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LABUAN SCHOOL OF INTERNATIONAL BUSINESS AND FINANCE

LABUAN INTERNATIONAL CAMPUS

USUL FIQH
GE20503
PREPARED FOR: DR. MUHAMMAD SUHAIMI BIN TAAT

TOPIC:
AL-URUF
DATE OF SUBMISSION:
17TH DECEMBER 2013

PREPARED BY:
MOHD FIDRUZ MAULA JACK
BG12110292
ISLAMIC FINANCE (HE23)

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Contents
ABSTRACT.............................................................................................................. 2
2.0 Malaysia Background....................................................................................... 3
3.0 History of Malaysian Legal System..................................................................3
4.0 Malaysian Legal System..................................................................................5
4.1 Legislative Authority..................................................................................... 6
4.2 Executive Authority...................................................................................... 6
4.3 Judicial Authority.......................................................................................... 7
5.0 Sources of Malaysian Law................................................................................9
5.1 Written Law................................................................................................ 10
5.1.1 Federal Constitution.............................................................................10
5.1.2 State Constitution................................................................................. 11
5.1. 3 Legislation............................................................................................... 11
5.1.4 Subsidiary Legislation...........................................................................12
5.2 Unwritten Law............................................................................................ 13
5.2.1 English law........................................................................................... 14
5.2.2 Customary Law..................................................................................... 14
5.2.3 Judiciary Decision................................................................................. 15
5.3 Islamic Law................................................................................................. 16
6.0 Conclusion..................................................................................................... 16
7.0 References..................................................................................................... 17

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ABSTRACT

The Constitution is a document of the highest located in the administration of a


country. It contains the basic rules and the laws of a nation. The Constitution is
manifestation of the political system and government administration practiced in
a country. Legislation should be consistent and in accordance with the spirit of
the constitution. It is also adapted to world's highest institution of the United
Nations Organization. In practice, the only judge who can interpret a clause in
the constitution. It is because the constitution is complicated and complex. The
existence of a constitution reflects formation height of civilization (Thukiman,
Abdul Rahman, & Suaibah, 2009).
Different legal systems have evolved in different parts of the world, each from a
range sources. There are various definitions of the term of legal system. A Legal
System is the framework of rules and institutions within a nation regulating
individual's relations with one another and between them and the government.
In this world, there are many types of legal systems, but the few major legal
systems of the world today are civil law, common law, customary law, religious
law, socialist and mixed law systems. We narrow down the scope of research by
targeting the MALAYSIAN LEGAL SYSTEM and SOURCES OF MALAYSIAN LAW.
This paper is divided into part which is the first part is about the Malaysian
background. Secondly, this paper will continue with the history of Malaysian Law
and then we will discover the Malaysian Legal System in detailed in part 3. After
that, this paper will discover the source of Malaysian law and finally in part 5 are
about the conclusion.

Key words: Malaysian Legal System; Sources of Malaysian Law

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2.0 Malaysia Background


Malaysia is a middle-income country of roughly 28 million inhabitants, located in
Southeast Asia and comprising West Malaysia which is on the Malay Peninsula
and East Malaysia called the northern portion of the island of Borneo. It is a
federation of 13 states, of which only two which is Sabah and Sarawak are in
East Malaysia. It is a constitutional monarchy and parliamentary democracy
following the Westminster model and is federally organized. The Federal
Constitution is the supreme law of the land, but each state has its own
constitution.
The Malaysian King Yang di-Pertuan Agong is the head of state, and is elected for
a 5-year term from among the nine Malaysian states with Rulers by this same
group. The King is technically responsible for appointing the highest level
government officials including superior court judges, but in doing so has
traditionally followed the advice of the Prime Minister, pursuant to the latters
consultations with other groups, as defined in the Federal Constitution
(Hammergren, 2011).

