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Malayan Law Journal Articles/2009/Volume 3/THE MALAYSIAN LEGAL SYSTEM: THE ROOTS, THE INFLUENCE AND THE FUTURE [2009] 3 MLJ xcii Malayan Law Journal Articles 2009

THE MALAYSIAN LEGAL SYSTEM: THE ROOTS, THE INFLUENCE AND THE FUTURE
Shamrahayu A Aziz Assistant Professor Ahmad Ibrahim Kulliyyah of Laws, International Islamic University Malaysia [Some of the ideas in this article can be found in my chapter entitled 'The Development of Shariah Legal System' in Syed Arabi Aidid, Malaysia at 50: Achievements and Aspirations, Kuala Lumpur: Thomson, 2007, pp 231-239] INTRODUCTION The Malaysian legal system shares a substantial heritage with the common law and has England as its prototype. Some essential flavours from other Commonwealth jurisdictions, such as India are also embodied in the system. However, upon a closer examination one finds that it is not entirely English or foreign in orientation, as some local and autochthonous values are found in the system. This was further strengthened after independence by subsequent developments to the law and legal system. It may be said that the Malaysian legal system contains plural legal systems, which are formed from a mixture of the Syariah law, customs and British law. This article seeks to discuss the roots of the legal system followed by a discussion on the British influence on the legal system. The discussion includes the earlier legal system, that is the system that was prevalent before the coming of the British and the system introduced and applicable during the British administration. Following that the discussion is focused on the system that was established within the independent constitution. The development of the legal system after independence is later discussed and this is followed by the recent developments in the system. Included in the discussion are my observations and estimation on the future of the Malaysian legal system. Before a discussion of the focal issues the article begins with, a pithy discussion on the relationship between law and order. This discussion is necessary to appreciate the necessity for a legal system that is suitable and adaptable to the needs and demands of society. LAW AND SOCIAL ORDER Law has certain functions in society. Apart from ensuring order it satisfies social wants -- expresses the values and convictions of a given society. As a consequence, law is an indispensable mechanism for the creation and maintenance of peace and stability in society. In order to be effective the law has to be representative; it should not be something that is imposed on society. It should not bring in values that are alien or unacceptable to society. Apart from that, the law is subject to changes, especially when society changes -- social changes are inevitable, and they are a feature of the modern states. Indeed, laws are changed to meet the new needs and requirements of society and law is a response to social 'demands' -laws are shaped by the society in which they are applied.1 This is undoubtedly the Malaysian experience --

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its laws and legal system have undergone substantial changes throughout the fifty years of independence. The change had to happen to accommodate the changes and needs of the Malaysian community. BRIEF HISTORY OF THE MALAYSIAN LEGAL SYSTEM Since the early 14th century, there were early Malay Sultanates in the area of current Malaysia. The most well-known was the Malacca Sultanate. The British set foot in the area during the late 18th century to the early 19th century. Prior to the British, the Portuguese and Dutch were here. The country was occupied by Japan from 1942 to 1945. When the Japanese lost in the second World War, the British came back to Malaya and formed the Federation of Malaya 1948, which became independent in August 1957. Malaysia was formed in 1963 when the former British colonies of Singapore and the East Malaysian states of Sabah and Sarawak on the northern coast of Borneo joined the Federation. Singapore was asked to leave Malaysia in 1965. The modern Malaysia is a federation of a number of independent states which comprise of at least four major groups; the Straits Settlements (Malacca and Penang), the Federated Malay States (Selangor, Perak, Pahang and Negeri Sembilan), the Unfederated Malay States (Johore, Kelantan, Kedah, Terengganu and Perlis) and the Borneo States (Sabah and Sarawak). There are three Federal Territories, namely Kuala Lumpur, Labuan and Putrajaya. Thesedistinct compositions of Malaysia, have a legal history which is somewhat different from each other.2 It has to be admitted that when the British set foot into the area in the late 18th century a legal order was already in place. As such it was obviously a mistake for the English judges to assert that there was no law or legal system applicable in the states. The first landmark of the Malaysian legal system can be traced back to the early Malay Sultanates, especially the Malacca Sultanate. When the Malacca Kingdom was at the height of its power, Islam had a major influence. Islamic law and local custom were adopted in the legal system and administered accordingly. Two sets of Malacca law, the Canon Law of Malacca (Hukum Kanun Melaka) and the Maritime Law of Malacca (Undang-undang Laut Melaka) contained principles of Islamic law relating to civil, criminal and even commercial matters.3 These laws of Malacca had a great impact on the development of laws in other Malay states. Many other code of laws, such as the Undang-Undang Johor, Undang-Undang Pahang, Undang-Undang 99 