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Sources of Law

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SOURCES OF LAW
1.1 Classification of Law
Law is a set of rules that control the human behaviours that is developed over a long period of time that regulates interaction that people have within one another. It is also a set of rules that humans have to follow and it set standards and conduct between *individual and individual* and *individual and the government* which is enforced by law through sanctioned.

Public law
Public law is a law which governs the relationship between individual and the state. Public law can be further divided into constitutional law and criminal law.
- Constitutional law
Body of law which defines the relationship of different entities within a state, namely, the executive, the legislature, and the judiciary.

- Criminal Law
It is a body of rules and statute that defines the conduct prohibited by the government. In Malaysia, the penal code is a main source of criminal law. It covers most criminal offenses and provides relevant penalties where relevant acts are breached .It actually codifies various acts committed by individual against the state such as murder, cheating, forgery , rape, and other criminal offenses.

Common law
A law that derive from case law (precedent) and statute. It is accusatorial with an emphasize remedies. It form a basic right of English law and it can be found in the U.S , other commonwealth nation including Australia, Canada, Singapore, New Zealand, parts of Africa , India and Pakistan. Malaysia derives their legal system from the common law as a result of the British colonization where their legal principles are develops by judges through case law.
Common law is a judge-made law which is different in manner from the way the Parliament enacts the legislations. When a Parliament enacts legislations in most cases, it creates a comprehensive and complete frame-work of rules that governs a given area. Therefore, judges can only decide based on actual issues brought by the court by litigant (lawyers). Common law is more than a framework of rules. It’s a mental attitude, a distinctive mode of legal reasoning by which to reach a fresh solution to the problem by ensuring fair dealings between individual and individual and between individual and the government.

Equity law It allow the judges to use their discretion to apply justice with accordance of the law

Private Law
A law that concerns matter that affects the rights and duties of individual among themselves. Private law intends to give compensation to person injured, and to be enabling to a property to recover from wrongdoers and to enforce obligation.
- Civil Law
Seek to resolve non-criminal disputes such as disagreement over a contract, property of ownership, divorce, child custody and damages for personal and property damage.

Substantive Law
Substantive law is a written law that defines the rights and duties such as crime and punishment and this can be enacted through initiative process.

Procedural Law (step by step)
Procedural law comprises of rule by which court follow the procedures in the proceedings. The rules are designed to ensure a fair and consistent application of the new process of law.

1.2 Separation of Powers

In Malaysia, there are some overlapping parts between the three organs of government. There are two sense of separation of power, which are strict sense and liberal sense. Malaysia follows liberal sense or under Westminster system, which means there will be overlaps in function and membership between the legislature, the executive and the judiciary but on condition that there should be check and balance between the three organs. The three organs can overlaps in personal or membership, functions and powers.
The typical division of branches is into a legislature, an executive, and a judiciary. It can be contrasted with the fusion of powers in a parliamentary system where the executive and legislature (and sometimes parts of the judiciary) are unified.

A legislature is a state's way of making laws-making organization, usually associated with national government, that has the power to enact, amend, and repeal public policy. Legislatures observe and steer governing actions and usually have exclusive authority to amend the budget or budgets involved in the process.

The executive is the part of the government that has sole authority and responsibility for the daily administration of the state. The executive branch executes, or enforces the law. The division of power into separate branches of government is central to the idea of the separation of powers. The executive officer is not supposed to make laws (the role of the legislature) or interpret them (the role of the judiciary). The role of the executive is to enforce the law as written by the legislature and interpreted by the judicial system.
The executive can be the source of certain types of law, including decree or executive order. Executive bureaucracies are commonly the source of regulations.
In this context, the executive branch of government consists of leader(s) of an office or multiple offices. Specifically, the top leadership roles of the executive branch may include: * head of state—often the leader, the president, the chief public representative and living symbol of national unity. * head of government—often the de facto leader, prime minister, overseeing the administration of all affairs of state. * defence minister—overseeing the armed forces, determining military policy and managing external safety. * interior minister—overseeing the police forces, enforcing the law and managing internal safety. * foreign minister—overseeing the diplomatic service, determining foreign policy and managing foreign relations. * finance minister—overseeing the treasury, determining fiscal policy and managing national budget. * justice minister—overseeing criminal prosecutions, corrections, enforcement of court orders.
In a presidential system the leader of the executive branch is both the head of state and head of government. In a parliamentary system, a cabinet minister responsible to the legislature is the head of government, while the head of state is usually a largely ceremonial monarch or president.