3.0 History of Malaysian Legal System


It is important that researchers should understand that much of Malaysias
history is related to Great Britain which established amongst the early colonies
on the Malay Peninsula. Although the Dutch and Portuguese were the earlier
colonies, the British, who had ruled Malaya for more than one hundred and fifty
with just one short interruption of the World War II, left greater impact upon the
law of the country. The legal history of Malaysia begins with the acquisition of
Penang in 1786 and with the introduction of the Charters of Justice in 1807, 1826
and 1855 (Noordin & Pui Keng, 2008).
According to Noordin & Pui Keng (2008) in their research claimed that the
Federation of Malaya received her independence from the British in 1957. On
September 16, 1963, the eleven states of the Federation of Malaya, the former
colonies of Sarawak and Sabah on the western coast of Borneo and the State of

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Singapore united to form the Federation of Malaysia. In August 1965, however,
Singapore seceded from this newly-formed federation to become an independent
republic. Malaysia, as it is known today, consists of the eleven peninsular states
that constituted of Malaya this is referred to as peninsular Malaysia, Sabah and
Sarawak.
The reception of English law slowly evolved and developed during the British
colonization. However, the reception of English law only became statutory after
the promulgation of the Civil Law Enactment of 1937. There are three segments
of periods of which modern Malaysian laws were made. Pre-war law was made
during the decentralization of Malay states on 1866 to 1942. The Malay states at
that time were divided into three groups of states. There were the Straits
Settlement (SS) group of states comprising of Penang, Malacca and Singapore,
the Federated Malay States (FMS) group of states comprising of Perak, Selangor,
Negeri Sembilan and Pahang and the Unfederated Malay States (UMS) group of
states comprising of Johor, Kedah, Perlis, Terengganu and Kelantan.
Post-war law was made after the unification of all the Malay states except
Singapore

under a federal administration

on

1946 to 1957 and Post-

independence law was made after the formation of the Federation of Malaya and
Malaysia on 1957and 1963. Prior to the independence in 1957, most of the laws
of United Kingdom were adopted and either made into local legislations or simply
applied as case laws. The application of English law or common law is specified
in the Civil Law Act 1956 (Shuaib, 2009) as stated in Sections 3 and 5 of the said
Act which allows for the application of English common law, equity rules, and
statutes in Malaysian civil cases where no specific laws have been made.
Similarly, in the context of civil law, Section 5 of the Criminal Procedure Code
also states that English law shall be applied in cases where no specific legislation
has been enacted.
Malaysian law is also modelled on other jurisdictions laws such as Australia and
India. The Malaysian Criminal Procedure Code was based on the Indian criminal
code. Similarly, the labour law and the Contracts Act are also based on the Indian
model. Malaysian land law is based on the Australian Torrens system. There are a
number of laws made during the colonization still in existence and applicable
with certain modifications in line with domestic and current circumstances.

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Although the Malaysian legal system is predominantly based on English common
law, there are also other secondary legal systems concurrently affecting certain
sections of the law, such as Islamic law and customary law. Therefore, it is also
important for researchers to note to which jurisdiction and group of people that
the law was designated for and whether the laws are still in force.

The legal system of Malaysia was modelled after the English legal system which
practices parliamentary democracy and is ruled by a Constitutional Monarchy,
with His Majesty the Yang di-Pertuan Agong which is the King ceremonially as the
Head of the country. The Yang di-Pertuan Agong is elected by the Conference of
Rulers for a five-year term from amongst the hereditary Rulers of the nine states
in the Federation which are ruled by Sultans. The states are Perlis, Kedah, Perak,
Selangor, Negeri Sembilan, Johor, Pahang, Terengganu and Kelantan. In the other
states, namely Melaka, Pulau Pinang, Sabah and Sarawak, the Head of State is
the Yang di-Pertua Negeri or Governor of the State. The Yang di-Pertua Negeri is
appointed by the Yang di-Pertuan Agong for a four-year term.
The Federal Constitution of Malaysia clearly divides the law-making authority of
the Federation into its legislative authority, judicial authority and executive
authority. The separation of power also occurs both at federal and state levels.
The federal laws enacted by the federal assembly or better known as the
Parliament of Malaysia applies throughout the country. There are also state laws
governing local governments and Islamic law enacted by the state legislative
assembly which applies in the particular state.

