ATGB 1313 INTRODUCTION TO LAW

3.0 History of Malaysia Law

Under Oxford English dictionary, Legal defined as connected with the law. To the layman,
law is understood as being a general rule of conduct. In the Oxford English Dictionary, law is defined
as the body of enacted or customary rules recognized by a community as binding. Sir John Salmond
defines law as the body of principles recognized and applied by the State in administration of justice.
In other words, law consists of the rules recognized on by courts of justice.
Malaysian legal history has been determined by events spanning a period of some six hundred
years. Of these, three major periods were largely responsible for shaping the current Malaysian
system. The first was the founding of the Melaka Sultanate at the beginning of the 15th century;
second was the spread of Islam in the indigenous culture; and finally, and perhaps the most significant
in modern Malaysia, was British colonial rule which brought with it constitutional government and
the common law system.
During the realm of the Sultanate, Melacca was an important trading port and the
maintenance of law and order was crucial to its prosperity. The administration of justice was placed
under the direct charge of the bendahara (or chief minister) who exercised both political and judicial
functions. The temenggung (which is the commander of troops and police) was responsible for
apprehending criminals, maintaining prisons and generally keeping the peace. The welfare of
foreigners residing in the state was looked after by several Shah Bandars (habour masters and
collectors of customs).
Little is known of the legal system in those days but it is generally accepted that the law
administered then was a combination of Islamic Law and the "AdatTemenggung" (patriarchal Malay
customary law). The "AdatTemengung" was the law of the Sultan or the law ordained by the rulers
and later adopted in the other regions of Peninsular Malaysia. It was the basis of the law as found in
Malay legal digests compiled.

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Islamic Law
Islamic law is derived from the interpretation of the Koran. Its primary objective is social
justice, but also includes property rights, economic decision making, and types of economic freedom.
Islamic law is mostly found in Pakistan, Iran, and other Islamic states.
Before the arrival ofwesterncolonialists, Islamiccriminal lawhas taken place
inMalaysiaandhas been thecountry'sbasic law. HukumKanunManu has a great influenceonthe Malay
statesunder the rule ofthe empireandinthe neighboringstates such asof Johor,Kedah, Pahang, Perak
andBrunei. These stateshave beenmakingthe HukumKanun Manu as the basis
oftheirdomesticlaw.Generally, Islamiccriminal lawhas beenwidelyundertakenbeforearrival
ofcolonialistsMalaya.
When theBritishcameandcolonizedMalaya, theyhave donea significant changein the
legislation.Provisions of theCharter of JusticeI (1807), CharterII(1826), civil lawenforcement(1837),
and the laws ofthenewMalayain 1956has givenalot ofpowerto the British tochange
thelawandeliminatelocalandreplace it with aBritish law. Situations thathas been implementedby the
Britishgavea huge impact onIslamic law, particularly againstIslamiccriminal law.
Islamic law is not a legal system, like the Korean or Indonesian legal system, but a legal
tradition, like the common or civil law tradition. A legal tradition is a set of related beliefs, attitudes,
and practices regarding the necessary components of a legal system, including the scope and purposes
of the law, the manner in which law is created or discovered, the identity and function of legal actors,
and the manner in which law is learned, implemented, developed and adapted. Like the common law
and civil law traditions, Islamic law influences to vary degrees and in different ways many of the
worlds domestic legal.
The fundamental premises of Islamic law are God has revealed his will for human kind in the
Koran and the inspired example of the NabiMohammeds.a.w. , and that undang-undangawam must
obey to God's revealed will. The belief in the Koran as God's word and that law should be based on
God's command gives unity to the Islamic legal tradition. Within Islamic law, there is considerable
diversity of opinion over the interpretation of God's revelation and the role of human reason, custom,
and other factors in the development of specific rules and institutions.
The scope of Islamic law is broader than the common law or civil law. Other than core legal
doctrines covering the family, mistake, procedure, and commercial transactions, Islamic law also
includes detailed rules regulating religious ritual and social etiquette. References to the application or
proposed application of "Islamic law" or "Syariah often refer narrowly to state enforcement of these
social rather than more strictly legal doctrines.

