Common Law
The laws of Malaysia can be divided into two types of laws—written law and unwritten law. Written laws are laws which have been enacted in the constitution or in legislations. Unwritten laws are laws which are not contained in any statutes and can be found in case decisions. This is known as the common law or case law. 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.
The application of English law or common law is specified in the statutes. Section 5 of the Criminal Procedure Code states that English law shall be applied in cases where no specific legislation has been enacted. Similarly, in the context of civil law, Sections 3 and 5 of the Civil Law Act allows for the application of English common law, equity rules, and statutes in Malaysian civil cases where no specific laws have been made. In 2007, the then Chief Justice of Malaysia, Ahmad Fairuz Abdul Halim questioned to need to resort to the English common law despite Malaysia having already been independent for 50 years and proposed to replace it with Islamic law jurisprudence or sharia law. However, the Malaysian Bar Council responded by saying that the common law is part of Malaysian legal system and that there is no basis to replace it. Court appeals to the Privy Council in England have already been abolished in 1985.
The principle of stare decisis also applies in Malaysian law. This means that any decisions by a court higher in the hierarchy will be binding upon the lower courts.
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