Sources of Law

MTC 038 :MTC 038 : LIBRARY & INFORMATION LIBRARY & INFORMATION

SKILLSSKILLS TOPIC II :TOPIC II :

SOURCES OF LAWSOURCES OF LAW

- PRIMARY SOURCES–- PRIMARY SOURCES–

by:by:SITI HAFSYAH IDRISSITI HAFSYAH IDRIS

24/12/200724/12/2007

COURSE OUTCOMECOURSE OUTCOME At the end of the course, you should be able At the end of the course, you should be able

to:-to:-

1.1. demonstrate the substantive law in making demonstrate the substantive law in making legal researchlegal research

2.2. show the difference types of the sources of lawshow the difference types of the sources of law

3.3. present the ability to do legal researchpresent the ability to do legal research

OBJECTIVESOBJECTIVES You will be able to:You will be able to:1.1. know various sources of law in Malaysia.know various sources of law in Malaysia.

2.2. identify the different types of sources of law identify the different types of sources of law in Malaysia.in Malaysia.

3.3. recognize the importance of the primary recognize the importance of the primary sources of law in Malaysiasources of law in Malaysia

Topic OutlineTopic Outline

1.1. Written LawWritten Law Federal ConstitutionFederal Constitution LegislationLegislation

2.2. Unwritten LawUnwritten Law Common LawCommon Law Judicial PrecedentJudicial Precedent CustomCustom

Sources of LawSources of LawWest/Civil Law

Primary Sources

Secondary Sources

Written Unwritten

Primary Sources of LawPrimary Sources of Law

Written Law

Unwritten Law

Federal Constitution

State Constitution

Legislation

Subsidiary Legislation

English Law

Judicial Precedent

Customs

Federal ConstitutionFederal Constitution The supreme law of the countryThe supreme law of the country Can only be amended/changed by a 2/3 of the Can only be amended/changed by a 2/3 of the

total number of members of the legislature.total number of members of the legislature. Laying down the powers of the Federal and Laying down the powers of the Federal and

State GovernmentsState Governments Enshrines the basic or fundamental rights of Enshrines the basic or fundamental rights of

the individualthe individual Applies to all States in the FederationApplies to all States in the Federation

State ConstitutionsState Constitutions

Each state in the federation possesses Each state in the federation possesses its own constitution regulating the its own constitution regulating the government of that stategovernment of that state

There are some variations in the State There are some variations in the State Constitutions to cater for local Constitutions to cater for local peculiarities such as succession to the peculiarities such as succession to the throne but the structure of government is throne but the structure of government is largely similar.largely similar.

LegislationLegislation Legislation refers to law enacted by:-Legislation refers to law enacted by:-

ParliamentParliament State Legislative State Legislative AssembliesAssemblies

Enacts law at Federal level Enacts law at State level

Within limits prescribed by Federal Constitution

Within limits prescribed by State Constitution

Laws enacted before 31/08/57 are called Ordinance

Laws enacted by State Assemblies are called Enactment except Sarawak laws are called Ordinance

Laws enacted after 31/08/57 are called Acts

State Legislative Assemblies can enact law in matters listed in List II of the 9th Schedule

Parliament can enact laws in matters listed in List I of the 9th Schedule

Subsidiary LegislationSubsidiary Legislation Also known as subordinate legislation or Also known as subordinate legislation or

delegated legislationdelegated legislation Encompasses rule or regulations enacted by Encompasses rule or regulations enacted by

an authority or body (other than Parliament or an authority or body (other than Parliament or State Assemblies). These authority or bodies State Assemblies). These authority or bodies are given the power to enact the regulations by are given the power to enact the regulations by a legislation.a legislation.

The process of having a law through subsidiary The process of having a law through subsidiary legislature is faster than having a law through legislature is faster than having a law through the Parliament or State Assemblies.the Parliament or State Assemblies.

Subsidiary legislation is made by experts in the Subsidiary legislation is made by experts in the area that they are dealing with.area that they are dealing with.

Common LawCommon Law Common Law = English law Common Law = English law Two conditions in applying Common Two conditions in applying Common

Law:-Law:- a) It is only applied in the absence of local a) It is only applied in the absence of local

statutes covering the same matterstatutes covering the same matter b) It can only be applied if it is suited to local b) It can only be applied if it is suited to local

circumstancescircumstances

Judicial PrecedentJudicial Precedent Decisions made by a previous judge in previous Decisions made by a previous judge in previous

cases that have similar situationscases that have similar situations Can be obtained from:Can be obtained from:

The Federal CourtThe Federal Court The Court of AppealThe Court of Appeal The High CourtThe High Court

2 categories of J.P:-2 categories of J.P:- Binding : Binding :

All decisions of higher courts bind the lower courtsAll decisions of higher courts bind the lower courts The higher courts are bound by their own decisionsThe higher courts are bound by their own decisions

Persuasive :Persuasive : High Court Judges are not bound to follow the High Court Judges are not bound to follow the

decision of another High Court Judgesdecision of another High Court Judges Decisions from outside of the Malaysian Courts Decisions from outside of the Malaysian Courts

(English Courts)(English Courts)

Hierarchy of the Court in MalaysiaHierarchy of the Court in Malaysia

Federal Court

Court of Appeal

High Court of Malaya

High Court of Sabah & Sarawak

Session Court

Session Court

Magistrate Court

Magistrate Court

Syariah Court

Syariah Court

Court for children

Court for children

Native Court

CustomsCustoms Customs of local inhabitantsCustoms of local inhabitants

Malay

Chinese

Indian

Adat Perpatih

Adat Temenggong

Chinese Customary Law

Indian Customary Law

THANK YOUTHANK YOU