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Unwritten Law in Malaysia

Unwritten laws are laws that are not enacted and not found in any constitution. It comprises of English law (Common Law and Equity), judicial decisions and customs. Common Law is a major part of many States, especially Commonwealth countries. 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 top 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. In situations where there is no law governing a particular circumstance, Malaysian case law may apply. If there is no Malaysian case law, English case law can be applied. There are instances where Australian, Indian,and Singaporean cases are used as persuasive authorities. Section 3(1)(a) Civil Law Act 1956 states that courts in Peninsular Malaysia should apply Common Law and the Law of Equity as administered in England on 7th April1956.Section 3(1)(b) and Section 3(1)(c) of Civil Law Act 1956 states that courts in Sabah and Sarawak should apply common law and law of equity together with the statutes of general application as administered in England on 1st December 1951 and 12th December 1949 accordingly.But it is not stated that the Common Law and Law of Equity in Malaysia should remain unmodified and follow the same law as administered in England.Common law and law of equity in Malaysia should be developed and amended according to the local needs. In addition, these two laws should also take into account of changes in these laws in England.However, Malaysian government can set their own scope for the amended or repealed Common Law and Law of Equity in Malaysia. In the case, Commonwealth of Australia v. Midford (Malaysia) Sdn.Bhd. it was held that the doctrine of sovereign or crown immunity which was developed in English Common Law after 1956 should apply in Malaysia. It was said that any developments in English Common Law after 1956 should apply in Malaysia.In the case,Smith Kline & French Laboratories Ltd. v. Salim (Malaysia) Sdn.Bhd.,It was held that the courts have the authority to put aside any Common Law or Law of Equity which cannot be applied in Malaysia.In the case,Jamil bin Harun v. Yang Kamsiah & Another,It was decided that courts have the authority to decide whether to follow English Law (common law and law of equity) or Federal law, considering the circumstances and the scope the written law permits to do so. In the case,Karpal Singh v. Public Prosecutor,It was held that the criminal offences in Malaysia were provided by Criminal Procedure Code of Malaysia and therefore, there is no allowance for English law to apply.There are certain boundaries as to the application of Common Law and Law of Equity in Malaysia. Common law can apply in the absence of local legislation. Local law is regarded highly that the English law. The English law is only meant to fill in the lacuna, in which the local legislation is not present.Only the relevant part which is suited to the local needs and circumstances applies. Malaysia is made up of different races, each possessing their own customs, different from English law. The entire importation of English law means that the sovereignty of loca. The case law related to the boundaries of applicationis,Syarikat Batu Sinar Sdn. Bhd. v. UMBC Finance Bhd.In this case, problem of double financing occurred when first purchaser’s (UMBC Finance Bhd.) indorsement of ownership claim was not included in the registration cardof vehicle. UMBC tried to repossess the vehicle. The plaintiff sued UMBC, claiming that defendants were notentitled to the vehicle.It was held that the English law requires the indorsement of ownership claim in.

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Legal System Of Malaysia

Legal System Of Malaysia | Criminal Law Essay Different legal systems have evolved in different parts of the world, each from a range of sources. Discuss the legal system of Malaysia. 1.0 Types of Legal System in the World

There are various definitions of the term "legal system". A Legal System is the framework of rules and institutions within a nation regulating individual's relations with one another and between them and the government.(Book) In this world, there are many types of legal systems, but the few major legal sytems of the world today are civil law, common law, customary law, religious law, socialist and mixed law systems.

Civil law is the dominant legal tradition today in most of Europe, all of Central and South America, parts of Asia and Africa, and even some discrete areas of the common-law world, like Louisiana and Quebec. The origin of civil law is from the Roman law. The civil law is a set out of comprehensive system of rules which are applied and interpreted by judges. Besides that, civil law is older, more widely distributed and in many ways more influential than the common law.