Perak were modelled on the Hukum Kanun Melaka. Islamic law became the root of the law and the legal system of the country. Two important decisions by the courts declared that Islamic law is not a foreign law.4 The court must take judicial notice of this position and the court must have recourse to appropriate sources on Islamic law.5 It was also a fact that, the country had a court system prior to the British intervention. There was only one system of court in the country, that was the Kadhi's Court or the Shariah courts.6 The then applicable law was Islamic law. The Malay Rulers, assisted by a Mufti (jurisconsult), sat as a judge in the court, whereby the Ruler was the highest court of appeal. COLONIAL INFLUENCE IN THE LEGAL SYSTEM As mentioned above, there were at least four colonial powers in the country before it finally achieved independence. Despite that, British influence on the legal system is the most evident. English law had the greatest influence on the local system. In the Straits Settlement, the influence was done through the introduction of the Charters of Justice. As stated in the Charter, English law was not to be applied if it caused hardship or injustice to the inhabitants; in that case the inhabitants were allowed to apply their personal laws as the English law sometimes came into sharp conflict with the morals and values of the local populace.7 This condition may be considered clear proof that the local inhabitants of Malaya had their own laws and legal system prior to British intervention though these laws were probably not in any systematic form. Indeed, the local laws had been strongly embedded in the locality before the intervention and English law was not to be applied except when the local situation allowed it. It has been argued that the application of English law was not in fact, introduced by the Charters as generally understood.8 It is argued that there was no clear provisions in the Charter that requested for the importation of English law.9 Despite that the Penang courts formed an implication that the Charters had introduced English law into the locality.10In the Malay States, the British managed to influence the local legal system through a number of treaties with the Malay Sultans and also through some formal introduction of English law. Under thetreaties, the Sultans agreed to receive British Advisers (in all the Unfederated Malay States) or Residents (in all the Federated Malay States) and the Sultans were to follow

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the advice of the Advisers or Residents in all matters, except on matters relating to Islam and Malay custom. Despite the influential effect of the treaties on the state administration, the position of Islam and Malay custom remained invulnerable. This is an indication, and in fact an attestation to the fact that Islam and the Malay custom had a special place in the local system and that they were left unaffected by the British. Formal importation of the common law of England and the rules of equity into the local system was made through a legislation called the Civil Law Ordinance. Just one year before Malaya achieved its independence, the British introduced the final version of the Civil Law Ordinance, which was first introduced in the Straits Settlements in 1878. The Civil Law Ordinance 1956 remains until today and it was revised in 1972, renamed as the Civil law Act 1956 Act 67. It is a general understanding that the Civil Law Ordinance was meant to impose on the judges the obligation to bring in the common law of England and the rules of equity into the local cases. Despite the general purpose of the Act, it expressly states that the common law and the rules of equity 'shall be applied in so far as the circumstances of the States of Malaysia and their respective local inhabitants permit and subject to such qualifications as local circumstances render necessary'.11This qualification is similar to that imposed by the British in treaties with the Malay Rulers, indicating British reservation to the application of its laws and values into the local system. However, the application of this proviso was very much dependant on the courts' attitude. In similar breath, Terrell Ag CJ pointed out that English law had long been introduced in the country,12 even before the British introduced it through formal legislation. This was done through decisions made by English judges in local cases. The legislation was therefore a mere recognition to what had been done by the English judges. To some extent, the judges and barristers, being trained in England were more familiar with English law. They were inclined to find solutions from England, especially when the law of both countries was identical. This continues even after independence. For instance, a High Court judge stated that he had no hesitation in adopting the principles pronounced in English cases should the provisions of law in both countries be identical. The judge further stated that the English court's decision would have a 'salutary effect' in the Malaysian courts.13 The courts' attitude contributed to the 'importation' of English laws into local cases, though in principle, the law shall only be applied if the local circumstances allowed or whenever there is the lacunae in the law. Apart from the Civil Law Ordinance, from time to time, the British asked the Malay Sultans to adopt statutory laws from India, such as the Evidence Act, the Penal Code, the Criminal Procedure Code and the Contract Act, which were actually English common law that was codified. Although these laws still remain, significant changes