NOTES

MALAYSIAN
LEGAL SYSTEM
HISTORY OF LAW
 MALAYSIAN LEGAL SYSTEM

LOCAL LEGAL SYSTEM

History of “Orang Asli”

Paul Wheatley, Impressions of the Malay Peninsula in Ancient Times:
“Lebih kurang 250 000 tahun dahulu, iaitu pada pertengahan Zaman Batu Lama yang sepi,
semasa lapisan ais melitupi sebahagian besar barat laut Eropah dan Amerika Utara, suatu
bentuk manusia telah pun menghuni Semenanjung Tanah Melayu”
Indigenous Groups
Senoi Negrito Melayu Asli
Semi-nomadic people in the Nomadic people who Also known as Proto-
central part of Peninsula confined to the remote Malays which had the most
interior in the north and east advance administration
Leader: a batin
Asistant: jinang or menteri
Leaders of village: penghulu
and penglima
Provisions Concerning Indigenous People
Article 160(2) of Federal Constitution:
“Aborigine” means an aborigine of the Malay Peninsula
Article 161(6) of Federal Constitution:
a) “native” in Sarawak
b) “native” in Sabah
Article 161(7) of Federal Constitution:
- Other races that are indigenous to Sarawak
*note: do refer to Federal Constitution for the full definition of natives
Aboriginal Peoples Act 1954 (Revised 1974):
- this act shall not deem to preclude any aboriginal headman from exercising his authority
in matters of aboriginal custom and belief, in any aboriginal community or any aboriginal
ethnic group
Malay Customary Law
Adat Perpatih Adat Temenggung
Founded by Datuk Perpatih Nan Sebatang Founded by Datuk Ketemenggungan
(Sultan Balun)
Negeri Sembilan All states except Negeri Sembilan
 MALAYSIAN LEGAL SYSTEM

Matrilineal Patrilineal
Democratic Autocratic
[Anak Buah – Buapak – Lembaga – Undang [Menteri – Temenggong – Bendahari –
– Yamtuan Besar] Sultan]
Can also be found in Undang-undang Johor,
Undang-undang Kedah, Undang-undang
Pahang dan Undang 99 Perak
*Note: Adat Temenggung and Adat Perpatih will be explained further on the topic of customary law �
 MALAYSIAN LEGAL SYSTEM

MALACCA

History of Malacca Sultanate

1400 ➢ Malacca was inhabited by Orang Asli and Orang Laut at the time it was
founded by Parameswara
➢ Presumably, Malay adat law incorporating Hindu-Buddhist elements was
originally applied
➢ Islam has been widely introduced to South East Asia region after the
Islamisation of Malacca due to the conversion of Parameswara (Sultan
Iskandar Shah)
➢ Islamic law was increasingly applied alongside with Malay customary law
when Islam became the state religion of Malacca
1500 ➢ Malacca Sultanate had an administrative structure that was to be the model
of later Malay States
❖ Sultan – Khalifah (Islam), representative of God (Allah)
i) Sultan will be selected by senior officials and not through succession
of throne
ii) Status of the Sultan was reinforced by the concept of daulat-derhaka
iii) Function of the Sultan was to fulfil the sacred and the spiritual
❖ Bendahara – Combined the offices of the modern prime minister, chief
justice and commander-in-chief of the army
❖ Temenggung – Chief of police and chief magistrate
❖ Laksamana – Admiral of the fleet (maritime matters)
❖ Syahbandar – Control the market and warehouses and in charge of the
safety and security of the international traders
➢ Two legal digests can be found during Malacca Sultanate:
Hukum Kanun Melaka Undang-undang Laut Melaka
Consist of 44 chapters Consist of 25 chapters
Jurisdiction over matters pertaining Jurisdiction related to maritime
to the land and its people matters
Covered a wide range of Rules and obligations of ship’s crew,
constitutional, criminal and civil and laws pertaining to voyages and
matters trades
 MALAYSIAN LEGAL SYSTEM

➢ Both digests were mainly based on patriarchal law of Adat Temenggung

which contains some Hindu-Buddha elements and Islamic law belonging
to the Shafii tribe
➢ Later versions of these digests showed a mixture of Malay adat and
Islamic laws
➢ The elements in these two digests have been followed by other Malay
states:
i) Laws of Johore 1789
ii) Laws of Kedah 1605
iii) Laws of Pahang 1595
iv) 99 Laws of Perak 1878
Portuguese Administration
1511-1641 ➢ Malacca was occupied by Portuguese after a sustained bombardment
under the command of Alfonso de Alburquerque
➢ Establishment of military and civil administration
i) Governed by a Governor or Captain of Fortress – will be assisted by
Secretary of state in civil matters
ii) Ovidor (chief justice) – Sentences passed by ovidor were subject to
governor’s confirmation
iii) Viador (mayor)
iv) Bishop
➢ Formed Corpus de Cidade – a body which managed all matters concerning
the walled city of Melaka and exercised civil and criminal jurisdictions
over all Portuguese inhabitants
➢ Didn’t exert their influence as their interest was in trade not political power
➢ Beyond city walls (Malay administration was retained):
i) Headmen (kapitan) – Maintain law and order under supervision of
bendahara
ii) Malay bendahara – Exercise civil and criminal jurisdiction
iii) Malay temenggung – Responsible for rural districts
iv) Shahbandar – In charge of all non-Portuguese traders
Dutch Administration
 MALAYSIAN LEGAL SYSTEM

1641-1824 ➢ Dutch occupied Malacca after 8 months siege and fierce battle against
Portuguese with the help of Sultan Johor
➢ Governed by a governor – assisted by a council (collector, fiscal, mayor,
upper merchant and secretary)
➢ A Politie Raad (Police Council) – formed the executive
➢ Raad van Justitie – administered justice
➢ Regulations were issued by the government in Holland, Batavia (Java) and
local executive
➢ Groot Pakkatboek
➢ European people were governed by the Dutch laws
➢ Dutch was interested in Malacca for its commercial value and trade
➢ Never attempted to extend their political authority beyond city of Melaka
and the adjoining district of Naning
Case concerning Malay custom of land tenure in Melaka:
Sahrip v Mitchell & Anor
- “Portuguese while they held Malacca and after them the Dutch, left the Malay custom or
lex non scripta in force. That it was in force when this Settlement was cede to the Crown
appears to be beyond dispute and that the cession left the law unaltered is equally plain on
general principles.”
British Administration
1795-1818 ➢ British occupied Malacca in 1795 but had to return it to the Dutch in 1818
➢ British didn’t pay much attention on the reorganisation of Malacca’s
administration as they knew it would be temporary
1824 ➢ Malacca was retroceded to British by Dutch through Anglo-Dutch Treaty
in 1824
➢ Dutch was given Benkulen island in Sumatera by British as an exchange
for Malacca
➢ British has planned to establish a regular administration of law in Malacca
after expanding their political power in other Malay States
 MALAYSIAN LEGAL SYSTEM

STRAIT SETTLEMENTS:

PENANG
1786 History: Ceded or settled?
- Francis Light came to Penang R v Willians
- 12 August: Occupation was made - “Francis Light and his marines didn’t come
under the name of King George III to Penang as colonisers but as garrison to take
for the use of English India East possession of a ceded territory. Therefore, the
Company law of England could hardly become lex loci;
- Based on the agreement between it could only become the personal law of the
Sultan Kedah and EIC garrison members. At the same time, the
- Francis Light reported that Recorder also held that the law of Kedah
Penang was uninhabited island couldn’t apply to Penang as the island was
- Capten Kydd: “When it was first without inhabitants to claim the right of being
taken possession of by the governed by existing laws’ there were no
Government there were a few tribunals on the island to enforce such laws”
Malay families who subsisted by
Fatimah v Logan
fishing and extracting of wood, oil
- A Muslim died in Penang, leaving behind
and who lived near the point where
him a will thus the issue arose was what law
the Fort stands but have removed
must be applied to determine the validity of
to another part of the Island”
the will (AG for the plaintiff claimed Muslim
law must be applied)
- The court held that since lex loxi of Penang
is English law, then validity of the will must
be determined in accordance with English law

however, this controversy had ended

Ong Cheng Neo v Yeap Cheah Neo & Ors

- “It is immaterial whether Penang was
regarded as a ceded or settled territory because
there was no trace of laws having been
established there before it was acquired by the
East India Company. In either view law of
England must be taken to be the law of the
 MALAYSIAN LEGAL SYSTEM

land in so far as it is applicable to the

circumstances of the place and modified in its
application by these circumstances”
1807 First Charter of Justice (COJ) Kamoo v Thomas Turner Bassett
- Establishment of Court of - The COJ applied retrospectively to civil
Judicature injuries which had been sustained and crimes
- To exercise the jurisdiction of the which had been committed before the Charter
superior courts in England (“as far came into force
as circumstances will admit”) - The object of the Charter was to protect
- Appointed a Recorder native inhabitants from oppression and
- Introduce English law injustice