Common law is a system of law that is derived from judges' decisions, rather than statutes or constitutions. It is based on tradition, past practices and legal precedents set by courts through interpretation of statues, legal legislation, and past rulings.It is english origin and is found in United States and other countries with strong english influences

Customary law is a traditional common rule or practice that has become an intrinsic part of the accepted and expected conduct in a community, profession, or trade and is treated as a legal requirement. Not many countries in the world today will operate under a legal system which could be wholly customary. However, customary law still plays a sometimes significant role, like in the matters of personal conduct, in many countries or political entities with mixed legal systems.

Islamic law is derived from the interpretation of the Koran. Its primary objective is social justice, but also includes property rights, economic decision making, and types of economic freedom. Islamic law is mostly found in Pakistan, Iran, and other Islamic states.

Socialist law is based on fundamental tenets of Marxist-socialist state and center on concept of economic, political, and social policies of the state. It can be found in some independent states of the former Soviet Union, China and other Marxist-socialist states.

A mixed legal system is a mixture of two or more legal system practised by some countries.

2.0 Malaysia's Legal System

Different country practices different types of legal system. Some country practices one type of legal system while others practices the mixed legal system which means a combination of two or more legal systems. Malaysia for example, practices the mixed legal system which includes the Common Law, Islamic law and Customary Law. Malaysia's legal system comprises laws which have arise from three significant periods in Malaysian history dating from the Malacca Sultanate, to the spread of Islam to Southeast Asia, and following the absorption into the indigenous culture of British colonial rule which introduced a constitutional government and the common law. Malaysia's unique legal system is designed to balance the delicate racial and religious needs of its heterogeneous people. The Malaysian legal system law can be classified into two categories which is the “Written” and “Unwritten law”.

2.1 Unwritten Law

The “Unwritten law” does not mean that the law is literally unwritten. It refers to the laws which are not enacted by the Legislature and which are not found in the Federal and State constitutions. This category of law comes from cases decided by the Courts and the local customs, which is otherwise known as “common law”. The “unwritten law” mainly comprised of the English law, judicial decisions and custom law.

2.1.1 English Law

The English Law can be divided into two which are the English Commercial Law and English Land Law. 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. As for the English 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. In Malaysia, National Land Code is the law that governs the land matters. There is no any allowance for English land law, except in so far the National Land Code might expressly provide.

2.1.2 Judiciary Decision/ Malaysian Court

Approaching the judicial decision, judges do not decide arbitrarily. Instead, they are bound to follow certain accepted principles known as precedents. Precedents are defined as ‘a judgement or decision of a court of law cited as an authority for the legal principle embodied in its decision”.„ The system of binding judicial precedent is called stare decisis. It is created by the English judges and introduced into Malaysia upon colonization.

The Malaysian Court structure is greatly influenced by the English Court system, and is divided into the Subordinate Courts and the Superior Courts. The lowest level of the Subordinate Courts is the Penghulu Courts, presided over by a headman appointed by the State government for the district. The equivalent in Sabah and Sarawak are the Native Courts relating to the native customs of the indigenous people in those two States. Above these Courts are the Magistrate's Courts which deals with minor criminal and civil cases. The Sessions Courts are the highest of the Subordinate Courts. The Superior Courts comprises of the High Court, the Court of Appeal and the Federal Court (which is the highest court in the land).

2.1.3 Customary Law

Customs are another important source of unwritten law. Every race has its own customs. Hindu and Chinese customary law applied to the Hindus and Chinese respectively. Besides that, natives in Sabah and Sarawak have their own customary law which relates to the land and family matters. In Malaysia, 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 Besa r. As for Adat Temenggung. it is practiced in other states and it uses the patrilineal system which belongs to father's lineage.

2.2 Written Law

On the other hand, “Written law” refers to the laws contained in the Federal and State Constitutions and in a code or a statute. The written laws are much influenced by English laws as the Malaysian legal system retains many characteristics of the English legal system. The “Written law” includes the Federal and State Constitution, Legislation and Subsidiary Legislation.