were made to those laws in order for them to suit to present needs. Various types of legislation were also introduced by the British during their administration to restructure the local court system.14 The British introduced the Courts Enactment 1919, which created a hierarchy of courts; the Supreme Court -- comprising of the Court of Appeal and Courts' of Judges, Courts of Magistrate First Class, Courts of Magistrate Second Class, Courts' of Kadhi/Court of Assistant Kadhi and lastly, Courts of Penghulu. As one can see, the Courts Enactment 1919, created a single system of court, whereby the Kadhi's Courts were placed as the second last court in the hierarchy. In 1948, the British introduced the Courts Ordinance 1948. The Courts Ordinance 1948 created a new hierarchy of courts, and excluded the Kadhi's court from the hierarchy. The Ordinance also repealed all the provisions in the Courts Enactment 1919, except for the provisions on Kadhi's Courts. Mohamed Imam argued that the British had created a mischief in the local court system by introducing two parallel court systems; the civil court and the Kadhi's Courts.15 However, there were no express provision in the Ordinance regarding the segregation. It had been done indirectly by the British. While all provisions in the Courts Enactment 1919 were repealed, its provisions on Kadhi's Courts were retained. Furthermore, the Ordinance 1948 also had a provision asserting the prevalent effect of itself over other written laws, including the provisions of the Courts Enactment 1919 on the Kadhi's Court. As a consequence, the non-Islamic matters were placed under the civil court's jurisdiction, and the laws of England and the imported statutory laws from India were applied. The Islamic matters were left with the Kadhi's Court and Islamic laws were applied. When the country achieved independence in 1957 the Constitution which was drafted by the Constitutional Commission, known also as the Reid Commission, allowed indigenous legal regime to continue. Special emphasis was focused on the position of Islam and the Malays. The representatives of the Malayan people

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tried their best to preserve the local indigenous values in the Constitution. As a result, the position of Islam in most Malay states constitutions was upheld by the Federal Constitution. Islam is acknowledged as the religion of the Federation and the Constitution also has various provisions highlighting the status of Islam in the Constitution. The Constitution also preserves the position of the Malays whose special privileges are embodied in it.16 LEGAL ORDER IN THE POST-INDEPENDENCE After independence, the Federal Constitution became the primary source of Malaysian law and was also regarded the supreme law of the country. This also brought into prominence the doctrine of constitutional supremacy. The Constitution is the source of Malaysian law and its legal system. As in other countries the legal system in Malaysia is part of the constitutional structure. The Federal Constitution created a federal type of government, the legislature and the judiciary. Being a federal type of government, Malaysia has at least two levels of government, the federal and the state governments. The Constitution provides for a separate jurisdiction for the two levels of government.17 Parliament is the principal law-making body. It is Parliament's responsibility to legislate laws for the whole country and each state Legislature legislates on matters under the state jurisdiction and the law shall be operative in the respective state. The Constitution creates the superior courts of the country, namely the Federal Court, the Court of Appeal and the High Courts.18 The courts play a major role in developing the law, and to an extent 'making' the law by moulding and developing it in creative interpretation. However, one should not forget that the executive too plays a role in law-making, in fact, the executive has huge influence in the law-making process. This is simply because there are various executive directions on certain practices or specific procedures. Furthermore, there is no rigid separation of membership between the Legislature and executive. Those in the Legislature are at the same time in the executive body and they are the active players in the law-making process. The Constitution, which was based on the Westminster model has some local or indigenous characters. The most striking are, the position of Islam, the provisions on the status of the Malays and the recognition of the Shariah courts. The preservation of these autochthonous values signifies the perpetuity of such values, which cannot now be simply pulled out of the system without having a tremendous effect on the legal system. Although the Constitution has become the first primary source of law, it is necessary to trace along the path of colonisation to discover the legacy of laws and values left or imposed by the foreign power on this country. The obvious legacies are, the Civil Law Ordinance, the statutory laws from India and the judicial system. By virtue of ss 3 and 5 of the Civil Law Act 1956 the common law of England and rules of equity may be said to be the most influential and controversial British legacy.19 The 1956 Act, requires the Malaysian courts to refer to the common law of England and the rules of equity in so far as the people in the country permit and circumstances render it necessary.20 Though the application of English common law and equity is restrictive to the situation when there is no written law in the country, there is no clearly stated