Tuesday, 29 May 2012

Written & Unwritten Law

Study Guide
1. Define law and distinguish types of law.

Past Year Questions
Dec 2010, Q1
In the context of the Malaysian legal system:
a.explain and distinguish ‘written’ law from ‘unwritten’ law; and 
b.state and explain TWO sources of ‘written’ law and TWO sources of ‘unwritten’ law.

Suggested Model Answer

This question tests the candidates’ knowledge on sources of law.

Malaysian law is derived from both written and unwritten sources. 
  • Written law refers to the law that is contained in a formal document and which has been passed by a person or body that is authorised to do so. In Malaysia, which has a written constitution, written law consists of the Federal and State Constitutions, the legislation passed by Parliament and State Legislative Assemblies as well as subsidiary legislation.
  • Unwritten law, on the other hand, refers to the law that has not been formally enacted. The unwritten law consists of case law (i.e. decisions of the superior courts which are binding on the lower courts), customary law (i.e. local customs which have been accepted as law by the courts) and applicable principles of English common law and equity.
Sources of written law comprise the following:
  • The Federal Constitution - The Federal Constitution is the supreme law of Malaysia. It is a written constitution. It stipulates the powers of the Federal and State Governments and provides for a democratic system of government. It also establishes a constitutional monarchy and entrenches fundamental liberties of the individual. To ensure that the Federal Constitution is not easily amended, a special majority of two-thirds of the total number of members of the legislature is required for an amendment.
  • The State Constitutions - Each of the 13 states of Malaysia has its own State Constitution. These contain provisions pertaining to state matters as provided under the Federal Constitution. The State Constitutions deal largely with land matters, agriculture, forestry, local government and Islamic law.
  • Legislation - This comprises the laws passed by Parliament as well as the State Legislative Assemblies. The laws passed by Parliament since 1957 (i.e. after Malaya’s independence) are called ‘Acts’ while those passed by the State Legislative Assemblies (except Sabah and Sarawak) are called ‘Enactments’. The laws passed in Sabah and Sarawak are called ‘Ordinances’.
  • Subsidiary legislation - This refers to the rules, regulations, by-laws, orders and other instruments made by a person or body in accordance with the powers delegated to him/it under an enabling legislation. Such legislation is an increasingly important source of law because Parliament and the State Legislatures lack the time and expertise to deal with specific technical details.
Unwritten law comprises the following:
  • English common law and the rules of equity - This is also a very important source of Malaysian law. Sections 3(1) and 5(1) of the Civil Law Act 1956 specifically permit the reception of English common law and equity in Malaysia subject to the limitations contained therein. However, the reception of English law and equity are subject to certain general exceptions. In particular, English law may only be applied where (1) there is no local law governing the matter and (2) if it is suitable to the local circumstances.
  • Judicial precedents. - This refers to the law as developed through cases decided in the superior courts. Sometimes referred to as ‘judge-made law’, it is another very important source of law. Under the doctrine of binding judicial precedent, which is also observed in Malaysia, the decisions of the higher courts must be followed by the lower courts in similar cases. This generally ensures a fair and uniform application of the law.
  • Islamic law. This is another important source of Malaysian law, particularly in matters relating to marriage, divorce and inheritance among Muslims. It is only applicable to Muslims. Islamic law is administered at State levels by a separate system of courts called the ‘Syariah’ courts.
  • Customs. This refers to the customs of the local inhabitants which have been accepted as law. It mainly relates to family matters, e.g. marriage, divorce and inheritance. Generally, the customs of Chinese and Indians relating to marriage and divorce are no longer of much importance since the passing of the Law Reform (Marriage and Divorce) Act 1976, which abolished polygamous marriages among them. However the customary laws of the Malays (also called ‘adat’ law) and in East Malaysia, native customary law, continue to be important sources of law.

(Candidates are only required to explain TWO written and TWO unwritten sources.)

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