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The law of inheritance is specified with greater detail in the original sources of Islamic law
than most other subjects. For that reason, the doctrines developed in the early years of Islam have
been more resistant to evolution and change than some other doctrinal areas.
Islamic law has traditionally required that the bulk of the deceaseds estate be distributed to
the deceaseds relatives according to predetermined rules. The received doctrine regarding entitlement
to inherit and the size of ones share reflect the social world in which the law originated and
developed on the Arabian Peninsula. But these rules, which favor male relatives and male lines of
descent, are felt to be at odds with cultural practices among many Southeast Asian groups, which
accord more equal treatment to male and female blood lines.
Syariah Law
Law based on the al-Quran and the sunnah of Nabi Muhammad s.a.w..
Although this law could not be carried out completely because they are still bound by
costomary law, but there are some changes can be seen.For example, in handling criminal cases such
as stealing, murdering, marital affairs, commerce and distribution of estate. Malay Melacca
government have ordinary legislation and its own punishment based on the Syariah Law and
Customary Law. Syariah Law is enshrined in Rules and Regulation of Malacca which is enacted by
Sultan MuzzafarSyah. During the reign of Sultan AlausinSyah, this Islamic Law is practiced with firm
in Malacca.
Customary Law
The legal system is very important for the harmony of society. Agreedrules ofbehaviorwas
laterenactedinto law. Thislawis divided intotwo, namely thewritten lawandunwrittenlaw. The
unwrittenlawis also knownas acustom. Customs are important source of unwritten law . Every race
has its own customs. Hindu and Chinese customary law applied to the Hindus and Chinese
respectively. Besides, natives in Sabah and Sarawak have their own customary law which relates to
the land and family matters. In Malaysia, there are two types of Adat which is the AdatPerpatih and
AdatTemenggung. AdatPerpatihis practiced among the Malays Minangkabau in Negeri Sembilan and
Naning in north Malacca. As for AdatTemenggung, it is practiced in other states in Malaya.
InAdatPerpatih, consultationforms the basisfor the administrationand troubleshooting.
Theseconsultationswere attendedby representativesof alltribes.InNegeri Sembilan,there are12
tribesandeachtribeis considered asalarge family. Members of eachtribewere not allowedto marry
someonefromthe sametribe. Eachtribehas atraditional leaderwhich is known asthe Board.In terms
ofthe selection ofthe head, the headat all levelsare appointed bytheheadofthe lower level.
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AnakbuahchooseBuapak, Buapakelect a Lembaga, the

LembagaelectUndang,andUndangchooseYamtuanorYang DipertuanBesar.
AdatPerpatihwas founded byDatukNanSebatang who isderivedfromPagarRuyung,
Sumatera.It uses the matrilineal system which belongs to mother's lineage, it means it involves the
inheritance of property, names or titles from mother to daughters. It also concerns with matters such
as land tenure, lineage and inheritance.
AdatTemenggung uses the parilineal system, which belongs to father lineage, or father
lineage has more priority or to be more concerned fromthe mother lineage. Inthe division ofthe estate,
the sonpriority is more thanthe daughter, whichcoincideswiththeIslamicLaw of Inheritancelaw. On the
question ofmarriagewasan individualis free toget marriedwith a partnerof his choice(including
cousins)provided thatthe resolutiondoes not against theIslamiclaw.
AdatTemenggung was founded by DatukKetumanggungan who ruled the Palembang,
Sumatra. At first, custom was influenced by the teachings of Hinduism. Then this custom adapted to
by the Shafi'i school of Islamic teachings.
Written lawwasaregulationorlegalina societysuch as HukumKanun Melaka, undangundanglaut, and so on.Beforethe advent of Islam, the Malaysholdonlegislationthatestablishedin
theHindu-Buddhist traditions whichadapted tolocal customs. Legalaspectsin theHindutraditions
whichadhered to the HukumKanun Manuwhich clearlydifferentiate the types ofpunishment based
ononeclass. The arrival of Islamhas changedthissituation. Islamiclawsbegan tobe the basis ofthe
lawenforced.Alocalscholar, Professor AhmadIbrahim, has saidthattheMalay statesexisted beforethe
influence ofthe British government, the basic laworstate lawisIslamiclawandMalaycustom.
The presence of Islamhas expanded itswritten lawas shownthroughundang-undangLaut,
HukumKanun Melaka, undang-undang Pahang,undang-undang Kedah,undang-undang
Perakandundang-undang Johor. Alltheselegislation scripturebecome
changertojourneyruleandgovernment administration.HukumKanun Melakadefines the responsibilityof
the king and official dignities, taboos amongmembers of the community, punishmentofcriminal
offenses, familylaw, religiousissues, andthe types ofpunishment forcertain offenses.
Due to theMalay governmentbeingveryactivelyinvolvedinmaritimeactivitiesandtrade, thus,
there arespecial rulesrelatedas shownin theundang-undangLautandundang-undangPelabuhanin the
stateof Kedah. In fact,the effectsof the Islamic power are displayedthroughthe clausesinthelaw. Laws
ofMalacca, explainsthat a captain ofa shipactsas a priest.