R v Willians
- “For the first 20 years it was founded, there
was no known body of law recognised as the
law of the place. The first COJ 1807 has
introduced the law of England in Penang”
SINGAPORE
1819 - Stamford Raffles was an agent for EIC
- Raffles appointed Major Farquhar as the first Resident of EIC in charge
1823 - Stamford Raffles had concluded a Memorandum with Sultan and Temenggung
which was intended to lay down general rules in the interest of Singapore and to
define the rights of all parties
- Raffles appointed 12 magistrates who were to try minor civil and criminal cases
under general supervision of Resident
- The administration of justice was based on English law
1824 - Singapore was ceded to EIC by the Sultan and Temenggung under the Treat of
Friendship and Alliance 1824
MALACCA
1824 - Malacca was retroceded to British by Dutch through Anglo-Dutch Treaty 1824
- British had planned to establish an administration of law in Malacca
STRAIT SETTLEMENTS
1826 Second Charter of Justice (COJ) In the Goods of Abdullah
 MALAYSIAN LEGAL SYSTEM

- Malacca, Singapore, and Penang - “The law of England introduced into the
were incorporated into the Strait Strait Settlement by Second COJ 1826 had
Settlements superseded the previous law. Any local
- Court of Judicature for Penang, inhabitants of the Settlements who wish to
Malacca and Singapore leave their property by will in accordance with
- Effected second statutory their personal laws must expressly indicate the
reception of English law for intention their will is to be construed by their
Penang but it was the first for personal law otherwise in the absence of such
Malacca and Singapore declaration, English law shall apply”
- Religious and customary rules
Leong & Anor v Lim Beng Chye
were recognised only if deemed
- Whether the interests of one Sally Leong and
not inconsistent with the common
her daughter had been forfeited by a provision
law
in the will of the testator requiring widow not
- Only one Recorder who was
to marry
assisted by lay justices and seldom
- The court held that English law relating to
visited Malacca and Singapore as
wills was applicable in Penang
the former based on Penang
Roydk v Williamson
- Through 1826 Charter, English law had been
introduced into Malacca and abrogated Dutch
law previously existing

Issac Penhas v Tan Soo Eng

- Whether a marriage celebrated in Singapore
between Jew and non-Christian Chinese in a
modified form constituted a valid marriage
according to the laws of Singapore
- The court held that, applying the common
law of England, the marriage was valid

Choa Choon Neoh v Spottiswoode

- A Chinese domiciled in Singapore, died
leaving behind him a will in which he devised
certain properties for the purpose of
 MALAYSIAN LEGAL SYSTEM

performing certain religious ceremonies

known as “Sin Chew”
- The court held that the despite the acceptance
of its religious nature according to Chinese
custom, for the purpose of the law in England,
which applied to the “colony” of Singapore,
the devise was invalid as it didn’t have a
“charitable” object
1855 Third Charter of Justice (COJ)
- Reorganise the Court of Judicature
- The court split into 2 divisions: One for Penang and another one for Malacca and
Singapore, each with its own Recorder and Registrar
 MALAYSIAN LEGAL SYSTEM

FEDERATED MALAY STATES

Informal Reception: Shaik Abdul Latif and others v Shaik Elias
- 1874-1895: State Rulers of Perak, Negeri Bux
Sembilan, Selangor and Pahang entered into - “Before the first treaties the population of
treaties which had agreed to accept a British these states consisted almost solely of
Resident whose advice had to be asked for Mohammedan Malays with large industrial
and acted upon on all matters other than and mining Chinese in their midst. The only
Islam and adat law at that time applicable to Malays was
- Resident System was introduce whereby Mohammedan modified by local customs”
the Resident was the chief executive in the
Yong Joo Lin v. Fung Poi Fong
state
- “Principles of English Law have for so
- 1895: Perak, Negeri Sembilan, Selangor
many years been accepted in the Federated
and Pahang formed the FMS
Malay States where no other provision has
----------------------------------------------------
been made by Statute. Section 2(1) of the
Formal Reception:
Civil Law Enactment, therefore, merely gave
- 1937: FMS were the first to accept English
statutory reception to a practice which the
law by passing the Civil Law Enactment
courts had previously followed”
1937
- The 1937 Enactment did not really effect Government of Perak v. Adams
any great change to the de facto situation but - in dealing with cases of tort, the court has
merely gave statutory endorsement to the always turned for guidance as to fundamental
courts to do what they had already been principles to English decisions
doing long before the passing of the Mohamed Gunny v Veeran Kutty
legislation (refer: Yong Joo Lin’s case) - although there’s no code of civil wrongs has
- Introduced English common law and equity ever been passed the courts in this country
into the Federated Malay States, subject to have always followed the law of England
such qualifications as local circumstances
Pahang Consolidated Company Ltd v The
render necessary (refer: Section 2(1))
State of Pahang
- Privy Council held that the suit against the
respondent couldn’t be maintained because
Pahang was one of the FMS sovereigns
 MALAYSIAN LEGAL SYSTEM

Motor Emporium v Arumugam

- The courts of FMS have on many occasions
acted on equitable principles not because
English rules of equity apply but because
such rules happen to conform to the
principles of natural justice
UNFEDERATED MALAY STATES
Informal Reception: Duff Development Company Ltd v
- 1909-1923: Kedah, Perlis, Kelantan, Johor Government of Kelantan & Anor
& Terengganu came under British protection - Kelantan is a sovereign State and is
by separate treaties with Rulers of the states therefore entitled to immunity from
- Similar to FMS, appointment of British execution of its property unless there has
Advisors in each of the Unfederated Malay been a waiver. An arbitrator is not a court and
States therefore by appearing before an arbitrator
- Enjoyed greater autonomy the State cannot be deemed to have submitted
- The Rulers of these states were not itself to the jurisdiction of the court
obligated to follow the advice of British
Advisor, but they would usually follow
----------------------------------------------------
Formal Reception:
- 1951: Civil Law Enactment 1937 of FMS
was extended to the UMS by Civil Law
(Extension) Ordinance 1951
- Both statutes were later repealed and
replaced by Civil Law Ordinance 1956
which applied to the whole Federation
including Malacca and Penang
 MALAYSIAN LEGAL SYSTEM

ADDITIONAL NOTES:

Cases where local circumstances were Cases where local circumstances were
disregarded recognised
- In the Goods of Abdullah - Sahrip v Mitchell and Endain
- Leong & Anor v Lim Beng Chye - Chulas v Kolson
- Fatimah v Logan - The Six Widows’ Case
- Choa Choon Neoh v Spottiswoode - Cheang Thye Pin v Tan Ah Loy
- Issac Penhas v Tan Soo Eng - Khoo Hooi Leong v Khoo Chong Yeok
- Ong Cheng Neoh v Yeap Cheah Neo - Ramah v Laton
- Roydk v Williamson
- Mohamed Gunny v Veeran Kutty
- Government of Perak v Adams
SOURCES OF LAW
 MALAYSIAN LEGAL SYSTEM