4.0 Malaysian Legal System


People have to know their scope of rights and freedom granted to them by
government and must be able to demand for their rights whenever in justice
takes place. Law protects basic individual rights and freedom such as liberty,
equality and freedom of speech. It prevents individuals in powerful position from
taking an unfair advantage of other people. Besides, law ensures a safe and

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peaceful society, in which individual rights are preserved. Certain governments
have cruel laws, where police and armies arrests and punishes people without a
trial in the court. Furthermore, law applies to every persons, public authorities,
governmental departments, private bodies, profit making organizations as well
as non-governmental organizations.
In Malaysia, the legislative body which is made up of Lower House and the Upper
house, both which consists of representatives of people, makes law. The
executive body which is headed by YDPA, who is assisted by Prime Minister,
enforces the law, so that everyone will follow. The judiciary body judges law.
These three bodies form the Malaysian government. The law, however, is an
independent entity by itself although it is made, enforced and judged by the
government.
4.1 Legislative Authority
Legislative authority is the power to enact laws applicable to the Federation as a
whole under Article 66(1) of Federal Constitution. At Federal level, the legislative
power is vested in a bicameral Parliament headed by the Yang di-Pertuan Agong
and comprises the Dewan Negara (House of Senate) and Dewan Rakyat (House
of Representatives). The Dewan Negara has 70 members, of whom 44 are
nominated by the Yang di-Pertuan Agong, and 26 elected by the State Legislative
Assemblies. The Dewan Rakyat is fully elected and has 219 members. The
duration of the life of each Parliament and State Legislatures is about five years
and is split into one-year sessions, after which the session is terminated or
prorogued usually in September.
The distribution of law-making authority between the Federal and State
Governments is enumerated in the Ninth Schedule of the Federal Constitution
and is set out in a Federal List, State List and a Concurrent List. The main subject
areas of the Federal List are external affairs, defence, internal security, civil and
criminal

law,

citizenship,

finance,

commerce

and

shipping

industry,

communications, health and labour.


The State List comprises matters such as land, agriculture, forestry, local
government, riverine fishing, Muslim law, etc. The Concurrent List, under
authority of both the Federal and State Governments, covers social welfare,

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scholarships, protection of wildlife and town and country planning. Should any
inconsistency between federal and state law exist, federal law takes precedence
over state law.
4.2 Executive Authority
The Executive is vested with the authority to govern and administer the laws by
way of delegated and drafts Bills as provided under Article 39 of the Federal
Constitution. The power to govern that is vested in the Yang di-Pertuan Agong is
however exercisable by a Cabinet of Ministers headed by the Prime Minister. The
Cabinet is answerable to the Yang di-Pertuan Agong as the head of Executive
Authority in the country. Each executive act of the Federal Government flows
from his Royal authority, whether directly or indirectly. However, in accordance
with the principle of a democratic ruling system, the Chief Executive is the Prime
Minister.
The Yang di-Pertuan Agong appoints a Cabinet - a council of Ministers - to advise
him in the exercise of his functions. It consists of the Prime Minister and an
unspecified number of Ministers who must all be members of Parliament either
the Dewan Rakyat (House of Representatives) or Dewan Negara (House of
Senate). The Ministers hold different portfolios and are collectively responsible
for all decisions made by the Cabinet, which is the highest policy-making body in
the country.
To ensure the smooth enforcement of the law, the Government has set up
various agencies to attain its objectives. The government agencies are
comprised of three main components, namely ministries, departments and
statutory bodies. At ministerial level the functions of the main agencies are to
formulate, control and implement government policies; while at departmental
levels the agencies are responsible for implementing all the policies. Agencies of
statutory bodies are semi-government in structure and are responsible for
carrying out duties assigned to them to meet the government's policies.
4.3 Judicial Authority
The Judiciary is empowered to hear and determine civil and criminal matters, and
to decide on the legality of any legislative or executive acts as provided under

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Article 125A of the Federal Constitution. It is also conferred authority by law to
interpret the Federal and State Constitutions. The courts can pronounce on the
validity or otherwise of any law passed by parliament and they can pronounce on
the meaning of any provision of the constitution. The jurisdiction of the Malaysian
courts is determined by the Courts of Judicature Act 1964 for Superior Courts and
the Subordinate Courts Act 1948 for Subordinate Courts
The Malaysian Courts of Justice are made up of the Superior Courts and the
Subordinate Courts. The Superior Courts comprise of the Federal Court (the
highest court), the Court of Appeal and the two High Courts. By virtue of Act
121(1) of the Federal Constitution judicial power in the Federation is vested on
two High Courts of Coordinate jurisdiction and status namely the High Court of
Malaya for Peninsular Malaysia and the High Court of Borneo for Sabah and
Sarawak.