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This written law makes people lifes be more arranged because all their actions, responsibility,
and punishment of offenses established. However, in practice, the law is is not included king or sultan
from any action. This represents the king or sultan's position as the highest authority in the
government.
Undang-Undang Pahangwas enactedduring the reign ofSultan AbdulGhalfurMuhyuddinwho
ruledbetweentahun1592-1614.
Undang-Undang Kedahhas fourparts, namelyportlaw, militarylaw, dated 1667, Rules and regulation
Dato'Star Law, and the Lawin 1784.
Undang-Undang Perakalsoknownas Law 99which brough byan ArabnamedSayyidHusainalFuradzon17thmanners.
Undang-Undang Johor dated1789 andis based on theLaw of the Maritimeandthe Rules and
Regulations of Malacca Law.
HukumKanun Melaka
HukumKanun Melakahas been implementedsince the days ofthe Malacca Sultanate.
Malaccarulerswere giventhe title ofKhalifatulMukmininmeaningfaithfulbelieversleaders.
KhalifatulMukminwordalsorecordedon the currencycoinsinthe Malacca Sultanate, Johor, Pahang,
Kedah,Terengganu, Kelantan. In addition,the title ofZillulahfil'Alammeans shadowof God inthis
world is alsousedbythe rulersof Malacca.
One of the Islamic law which contain in HukumKanun Melaka is Criminal Law. Criminal
Law is categorised in 3 parts.
Qisaslawstated thatanyone whotakesother people's livesis punishable bydeath.Muslims
whokillnon-believers are not considered as qisas. Anyone who hurts othermemberswill also
bepunished by the samewayaccordingly. This actis similar toSurah alMaidahverse45.HukumDiatClause17 in HukumKanun Melakastates thatif someone killsintentionally,
they willbe only be fined by Diat if they are forgiven by their heir.This is similar withthe Shafiee
sect.Hudud lawsare related tooffensessuch as adultery,Qazaf, Stealing, drinking
alcoholandapostasy.For example,those who commitadulterywillbe stonedto deathforthose who
aremarriedandflogged100 timesforthose whoare not married.This is similarto surahanNurverse2and
theHadith. For those who commitQazaf will beflogged 80lashes. Drinking alcohol is punishable by 40
strokes. In HukumTa'zir, those who did mistake and did not charged by hudud and qisas such as
stealing not enough nisab will be imposed tazir. For examples, they will be asked to return the stolen
goods or hangedin the village as a lesson for the villagers.

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The first Criminal Law is Muamalah Law. It isrelated to thesale and purchase,interest, rent,
borrowing and lendingare set outin clause30of the HukumKanun Melaka, family Law. It isrelated to
themarriage, divorce, distinction ofsaints and others. Inthiscaseeverything isalmost the
samewithIslamiclaw. The third Criminal Law is Evidenceand Events Law. Thisisrelatedto the
conditions ofthe Sultansuch asmustbeMuslim, just and fair, merciful, generous, and so on.
Herealsoexpressedjudgeprohibited from acceptinggifts.
Diat means that punishment in the form of fines or compensation of property. The penalty
imposed on the murderer who killed accidentally. There are 44 clauses in HukumKanun Melaka and
this law has 46 copies referred to by various names. The Undang-UndangLaut has 24 clauses.

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