ENGLISH LAW

Civil Law Act 1956

General Application of English law
Section 3(1) CLA 1956 “No, statute of general application doesn’t
a) West Malaysia: common law and rules of applicable in West Malaysia”
equity (7/4/1956) Mokhtar v Arumugam
b) Sabah: common law, rules of equity and - whether the damages in the nature of
statutes of general application (1/12/1951) interest for delay in returning specific
c) Sarawak: common law, rules of equity and goods could be awarded in Malaysia held
statutes of general application (12/12/1949) that such remedy, being ‘a creature of
------------------------------------------------------ English statutes, is not available here’
Issue: Does statute of general application
Pushpah a/p MSS Rajoo v Malaysian Co-
applicable in West Malaysia?
operative Insurance Society Ltd & Anor
a) Professor Bartholomew:
- plaintiff’s application to sought after
- By looking Section 3(1) CLO 1956 as a
English statutes in dealing with her
whole, English statutes are applicable in WM
deceased husband’s life insurance policy
contradicts with
was dismissed as Section 3(1)(a) only
b) Joseph Chia:
allows the application of common law and
- Cannot be applicable in WM by looking at
rules of equity but not the statutes of
the subsections mentioned in the CLA 1956
general application
(supported by lots of judicial opinion)
Qualifications in applying English law under Section 3(1)
a) Absence of local legislation Attorney General, Malaysia v Manjeet Singh Dhillon
- to fill lacunae in the local law - in the absence of any specific local legislation,
English common law principle of contempt of court is
applicable in Malaysia by virtue of Section 3(1)
b) Cut off dates Lee Kee Choong v Empat Nombor Ekor Sdn Bhd & Ors
- will not be applicable after cut off - courts are restricted to adopt English Common Law
dates (persuasive) that came into force at the cut-off date, and any further
development in England after the cut-off date is not
binding

Leong Bee & Co v Ling Nam Rubber Works

 MALAYSIAN LEGAL SYSTEM

- a presumption – that a fire which began in a man’s

property arose from some act/default for which he was
answerable – has no application in Malaysia as having
been displaced by English statutes, such presumption
was no longer part of common law on 7 April 1956

Jamil bin Harun v. Yang Kamsiah & Anor

- “Their Lordships do not doubt that it is for the Courts
of Malaysia to decide, subject always to the statute law
of the Federation, whether to follow English case law.
Modern English authorities may be persuasive, but
are not binding”
c) Local circumstances Choa Choon Neoh v Spottiswoode
- English law would only be - the court held that despite the acceptance of its
applied if it is permitted by local religious nature according to Chinese custom, for the
circumstances and inhabitants purpose of the law in England which applied to the
“colony” of Singapore, the devise didn’t have a
“charitable” object, thus it’s void
- “law is subject, in its application to the various alien
races established here, to such modifications as are
necessary to prevent it from operating unjustly and
oppressively on them”

Syarikat Batu Sinar v UMBC Finance

- The practice in West Malaysia combined with local
statutory provisions in regard to the registration of
ownership claims would constitute such a distinctive
local circumstance of the inhabitants of West Malaysia
that the decisions in English cases on the point of
failure to have an ownership claim registered should
not be followed
Specific Application of English Law
Section 5 CLA 1956 Seng Djit Hin v Nagurdas Purshotumdas
 MALAYSIAN LEGAL SYSTEM

1) in States of West Malaysia other - since the issue with regard to the law of sale is an issue
than Malacca and Penang of mercantile law, the pleaded statues are applicable as
2) Malacca, Penang, Sabah and the law to be administrated was not ‘mercantile law’,
Sarawak but ‘the law’ which is to be the same as the law would
*both regarding commercial be administrated in English court in the like case (facts
matter; generally mercantile law of the case: respondent claimed damages for short
delivery of sugar)

Shaik Sahied Abdullah Bajerai v Sockalingam Chettiar

- since the saving clauses in the pleaded statue
explicitly excludes the borrowing of money in the
course of commercial transaction, it forms no part of
mercantile law and therefore issue raised under the
statue is not an issue within the ambit of mercantile law
Section 6 CLA 1956 United Malayan Banking Corp. Bhd. v Pemungut Hasil
- the application of English Law is Tanah Kota Tinggi
restricted in matters regarding - National Land Code is already a complete and
tenure and conveyance of comprehensive code to regulate the tenure of land in
immovable property Malaysia (Torrens System) thus, there is no room for
- the main reason behind the the importation of English law, except in so far as the
inclusion of Section 6 for the first Code itself may expressly allow it
time in CLA was to prevent any
Templeton v Low Yat Holdings Sdn. Bhd.
further importation of English
- under Section 206(3) NLC, nothing in the statutory
Land Law
requirements of registration of dealing ‘shall affect the
contractual operation of any transaction relating to
alienated land or any interest therein’
- the rule of equity can still be applied in contractual
issue of land (when there’s an absence of any provision
prohibiting application of general equitable principles)
*suggestion: do refer to the full case for further explanation and understanding 😊
 MALAYSIAN LEGAL SYSTEM

FEDERAL CONSTITUTION

Definition (Constitution):
Single written document having special legal status which establishes the state and sets
out the structure and powers of the state
 183 Articles spread over 15 Parts and 13 Schedules
 Starts from the name of the country until proceedings against YDPA and Rulers
in Part 15 Article 183
Features of Federal Constitution
i) Ah Thian v Government of Malaysia
- “doctrine of Parliament’s supremacy doesn’t apply in
Article 4(1) Malaysia as here we have written constitution” (FC supreme
[supremacy of law] law of the land)
ii) Mamat bin Daud v Government of Malaysia
- - whether Section 298A of Penal Code ultra vires with
Federal Constitution
i) Che Omar Che Soh v PP
- Although Islam is the religion of the country, but the
supreme law of the land is the Constitution (the accused
Article 3(1), Article 11 claimed that his death sentence violated Article 3(1))
[position of Islam] ii) Meor Atiqulrahman bin Ishak v Sihi
- prohibit students wearing turban to school do not
contravene Article 11(1) of FC as it was a part of the School
Regulations 1997
iii) Lina Joy v Majlis Agama Wilayah Persekutuan
- JPN had the right to require a declaration of apostacy from
Syariah Court before word ‘Islam’ can be removed from her
IC
i) Sukma Darmawan v Ketua Pengarah Penjara
- expressions “unlawfully detained” and “detention”
Article 5-13 employed Article 5(2) don’t apply to the case of person held
[fundamental liberties] in a prison in execution of a sentence passed by court of a
competent jurisdiction
 MALAYSIAN LEGAL SYSTEM

ii) Teoh Eng Huat v The Khadi of Pair Mas, Kelantan &
Anor
- no infant shall have the automatic right to receive
instruction relating to any religion other than his/her own
without his/her parents’ consent
Definition of Malay: Article 160 FC
Article 153 Definition Natives: Article 161A FC
[special privileges of i) Admission quotas to tertiary education at universities or
Natives Sabah colleges after taking Malaysian Certificate Education or its
Sarawak] equivalent
ii) Scholarships, educational and training privileges
iii) Positions in federal public service

Modes of Constitutional Amendment

Article 159(3) Most provisions of the constitution can be
amended by a Bill that’s supported by not
Amendments requiring two- less than two-thirds of the total number of
thirds majority members of each House on its 2nd and 3rd
readings. 148/222 of HoR and 47/70 of
HoS must vote for the Bill.
Article 159(4) Can be amended if supported by a simple
majority of members present and voting in
Amendments requiring a each House. For instance: Article 45(4)
simple majority provides the composition of Senate and the
rules concerning admission and retirement
of its member.
Article 159 (5) This method concerns about sensitive
Amendments requiring the issues. For instance: the special position
consent of Conference and privileges of Malay and Native Sabah
Rulers & Sarawak, precedence of Rulers and
Governors, etc.
 MALAYSIAN LEGAL SYSTEM

Article 161E Amendments requiring Amendments affecting special safeguards

consent of YDPN of Sabah that concerns about the entry and residence
and Sarawak in state, national language and special
treatment of natives in both states.