The Judiciary is the body that carries out the law. Under Article 121 of the Federal Constitution, there shall be two High Courts of co-ordinate jurisdiction and status which is one in the States of Malaya and one in the States of Sabah and Sarawak.

1.3 SOURCES OF MALAYSIAN LAW
Sources of Malaysian law are divided into two: i) Written Law ii) Unwritten law

Written Law.
Any form of law that is enforced by the Parliament
Written law is also known as statute law. It is a law made by Parliament and other subordinates bodies to whom Parliament had their limited power to legislate. Once an act of Parliament comes into existence, it remains a law until it is repealed by a later act of Parliament.
Four types of written law: Federal constitution, State Constitution, Legislature, Subsidiary Legislature

Federal Constitution is the supreme law in Malaysia besides laying down the powers of the Federal and State Government, preserve the basic and fundamental rights of individual. The rights written in the constitution can only be changed by a 2/3 majority of the total number of members of the legislature. The federal constitution comprises article which provides the following:
-The name, state, territories of the federation
-Religion of the federation
-Supreme law of the federation
-Fundamental liberties
-Citizenship

State Constitution: Each state possesses their each constitution regulating the government of that state. The State Constitution includes matters concerning the ruler, the executive counsel, the legislature, financial provisions, and state employs. Where such essential provisions are missing or inconsistent, the Parliament may make provision to give effect to them.

Legislation: Body that is constitutes to enact the law. In Malaysia, the law is legislated by the Parliament at federal level at state assembly at state levels. In making the law, the Parliament and State Legislature are not supreme as they have to enact the law subject to the provisions of federal constitution. Legislation can have many purposes: to regulate, to authorize, to forbid, provide (funds), to sanction, to grant, to declare or to restrict. It may be contrasted with a non-legislative act which is adopted by an executive or administrative body under the authority of a legislative act or for implementing a legislative act.
Legislation is usually proposed by a member of the legislature (e.g. a member of Congress or Parliament), or by the executive, whereupon it is debated by members of the legislature and is often amended before passage. Most large legislatures enact only a small fraction of the bills proposed in a given session.[3] Whether a given bill will be proposed and is generally a matter of the legislative priorities of government.
Legislation is regarded as one of the three main functions of government, which are often distinguished under the doctrine of the separation of powers. Those who have the formal power to create legislation are known as legislators; a judicial branch of government will have the formal power to interpret legislation (see statutory interpretation); the executive branch of government can act only within the powers and limits set by the law.

Subsidiary Legislation- Delegated legislation (also referred to as secondary legislation or subordinate legislation or subsidiary legislation) is law made by an executive authority under powers delegated from a legislature by enactment of primary legislation, the primary legislation grants the executive agency power to implement and administer the requirements of that primary legislation. It is law made by a person or body other than the legislature but with the legislature's authority. The power to create delegated legislation is limited to making regulation that is incidental to administering the primary legislation.

Unwritten law
No solid form (not written) but are being practiced in the country

English law: It is an English law form part in Malaysia and it can be found in the English common law and the rules of equity. Section 3(1) of the Civil Law Act 1956 provides that, in Peninsular Malaysia, the courts shall apply the common law of England and rules of equity as administered in England on 7th April 1956. In Sabah and Sarawak, the courts shall apply the common law of England and rules of equity with statutes of general application as administered or in force in England on 1st December 1951 and 12 December 1949 respectively.

Judicial decision: It is the judicial decision. The Malaysian law also can be found in the judicial decision of the high court, court of the appeal, federal court, and privy council. The decision of these court were made and still being made by what it is known as the Doctrine of precedent

Customs: Customs of the local inhabitant in Malaysia are part of the Malaysia unwritten law. Customs are law relating to family such as marriage, divorce and inheritance which are given legal force in Malaysia.

Islamic Law
The Head of Muslim religion in a State is the Sultan (except in Penang, Malacca, Sabah and Sarawak). In Penang, Malacca, Sabah and Sarawak are the lead by the Yang di-Pertua Negeri. The court which enforces the Islamic law is the Sharia court and it only applies to the Muslim.…...

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