Task 1(a): Sources of Malaysian Law

1.1 Meaning of Law

Law may be defined as a body of rules which are enforced by the state. John Austin
in his book “The Province of Jurisprudence Determined” defined law as command
set by a superior being to an inferior being enforced by sanctions or punishment.
Law is used to refer to a particular branch of the law, such as civil law and criminal
law. The Malaysian legal system is an integration of the common law, Syariah law
and customary law traditions. The national legal system is based mainly on the
common law tradition. The sources of Malaysian Law mean the legal rules that make
in Malaysia, which can be classified into written law and unwritten law.

1.2 Constitution
But first, to understand what sources of law is, we need to know what is the meaning
of the term of constitution. A constitution is a supreme law that establishes,
organizes and empowers the government and determines how other laws are made
and implemented. The constitution harnesses the energy and power of the state,
making sure the people keep control of the reins.

1.2.1 Importance of Constitution

1) Is it necessary to have rules and a referee in games?

2) Is it fair if the winning contestant could change the rules?
Answer:
1) Yes. In democracy, there must be rules by which all the players are bound to
2) No. Democracy isn’t fair if those who winning can change rules as they go
along.
We need some basic rules to control how power is used so that those who win
elections still have to respect your rights and promote your interests rather than
using powers for their own benefit. These rules are provided in a constitution.
Constitution is more difficult to change than ordinary laws so that those in power
cannot change the constitution according to their own desire. The Constitution both
organizes and constrains power.

1.3 Written Law

Written law refers to the law that is contained in a formal document and which has
been passed by a person or body that is authorized to do so. It is a convenient
reference to the portion of Malaysia law that is not enacted by the Parliament and
State Assembles.

1.3.1 The Federal Constitution

The Federal Constitution is the supreme law of the Malaysia together with the
constitutions of the thirteen states comprising the federation. It establishes a
constitutional monarchy and entrenches fundamental liberties of the individual. Any
law which is inconsistent with the Federal Constitutions is considered invalid. The
supremacy of the Federal Constitution is set out in Articles 4(1) and 162(6) and
section 73 of the Malaysian Act 1963. Article 4(1) states that:
“This Constitutions 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.”

Case: Ah Thian v. Government of Malaysia (1976) 2 MLJ 112

Facts: Defendant, Ah Thian had been charged with committing aimed gang robbery
under Section 392 and Section 397 of the Penal Code, an offence punishable under
Section 5 of the Firearms (Increased Penalties) Act 1971.
Issue: Act was invalid because it was inconsistent with the Constitution, Clause (4) of
Article 4 and Clause (1) or Article 128 of the Constitution (Jurisdiction of Federal
Court)

Tun Mohamed Suffian Hashim in this case stated that “The doctrine of supremacy of
Parliament does not apply in Malaysia. Here we have a written Constitution. The
power of Parliament and the State Legislature in Malaysia is limited by the
Constitution and the cannot make any law as they please”.

The Malaysian Parliament as a legislative body, is governed by the Federal

Constitution. If our Parliament want to amend, repeal and make new constitutions,
two third majority of the both houses of Parliament, Dewan Negara and Dewan
Rakyat must vote for the change. The Yang di-Pertuan Agong is the ‘Supreme Head
of the Federation’.

1.3.2 State Constitutions

State Constitution is no different from Federal Constitution except it is set by the
states in Malaysia. Every state has their own constitution controlling the government
of that state. It is also known as Undang-Undang Tubuh Negeri. Each State
possesses its own basic charter. Sultan or Yang Di-Pertuan Negeri is the head of the
state.
Article 71(4) of the Federal Constitution stated that:
“If at any time the Constitution of any State does not contain the provisions set out in
Part I of the Eighth Schedule, with or without the modifications allowed under Clause
(5) (hereinafter referred to as "the essential provisions") or provisions substantially to
the same effect, or contains provisions inconsistent with the essential provisions,
Parliament may, notwithstanding anything in this Constitution, by law make provision
for giving effect in that State to the essential provisions or for removing the
inconsistent provisions”
It is mandatory for each state to contain certain essential provisions contain common
aspects such as Rulers to act on advice, the existence of an Executive Council and a
single-chamber elected State Legislature. All States receive final provisions except
for Malacca, Sabah, Sarawak and Penang because they have Menteri Besar instead
of Sultan. Menteri Besar is appointed by the Ruler of the State.
Case: Datuk Mohd Jan Abd Ghani honorary award was considered invalid
Facts: The Negeri Sembilan State government denied the awards given to Datuk
Mohd Jan Abd Ghani at the Conferment of Honorary Awards and Appreciation 2015
managed by the ‘Balai Undang Luak Johol’.
Issue: The conferment was not in accordance with Article 26 Chapter 7 of the Negeri
Sembilan State Constitution 1959. The conferment of state honours can only be
made by the state government and Yang DiPertuan Negeri Sembilan.

