Malaysian Constitution CaseMalaysia 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.
The Malaysian National Code (Marriage and Family Law) of 2009 and the Malaysian State Code of 2009 provide a broad definition of polygamy. The Marriage and Family Statute guarantees the right of the wife to marry her non-partner with equal rights and duties. This was a central part of the marriage rights bill, especially in Malaysia with the exception of civil unions and traditional marriage that could not proceed as provided within the Malaysian constitution.
The Malaysian Constitution
The Malaysian Constitution (as provided in Article 34 of the Constitution of Malaysia) guarantees the following:
No political subdivision shall have a power or jurisdiction over a person or a body or a body of people:
No person shall have or be elected or elected, including a woman
No person shall be deprived of his or her liberty
No person may be imprisoned or otherwise deprived of his or her liberty
No person may be convicted or convicted in an indictment, suit or writ
No person may be punished:
No person may be deprived of his or her liberty
No person may be subject for judicial, administrative, penal or other administrative proceedings to imprisonment or other civil penalty;
No person may be given an automatic right of inheritance or a power to exercise its hereditary, unassigned right or inheritance and no government may receive or possess any power or property under the Malaysian Constitution. The National Charter of Fundamental Rights (Article 39) and Article 46 of the Malaysian Constitution oblige all persons to the equality of right under the laws and to the equality before the law. The Malaysian Constitution provides for separate legislation regulating family law and guarantees the rights of the spouses and of others if they are found to be in conflict with the national law.
It also guarantees the following:
No man shall be forced to carry on prostitution, drug dealing, robbery or aggravated sexual abuse, or to do any acts which could in any way harm society
No person may be sentenced to death or to imprisonment under the Malaysian Constitution. The Family Law Bill which is made up only of Section 37 of the Malaysia Constitution guarantees the right of the wife to have two children and the right to live a family life which the husband can establish from the family.
In Malaysia, the marriage equality law in the State of Johor was proposed by Parliament in 2007. It envisaged that the couple would be able to marry other people. The bill however failed in its initial stages because of the lack of legal support. The proposal was endorsed by the Legislative Assembly of Malaysia and the Legislative Yuan of Johor with the endorsement of the Legislative Council of the State of Johor. The proposal is referred to the Malaysian Law & Constitution Commission Committee on Marriage, Economic, Social and Labor Relations (CJEDM Committee) that evaluated the proposals taken to pass the marriage equality bill.
The CJSRC Committee on Marriage described the new constitutional law as a bill that provides for the marriage equality of all individuals as set out in the Marriage and Family Bill. The committee considered the amendments making them to Article 38, Section 9 and to Section 10 of the Malaysia Constitution. After this process, there were few amendments, but the amendments made to Article 38 would have provided for equal benefits for citizens, with better protection against discriminatory laws. Section 9 provides that no person may be deprived of his or her liberty, or have his or her property or power taken away according to unlawful and unlawful decisions of the court. The current law, as it stands, is being interpreted by the Court of Appeal as an attempt to stop courts from considering the rights of individuals in their domestic cases.
The Family Law Bill
After the marriage equality bill passed the National Council of Ministers which recommended that this law be taken up by both Houses of Parliament . The Council recommended that some legislation be adopted by the Legislative Council and the President and Chief Secretary to the government, which would provide for the right of the wife to have two children, a right which belongs to the husband and a right
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 courts 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