Week 1.3

UNWRITTEN LAW

(undang-undang tidak
bertulis)

i. English law (undang-undang

UNWRITTENinggeris)

i. Judicial decisions (keputusan mahkamah)

LAWii. Customs (adat resam)

1. ENGLISH LAw Apa yang kita faham dari seksyen 3 (1)
akta undang-undang sivil 1956?
Section 3 (1) Civil Law Act 1956
• Seksyen ini menetapkan pemakaian Common Law
“ in Peninsular Malaysia, the court shall
apply the common law of England and the Inggeris dan kaedah ekuiti hanya setakat :
rules of equity as administered in England
on 7 April 1956. As for Sabah and Sarawak, 7 April 1956 di Semenanjung Malaysia
the courts shall apply the common law and (Common Law & Ekuiti)
the rules of equity, together with statute of
general application, as administered or in (CommondLHe1asDewcir,sreEeibmkyeuobituteihrdce1ao9nt5uoS1lptddaiictuStaPbeahmakaian Am)
force in England on 1 December 1951 and of the section

12 December 1949, respectively.” 12 Disember 1949 di Sarawak
(Common Law, Ekuiti dan Statut Pemakaian Am)

Peruntukan ini dengan jelas menunjukkan bahawa prinsip
undang-undang Inggeris tidak boleh diterima bulat-bulat

dalam sistem perundangan Malaysia.

Proviso to section 3 (1) civil law act 1956 Application of the law of England is subject to 2
limitations :
“The said common law, rules of equity and
statutes of general application shall be applied so a) It is only applied only in the absence of
local statutes on the particular subjects.
far only as the circumstances of the States of Local law takes precedence over English
Malaysia and their respective inhabitants permit law as the latter is only meant to fill in the
lacuna in the Malaysian legal system.
and subject to such qualifications as local
circumstances render necessary.” b) Only that part of the English law that is
suited to local circumstances will be applied.

*Prinsip Perundangan Common Law dan
Ekuiti boleh digunakan dalam perundangan

Malaysia hanya dalam 2 keadaan :

1. Apabila terdapat lacuna dalam
perundangan Malaysia

2. Setakat ianya sesuai dengan keadaan
setempat.

English Commercial Law ENGLISH LAND LAW

• Section 5 (1) of the Civil Law Act 1956 : “ In all questions or • Section 6 of the Civil Law Act 1956 : “ Nothing in this
issues which arise or which have to be decided in the States Part of the States shall be taken to introduce into
of West Malaysia other than Malacca and Penang with Malaysia or any of the States comprising therein
repect to the law relating to partnership, corporations any part of the law of England relating to the
etc…the law to be administered shall be the same as would tenure or conveyance or assurance of or
be administered in England…unless in any case other succession to any estate, right or interest therein.”
provision is or shall be made by any written law.”
United Malayan Banking Corporation Bhd & Anor v
• Section 5 (2) of the Civil Law Act 1956 : “ In the 4 states Pemungut Hasil Tanah, Kota Tinggi [1984] 2 MLJ 87:
(Penang, Malacca, Sabah and Sarawak), there is still
“ English land law was not applicable as the
continuing reception of English commercial law in the relevant provisions of the National Land Code…
absence of local legislation.” National Land Code is a complete and
comprehensive code of law governing the tenure
• In the absence of logal legislation, English law is applicable of land in Malaysia and the incidents of it, as well as
to commercial matters. However, since there are so many other important matters affecting land there, and
local statutes already passed which deal with commercial there is no room for the importation of any rules of
English law in that field except in so far as the Code
subject, there is no total reliance on English commercial law. itself may be expressly provide for this.”

• Such local statutes available include : Companies Act 2016,
Partnership Act 1961, Contracts Act 1950 etc.

Conflict between common law and equity

Section 3 (2) of the Civil Law Act 1956 : “In the event of conflict or variance
between the common law and the rules of equity with reference to the same

matter, the rules of equity shall prevail.”

ii. Judicial decisions
(KEPUTUSAN MAHKAMAH)

● Malaysian law can also be found in the judicial decisions of

the :

i. High Court (Mahkamah Tinggi)

ii. Court of Appeal (Mahkamah Rayuan)

iii. Federal Court (Mahkamah Persekutuan).

iv. Supreme Court (Mahkamah Agung)

v. Privy Council (Majlis Privy)

● Altough the Privy Council do not form part of the present

judicial system, they were part of the judicial system until
31 December 1986, so the decisions made by them are
still binding on the present court.

● Same with Supreme Court (until 23 June 1994), decisions

from this court is still binding. It is still applicable through
the doctrine of binding precedent.

DOCTRINE OF precedent

(doktrin duluan kehakiman)

• A judgment/decisions of a court of law cited as an authority for the legal principles
embodies in its decision.

• Thus, precedents are decisions made by judges previously in similar situations.

• There has to be a court hierarchy where the lower court will be bound by the higher
courts in that hierarchy.

• Each court is bound by the decisions
of the courts of the same level or
higher than it in the same hierarchy
or courts.

• Following a precedent means that a
question should be resolved in a certain
way today because a similar question
has been so decided before.

TYPES OF PRECEDENT

Original Precedent Distinguishing Precedent

Judge make a Declaratory Persuasive Binding Judges are unwilling
decision without Precedent Precedent Precedent to follow a

following a Where there is Not binding, but A future judge particular precedent.
previous decision, only application they may be in a lower court Previous precedent
as the facts in the statements a must follow the will not wholly apply
of an already
case have not existing rule in a previous judge decision of a due to materially
come before a has made which previous judge different facts
court before. A legal matter. can influence a
new law is created future judge in in a higher between the two
court, if the cases.
and applied his own case facts are
decision.
similar.







Customary law

● Customs of the local inhabitants in Malaysia are also a

source of law.

● Generally, customs relating to the family law (marriage,

divorce and inheritance) are given legal force by the
courts in Malaysia.

Malays : Adat (including adat perpatih and adat
temenggung).

Chinese : Chinese Customary Law

Hindu : Hindu Customary Law

Sabah and Sarawak : Native Customary law

● Now, the customs law are enforced by Law Reform

(Marriage and Divorce) Act 1976.

● Since 1 march 1982, the polygamous marriage were

abolished and since then, Chinese and Hindu customs
have become of little and no effect as a source of law in
Malaysia.

SHARIAH LAW/
ISLAMIC LAW

● The Federal Constitution provides that the
states have power to administer
Shariah/Islamic or Muslim Law.

● The head of Muslim religion in a hereditary state
is the Sultan

● For Penang, Malacca, Sabah, Sarawak and the
Federal Territories, the head of Muslim religion
is Yang Di-Pertuan Negeri.

● The courts which enforce Islamic law are the
Shariah Courts

● Islamic law applies to Muslims only and does
not apply to non-Muslims.