Branches of Government
Executive Legislative Judiciary
Execute the laws made by Enacted new laws, amend Interpret the laws but also
legislative body existing laws, repeal or involve in law-making
abolish old/inconsistent laws process (judicial precedent)
YDPA, Prime Minister, YDPA, House of Senate, Superior Court, Subordinate
Cabinet, Public Services House of Representative Court
Refer: Article 39-43 Refer: Article 44-48 Refer: Article 121-131A
(YDPA as executive (appointment of legislative (appointment of judge and its
authority, appointment body & etc), function, involvement of
PM, powers conferred by Article 63 (privileges of YDPA & Parliament,
YDPA, etc) Parliament), constitution of courts, etc)
Article 66-68 (Parliament’s
power as a law-making body)
Mark Koding v PP PP v Anwar Ibrahim
- a member of Parliament was - the manner of the judge
charged and found guilty for when handling the trial was
uttering seditious words in being criticised as it appears
Parliament (limitation of to be one-sided
parliament’s right of speech
under Article 63(4) FC
 MALAYSIAN LEGAL SYSTEM

STATE CONSTITUTION

- Every state has its own State Constitution (13 State Constitution) which is part of the written
law in Malaysia
- Contains provision enumerated in 8th Schedule
- Some provisions include matters concerning the Ruler, land matters and Islamic law
- State law cannot be inconsistent with Government State of Penang & Anor v
federal law Government of Malaysia & Anor
Article 75 Federal Constitution - Enactment 17 which was legislated by the
If any State law is inconsistent with a federal State Government is ultra vires Article 75 of
law, the federal law shall prevail and the Federal Constitution as it is inconsistent with
State law shall, to the extent of the Section 10 and 15 of the Local Government
inconsistency, be void Act 1976 which is a Federal Law
 MALAYSIAN LEGAL SYSTEM

LEGISLATION

Definition:
- Law that is enacted by a legislative body
Article 44 of Federal Constitution:
Constitution of Parliament
The legislative authority of the Federation shall be vested in a Parliament, which shall consist
of the Yang di-Pertuan Agong and two Majlis (Houses of Parliament) to be known as the
Dewan Negara (Senate) and the Dewan Rakyat (House of Representatives)
- Laws that enacted by Parliament after 1946 but before Merdeka Day 1957 are called as
Ordinances but after 1957, are called as Acts
- Laws made by State Legislative Assemblies are called as Enactments but in Sarawak, called
as Ordinances
 Article 150 0f Federal Constitution:
Proclamation of Emergency
- basically, any laws made under this article ONLY will be called as Ordinance
Laws that are legislated by Parliament at Federal level and by various State Assemblies at
state level
 Article 73 of Federal Constitution:
Extent of federal and State laws
In exercising the legislative powers conferred on it by this Constitution—
(a) Parliament may make laws for the whole or any part of the Federation and
laws having effect outside as well as within the Federation;
(b) the Legislature of a State may make laws for the whole or any part of that
State
Article 75 of Federal Constitution: Government State of Penang &
Inconsistencies between federal and State laws Anor v Government of Malaysia
If any State law is inconsistent with a federal law, the & Anor
federal law shall prevail and the State law shall, to the - Enactment 17 which was
extent of the inconsistency, be void legislated by the State
- Meaning that, any provisions that are inconsistent with Government is ultra vires Article
Federal law will be void but only that kind of provisions 75 of Federal Constitution as it is
and not the whole Act inconsistent with ss.10 and 15 of

1
 MALAYSIAN LEGAL SYSTEM

the Local Government Act 1976

which is a Federal Law
Article 74 of Federal Constitution: Mamat bin Daud v Government
Subject matter of federal and State laws of Malaysia
- whether Section 298A of the
PC and CPC were ultra vires
with the FC being in excess of
the legislative power of the
Parliament

Federal List Concurrent List State List

(LIST I) (LIST II) (LIST III)
Parliament Parliament & State State legislature
legislature
e.g. armed forces, criminal, e.g. scholarships, protection e.g. Islamic law relating to
police investigation, civil of wild animals, culture and succession, testate and
and criminal law procedure, sports, Town and Country intestate, betrothal,
citizenship, finance, etc Planning, etc marriage, divorce, dower,
maintenance, adoption; State
Holidays Malay reservations
land, land tenure, etc
NOTE:
 State Legislature cannot legislate any laws stated under List I or else it is said to
be ultra vires (beyond the power)
 Refer: Sukma Darmawan Sasmitaat Madja v Public Prosecutor
- “habeus corpus”

Types of Bill:

Public Bill Public matters such as taxation, public order or national defence which
will be introduced by relevant Minister
Private Bill Deals with matter of local or private concern and usually will be
introduced by private person, not necessarily members of Parliament

2
 MALAYSIAN LEGAL SYSTEM

Hybrid Bill Bill of public matters that also adversely affect private bodies or
persons which will be introduced by members of Parliament

Legislative Process in Malaysia:

Pre-Parliamentary Stage
1) Proposal 2) Consultation 3) Drafting
- May come from various - Along series of discussion - Proposal will be sent to
sources follow within and between Parliamentary draftsperson
Eg: Election manifesto of the relevant government in AG’s chamber to be put
winning political party, authorities, experts and into legal language and form
policy decision, etc interested parties - Proposal will then become
a Bill
Parliamentary Stage
First Reading  Short tittle will be read
 Mere formality
Second Reading  Will only start once Bill is printed and distributed
 Long tittle and outline of the principle of Bill will be
read
 Debate
 Vote
Committee Stage  House will resolve into a committee
 Bill will be discussed in more detail and amend if
necessary
 Report will be submitted to the House and once
accepted, House resumes sitting
Third Reading  Bill will be read and review with amendment
 No debate is allowed
 Vote
Other House  Bill will be passed to other House and same process
will happen
 Any disagreement between two Houses will be
resolved by Joint Committee of Both Houses
Royal Assent  Article 66(4) FC:
The YDPA shall within thirty days after a Bill is
presented to him assent to the Bill by causing the
Public Seal to be affixed thereto
 Article 66(4A) FC:
If a Bill is not assented to by the YDPA within the
time specified in Clause (4), it shall become law at

3
 MALAYSIAN LEGAL SYSTEM

the expiration of the time specified in that Clause in

the like manner as if he had assented thereto
[NOTE: although YDPA didn’t give his assent, after
30 days, the Bill will still become law]
 Article 66(5) FC:
A Bill shall become law on being assented to by the
YDPA or as provided in Clause (4A), but no law shall
come into force until it has been published, without
prejudice, however, to the power of Parliament to
postpone the operation of any law or to make laws
with retrospective effect

Gazette  No law shall come into force until it has been

(Warta Kerajaan) published
 However, Parliament has a power to postpone the
operation of any law
 Article 67 Federal Constitution:
Restriction on introduction of Bills and moving of amendments involving
taxation, expenditure, etc

One of the examples of Act that didn’t get Royal Assent but became law after 30 days by virtue
of Article 66(4A) FC:

Akta Majlis Keselamatan Negara 2016

Refer case: Datuk Seri Anwar Ibrahim v Government of Malaysia

4
 MALAYSIAN LEGAL SYSTEM

SUBSIDIARY LEGISLATION

Definition:
Legislation that is made by persons or bodies under powers conferred on them by Acts of
Parliament or Enactments of State Assemblies
Section 3 of Interpretation Act 1948 and 1967: S Kulasingam v Commisioner of Land,
“subsidiary legislation” means any proclamation, Federal Territory
rule, regulation, order, notification, by-law or “without subordinate legislation,
other instrument made under any Act, Enactment, government machinery will not be able
Ordinance or other lawful authority and having to function properly”
legislative effect
- Any subsidiary legislation that is inconsistent with parent Act or Federal Constitution shall
be void
- Examples: Company Regulations 1966, Private Healthcare Facilities and Services (Private
Mdecial Clinics or Private Dental Clinics) Regulations 2006, etc

a) Can be easily repealed if it is outdated or impractical without

having to go through the process in parliament
Reasons for Subsidiary b) Flexible in circumstances which demand flexibility especially
Legislation in emergency situations
c) Parliament only discuss the broad principles in particular law
and leave the details to be filled by delegated authorities