reason for the retention. To some extent, this British legacy remains a hiccup in the growth of the Malaysian legal system and its laws. The constraint however, may not be true given the fact that the judiciary may find solutions from the indigenous or local recipe. Much has been written and discussed on the unfavourable effect of the 1956 Act on the modern Malaysian law and legal system. In the Supreme Court case of Che Omar bin Che Soh21 for instance, although the comprehensive nature and the position of Islam before the British administration were acknowledged, the court did not revert to the complete history of Islam in the country. The court, in a way sought to retain the demarcation between Islam and the legal system as created by the British. Given the position of Islam in the country, this is not something that can be regarded as pleasant. Though the Civil Law Act was not an issue in the case, it shows how the judiciary has forgotten the role that Islamic law played in the past. In the absence of the Civil Law Act, there would have been no problems filling the lacunae as Islamic law would be able to fill the gap and to provide possible solutions. The judiciary should not forget that Malay-Muslim law was the basic law before the British came and Islamic values are accessible to the general population. Probably, at the age of more than fifty years, Malaysia is ready to invent its own laws and legal system according to the demands of its society. And given the needs of the society, the country's own inspirations and the country's rapid development Malaysia should be able to create its own identity and legal

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system and should be able to mould the system according to the general wish of the people. Appeals to the Privy Council are another significant British legacy. The British left Malaya leaving in place appeals to the Privy Council,22 which remained the last resort for appeal for almost thirty years after independence. Appeals to the Privy Council were introduced during the British administration in the Straits Settlements. The actual starting date for appeals to the Privy Council could not be ascertained, as this was not clearly spelt out in any of the British legislation, but the earliest reported appeal case to the Privy Council was in 1875.23 Judges sitting on the bench of the Privy Council were Members of the House of Lords in England. In the independence process, the Constitutional Commission recommended the retention of appeals to the Privy Council as the final appellate body in Malaya. Subsequent to independence, appeals to the Privy Council were abolished in stages; beginning from 4 October 1975,24appeals to the Privy Council in security cases was abolished; from January 1978, appeals on criminal and constitutional cases were abolished and appeals on other cases were abolished from 1 January 1985. Although appeals to the Privy Council were around for almost a century since they were first introduced, the need for such appeals was abolished in a period less that thirty years after independence. The abolition of appeals to the Privy Council may indicate the Malaysian readiness to build up its own legal system and develop its autonomy. Though some may argue that the abolition of appeals to the Privy Council does not mean a total rejection of English law and the Privy Council's decisions remain highly persuasive, the abolition is, in a way, an attempt to break away from British influence and a move by independent Malaysia to develop its own system of law. Thus, some view that the Malaysian courts should pay less attention to the Privy Council decisions, and that the judges should be more proactive in making their decisions. Since independence, the administration of justice in Malaysia has undergone at least three significant changes; prior to 1985, the Privy Council was the highest court of appeal. After the abolition of appeals to the Privy Council, the hierarchy of superior courts had been changed. The Supreme Court was introduced as the apex court of the country. In mid-1994 the courts' hierarchy was again restructured to introduce a three-tier system. Under this new court structure, a Court of Appeal followed by a Federal Court was introduced with the federal Court being the highest court of appeal in the country. This system is probably better in the sense that it gives more appeal opportunities to the unsatisfied parties in legal proceedings.In criminal trials the British legacy was obvious. The British left with the Malayan court a jury trial in criminal cases involving a death penalty. Thus, prior to its abolition in 1995, all criminal cases were tried by jury, except a few offences under Firearms (Increased Penalties) Act 1971, the Dangerous Drugs Act 1952 and cases under the Internal Security Act 1960. As mentioned earlier, the British had divided the court system into two; the civil courts and the Shariah courts. The Federal Constitution retains the segregation between the two court systems and Malaysia is having two parallel court systems. The civil courts would have the general jurisdiction, having powers and jurisdiction to hear all types of cases, except matters regarding Islamic law. The Shariah courts on the other hand, are the state courts, created by the state law (except in the case of Federal Territories),25 having jurisdiction over Muslims only and decide over Islamic civil and criminal matters. The laws applicable in the Shariah courts are state Islamic law (except for the Federal Territories). In its civil jurisdiction Shariah courts shall hear cases on family