2.2.1 The Federal and State Constitution

Malaysia is a federation of 13 states with a Federal Constitution and 13 State Constitution. The Federation Constitution is the supreme law of the country. The Federal Constitution also provides for the “Yang di-Pertuan Agong ” who owes his position to the Constitution and act accordance with it. The Constitution can only be changed by a two-thirds majority of the total number of members of the legislature. The Federal Constitution comprises many Articles concerning the religion of the federation and many other related subjects. Besides the Federal Constitution, there is a state constitution where each state has their own constitution regulating the government of that state.

2.2.2 Legislation

Legislations refers to the laws that are established by the Parliaments at federal level and by the State Legislative Assemblies at the state level.… The Parliament and State Legislatures are not supreme and so they have to enact laws subject to the provisions set out in the Federal and State Constitution. In the Federal Constitution, Article 74, it states that parliament may make law with referring to matters provided in the List I of the Ninth Schedule while the state legislatives may make law with referring to matter provided in List II. As for matters on List III which is the Concurrent list, are in the authority of both parliament and state legislatives. Matters that are not in the lists are within the authority of the States.

2.2.3 Subsidiary Legislations/ Executive

Subsidiary Legislations are made by the people or bodies who are authorized by the legislatures. The Interpretation Act 1967 defines subsidiary legislation as rules, regulations, by laws, order, notifications made under legislations. The Legislatures provide basic law, so subsidiary legislation is very important is unsufficient to govern day-to-day matters. That is why the authority is delegated to delegate their legislative powers. In Article 150 of Federal Constitution, Parliament can pass the power to legislate any subsidiary legislation during emergency, even if there are any contradictions with the Federal Constitutions involved.

The people or bodies who are authorized by the legislatures are the Yang di-Pertuan Agong who is the nominal head of the executive and the Prime Minister and cabinet is the real executive. The Cabinet is answerable to the Yang di-Pertuan Agong as the nominal head of the executive in the country. However, according to the democratic ruling system, the Chief Executive is the Prime Minister. This does not mean that the Yang di-Pertuan Agong is unable to voice any opinion, but rather that he must act on government advice, whatever his personal view might be. The Yang di-Pertuan Agong appoints a Cabinet to advise him on country's matter. The Cabinet consists of the Prime Minister and a number of Ministers who must all be members of Parliament. Besides that, the Government has set up various agencies to ensure the smooth enforcement of the law. It comprised of three main components, namely ministries, departments and statutory bodies.

2.3 Islamic Law

Last but not least, Islamic law is also a major source of Malaysian law which is enacted under the Federal Constitution. It is only applicable to Muslims and is administered by a separate court system, the Syariah Courts. The State legislature has authority over the constitution, organization and procedure of the Syariah Courts and is also allowed to make Islamic laws pertaining to persons professing the religion of Islam.

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Written Law Vs

Free Essays Must Be Free! TM Written Law Vs Unwritten Law In Antigone Term paper

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Antigone: Divine Law Vs. Human Law
Antigone: Divine Law vs. Human Law The play entitled Antigone was written by a man named Sophocles, a scholarly author of philosophy and logic. The play Antigone is probably one.

In the play Antigone there is quite a difference in opinion to whether Antigone�s actions to go against �Human� Law or in other words �Governed� Law was justifiable. Is there a line we can cross when it comes to set laws? Antigone sure thought so. Or was Antigone fighting for her rights as a women to do as she pleased, or was she doing what was best for her brother, "I intend to give my brother burial. I'll be glad

Antigone: Divine Law vs. Human Law
The play entitled Antigone was written by a man named Sophocles, a scholarly author of philosophy and logic. The play Antigone is probably one of the most prominent interpretations.

to die in the attempt, -if it's a crime, then it's a crime that God commands" (Sophocles 4). Many believe that she was doing a little of all, not only was Antigone in a way acting out of a feminist position but was acting as a freedom fighter for her people. In the play Antigone justifies her actions, and faces the consequences put before her. By standing for her beliefs, she portrays to the reader that she is a strong

Antigone: Divine Law vs. Human Law
The play entitled Antigone was written by a man named Sophocles, a scholarly author of philosophy and logic. The play Antigone is probably one of the most prominent interpretations of.

women who is acting out of courage for herself and her people. As displayed in �Antigone� she "Takes into consideration death and the reality that may be beyond death" (Hathorn 59), and feels there is a common duty owed to her brother and her people.