Modes of Control
Judicial Control - Court shall have the power to review the legality of subsidiary
legislation and to declare it void if it’s ultra vires
- Technically, it has taken some of the legislative body’s power to
make law, but it must be made under control
- Can be void under doctrine of ultra vires:
a) Substantive: Had made law beyond the limit of power
conferred in terms of subject matter
b) Procedural: Failed to follow the procedure laid down in the
enabling statute

5
 MALAYSIAN LEGAL SYSTEM

Legislative Control - Parliament may repeal, revoke or vary subsidiary legislation

- Parent Act may require the subsidiary legislation to be laid
before the legislature for confirmation
Consultation - No general statutory provision making prior consultation a
formal requirement of making subsidiary legislation
- Authority (e.g.: Minister) will consult other organised interest
groups or advisory bodies
Publication - No general statutory provision regarding the publication of
subsidiary legislation
- Must be published in 2 parts of Gazette:
 Tambahan Perundangan A
(Proclamation, rules, regulations, orders and by-laws)
 Tambahan Perundangan B
(all other subsidiary legislation)
Section 19(1) of Interpretation Act 1948 and 1967:
The commencement of an Act or subsidiary legislation shall be
the date provided in or under the Act or subsidiary legislation or,
where no date is so provided, the date immediately following the
date of its publication in pursuance of section 18
- Must be gazetted first otherwise it is invalid
Other modes of control:
a) Put time frame
b) Establishment of AJK in Parliament to review subsidiary legislation

6
 MALAYSIAN LEGAL SYSTEM

STATUTORY INTERPRETATION:

Literal Rule - Words in the statute must be given in their plain, ordinary and
literal meaning
- The objective of the court is to discover the intention of the
Parliament as expressed in the words used
- Easy to interpret from the words used
- Refer case: Koon Fatt Kiew v PP [1935] MLJ 239
Mischief Rule - This rule is applied in order to find out what the parliament
actually meant
- When it is difficult to interpret the statute, in order to avoid
from any wrong interpretations, the court will look at the
intention of the Parliament during the making of the law
- Refer: Heydon’s Case [1584]
- Lim Moh Joo v PP [1970] 2 MLJ 113
Golden Rule - Extension of literal rule
- Court will look thoroughly into the statutes (secara
menyeluruh) in order to make accurate and precise
interpretations
- To achieve the objective of the statues as a whole
- Refer: Ray v Pierson
Purposive Approach - What is the aim or objective of the statutes
- Section 17A of Interpretation Act 1948 and 1967:
Regard to be had to the purpose of Act
In the interpretation of a provision of an Act, a construction that
would promote the purpose or object underlying the Act
(whether that purpose or object is expressly stated in the Act or
not) shall be preferred to a construction that would not promote
that purpose or object
- Preamble in Child Act 2001 or any acts that have preamble
(mukaddimah)
Unified Contextual - Judges first consider the ordinary meaning of the words in the
Approach general context of the statute, a broad view being taken of what

7
 MALAYSIAN LEGAL SYSTEM

constitutes the context and then moves on to consider other

possibilities if the ordinary meaning leads to an absurd result
- If it leads to detrimental event, then court can make other
interpretation approach
- Refer: Stock v Frank Jones [1978] 1 WLR 231
Kaedah Dalaman Refer: - Syarikat Perniagaan United Ace Sdn Bhd’s case
- Johnson v PP [1977]
Kaedah Luaran Refer: Chor Phaik Har v Farlim Properties Sdn Bhd [1994]
3 MLJ 345
*you may refer to slides (LIA1001: Statutory Interpretation) for further explanation especially on the law cases

8
 MALAYSIAN LEGAL SYSTEM

ISLAMIC LAW

“Syariah” is the sacred law of Islam (revealed through Prophet Muhammad SAW and God’s
command that regulates the lives of Muslims in all aspects)
Islamic law: legal rules that are part of Syariah and enacted as legislation in accordance with
procedures prescribed in Federal Constitution and State Constitution
Primary Sources Secondary Sources
Al-Quran: the word of Allah ie orders and Ijma: consensus of juris of any particular era
guidance for Muslims on a juridical rule
As- Sunnah: rules deduced from traditions ie Qiyas: deduction from reasoning by ijtihad
sayings and conducts of Prophet Muhammad or analogy
SAW

Provisions in Federal Constitution relating to Islamic matters

Article 3(1) FC Che Omar Che Soh v PP
Islam is the religion of the Federation; but other - not much reliance can be placed on
religions may be practised in peace and harmony in the wording of Article 3 FC to sustain
any part of the Federation the submission of the death sentence
must be read together with for the offence of drug trafficking will
Article 4(1) of FC be void as being unconstitutional
This Constitution is the supreme law of the - “Islamic religion” or “Islam” in its
Federation and any law passed after Merdeka Day context means only such acts as relate
which is inconsistent with this Constitution shall, to ceremonies and rituals
to the extent of the inconsistency, be void
----------------------------------------------------------- Teoh Eng Huat v The Kadhi Of Pasir
Tunku Abdul Rahman, 1 May 1958: Mas, Kelantan & Anor
I would like to make it clear that this country is not - a minor’s conversion to other
an Islamic State as is generally understood, we religions e.g. Islam should be null and
merely provide that Islam shall be the official of the void if it’s made without his/her
State. parents’ consent unless if he/she had
attained the age of majority
Article 160 FC Ramah v Laton:
 MALAYSIAN LEGAL SYSTEM

“law” includes written law, the common law in so “Islamic law is not ‘foreign law’, but
far as it is in operation in the Federation or any part on the contrary, it is the law of land
thereof, and any custom or usage having the force which ought to be recognized by the
of law in the Federation or any part thereof court”
*although Syariah law wasn’t stated but it is still applicable
especially in dealing with Islamic matters and governing the
right of Muslims (depends on the case-to-case basis)
------------------------------------------------------------------------- -----------------------------------------------------
“Malay” means a person who professes the Lina Joy v Majlis Agama Islam
religion of Islam, habitually speaks the Malay Wilayah Persekutuan & Anor
language, conforms to Malay custom and – - the plaintiff was by definition a
(a) was before Merdeka Day born in the Federation “Malay” and, therefore, could not
or in Singapore or born of parents one of whom was renounce her Islamic religion at all
born in the Federation or in Singapore, or is on that - this court’s decision was based purely
day domiciled in the Federation or in Singapore; or on the interpretation of “Malay” under
(b) is the issue of such a person Article 160 of the Constitution and
didn’t touch the plaintiff’s decision to
leave the Islamic faith as this was a
matter that was left to the Syariah
Court to deal with
Article 121(1A) FC: Before amendment:
The courts referred to in Clause (1) shall have no Myriam v Mohamed Ariff
jurisdiction in respect of any matter within the - the appellant (mother) succeeded in
jurisdiction of the Syariah courts claiming child custody under civil
----------------------------------------------------------- proceeding although she had
Objective of amending this provision: consented to give the custody to the ex-
- To avoid any conflicts between Syariah and Civil husband in Syariah court as the
Courts in exercising their powers especially when Guardianship of Infants Act 1961
the issue already fell under the Syariah jurisdiction prevailed to settle the matter regarding
welfare of children

Nafsiah v Abdul Majid

- Section 4 of Courts of Judicature Act
1964 gives the right to civil courts to
 MALAYSIAN LEGAL SYSTEM

try any cases involving Muslims if

there’s any inconsistency in the said
Act (in this case: Administration of
Muslim Law Enactment 1959)
---------------------------------------------
After amendment:
Mohamed Habibullah bin Mahmood v.
Faridah binti Dato Talib
- the intention of Parliament by Article
121(1A) is to take away jurisdiction of
HC in respect of any matter within the
jurisdiction of Syariah Court
- once the parties have submitted
themselves to Syariah jurisdiction and
once Syariah court had taken
cognizance of the matrimonial cause
on the defendant’s misconduct, it’s an
abuse of process for the plaintiff to go
to HC and complained about same act

