The Sources of Malaysian Law: Five Streams, One Order of Precedence

A Malaysian court deciding a single family dispute might, in principle, have to reach for four different bodies of law before it even gets to the facts: a constitutional provision, a federal statute, an inherited English equitable rule, and — if the parties are Negeri Sembilan Malays under Adat Perpatih — a custom with the force of law behind it. None of that is a hypothetical edge case. It is the ordinary architecture of the system.

Malaysian law is not one thing. It is five sources, layered rather than merged, and they do not all outrank each other the same way twice.

The short answer

The Federal Constitution sits above everything. Below it, legislation (federal and state), common law and equity, Islamic law, and adat each operate in their own defined lane rather than competing head-on in every case. Where two sources do collide — state law against federal law, or an English common law rule against a Malaysian statute — the Constitution and the legislation that implements it settle the conflict explicitly.

1. The Federal Constitution — supreme, and self-enforcing

Article 4(1) states it directly:

This Constitution is the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void.

That is not a preamble-style aspiration. It is an operative rule: an inconsistent law does not need a court to strike it down in some separate proceeding for the inconsistency to matter — Article 4(1) says the inconsistent part is void to that extent. Every other source discussed below exists, and is valid, only because the Constitution permits it to exist.

Article 160(2), the Constitution’s interpretation clause, is doing quiet but important work here. It defines “law” to include “written law, the common law in so far as it is in operation in the Federation or any part thereof, and any custom or usage having the force of law in the Federation or any part thereof.” In one sentence, it puts legislation, common law and custom on the same constitutional map — while leaving the actual boundaries of each to be worked out by the sources described below.

2. Legislation — split by the Ninth Schedule, ranked by Article 75

Below the Constitution sits legislation: Acts of Parliament and State Enactments, plus the subsidiary legislation (rules, regulations, orders) made under them.

Who may legislate on what is fixed by the Ninth Schedule, which divides subject matter into a Federal List, a State List, and a Concurrent List available to both. Civil and criminal law, procedure and the administration of justice sit in the Federal List — Parliament’s territory, and the reason the Penal Code, the Contracts Act and the Companies Act are all federal Acts. Islamic law and the land- and custom-related matters discussed below sit in the State List instead.

Because two legislatures can, in principle, both touch a subject in the Concurrent List — or a State Enactment can stray into Federal List ground — the Constitution needs a tie-breaker. Article 75 supplies it:

If any State law is inconsistent with a federal law, the federal law shall prevail and the State law shall, to the extent of the inconsistency, be void.

That is the same voiding technique as Article 4(1), one level down: federal legislation cannot override the Constitution, but it does override inconsistent state legislation. For how a Bill actually becomes one of these Acts, see how a Bill becomes law.

3. Common law and equity — imported, then frozen

Malaysia is routinely called a “common law country,” but the label undersells how deliberate the arrangement is. English common law and equity did not simply carry over from the colonial period. They were switched on by a single statute, the Civil Law Act 1956 (Act 67), whose section 3 applies the common law and rules of equity “as administered in England” — but frozen at a specific date, and a different date for each region: 7 April 1956 for Peninsular Malaysia, 1 December 1951 for Sabah, and 12 December 1949 for Sarawak.

That freeze is the key structural fact. English case law decided before the relevant date carries the weight of Malaysian common law; English decisions after it are, at most, persuasive. And common law only operates where it is needed: it fills gaps left by written law, not areas Parliament or a State Legislature has already legislated on. Land law is the clearest carve-out — section 6 of the Act keeps English land law out entirely, leaving land matters to the Torrens-based National Land Code.

The full mechanics — including why the freeze dates differ by region and what the reception clause deliberately excludes — are set out in common law in Malaysia.

4. Islamic law — a State List matter, for Muslims, in its own courts

Islamic law is a source of Malaysian law, but a bounded one. Item 1 of the Ninth Schedule’s State List gives each State the power to legislate on Islamic law and the personal and family law of persons professing the religion of Islam. Two limits are written directly into that item: Syariah courts have jurisdiction “only over persons professing the religion of Islam,” and only “in respect only of any of the matters included in this paragraph.” A separate federal statute, the Syariah Courts (Criminal Jurisdiction) Act 1965 (Act 355), caps how much criminal jurisdiction a State may confer on its Syariah courts at all.

That is why Islamic law runs alongside the rest of Malaysian law rather than sitting inside the same court ladder as it. Civil courts and Syariah courts are two separate systems, each constituted under a different part of the Constitution — the detail is in civil courts and Syariah courts.

5. Adat — custom, only where something gives it the force of law

Adat is the source most often described loosely as “tradition” rather than law. Article 160(2)‘s definition of “law” already answered that: custom or usage counts as law only “in so far as it is in operation” and has been given “the force of law” — meaning adat needs an instrument behind it, the same way common law needed the Civil Law Act.

Two adat traditions are usually distinguished. Adat Perpatih, practised among Malays in Negeri Sembilan (and parts of Malacca), is matrilineal — property and certain leadership positions descend through the female line. Adat Temenggong, patrilineal, describes the customary practice found among Malays in most of the rest of the Peninsula.

The clearest example of adat actually being given legal force sits inside land law. The National Land Code does not simply ignore customary land holding: its section 4 savings clause preserves the operation of “any law for the time being in force relating to customary tenure,” rather than sweeping every existing land arrangement into the Code’s ordinary title system. That is the mechanism that keeps Negeri Sembilan’s customary land holdings under Adat Perpatih legally recognised rather than simply overwritten.

Sabah and Sarawak run a further, separate strand: each state legislates its own native law and custom and its own native court system for its indigenous communities, under State List powers reserved to them specifically. As with the rest of the State List, the detail — what counts as native law, and which native court hears what — is fixed state by state, not nationally.

How the five sources actually rank

Source	What decides its content	Who/what it binds	What can override it
Federal Constitution	The Constitution itself, amended under Article 159	Everyone and everything below	Nothing — Article 4(1) voids anything inconsistent with it
Legislation (federal)	Parliament, within Federal List/Concurrent List powers	Everyone within its scope	Only the Constitution
Legislation (state)	State Legislatures, within State List/Concurrent List powers	Everyone within the state and subject matter	The Constitution, and federal law under Article 75
Common law and equity	Frozen English case law (Civil Law Act 1956, s.3) + Malaysian precedent since	Matters not covered by written law	Any applicable written law
Islamic law	State Islamic law enactments (State List item 1)	Muslims, on the matters listed	The Constitution and the federal ceiling in Act 355
Adat	The specific instrument recognising it (e.g. National Land Code s.4)	Communities and matters that instrument names	The Constitution and any inconsistent written law

Common mistakes

Treating common law as the top of the hierarchy. It is the most visible source in litigation, but it only fills gaps left by written law — and it sits below the Constitution and legislation, not above them.

Assuming Islamic law applies to everyone. It is confined by the State List itself to persons professing the religion of Islam, and only on the matters that list enumerates.

Treating adat as informal custom rather than law. Where an instrument like the National Land Code’s savings clause recognises it, adat has the same “force of law” status Article 160(2) gives to written law and common law — it is simply narrower in scope.

Assuming a State can legislate around a federal Act. Article 75 settles that directly: an inconsistent State law is void to the extent of the inconsistency, full stop.

What’s next

Read the Federal Constitution page for how Article 4 and the rest of the supreme law fit together, common law in Malaysia for the Civil Law Act 1956 in full, and civil courts and Syariah courts for how the Islamic law source is administered. For how legislation itself gets made, see how a Bill becomes law, and for the Torrens system that adat land tenure sits alongside, see the National Land Code.