How Malaysian law works

The Federal Constitution is the highest law

The Federal Constitution (Perlembagaan Persekutuan) is the supreme law of Malaysia. Article 4 says that any law passed after Merdeka Day that is inconsistent with the Constitution is void to the extent of the inconsistency. This means that even an Act of Parliament can be struck down by the courts if it goes against the Constitution.

The Constitution sets out:

• the structure of government (the Yang di-Pertuan Agong, Parliament, the Cabinet, the States);
• the courts and the judiciary (Part IX, starting at Article 121);
• fundamental liberties (Part II, Articles 5 to 13), such as the right to life and personal liberty, equality before the law, freedom of speech and religion, and the right to property;
• citizenship, elections, public finance and the special position of the Malays and the natives of Sabah and Sarawak.

Federal law and state law

Malaysia is a federation of 13 states and 3 federal territories. Law-making power is divided between the federal Parliament (Parlimen) and each State Legislative Assembly (Dewan Undangan Negeri). The division is set out in the Ninth Schedule of the Constitution, read with Article 74:

Sabah and Sarawak have additional supplementary lists that give their State Assemblies extra powers (for example, over native law and custom). If a state law conflicts with a federal law, Article 75 says the federal law prevails and the state law is void to the extent of the conflict.

Federal laws are called Acts (Akta). State laws are called Enactments (Enakmen), or Ordinances (Ordinan) in Sarawak. Ministers and other bodies can also make subsidiary legislation (perundangan subsidiari) – regulations, rules and orders – if an Act gives them that power. These are published in the Gazette and often marked "P.U. (A)" or "P.U. (B)".

Where Malaysian law comes from

1. Written law (undang-undang bertulis) – the Constitution, Acts of Parliament, State Enactments and Ordinances, and subsidiary legislation. This is the main source of law.
2. Common law and equity – principles developed by English courts. Under section 3 of the Civil Law Act 1956, Malaysian courts apply English common law and rules of equity only where there is no local written law on the point, and only so far as local circumstances allow. The cut-off dates are 7 April 1956 for Peninsular Malaysia, 1 December 1951 for Sabah and 12 December 1949 for Sarawak.
3. Judicial decisions (case law) – decisions of the higher courts bind the lower courts. A decision of the Federal Court binds every court below it.
4. Islamic law (Hukum Syarak) – applies to Muslims in matters listed in the State List, such as marriage, divorce and offences against the precepts of Islam. It is made into law by each state and administered by the Syariah courts.
5. Native and customary law (adat) – in Sabah and Sarawak, native customary law governs many matters for native communities and is applied by Native Courts. Malay adat (for example, adat perpatih in Negeri Sembilan) can also be relevant in some land and family matters.

Parliament and the State Assemblies

Parliament consists of the Yang di-Pertuan Agong, the Dewan Negara (Senate) and the Dewan Rakyat (House of Representatives). A Bill normally goes through three readings in the Dewan Rakyat, then the Dewan Negara, and becomes law when it receives the Royal Assent and is published in the Gazette. Many Acts only come into force on a date later fixed by the Minister, so a law that has been "passed" may not yet be in force.

Each State Legislative Assembly passes Enactments on State List matters. Islamic law in each state is therefore made by that state – which is why rules on, for example, Syariah offences or marriage procedure can differ from state to state.

An independent judiciary

Judicial power is given to the courts by Article 121 of the Constitution. Judges of the superior courts (Federal Court, Court of Appeal and High Courts) are appointed by the Yang di-Pertuan Agong on the advice of the Prime Minister after consulting the Conference of Rulers, with the Judicial Appointments Commission involved in the selection process. Once appointed, their tenure is protected by the Constitution: they can only be removed through the special tribunal procedure in Article 125, which helps keep them independent of the government of the day.

The courts interpret laws, decide disputes between people, between people and the government, and between federal and state authorities, and can declare laws or government actions invalid. See Courts and their powers.

Where to read the law yourself

• Laws of Malaysia (LOM) – the Attorney General's Chambers publishes official updated texts of the Constitution, Acts and many subsidiary laws free of charge at lom.agc.gov.my. Check the "as at" date and look for later amendments.
• Federal Gazette – new laws, commencement orders and subsidiary legislation are published in the Gazette (also on the LOM portal).
• State laws – Islamic family and Syariah laws are published by each state; many are available through state religious authority or state legal adviser websites.
• Court decisions – selected judgments are published on the judiciary website (kehakiman.gov.my); full law reports are usually in paid databases or law libraries.

Reading the law is a good start, but applying it to your situation often needs a lawyer. See Getting legal help.

Laws cited on this page

Listed automatically from the federal Acts named on this page. All laws of Malaysia →

Sources

• Federal Constitution (Laws of Malaysia portal, AGC)
• Civil Law Act 1956, s 3 (text reproduced by Low & Partners)
• Malaysian Bar – Article 121(1A): what does it really mean
• Judiciary of Malaysia (kehakiman.gov.my)

Related

Courts and their powersSyariah courtsGlossary of legal termsOfficial resources directoryGetting legal help