and some personal Muslim matters such as inheritance. In its criminal jurisdiction, Shariah courts shall have jurisdiction over matters pertaining to offences against the precepts of Islam. Although Shariah courts have jurisdiction over criminal matters, their penal jurisdiction is very limited, not only restricted jurisdiction regarding the types of triable crimes, but also restricted jurisdiction regarding punishment. The Federal Constitution allows Parliament to legislate law conferring jurisdiction on the Shariah courts. In this respect, the Shariah Courts (Criminal Jurisdiction) Act was legislated in 1965 and the law was revised in 1984.26 The maximum penalty that can be imposed by the Court according to the Act is three years imprisonment or a fine not exceeding RM5,000 or whipping not exceeding six strokes or any combination thereof.27 Thus, it would appear that Shariah courts have limited jurisdiction regarding punishment under the Act. Given the fact that Malaysia is a prime example of a society severely divided along ethnic lines, where social

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and cultural pluralism is not limited to simple ethnic composition but includes differences in religion, and social customs and behaviour,28 the segregation between the two court systems sometimes becomes problematic as conflict involving religion is inevitable. In the event, some have suggested merging the two systems. Nonetheless, there may be some serious constitutional issues to be dealt with before such a merger can materialise. These issues would include matters such as the separation of powers between the federal government and the state government, the position of Islam and the position of the Malay Rulers. DEVELOPMENT OF THE LEGAL SYSTEM AFTER INDEPENDENCE The subsequent development of the law can be observed by examining the constitutional amendments and also amendments to various other laws. The most significant is the constitutional amendment in 1988.29 Through this amendment, cl (1A) was inserted into art 121. This piece of amendment in a way did not introduce anything new to the system. It merely restored and asserted the indigenous, or the original position of Islam and the Shariah courts in the Malaysian legal system. The amendment was intended to free the Shariah courts from any interference from the civil court.30 As a result of the amendment, cases decided by the Shariah courts, unlike previously, are no longer subject to appeal in the civil courts.31 Furthermore, the amendment also prevented the High Court from having any jurisdiction over matters that fell within the jurisdiction of the Shariah courts. This has been made clear, for instance, in matters involving the determination of the religious status of Muslims.32 Together in the amendment was the inclusion of a proviso to cl (4) of art 5, which gives a constitutional 'facelift' to the Shariah courts. The amendment states that the Shariah offender shall be brought to the Shariah court within twenty four hours.33 Without other constitutional amendments, various improvements have been made to enhance the position of Shariah courts. For instance, s 421A of the National Land Code was also amended to expand the jurisdiction of Shariah courts; according to this amendment the land administrator shall register the name of a person so ordered by the Shariah courts. Furthermore, various improvements have also been made in the administration of Shariah courts. In its present set-up, the Shariah courts apply a three-tier system; the Shariah Subordinate Courts, the Shariah High Courts and the Shariah Appeal Courts. For the purpose of improvement in the administration of justice, the Shariah Appeal Court has been 'federalised' through the Department of Shariah Judiciary Malaysia (JKSM), though the lower courts remain in the hands of the states. The connotation 'federalised' here, does not involve transfer of state power to the federal government, it is a mere administrative federalisation, whereby there is only one and the same panel of judges to form the bench of this Shariah apellate court throughout the country -- instead of having different panels for different states. This is to ensure a uniform and systematic application of Islamic law in the country. Being a state matter, it is common therefore for the states to have different sets of Islamic legislation. In 1968, the Conference of Rulers meeting had established a National Religious Council to advise the Rulers, the state government and the Islamic Religious Council on matters pertaining to the administration of Islamic law. As a result, a technical committee was set-up to streamline the various states' Islamic laws. Some federal institutions, such as the Department of Islamic Development Malaysia (JAKIM)34 and the Department of Shariah Judiciary Malaysia (JKSM) were established in order to co-ordinate the administration of Islamic matters throughout Malaysia. For the betterment of the administration of justice in the Shariah courts, various aspects of Islamic law have been codified. There are comprehensive codifications of law on matters pertaining to Islamic family law, Islamic criminal law, Islamic law of evidence and procedural law, civil and criminal procedure. Other than specific developments in the administration of justice, due to the demands of society, legal education had also been developed. Since the early eighties, public universities, such as the International Islamic University Malaysia had started to introduce courses on Islamic law. The university produces law graduates trained in civil laws and also Islamic law.