The concept of unwritten laws can be best described as laws set by God. The laws set forth by God involve morals and beliefs that are presented by God. The idea of unwritten or divine law is described as being the �unwritten laws of the Gods� (Sophocles 64). Unwritten laws or divine laws are indefinitely in effect when morals, or decisions of what is right and what is wrong is apparent, it is mainly in effect when moral decisions must be made. The concept of unwritten laws are not only used in the process of making decisions but is used in everyday actions of people. Most base what is morally �right� on the law of God, on the other hand what is morally �wrong� is thought to be against what God�s laws state. The concept of unwritten law or moral law does not apply to everyone, because in reality not everyone believes in God. Many tend to be skeptical of moral laws or unwritten laws because there is always that question as to if they are actually upheld.

Written law is the type of law that is set up to govern the land and the community, for example the laws that Creon set up to govern his city/state. Written law is usually set by the head of a community or by the governors of the land. To uphold this type of law there are usually officers or guards that are appointed to uphold the law. When people in the communities do not follow this type of law they are usually punished .This is apparent in the play Antigone, when Creon felt Antigone had over stepped her boundaries, when she disobeys a law, a law that went against the beliefs she held towards the law of the Gods.

Undoubtedly it is very apparent that in the play Antigone, Creon and Antigone have very different views on what is �right� and what is �wrong�.Antigone argues throught

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Judiciary system in malaysia at


Malaysia is a Federal Constitutional Monarchy with a non involvement in political head of state known as the Yang di-Pertuan Agong and each member state has its own legislature. Sabah and Sarawak even have their own immigration laws whereas a passport is needed when travelling between East Malaysia and Peninsular Malaysia.


Malaysia being an Independent country since its proclamation on the 31st August 1957 by our late Prime Minister Tunku Abdul Rahman is now practicing a legal system based on written and unwritten laws. The Written law is the Federal Constitutions of the 13 states consists of the Federation, Legislation enacted by the Parliament and State Assemblies and Delegated Legislation made by bodies under Acts of Parliament. The Unwritten Laws is the principles of English Common Law adapted to local circumstances, case law, and local customary law.


But the Muslim law is applicable only to Muslim population and administered by the Syariah High Court such as in Malacca Syariah High Court.


When comes to the Judiciary System, the Malaysia Constitution provides by the Legislative, the Executive and the Judiciary whereas the Federal Constitution judicial power in the Federation is vested on 2 High Courts of Coordinate Jurisdiction are the High Court of Malaya and the High Court of Borneo in Sabah and Sarawak.


The Supreme Court in the country is the Federal Court principally registry in Kuala Lumpur and the head of the Judiciary is the Chief Justice or called the Lord President of the Federal Court. The lowest court in West Malaysia is the Penghulus Court who is appointed by the State Government while the Subordinate Courts include are the Juvenile Courts, Magistrates Courts, and the Sessions Courts.


The courts can pronounce on the legality or validity of otherwise of any law passed by Parliament for any provision of the constitution.


For the Status of.

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Sources of law in Malaysia

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Sources of law in Malaysia

Nur Amirah Mohamad Nasir

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Malaysian Constitution Case

Malaysian Constitution Case

Autor: peter • November 21, 2012 • Essay • 2,163 Words (9 Pages) • 809 Views

Malaysia is known for its richness of multicultural and multi-racial country which is spread between Peninsular Malaysia, Sabah and Sarawak. Despite being one huge political unit, it has different set of rules and law to comply with. Malaysia law can be classified into various sources, mainly are written law, unwritten law and Muslim law.

