (SOGA)

Sale of goods in peninsular Malaysia is governed by the Sale of Goods Act 1957,
but the Sabah and Sarawak adopt the principle of English law relating with the sale of
goods.
Based on the Section 4(1)of SOGA , a contract of sale of goods is a contract
whereby the seller transfers or agrees to transfer the property in goods to the buyer
for a price. There may be a contract of sale between one part-owner and another.
Sale is the ownership of the goods is transferred from the seller to the buyer under
the contract of sale. If there is sale and the buyer failed to pay for the goods, the seller
may sue for the contract price as remedy.
Agreement to Sell is the owner of goods id to be transferred at a future time or
subject to some conditions to be fulfilled. Under the SOGA, the goods must be as
described, of satisfactory quality and fit for purpose. Beside, the goods should match
with the sample which shown in the brochure. If the goods are not as the described,
have the satisfactory quality and fix to the purpose, the retailer is in breach of
contract.
A contract of sale is a contract for sale by sample where there is a term in the contract
express or implied to that effect.

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