Lina Joy v Majlis Agama Islam

Wilayah Persekutuan & Anor
- on the issue of her right to apostate
and her current status ie a Muslim or
not, the matter falls under the
jurisdiction of the Syariah Court

Indira Gandhi a/p Mutho v Pengarah

Jabatan Agama Islam Perak & Ors
- the conversion of the children from
Hindu to Muslim was not declared in
the accordance of law
 MALAYSIAN LEGAL SYSTEM

Sukma Darmawan Sasmitaat Madja v

Ketua Pengarah Penjara, Malaysia &
Anor
- Article 121(1A) doesn’t remove the
jurisdiction of the Sessions Court over
a Muslim for any offence in respect of
which jurisdiction has not been
specifically conferred upon the
Syariah Court
- since jurisdiction over the offences
created by Section 377A and 377D of
the Penal Code has not being conferred
upon the Syariah Court by federal law,
the Sessions Court retains its
jurisdiction over these offences even if
they were committed by a Muslim
(matters regarding “liwat” and habeus
corpus)
Ninth Schedule Latifah Mat Zin v Rosmawati
- Refer: List II (State List) - whether there was a gift inter vivos or
---------------------------------------------------------- not, that question shall be determined
Article 74(2) FC in accordance with the Islamic law of
Without prejudice to any power to make laws gift inter vivos or ‘hibah’
conferred on it by any other Article, the Legislature - can be seen in Item 1 of State List
of a State may make laws with respect to any of the which specifically provides that
matters enumerated in the State List (that is to ‘Islamic law…of persons professing
say, the Second List set out in the Ninth Schedule) the religion of Islam, including….
or the Concurrent List gifts…’

Administration of Islamic law

- Islamic law is a state matter (except in Federal Territories of Kuala Lumpur, Labuan and
Putrajaya where it’s a federal matter)
- Every state has its own Constitution but substantially similar
 MALAYSIAN LEGAL SYSTEM

Majlis Agama Islam The Mufti Syariah courts

Responsible for all matters Responsible for the Responsible for the
concerning the Islamic determination of Islamic law administration of justice
religion except Islamic law
and the administration of
justice

RJ Wilkinson, Paper on Malay Subjects, First Series

Law part 1, 49:
“There can be no doubt that Moslem Law would have
ended becoming the law of Malaya had not British Law
stepped in to check it”
What law will be used if British Shaik Abdul Latif and others v Shaik Elias Bux
had never come? - “Before the first treaties the population of these states
consisted almost solely of Mohammedan Malays with
large industrial and mining Chinese in their midst. The
only law at that time applicable to Malays was
Mohammedan modified by local customs”
Mohamed Gunny v Veeran Kutty
- although there’s no code of civil wrongs has ever been
passed the courts in this country have always followed
Did British intervene the the law of England
development of Islamic law? Government of Perak v. Adams
- in dealing with cases of tort, the court has always
turned for guidance as to fundamental principles to
English decisions
 MALAYSIAN LEGAL SYSTEM

CUSTOMARY LAW

Definition of Customary Law

 “…a regular pattern of social behaviour which has been accepted by the bulk of a given
society as binding upon its members, because such behaviour has been found to be
beneficial not only as means of encouraging inter-personal relations among them, but also
being beneficial for maintaining a cohesive society for their individual and collective
betterment” (Lakshman Marasinghe, 1998)

 Article 160 of Federal Constitution

“Law” includes …., and any custom or usage having the force of law in the Federation
or any part thereof

 Customary laws are customs which have legal consequences and their breach invokes
legal sanctions
Characteristics of Valid Custom
Criteria for judicial recognition in Sarawak: Sagong bin Tasi & Ors v Kerajaan
- Reasonableness Negeri Selangor & Ors
- Generality - In principle, oral histories of the
- Antiquity aboriginal societies relating to their
- Consistency with morality practices, customs and traditions and
- Not contrary to public policy on their relationship with land should
be admitted subject to the confines of
Issue: What are the valid criteria to establish the
the Evidence Act 1950, in particular
recognition and proof of customary law?
Section 32(d) and (e)
- Proof of custom depends on the evidence of oral
- Hearsay rule shouldn’t be
history from time immemorial
admissible, but exceptions have been
- Any statement to that effect must be made by a
made under Section 32 EA
competent person who would’ve been likely to be
aware of the existence of the correct customs Maani v Mohamed
-------------------------------------------------------------- - “the Collector should rehear this
Why this issue occurred? case and consider the personal law of
- Different tribes/groups have different customs the deceased and any local custom
- Usually through oral statement not written forming part thereof”
- Some customs are not systematic
 MALAYSIAN LEGAL SYSTEM

- in the matter of inheritance,

customary law should have been
taken into account
Recognition of Customary Law
Charters of Justice:
Ong Cheng Neo v Yeap Cheah Neo
- “law of England must be taken to be the governing law so far as it’s applicable to the
circumstances of the place and modified in its application by these circumstances”
Section 3(1) Civil Law Act 1956:
- …… common law, rules of equity and statutes of general application shall be applied so
far only as the circumstances of the States of Malaysia and their respective inhabitants permit
and subject to such qualifications as local circumstances render necessary
Customary law:
a) Aboriginal Peoples Act 1954
b) Law Reform (Marriage and Divorce) Act 1976
West Malaysia
1) MALAY CUSTOMARY LAW In Shaik Abdul Latiff & Ors v Shaik
Article 160 of Federal Constitution: Elias Bux:
“Malay” means a person who professes the religion - “The only law at that time
of Islam, habitually speaks the Malay language, applicable to Malays was
conforms to Malay custom and …… Mohammedan Law modified by
local customs. In Selangor, Perak and
Type of Malay customs:
Pahang amongst Mussalmans
a) Adat Temenggung
succession on death was regulated by
b) Adat Perpatih
unmodified Mohammedan Law’ in
parts of Negeri Sembilan there are
special local customs based on
matriarchy”
Adat Perpatih: Election:
- From Minangkabau by Datuk Perpatih Nan Pinang Dato’ Menteri Othman Baginda v
Sebatang (Sultan Balun) Dato’ Ombi Syed Alwi
- Matriarchal customary law - Respondent claimed that the
- Mainly applicable at Negeri Sembilan appointment by the first appellant of
 MALAYSIAN LEGAL SYSTEM

Election: the second appellant as new Undang

[Anak Buah – Buapak – Lembaga – Undang – of Jelebu was contrary to the adat and
Yamtuan Besar] custom and Constitution of the luak
of Jelebu
Criminal jurisdiction:
- Dewan Keadilan dan Undang is
- Aim (restitution and compensation > punishment
given power under the Constitution
and revenge of on offender)
to advise on matters relating to Malay
- Circumstantial evidence is enough to sentence the
custom
accused (evidence that tends to prove a fact by
proving other events or circumstances) Munah Binti Haji Badar v Isam Binti
Mohamed Syed & Anor
Inheritance and division of property:
- In Naning custom, if Pesaka land of
i) Ancestral Property (Harta Pusaka)
a suku is registered in the name of
- inherited by daughter
some person not of the tribe there
ii) Accompanied Property (Harta Pembawa)
remains a right vested in the tribe to
- property before marriage
redeem the land.
iii) Jointly Acquired Property (Harta Sepencarian/
--------------------------------------------
Carian Laki Bini)
Inheritance:
- property acquired by joint effort of the
Hasmah bt Omar v Abdul Jalil
husband and wife during covertures
- Divorced wife claimed half of the
- this property will be divided equally between the
share of her husband’s land and
husband and wife upon the dissolution of
certain property according to Adat
marriage
Perpatih under harta sepencarian
- The two pieces of land were
purchased out of money saved by the
defendant during the marriage and
the plaintiff is entitled to her share in
them as harta charian laki bini
Adat Temenggung: Inheritence:
- Established by Datuk Ketemenggungan Boto bin Taha v Jaafar bin Muhamed
- Patrilineal customary law - The share of one-third is awarded to
- Applicable in all states except Negeri Sembilan the plaintiff because the evidence
- Can be found in legal digests: Undang-undang shows that she was helping the
Johor, Hukum Kanun Melaka etc
 MALAYSIAN LEGAL SYSTEM