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At present, the Islamic content in the legal system is increasing with the introduction of an Islamic banking and finance system. Developments in Islamic banking and finance laws are amazing. The Banking and Financial Institution Act 1989 was introduced to allow conventional banks to introduce Islamic Banking services using their current facilities. As a result of this development, in early 2003 a Muamalat Division was created in the civil courts to deal with matters involving Islamic banking and takaful.35 The creation of such a division causes a constitutional debate. CONCLUDING REMARK As in other countries, the Malaysian legal system depends very much on its constitutional structure. In addition, the legal system also has links with history which form the norms in its constitution. With growth, which includes recent developments that have taken place naturally, the country's legal system appears to have been restored into its earlier form ie to a system that existed before the British influence. The system, however, is still developing. As such, whether the present two parallel court system will remain or continue to develop on separate tracks is still unclear. Constitutionally speaking the two parallel court system seems to be the direction. Nonetheless, we have seen how exceptions have been created; such as the creation of the Islamic banking bench in the civil courts. Similar development have taken place in the Shariah courts wherein a federal shariah appellate system was created although the lower court remains at the hands of the states. As a concluding remark, the law and the legal system must be designed to be mutually advantageous to all the races and religious communities of the country. It must secure the national order and ensure prosperity for the country.

1 Gordon W, Robert, Some Critical Theories of Law and Their Critics in Khairys, David, (ed), The Politics of Law: A Progressive Critique New York: Basic Books, 1998, at p 645. 2 The historical facts on the British administration in those states are somewhat different. For further reading on this see for instance Ibrahim, Ahmad Towards a History of Law in Malaysia and Singapore, Kuala Lumpur: Dewan Bahasa dan Pustaka, 1992. 3 See Muhammad Yusoff Hashim, The Malay Sultanate of Malacca, DJ Muzaffar Tate (Trans) Kuala Lumpur: Dewan Bahasa dan Pustaka, 1992, at pp 151-179. 4 See Re Timah binti Abdullah, De D [1941] MLJ Rep 44; Ramah binti Ta'at v Laton binti Malim Sutan (1927) 6 FMSLR 128. 5 Re Timah binti Abdullah, De D [1941] MLJ Rep 44, at p 45. 6 See Miller, AC, Islam and Malay Kingship (1981) JMBRAS. 7 There are various cases decided on this issue; for further reading on this see for instance, Rutter R, Michael The Applicable Law in Singapore and Malaysia, Singapore, Malayan Law Journal Pte Ltd, 1989, at pp 117-118, esp para 3.7. However, in some cases, not much adjustment to the local need was actually made by the British judges in the reception of English law. In Fatimah v Logan (1871) 1 Ky 255, at pp 261-262 for instance, the Penang Court held that English law governed the question on the validity of a will and the court stated that 'it is the fault of the native holders of the property if any inconvenience results from such a decision'. See also Choa Choon Neoh v Spottiswoode (1869) 1 Ky 216, at p 221. 8 See Gopal, Mohan English Law in Singapore: The Reception that Never Was [1983] 1 MLJ xxv. 9 Ibid. 10 See Rutter F, Michael, The Applicable Law in Singapore and Malaysia, Singapore, Malayan Law Journal Pte Ltd, 1989, at p 116, para 3.5. 11 Section 3 of the Civil Law Act 1956. 12 See Yong Joo Lin Yong Shook Lin and Yong Yoo Lin v Fung Poi Pong [1941] MLJ Rep 63, at p 72, Terrel Ag CJ stated: 'As the Common law of England has been in effect followed in the Federated Malay States since a Supreme Court was established and now has statutory recognition'; and at p 64 the CJ also stated: 'Principles of English law has for many years been accepted in the Federated Malay States where no other provisions has been made by statute'. The Supreme court was created by the Court Ordinance 1948.