The Federal Court of Malaysia is the Supreme Court and highest judicial authority
in the country as well as the final court of appeal in Malaysia. Before 1957, the
name "Supreme Court" was used to refer to the highest court for Malaysia next
below the Privy Council. The Supreme Court was renamed the Federal Court of
Malaysia effective from 24 June 1994, and is now the final court of appeal for
Malaysia. The Federal Court reviews decisions referred from the Court of Appeal
it has original jurisdiction in constitutional matters and in disputes between
states or between the federal government and a state. Before 1 January 1985,
the Federal Court was the highest court in the country but its decisions were
further appealable to the Privy Council in London. However, on 1 January 1978,
Privy Council appeals in criminal and constitutional matters were abolished and
on 1 January 1985, all other appeals for instance civil appeals, except those filed
before that date, were abolished.
The Subordinate Courts in Peninsular Malaysia consist of the Sessions Court,
Magistrates' Court and the Penghulu's Courts. The Subordinate Courts in Sabah
and Sarawak consist of the Sessions Court, Magistrates' Courts and Native
Courts. In the hierarchy of Subordinate Courts the lowest is the Penghulus Court.

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A Penghulu is a headman appointed by a state government. The criminal
jurisdiction of a Penghulus Court is limited to the trial of offences of a minor
nature which can be adequately punished by a fine not exceeding RM25.00. In
addition to the above, there is also a Juvenile Court for offenders below the age
of 18.
All members of judiciary are appointed by the Yang di-Pertuan Agong, acting on
the advice of the Prime Minister and after consultation with the Conference of
Rulers. The number of Judges is fixed by the Constitution. The head of the
judiciary is the Chief Justice of the Federal Court and he exercises direct
supervision over all courts. Currently, the law provides seven other judges of the
Federal Court, besides the Chief Justice of Malaysia, the President of the Court of
Appeal, the Chief Judge of Malaya, the Chief Judge of Sabah and Sarawak, ten
judges for the Court of Appeal, forty-seven Judges for the High Court in Malaya,
ten judges in the High Court in Sabah and Sarawak, and eleven Judicial
Commissioners in the High Court in Malaya, and two in the High Court in Sabah
and Sarawak, although this may be altered by the Yang di-Pertuan Agong by way
of an order.

5.0 Sources of Malaysian Law


In Malaysia legal system, there are have a sources of law where this sources
have many factors that have influence the development of the Malaysian law
although they are not recognized as law. These factors may include local system,
beliefs of human, and also opinion of jurists. These legal sources are the legal
rule that make up the law in Malaysia as well. There are many types of sources
and these particular sources can be classified into two main of sources such as
written law, unwritten law and also Islamic law.

Malaysian Law

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Written Law

Federal
Constitution

State
Constitution

Unwritten Law

English
Law

Islamic Law

Judicial
Precedents

Customs

Legislation

Subsidiary
Legislation

Common Law

Equity

Figure 1: Sources of Malaysian Law (Mei Pheng & Detta, 2009)

5.1 Written Law


Written law refers to the laws contained in the Federal and State Constitutions
and in a code or a statute. The written laws are much influenced by English laws
as the Malaysian legal system retains many characteristics of the English legal
system. The Written law includes the Federal and State Constitution, Legislation
and Subsidiary Legislation.

5.1.1 Federal Constitution

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Federal Constitution is said to be the highest legal authority of land. The
Constitution was drafted by the Reid Commission in 1956 with5 representatives
from India, British, Pakistan and Australia. The Constitution came into force
following the independence on August 31, 1957. It consists of 15 Parts, 183
Articles and 13 Schedules. Article 4(1) state that the constitution is the supreme
law of the federation and any law passed after Merdeka Day which is inconsistent
with this constitution shall, to the maximum extent of inconsistency, be void.
Article 159 and 161E provides provisions to allow the constitution to be amended
with the condition of2/3rds majority in both houses of Parliament agreeing to the
amendment.
The federal institution is the supreme law of the country. There are also the main
law in Malaysia and constitutions of the thirteen states that consists the
federation, which from part of written law in Malaysia. Federal constitution also
provides for the Yang di-Pertuan Agong who owes his position to the
constitutions and act accordance with it. The constitution can only be changed
by a two-third majority of the total number of members of the legislature. This is
contrast to normal laws which can be amended by a simple majority. Besides set
down the powers of the federal and state governments, the federal constitution
enshrines the basic of fundamental right of the individual.