plaintiff's business indirectly as a

Organisation:
partner in his business trips
[Menteri – Temenggong – Bendahari – Sultan]
- It is due to this joint effort or joint
Criminal jurisdiction: labour that a divorced spouse is
- Retaliation (qisas) – “eye for an eye” entitled to a share in the property
- Followed the Hindu concept of punishment based (harta sepencarian)
on the status of person in society
- Relied on circumstantial evidence
Current Legislation (for certain matters in Malay custom:
Islamic Family Law (Federal Territories) Act 1984:
- The legislation relating to Islamic Family Law in Malaysia has recognised harta
sepencarian as a matter of Islamic law although it was originally based on Malay custom
- Division of matrimonial property has been provided under Section 58 of this Act
2) CHINESE CUSTOMARY LAW Marriage:
Re Ding Do Ca, DECD
Before amendment of LRA 1976:
- In regard to the persons of the
- Matrimonial property wasn’t recognised under
Chinese race the courts have given
Chinese custom (wife wouldn’t be entitled for any
judicial recognition to certain
shares in the said property)
customs which have been imputed to
- However, they can still rely on the provision stated
such persons and under such
under Married Women Ordinance for any disputes
customs, Chinese can contract a
regarding the distribution of property
polygamous marriage
- Polygamous marriage was recognised before LRA
1976 was amended Dorothy Yee Yeng Nam v Lee Fah
Koo
- A Chinese domiciled in Perak can
validly enter into a monogamous
form of marriage
3) HINDU CUSTOMARY LAW Property:
Before amendment of LRA 1976: Pootoo v Valee Uta Taven & Anor
- Matter regarding division of matrimonial property - The court had referred to Hindu
was the same as Chinese custom and the wife’s right custom whereby a wife’s property,
can be found under Married Women Ordinance real and personal is considered as her
separate property unless in a stress
 MALAYSIAN LEGAL SYSTEM

- However, there is some cases where court had circumstances in which the husband
referred to common law as well as equitable has the right to take possession and to
principle when dealing with question of gift deal with it as his own
- Polygamous marriage was allowed
Nagapushani v Nesaranam & Anor
- Since both husband and wife
contribution weren’t ascertained thus
the court held that it would be
equitable then to divide the property
equally to them

Marriage:
Paramesuari v Ayadurai
- The court found as a fact that the
parties were parties to a binding
marriage contract which was
monogamous in its nature
- As there was proof of respondent's
subsequent marriage to another
woman it was held that the petitioner
was entitled to a decree of dissolution
of her marriage

After amendment of Law Reform (Marriage and Divorce) Act 1976:

Marriage:
- Introduced a uniform law on marriage, divorce, and ancillary matters for all non-Muslims
in West Malaysia
- Polygamous marriage wasn’t allowed during the continuance of the existing marriage
otherwise he/she is said to commit an offence of bigamy
- All marriages must be registered
Division of matrimonial property:
Refer: Section 76 LRA 1976
- Upon divorce or dissolution of marriage, the acquired property will be divided according
to the contribution of both parties on the said property i.e. the court will consider:
 MALAYSIAN LEGAL SYSTEM

i) contribution on the welfare of the family

ii) contribution on the said property
----------------------------------------------------------------------------------------------------------
This Act doesn’t applicable to natives Sabah and Sarawak, and Orang Ali of Peninsular
Malaysia whose marriage are governed by native customary law unless if they choose to
marry under this Act
East Malaysia
Article 160 of Federal Constitution:
“Aborigine” means an aborigine of the Malay Peninsula
Article 152(2) of Federal Constitution:
- Special privileges of Malays and natives of any Sabah and Sarawak
Aboriginal Peoples Act 1954: Adong bin Kuwau v Kerajaan Negeri
- Statutory right was given to Orang Asli or Johor & Anor
aborigines of Peninsular Malaysia to dwell in land - Although the land wasn’t declared
areas designated for their exclusive use as an aboriginal area/reserve, the area
- When any such land is alienated or leased, the state was their ancestral land upon which
authority is liable to pay compensation for any the plaintiffs depended on their
fruit/rubber trees claimed by Orang Asli livelihood
- This Act doesn’t give them title to the land, but a - Common law recognised a form of
usufructuary right of use according to their native title which is based on their
traditional way of life continuation, unbroken occupation,
and enjoyment of their right to land
from time immemorial
1) MALAY CUSTOMARY LAW: Sarawak:
a) Sarawak S.M. Mahadar v Chee
- A mixture of Malay adat and Islamic law - The provision of section 36 of the
- Under the administration of the Islamic Council of Malay Undang-Undang provided
Sarawak and the Syariah Courts that a pregnant woman’s oath that a
-------------------------------------------------------------- particular man was the father of her
b) Sabah child could not be questioned. This
- Through Administration of Muslim Law provision was in direct conflict with
Enactment Sabah 1977 and the establishment of the bastardy laws of England. The
Court of the Judicial Commissioner
 MALAYSIAN LEGAL SYSTEM

Majlis Ugama Islam Negeri Sabah, Malay custom felt itself bound to recognize the rule
was no longer governed under Native Court of the Malay Customary law

Sheripah Unei v Mas Poeti

- Child adoption under adat was
recognised although it was contrary
to Islamic law, as it was considered
as ‘customary among Malays in
Sarawak’ long before the Adoption
Ordinance of 1941

Abang Haji Zaini v Abang Haji

Abdul Rahman
- Applying Muslim Wills Ordinance
1896, a Muslim was allowed to
dispose of his property by will
according to his own wishes and not
regulated by Islamic law, which
allows only one-third disposal of
one-third of his property by will
-------------------------------------------
Sabah:
Matusin bin Simbi v Kawang binti
Abdullah
- Islamic law was applied as ‘racial
law’ of a Malay who originated from
Brunei, but had resided with Bajau
community in Sabah for 40 years
- Court held that the deceased
remained unaltered by change of
domicile
2) NATIVE CUSTOMARY LAW:
a) Sarawak Natives
Article 161A(6)(a) of Federal Constitution:
 MALAYSIAN LEGAL SYSTEM

In this Article “native” means—

In relation to Sarawak, a person who is a citizen and either belongs to one of the races
specified in Clause (7) as indigenous to the State or is of mixed blood deriving exclusively
from those races

Article 161A(7) of Federal Constitution:

The races to be treated for the purposes of the definition of “native” in Clause (6) as
indigenous to Sarawak are the Bukitans, Bisayahs, Dusuns, Sea Dayaks, Land Dayaks,
Kadayans, Kalabits, Kayans, Kenyahs (including Sabups and Sipengs), Kajangs (including
Sekapans, Kejamans, Lahanans, Punans, Tanjongs and Kanowits), Lugats, Lisums, Malays,
Melanos, Muruts, Penans, Sians, Tagals, Tabuns and Ukits
-------------------------------------------------------------------------------------------------------------
Administrative Codes:
- In the early years of Brooke Administration in Sarawak, some of these unwritten laws were
modified and codified under Native Customary Law Ordinance 1955
- A number of native law texts were dealt with as administrative codes including:
 The Sea Dayak (Iban) Codes of Fines (Tusun Tunggu)
- was first codified in Third Division and later extended to Fourth and Fifth Division
 The Orang Ulu Customary Codes of Fines (Belaga Sub-District) Order
 The Orang Ulu Customary Codes of Fines (Fourth Division) Order

Native Customary Land Tenure:

- Torrens Systems of land law in Sarawak only recognises registered titles to land but Land
Code 1958 has provisions recognising native customary rights to land
- Under Land Code 1958, natives may hold land under the following:
 Mixed Zone Land
- may be held by any citizen without restriction
 Native Area Land
- may be held only by a native
 Interior Area Land
- no title may be registered but native customary rights may be established over
specific areas, subject to the issue of permits
 MALAYSIAN LEGAL SYSTEM