1.3.3 Subsidiary Legislation

Subsidiary Legislation is a law made by person or bodies under power conferred on
them by Acts of Parliament. Section 3 of the Interpretation Act 1948 and 1967 (Act
388) (Consolidated and Revised 1989) defines legislation as any proclamation, rule,
regulation, order, notifications, by-law, or other instrument made under any Act,
Ordinance or other lawful authority and having legislative effect. Our government are
multi-functional and legislatures work under severe limitations. The importance of the
delegation of power is because the legislature does not have sufficient time to enact
all the legislation. Next, the modern legislation is very technical and it is better if the
power is given to administrators with the technical expertise. Legislation procedures
are cumbersome. In certain situation where law need to be made quickly,
delegations are necessary.

1.3.4 Legislation
Legislation are laws made by legislature and by bodies and persons authorized by
the legislature. Article 44 states that the legislative authority of Malaysia in
Parliament includes the Yang di-Pertuan Agong and the two houses.

1.3.4.1 Law making process in Parliament

The legislative procedures in Parliament is provided in Part 4 in Chapter 5 of the
Federal Constitution and the Standing Orders of both Houses. Before any law can be
called as Act, there are three types of Bill introduced in Parliament. Before it become
a Bill, it is an idea come from people of various needs. There are three types of Bill,
Public Bill, Private Bill and Hybrid Bill.
 • Prepare a draft of the cabinet and sent to the
Pre-Parliamentary Parliamentary Draftperson in the General Chambers to
put it into legal languange
Stage • Proposal is now a Bill

Parliamentary • Bill introduced by the Minister responsible for subject

matter.
Stage

• The Minister merely mentions the title of the Bill.

First Reading • The Bill have to be printed and circulated to all
members of the House

• The house will debate on the principle. If accepted,it is

Second Reading passed on for consideration by a commitee of the
houses.

• Allow members to discuss details of the Bill and to

Commitee Stage propose amendments in a less formal proceedings

• Debates will take place and amendments may be put

Third Reading for a vote

• If the House of Senate amend the Bill, the Bill must

House of Senate returned to the first House

• Article 68 states that the Bill must be sent to the Yang

Royal Assent di-Pertuan Agong within 30 days.
• Once the Bill is given Royal Assent, it become an Act

• An act of Parliament only come into forces upon it

Published being published
1.4 Unwritten Law
Unwritten law are laws which are not contained in any statutes and can be found in
case decisions. It can be known as the common law or case law. If there is no law
governing particular circumstances, Malaysia case law may apply. The unwritten law
consists of;
i) Judicial decision
ii) English law
iii) Customary law
iv) Islamic law

1.4.1 English Law

English law is part of Malaysian law. According to Article 160 of the Federal
Constitution, law includes ‘the common law in so far as it is in operation in the
Federation or any part thereof’. Section 3 Civil Law Act 1956 (Act 97) (Revised 1972)
(CLA 1956) define English law as the common law of England and rules of equity.
The common law is the body of rules developed by the old common law courts and
based solely on decision of the courts. Equity is the body of rules developed by the
Lord Chancellor and the old Court of Chancery. Unlike common law, equity is not a
complete body of rules which can exist on their own.

1.4.1.1 Application of English Law in the Federation of Malaysia

Section 3(1) provides for the general application of English Law. In the absence of
written law, the courts shall apply the common law and rules of equity on
 7 April 1956 (West Malaysia)
 1 December 1951 (Sabah)
 12 December 1949 (Sarawak)

Section 3 Sub-sections (1)(b) and (1)(c) import English statues of general application
into Sabah and Sarawak.
Common law and rules of equity subject to the following qualification:
a) Absence of local legislation
b) Cut off dates
c) Local circumstances
1.4.2 Judicial Decision
Judicial decision is the court’s actual determination of the dispute between the
parties. The courts determination renders the matter res judicata meaning that
decision has settles the dispute once and for all and that dispute cannot be re-
opened and re-argued in any subsequent legal proceedings if the decision has been
appealed to the highest level or the time for lodging an appeal has expired.