Written law comprises The Federal Constitution which is the supreme law of the land and State Constitution, a range of constitutions regulating the governments of thirteen states in Malaysia. Second written law is the Legislation law which is endorsed by Parliament and Legislative Assemblies at the federal and state level respectively. Final source of written law is the Subsidiary legislation as states in the Interpretation Act ‘any proclamation, rule, regulation, order, notification, by-law or other instrument made under any Ordinance, Enactment or other lawful authority and having legislative effect'. Malaysia has huge amount of subsidiary legislation. Subsidiary legislation is referred to law made through powers delegated by the legislature mainly Ministers and local authorities. Only Subsidiary legislation made in a proclamation of emergency under Article 150 of the Federal Constitution is accepted. other breaching of either a parent Act or the Constitution is voided.

Unwritten law under the Malaysian law is the law which is not written or found in Federal and State Constitutions. It is also not endorsed by the Parliament or the State Assemblies. Unwritten law comprises of Judicial decisions of the superior courts Principles of English Law and Customs law. Judicial decisions using the systematical method called 'doctrine of binding judicial precedent' at the High Court, Court of Appeal and the Federal Court followed by Supreme Court can still be found in Malaysian law.

Nevertheless the decisions made by Federal Court and Judicial Committee of the Privy Council are still binding on the present court. Binding or persuasive is a process of adjudication, this is after argument and before the judge reaches the conclusion. The judge will formulate and apply a legal principle in accordance with certain rules to form a guide for future. The judge will provide reason for reaching a decision or the legal principles behind the decision; this may bind other similar disputes in future. Binding precedents depends on the court's position in the hierarchy of the courts. These are binding until they are reversed or overruled, where else persuasive precedents are those which are not binding authorities.

Another important unwritten law is the Principles of English Law. It consists of Common Law and Equity. The common Law is the body of rules developed by the old common law courts of England which no longer exist. It is established on customs common throughout England. On the other hand, Equity is the body of incomplete rules

Unwritten rules Essays Subject

unwritten rules Essays
  • Antigone: Divine Law Vs. Human Law
    Charles Segal describes the idea of divine law as being the "unwritten laws of the Gods" (Sophocles 64). rules of conduct of organized society, enforced by threat of punishment" (Encyclopedia.com "law"). Sometimes it is not possible or feasible to obey and follow both of these sets of laws, unwritten or not. unwritten law of the Gods.
  • The Taming Of The Shrew
    The play is, in fact, a comedy about an assertive woman coping with how she is expected to act in the society of the late sixteenth century and of how one must obey the unwritten rules of a society to be accepted in it.
  • Bud not Buddy
    Bud Caldwell�s, �Bud Caldwell�s Rules and Things for having a funner life and making a better liar o. rules and things number 3 is you have to tell a lie, make sure it�s simple and easy to remember.� In. For example, Bud has the rules and tips to help him have a �funner� life. I can relate to this because I usually sub consciously think about those kinds of �unwritten � rules. I can relate to this because I usually sub consciously think about those kinds of �unwrittenrules .

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Unwritten Law The Celebration Song текст перевод

Unwritten Law The Celebration Song

Ease up a little bit
Cause I want to want you
If all of the money's spent
Well that's fine to got you

By my side let's go for a long ride
In my car I'll drive you to my star
Out in space won't matter
Where we are
Hey Hey yeah

A celebration
About time
A generation out of line yeah
The revolution's in everyone

Ease up a little bit
Cause I have to have you
Drink up a little bit
If your mine I'll find you

By my side let's go for a long ride
In my car I'll drive you to my star
Out in space won't matter
Where we are
Hey Hey yeah

A celebration
About time
A generation out of line yeah
The revolution's in everyone

A celebration
About time
A generation out of line yeah
The revolution's in everyone

Blame the.
Celebration
About time
A generation out of line yeah
The revolution's in everyone