5.1.2 State Constitution


The second part of written law is State Constitutions. State constitution in the
same as federal constitution In Malaysia, each State constitution has their own
constitution regulating the government of the state. For instance, Sarawak has
the constitution of the state of Sarawak, Kelantans constitution is the
constitution of the state of Kelantan and same with the rest of state in Malaysia.
In Malay some constitutions are not referred to Perlembagaan but as an
Undang-undang Tubuh Negeri or Kerajaan. Each state in governed and

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administered in accordance with the constitution of the state. This is the reason
why the court must look at the relevant provision of the constitution of the state
if there is any constitutional dispute relating to government of the state. For
instance the constitutional impasse in Perak requires the court to interpret the
constitution of Perak, not the federal constitution or some other constitution.
Provisions of other constitutions may render some assistance in understanding
the Peraks provision but they are not binding in Perak. The state constitution
contains provisions which are enumerated in the 8 th schedule to the federal
constitution. Some of these provisions include matters that concentrate about
the ruler, the executive council, the legislature assembly, financial provisions,
state employees and also amendment of the constitution. The right of the states
to have their own constitution is guaranteed in the federal constitution of
Malaysia, as state in article 71. An article 71 mentions that all state constitutions
must contain their provisions. Otherwise the parliament can enforce those
provisions or abolish any provision in the state constitution that contradict with
those provisions.
5.1. 3 Legislation
Legislation is also part of written law in term of sources of law in Malaysia.
Legislation refers to law enacted by a body constituted for this purpose. In
Malaysia, legislation is the laws that are established by the parliament at federal
level and by the state legislative assemblies at the state level. Law are enacted
by parliament after 1946 but before Malaysias independence in 1957 are called
ordinances, but those made after 1957 are called Act. In the meantime, laws
made by the state legislative assemblies except Sarawak are called enactments.
So, in that state law is called ordinances. In Malaysia, the legislative get its
authority from the federal constitution.
It mentions the scope of the parliament and the state assembly. Parliament and
the state legislature are not supreme. If the parliament or any state assembly
makes a law which is not in its scope of authority or contradict with the
constitution, the court can declare that as null and void. On the other hand, the
courts would have to use laws made by the parliament or state assembly if the
law is regarding issues related to their authority and conforms to the

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constitution. Article 74 of federal constitution states that parliament may make
law with referring to matters provided in the federal list and the state legislative
may make the law with referring to matter provided in the state list.
Concurrent list is in the scope of enactment by the both parliament and state
legislative. State list, federal list and the concurrent list are containing in the nine
schedule of federal constitution. If there are any contradictions between federal
and state law, the federal law shall prevail and state law is void to the scope of
inconsistency. This was provided by Article 75 of federal constitution. Legislature
as a source of law has become more important than case law of precedents. It is
being increasingly used as a means of repealing, amending, enacting or
codifying the law.
5.1.4 Subsidiary Legislation
The other sources of law in Malaysia are subsidiary legislation. Subsidiary
legislation is made by the persons or bodies who are authorized to by the
legislature. According to interpretation Act 1967, subsidiary legislations are
defined as rules, any proclamation, regulations, by laws, order, notifications
made under legislations. Subsidiary legislation is very important as legislation by
parliament and the state legislatures is insufficient to provide the laws required
to govern everyday matters.
Legislature merely set down the basic and the main laws, leaving the details to
person or bodies to whom they delegate their legislative powers. Such persons or
bodies include the Yang di-Pertuan Agong, ministers and local authorities and
among others. On the other hand, it has insufficient time to expand the scope of
law which can be applied by the bodies and persons to govern day-to-day
matters. So, the authority is delegated to them to make their own laws, but there
should not be any contradiction between the subsidiary legislations and the basic
law or federal constitution. If such, the subsidiary legislation can be void. There is
an exception to this. Parliament may pass the power to legislate any subsidiary
legislation during emergency, even if there are any contradictions with the
federal constitution involved, due to some exception in Article 150 of federal
constitution.