Federal Court

Court of Appeal

High Court of
High Court of
Sabah and
Malaya
Sarawak

Sessions Court Session Court

Magistrates' Court Magistrates'Court

Penghulu's Court

Figure 1: Hierarchy of Courts in Malaysia

1.4.2.1 The doctrine of stare decisis
The strict application of precedents in the common law system is known as the
doctrine of stare decisis. The doctrine of stare decisis means that in case where the
material facts are the same, a court must follow the prior decision of a higher court
and its own prior decisions and prior decisions of court of the same level. It has a
two-way decision;
1. Vertical
A court is bound by the prior decisions of all courts higher than itself in the
same hierarchy.
2. Horizontal
Some courts bound by its own previous decision, decision of predecessor,
court of coordinate jurisdiction.

1.4.3 Customary Law

The Malaysian definition of law under Article 160 of the Federal Constitution includes
‘customs and usages having the forces of law’. Customary law according to Sarawak
Native Courts Ordinance 1992 (No 9 of 1992) is custom or body of customs to which
the law of Sarawak gives effects. Customs may be proved by public record, by
opinion of persons likely to know such traditions, and may be obtained from village
oral traditions. However, customs must be reasonable and does not offend
humanity, morality and public policy.
Case: Mong binte Haji Abdullah v Daing Mokkah bin Daing Palamai (1935 )4 MLJ
147
Facts: There was a breach of promise to marry.
Held: Muslim’s strict provision was not applicable because it would result in
oppression

1.4.3.1 Malay Customary Law

Malay customary law is divided into adat perpatih and adat temenggung. However,
Malay adat consists of ancient Malay customary law, Hindu law and Islamic law.
According to M.B Hooker, adat may refer to etiquette or correctness. Adat is no
longer a pure customary law but has become part of Malaysian legal system.
Adat Perpatih
Covers: Matrimonial law (marriage & divorce), property (inheritance & succession),
criminal law and restitution, administration (succession in tittle or lineage and the
election of traditional chiefs)
Case: Munah bt Haji Badar v Isam bt Mohd Syed & Anor (1936) MLJ Rrp 34 (SC)
Issue: If pesaka land belonging to a member of one clan is registered in the name of
another clan, the representative of the former clan has the right to redeem the land
but it is not eligible to hold it in his name
Held: The land which had been transferred outside the clan to a male belonging to
another clan had to be returned, conditional upon payment of a sum of money.
Adat Temenggung
Covers: Inheritance & family law
Case: Roberts @ Kamarulzaman v Ummi Kalthom (1966) 1 MLJ 163 (HC)
Issue: A divorced Muslim husband could claim a half share as harta sepencarian of
immovable property jointly acquired by both spouse during the subsistence of their
marriage although it was registered in the name of the wife.
Held: Although it was registered, it was not a bar to his claim
1.4.3.2 Chinese Customary Law
Covers: Matters of marriage, divorce and inheritance
Case: Six widows’ case (1911) 12 SSLR 120
Issue: A merchant had died intestate and no fewer than six women claim to be his
widows. However, only five of the women were found to be the actual wives.
Held: The estates were equally divided to the wives.
1.4.3.3 Hindu Customary Law
Covers: Marriage Customs & marriage brokerage contracts
Case: Re the Estate of T.M.R.M Vengadasalam Chettiar Deceased (1940) 9 MLJ
Rep. 124
Issue: A Hindu testator left a will which stated that he was the sole owner of a half
share in a firm. However, an executor claim that he was a member of a joint Hindu
family.
Held: All property inherited by a male Hindu from his father is ancestral property. The
male heirs acquire an interest in it by birth.
1.4.4 Islamic Law
Syariah law is the law that are revealed through Prophet Muhammad in the Quran
and Sunnah. It is the totality of God’s commands that regulate the life of Muslims.
The sources of Islamic law fall into two categories, primary sources and secondary
sources.
Primary Sources of Islamic law is Quran, the word of Allah and Sunnah, the rules
deduced from traditions like the sayings or conduct of Prophet Muhammad.
Secondary Sources of Islamic law is Ijma, consensus of jurists of any particular era
on a juridical rule and Qiyas, deductions from reasoning by analogy. Article 3
declares that ‘Islam is the religion of the Federation’ however ‘other religions may be
practiced in peace and harmony in any part of the Federation’. To assure the civil
right of non-Muslims, Article (11) guarantees the right of every person to practice his
or her religion.
“…the religion of Malaysia shall be Islam. The observance of this principle shall not
impose any disability on non-Muslims natives professing and practicing their
religious and shall not imply that the State is not a secular state”