- Native customary land refers to land to which there’s no documentary title but is recognised
by common law as land on which natives have a right to live as their ancestors had done for
generations
Refer: Section 5 of Land Code 1958
 Section 5(1)
- states about cut-off date (1 January 1958) which means that customary rights
may only be created or acquired other than by way of transfer, gift or occupation
before or on the said date and may be lost through non-use or abandonment
- Injing v Tuah & Anor: An owner was deemd to have abandoned temuda
(cultivated land) by emigration to another district
 Section 5(2)
- describes the methods in which native customary rights can be created
- Keteng bin Haji Li v Tua Kampong Suhaili: “a person can be said to own land
only if Land Office Title subsisting in respect of that land but if there’s no such
title the land is crown land; the occupier is at best a mere licensee and he has no
legal interest which he can either charge or transfer”

b) Sabah Natives
Article 161A(6)(b) of Federal Constitution:
In this Article “native” means—
In relation to Sabah, a person who is a citizen, is the child or grandchild of a person of a race
indigenous to Sabah, and was born (whether on or after Malaysia Day or not) either in Sabah
or to a father domiciled in Sabah at the time of the birth

Section 2 Interpretation (Definition of Native) Ordinance 1952:

a) any person both of whose parents are or were members of indigenous people to Sabah
b) any person ordinarily resident in Sabah and being and living as a member of native
community, one at least of whose parents or ancestors is or was a native…
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Administrative Codes:
Woolley’s Code (first administrative codes in Sabah but later reprinted in 1953 and 1962 as
Native Affair Bulletin No.1-7)
- E.g.: Native Affairs Bulletin No.1, Adat Timogun (1936), Native Affairs Bulletin No.2,
Adat Tuaran (1936), Native Affairs Bulletin No.3, Adat Murut and etc
 MALAYSIAN LEGAL SYSTEM

- Adat is defined in these Bulletins as a set of prescriptions, a breach which involves penalties
mostly expressed in monetary terms
- The Bulletins vary in terms of their coverage but in general content they deal with common
set of subjects (inheritance, marriage, divorce and compensation)

Customary Laws in Legislation:

Land Ordinance 1930
- Section 15 of the Ordinance provides the native customary rights to land
- Section 65 provides customary tenure of land (lawful possession of land by natives either
by continuous occupation or cultivation for 3 or more consecutive years)
- Refer: Naung Felix Sitom v PP

Native Rice Cultivation Ordinance

- Under Section 3, Minister may declare any land held under native title to be Native Rice
Land
- Once it is classified as Native Rice Land, the owner has the obligation to grow rice at least
once a year on the land, if fail then the owner will be subjected to a fine

Native Estates (Administration of Native and Small Estates) Ordinance 1953

- concerned about matter of distribution of an estate of any deceased native

Sarawak Court Sabah Court

Based on the Native Courts Ordinance 1992: Native Court of Appeal
Native Court of Appeal Appellate Jurisdiction:
Appellate Jurisdiction: - empowers to dismiss an appeal, set aside or
- has the same powers and standing as HC vary an order, reduce/increase sentence or
- only cases involving land disputes and fine, summon witnesses to give evidence etc
native status will be brought to this court
District Native Court
Revisionary Jurisdiction: Appellate Jurisdiction:
- may exercise its power of revision if it - appeals are made from native Court (right
appears that an error has been committed in matters of native law and custom alone)
which is material to the case or miscarriage Revisionary Jurisdiction:
of justice had occurred - any Native Courts’ proceedings which are
Section 25 of Native Courts Ordinance 1992: considered to be improper, it may quash or
 MALAYSIAN LEGAL SYSTEM

- all matters are to be decided at first instance vary the decision or direct a rehearing of the
of appeal, according to substantial justice case
without undue regard to technicalities or
Native Court
procedural integrities
Original Jurisdiction:
Resident’s Native Court - covers cases arising from breach of native
Original Jurisdiction: law where all parties are natives e.g. in
Section 20 of the Ordinance provides special respect of religious, matrimonial, marriage,
original jurisdiction to hear and determine: divorce etc
-------------------------------------------------------------------------------------------------------------------------------
- whether non-native has become identified
Supervision by High Court:
with particular native community
- There’s no right of appeal from District
- whether non-native who is subject to a
Native Court to High Court
particular system of personal law has become
- However, HC can still exercise control over
subject to a different personal law
Native Courts if there’s lack of jurisdiction
- whether non-native who is subject to
or blatant failure to perform statutory duty or
personal law of particular native community
breach of natural justice
has ceased to be so subject
In Haji Laungan Tarki v Mahkamah Anak
Appellate Jurisdiction: Negeri Penampang
- appeals can be made from District native - Supreme Court ruled that an application for
Court in matters concerning land disputes or an order of certiorari to quash a conviction
native status (has same power as Native of imprisonment by Native Court was
Court of Appeal in those matters) tenable in HC

Revisionary Jurisdiction:
- exercise its power of revision if any finding
of the Native Court is improper, a fair trial
couldn’t be held in any Native Court or some
question of unusual difficulty arise

District Native Court

Original Jurisdiction:
- hear matters under codified adat
- e.g.: Adat Iban Order 1993 (matters on
bigamy and offences of causing disruption of
fire in a longhouse)
 MALAYSIAN LEGAL SYSTEM

Appellate Jurisdiction:
- appeals from lower courts concerning
disputes involving land where no title is
issued by Land Office

Supervisory Jurisdiction:
- it may either on application of interested
parties or of its own motion, investigate any
case heard by an inferior court and exercise
such powers which might have been
exercised had there been an appeal

Chief’s Superior Court

Original Jurisdiction:
- Chief’s Superior Court and other lower
courts are referred as Native Courts
- Section 5(1) of the Ordinance, Native
courts have jurisdiction over matters
concerning breach of native law and custom,
civil matter which doesn’t exceed RM2000
and criminal case of a minor nature in the
codified customary law (Dayak)

Appellate Jurisdiction:
- decision of this court in respect of all
matters under Section 5 (except for land
disputes) is final and conclusive

Supervisory Jurisdiction:
- any cases in Chief’s Court or Headman’s
Court can be referred by this court under
Section 5(6) of the Ordinance

Chief’s Court
Original Jurisdiction:
 MALAYSIAN LEGAL SYSTEM

- exercises its jurisdiction in the area where

the land is situated but shall be heard at the
first instance before this court (issue: no title
issued by Land Office)

Appellate Jurisdiction:
- appeals from Headman’s Court

Headman’s Court
Jurisdiction:
- may hear all matters stipulated under
Section 5 except for land disputes where
there is no title to the land
-----------------------------------------------------
Supervision by High Court:
In Ongkong anak Salleh v David Panggau
Sandin & Anor:
- a District Native Court is not a subordinate
court over which the HC may exercise
supervisory powers since their jurisdiction is
separate

Serujie & Hanipah v Sanah: Nor Anak Nyawai v Borneo Pulp Plantation:
- The court had enforced the Melanau-Islam - The plaintiffs claimed that they have
custom of harta pencharian and divided the acquired native customary right over certain
property equally amongst the children of the part of the lands ('the disputed area') and that
deceased the second defendant had trespassed and
Mandi Anak Kerbau v Tima anak Landa: damaged the disputed area
- The question was whether or not the Native - The court acknowledged that native
Court had jurisdiction to determine a matter customary rights were exercised by the
of inheritance plaintiffs and their ancestors in the disputed
- It was held that it did not as inheritance was area.
not one of the topics under the Native Court
Ordinance
 MALAYSIAN LEGAL SYSTEM

3) CHINESE CUSTOMARY LAW Chan Bee Neo v Ee Siok Choo:

- Non-native customary law - Chinese are not indigenous to
- Chinese custom wasn’t recognised as Chinese Sarawak (not natives)
people are not indigenous to Sabah or Sarawak - Chinese customary law of
succession has been long recognised
by Sarawak courts even though they
were not regarded as native to
Sarawak
- Applicable as long as the legislation
recognised them

Chiew Boon Tong v Goh Ai Pei &

Anor
- Chinese customary marriage must
be registered under Sarawak Chinese
Marriage Ordinance to be valid