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The related case is Eng Keock Cheng v. Public Prosecutor (Mohamed, 2009). In this
case, Eng Keock Cheng who was convicted committed to offences during emergency
period and was ordered to put to death. He appealed on the ground that there
were neither a preliminary enquiry nor a jury adopted by High Court which were
required under Criminal Procedure Act and claimed that the procedures set out in
Emergency (Criminal Trial) Regulations 1964 was invalid as it contradicts with
Article 8 of Federal Constitution. It was held that Parliament may pass the power to
legislate any subsidiary legislation during emergency, even if there are any
contradictions with the Federal Constitutions involved, due to some exception in
Article 150 of Federal Constitution. The appeal was dismissed.

5.2 Unwritten Law


Unwritten law is also one of the sources of law in Malaysia. Unwritten law is
mainly comprised of the English law, judicial decisions and custom law. The
unwritten law does not mean that the law is literally unwritten but it refers to the
laws which only these laws are not enacted by the legislature and which are not
found in the federal and state constitutions. This category of law comes from
cases decided by the courts and the local customs, which otherwise are known
as common law. English law form is the part of the laws of Malaysia. This type of
law can be found inter alia in the English common law and rule of equity.
However, not all Englands common law and rule of equity from part of Malaysian
law. The English law can be divided into two which are the English commercial
law and also English land law.
Section 3(1) of the Civil Law Act 1956 revised 1972 provide that, the courts
should apply the common law of England and the rules of equity as administered
in England on the 7th of April on that year in peninsular Malaysia. About the
Sabah and Sarawak state, the courts shall apply the common law of England and
the rules of equity, together with statutes of general application s administered
or in force in England on the first day of December 1951 and the 12 th day of
December 1949 respectively. It is noted that section 3 of the Civil Law Act 1956
only requires any court in peninsular Malaysia to apply the common law and the
rules of equity administered in England on 7 April 1956.

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However the Supreme Court in commonwealth of Australia v. Midford (Malaysia)
Sdn. Bhd. & Anor said that the development of common law after 1956 may well
be applicable in Malaysia. In this situation, the restrictive doctrine of sovereign
immunity as develop in the common law after 1956 was held to be applicable in
Malaysia.
5.2.1 English law
The English Law can be divided into two which are the English Commercial Law
and English Land Law. In section 5(1) of the Civil Law Act 1956 provides that The
English Commercial Law is applicable in Peninsular Malaysia except Penang and
Malacca as it stood on 7 April 1956 in the absence of local legislation. On the
other hand, Section 5(2) of the same act applies in Penang, Malacca, Sabah and
Sarawak as the law administered in these states will be the same as law
administered in England, in the like case at corresponding period. As for the
English Land Law, none of the English Land Law concerning the tenure,
conveyance, assurance of or succession to any immovable property or any
estate, right or interest therein applies in Malaysia. In Malaysia, National Land
Code is the law that governs the land matters. There is no any allowance for
English land law, except in so far the National Land Code might expressly
provide.
5.2.2 Customary Law
Besides that, customary law also include in unwritten law that were as source of
law in Malaysia. Customs are another important source of unwritten law. Every
race in Malaysia has its own customs. Generally customs relating to family law
like divorce, marriage and inheritance, are given legal force by the court in
Malaysia. Adat applies to Malays, which prior to the enforcement of the law
reform such as marriage and divorce. Hindu and Chinese customary law applied
to the Hindus and Chinese respectively.
Other than that, native in Sabah and Sarawak have their own customary law
which relates to the land and family matter where natives subject themselves to
native customary laws. In peninsular Malaysia, there are two types of Adat which
is the Adat Perpateh and also Adat Temenggong. Adat Perpateh is practiced