Case: Abdul Kahar bin Ahmad v Selangor State Government & Anor (2008) 3 MLJ
Facts: The defendant claim himself a prophet Rasul Melayu by spreading false
doctrine. His doings are mocking Islam, showing contempt towards religious
authorities and disobeying the orders of a mufti.
Held: He was charged with five counts. First charge is for expounding the doctrine
contrary to Islamic law under section 7 of the Syariah Criminal Offence Enactment
No 9 of 19. The second charge is for stating, claiming and declaring himself as a
Malay Prophet of this era under Section 89a) of the Enactment No 9 of 1995. The
third charge is for ridiculing the practices relating to the religion of Islam under
section 10(b) of the Enactment No 9 of 1995. The fourth charge is for disobeying the
lawful orders of the Mufti, given away by the fatwa under section 12(c) of the
Enactment No 9 of 1995. The fifth charge is for disseminating opinions concerning
an issue contrary to Islamic law and fatwa for the time being in force in the State
under section 13 of the Enactment No 9 of 1995.
1.4.4.1 Application of Islamic law in Federal Constitution
According to Article 3 in Federal Constitution, Islam is the religion of the Federation
and article 11(4) restrict the propagation of other religions to Muslims. Article 12(2)
was written lawfully to maintain Islamic Institution. Article 121(1A) states that High
Court cannot interfere with matters in Syariah Court. Paragraph 1 List 2 Ninth
Schedule gives state the permits to create and punish offences related to Islam.

1.4.4.2 Islamic law Vs Federal Constitution

Case: Khamis and Ors v State Government of Negeri Sembilan and Ors
Issue: Three transgender woman was accused under Section 66 of the Syariah
Criminal Enactment 1992. It was an offence for Muslim man to wear woman’s attire
and pose as a woman in public. They argued that the section violated Article 5(1) of
the Constitution which guarantees that no one shall be deprived of his or her life
except in accordance to law.
Held: The court found that Section 66 is inconsistent with the Federal Constitution
and any law inconsistent with the Federal Constitution shall be void.

1.5 Conclusion
Malaysia sources of law is a complex, plural system that has grown out of the
country’s colorful and mixed history. Based on historical perspective, Malaysia’s
sources of law we have today is the impact of colonialism, migration, and the growth
of nationhood on what is now unique legal entity. Islamic law, the customary law of
Chinese and Indians, the centuries-old customs of Sabah and Sarawak have their
place within Malaysia’s legal system. Therefore, Malaysians should acknowledge our
legal history which is fundamental to an understanding of the country’s legal system.
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Task 1(b): Civil and Criminal Law
Civil Law Act was enacted in 1956 to enable the usage of English rules or equity and
common law. Section 3 of the Civil Law Act 1956 (Act 67) (Revised 1972) defines
law as the common law of English and the rules of equity and in prescribed
circumstances, English statutes. Equity is the body of rules developed in the end of
fifteenth century by the Lord Chancellor and the Old Court of Chancery. Equity is not
a complete body of rules that can exist on their own and completes common law.
Common law on the other hand is the body of rule developed by the old common law
courts name Court of Exchequer, Court of Common Pleas and Court of King’s
Bench. Section 3 and 5 of the Civil Law Act 1956 are only applicable when there are
no laws to be applied because no existing law can determine decision for the cases.
In Jamil Harun v Yang Kamsiah & Anor 1 MLJ 217 (1984), the Privy Council decide
that it is up to the court to decide whether or not to follow English Law under certain
considerations. The Federal Court ordered the trial court to itemize damages for the
purpose of calculating interest on damages following the English case of Lim Poh
Choo v Camden & Islington Area Health Authority [1980] AC 174. It was argued that
section 3 CLA prevents the Malaysian courts from applying English cases decided
after 7 April 1956 and as such, the practice of Malaysian courts in itemizing damages
for the purpose of calculating interest on damages by following English cases after 7
April 1956 is unlawful. Criminal law is the body of law that deals with crime and the
legal punishment offenses. The purpose of criminal law is to maintain the harmony of
the state and society by punishing the offenders for their wrongdoings. However,
defendant is convicted guilty and acquitted if not guilty based on jury decisions.
Criminal law is a system of public prosecutions. For example, if you are a victim of a
crime, you need to report it to the police to do the investigations and if they are found
guilty, the government prosecutes it in the courts. As in Mohamed Abdul Kader v PP
(1967) 1 MLJ 86. The defendant had been convicted of using criminal force to a
public servant to prevent him from discharging his duty. The court decided that the
appellant could not be convicted because there is no force was used.
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