Unwritten law is simply the portion of Malaysian Law which is not being enacted by Parliament or the State Assemblies and which is not found in the written Federal and State Constitutions. In another words, cases that come from this category of law are decided by the Courts and local customs, which is known as common law. Unwritten law comprises English Law, judicial decisions, and customs.
Laws in Malaysia
Part of the laws in Malaysia is formed by English Law, where it can be founded in English Common Law and rules of equity. However, the application of the law is subjected to two limitations, which is the law is applied only in the absence of local statues on the particular subjects; and only part of the English Law that is suited on local circumstances will be applied. In Section 3 of the Civil Law Act 1956, states that English Common Law and the rules of equity are applicable to courts in Peninsular Malaysia as they stood on 7 April 1956. For Sabah and Sarawak, English Common Law and the rules of equity are applicable to the courts together with statues of general application, as they stood on 1 December 1951 and 12 December 1949. Furthermore the two components of English Law are English Commercial Law and English Land Law. In Section 5 of the Civil Law Act 1956, the principal of English Commercial Law is applicable to Peninsular Malaysia except Penang and Malacca in the absence of local legislation. On the other hand, Section5 states that English Commercial Law at the date on which the matter has to be decided is applicable to Penang, Malacca, Sabah and Sarawak in absence of local legislation. However, there is no reliance on English Commercial Law since there are so many local statues already passed which deal with commercial subjects. For examples, Companies Act 1965 and Partnership Act 1961.
Approaching to judicial decisions, it is based on “doctrine of binding precedent”. Precedent is simply a judgement or decision of a court law cited as an authority for the legal principle embodied in its decision. Precedent may be comprised into three components, which includes res judicata, the final order of the court binding the immediate parties to the decision; ratio decidendi, the reason of the decision; obiter dictum, no binding power, although it can exercise an extremely strong influence in a lower court, and even in a court of equivalent standing, depending on the court and the judge.
Last but not least, customary laws. Customs are related to family law such as marriage, divorce and inheritance, are given legal force by the courts in Malaysia. In Malay term, it is known as “adat”. “Adat” can be divided into two major groups which is adat perpatih and adat termenggong. Adat Perpatih is practiced among the Malays in Negeri Sembilan and Naning in Malacca. Adat Perpatih is effective in matters such as land tenure, lineage and the election of lembaga, undang and the Yang-di Pertuan Besar. It uses the matrilineal system which belongs to mother’s lineage, which involves the inheritance of property , names or titles from mother to daughter. On the other hand, Adat Temenggong is practised by other states. It is originated from Palembang, Sumatra and it uses patrilineal system of law. After the enforcement of the Law Reform (Marriage and Divorce) Act 1976, Hindu and Chinese customary law applied to the Hindus and Chinese respectively.