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13 See Re Tanjung Puteri Johore State Election Petition [1988] 2 MLJ 111 at p 112. 14 For instance, the Kathi's Courts Enactment 1953 (Kelantan), the Muslim Courts Enactment 1953 (Kedah), Courts Enactment 1905 (Federated Malay States), Courts Enactment 1919 (Federated Malay States -- repealed the 1905 Enactment). 15 See Imam, Mohammad 'Syariah/Civil Courts' Jurisdiction in Matters of Hukum Syara: A Persisting Dichotomy [1995] 1 CLJ lxxxi. 16 For further reading on indigenous elements in constitution, see, Salleh Abas, Traditional Elements of the Malaysian Constitution, in Trindade and Lee (eds), The Constitution of Malaysia: Further Perspectives and Developments, Petaling Jaya: Penerbit Fajar Bakti Sdn Bhd 1986, at pp 1-17; Abdul Aziz Bari, The Indiginous Roots of the Malaysia Constitution -- The Provisions and the Implications [2008] 6 CLJ xxxiii. 17 See art 74 and the 9th Schedule of the Federal Constitution. 18 The subordinate courts are created by the Subordinate Courts Act 1948 (Revised 1972). The subordinate courts are the sessions courts, the magistrates' courts and the Penghulu's Courts. See s 3 of the Act. 19 Section 3(1) of the Civil Law Act 1956 reads: 'Save so far as other provision has been made or may hereafter be made by any written law in force in Malaysia, the court shall: a)in West Malaysia or any part thereof, apply the common law of England and the rules of equity as administered in England on 7 April 1956; b)in Sabah, apply the common law of England and the rules of equity, together with statutes of general application, as administered or in force in England on the 1 December 1951; c)in Sarawak, apply the common law of England and the rules of equity, together with statutes of general application, as administered or in force in England on the 12 December 1949, subject however to sub-s (3)(ii): Provided always that the said 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. 20 Ibid. 21 See Che Omar bin Che Soh v PP [1988] 2 MLJ 55. 22 Privy Council traces the history as a body of personal advisers to the Crown. For Commonwealth countries or countries under the British Empire, the Privy Council is the ultimate judicial body. 23 That is the case of Yeap Cheah Neo v Ong Cheng Neo (1875) LR6 PC 381. 24 See Essential (Security Cases) (Amendment) Regulations, 1975, PU(A) 362/75.

25 The Syariah courts in the Federal Territories are created by Parliament. See ss 40-57 of the Administration of Islamic Law (Federal Territories) Act 1993 Act 505. See also Farid Suffian Shuaib, Powers and Jurisdiction of Syariah Courts in Malaysia, Kuala Lumpur: Malayan Law Journal, 2003, at p 106. 26 The former name of the Shariah Courts (Criminal Jurisdiction) Act 1965 was Muslim Courts (Criminal Jurisdiction) Act 1965. It was amended in 1984 by the Muslim Courts (Criminal Jurisdiction) (Amendment) 1984 (Act A612) to increase the punishment jurisdiction of the Syariah Court. The original punishment provided by the 1965 Act was six months imprisonment, or one thousand fine or a combination of both. This Act was revised in 1988 and renamed the Syariah Courts (Criminal Jurisdiction) Act 1965 (Act 355). It was made applicable to all the states of Malaysia. It seems not to be applicable to the Federal Territories as its s 1(2) says that: 'This Act shall apply to all the States of Malaysia' and Federal Territories are not 'state' within the meaning of art 1(2) of the Federal Constitution. Article 1(2) of the Federal Constitution reads: 'The States of the Federation shall be Johor, Kedah, Kelantan, Malacca, Negeri Sembilan, Pahang, Penang, Perak, Perlis, Sabah, Sarawak, Selangor and Terengganu'. This clause does not include Federal Territories as one of the states. 27 The proviso to s 2 of the Shariah Courts (Criminal Jurisdiction) Act 1965, revised 1988. 28 For further reading on this see for instance, Hussin Mutalib, Islam and Ethnicity in Malay Politics, Singapore: Oxford University Press, 1990; Rupert Emerson, Malaysia, a Study in Direct and Indirect Rule, Kuala Lumpur: University of Malaya Press, 1970; Mohd Foad Sakdan, Pengetahuan Asas Politik Malaysia, Kuala Lumpur: Dewan Bahasa dan Pustaka, 1999. 29 Act A704, wef 10 June 1988. 30 See Mohamed Habibullah bin Mahmood v Faridah bte Dato Talib [1992] 2 MLJ 793.

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31 See Ahmad Ibrahim, The Amendment to art 121 of the Federal Constitution: Its Effect on Administration of Islamic Law [1989] 2 MLJ xvii. 32 See for instance, the decision in Soon Singh a/l Bikar Singh. 33 Section 2 of Act A704. 34 JAKIM 'has been responsible to ascertain policies pertaining to the development and advancement of Islamic affairs in Malaysia by fostering and promotion the sanctity of the Akidah and Islamic syariat, JAKIM also has been relied upon to enact and standardised laws and procedures, also to co-ordinate their implementation in all the states'. http://www.islam.gov.my/english/index.htmlas retrieved on 2 April 2007. 35 Practice Direction No 1/2003, Registration Muamalat Cases in court (Classification Code).