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among the Malays in Negeri Sembilan and Naning in Malacca. It uses for
matrilineal system which belong to mothers lineage, meaning to say it involve
the inheritance of their property, names or titles from mothers to daughters.
It also concerns with matters such as land holder, lineage, inheritance and
election of members of Lembaga and Yang di-Pertuan Besar. The other states
practise the Adat Temenggong. Adat Temenggong is practise in others state
except that two state above which originated from Palembang, Sumatera
expands a patrilineal system of law which this law is belongs to fathers lineage.
5.2.3 Judiciary Decision
Approaching the judicial decision, judges do not decide arbitrarily. Instead, they
are bound to follow certain accepted principles known as precedents. Precedents
are defined as a judgement or decision of a court of law cited as an authority for
the legal principle embodied in its decision. The system of binding judicial
precedent is called stare decisis. It is created by the English judges and
introduced into Malaysia upon colonization.
The Malaysian Court system is similar and in fact, influenced by the English Court
system which is divided into the Superior and Subordinate Courts. Under the
Subordinate Courts, the Penghulu Court is the lowest level and the state
government will appoint a headman to preside the court for the specific district.
Relating Sabah and Sarawak, both are equally related to the Native Courts that
relates to the indigenous people's customs. A level above is the Magistrate's
Courts which deals with minor criminal and civil cases and at the highest level
are the Sessions Courts. However, the Superior Courts are made up of the High
Court, Court of Appeal and Federal Court which is the highest court in the land.
5.3 Islamic Law
Last but not least, Islamic law is also a major source of Malaysian law which this
law is enacted under the federal constitution. It is only applicable to Muslims only
and is administered by a separate court system as known as the Shariah courts.
The state legislature has authority over the constitution, organization and
procedure of the Shariah Court and is also allowed to make Muslim laws

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pertaining to persons professing the religion of Islam. The head of Muslim religion
in a state except for state like Penang, Malacca, Sabah, Sarawak and the federal
territories is called Sultan.

On the other hand, Penang, Sabah, Sarawak, Malacca and also federal territories,
the Yang di-Pertua Negeri is the head. The Malay sultans were accepted as the
defender of Islamic religion and culture. Within their jurisdiction, an Islamic court
system was established. Each state had the Head Kadi (religious magistrate) to
administer the Islamic justice.

6.0 Conclusion
Different country practices different types of legal system. Some country
practices one type of legal system while others practices the mixed legal system
which means a combination of two or more legal systems. Malaysia for example,
practices the mixed legal system which includes the Common Law, Islamic law
and Customary Law. Malaysia's legal system comprises laws which have arise
from three significant periods in Malaysian history dating from the Malacca
Sultanate, to the spread of Islam to Southeast Asia, and following the absorption
into the indigenous culture of British colonial rule which introduced a
constitutional government and the common law.
Malaysia's unique legal system is designed to balance the delicate racial
and religious needs of its heterogeneous people. Every part of legal system in
Malaysia was an important thing to conduct or manage in that particular country.
Law is very important to direction of citizens and they live based on that law
same as in this life as a human. Without rules and regulations, people will under
control.

GT01103
BUSINESS LAW
SUBMISSION DATE: 18th APRIL 2012
MISS YANTI AHMAD SHAFIEE

7.0 References
Hammergren, L. (August, 2011). Malaysia Court Backlog and Delay Reduction
Program. Retrieved 13 April, 2012, from Poverty Reduction and Economic
Management Sector Unit East Asia and Pacific Region:
http://www.kehakiman.gov.my/sites/default/files/document3/Teks
%20Ucapan/WORLD%20BANK%20REPORT%20FINAL.pdf
Mei Pheng, L., & Detta, I. J. (2009). Business Law. Australia: Oxford University
Press.
Mohamed, M. (2009). Law in Malaysia. Retrieved 11 April, 2012, from Scribd.com:
http:Business Law/Biz law Bahan/Law-in-Malaysia.htm
Noordin, S. M., & Pui Keng, L. (February, 2008). An Overview of Malaysian Legal
System and Research. Retrieved 11 April, 2012, from HauserGlobal Law
School Program: http://www.nyulawglobal.org/globalex/Malaysia.htm
Shuaib, F. S. (2009). Towards Malaysian Common Law: Convergence between
Indigenous Norms and Common Law Methods. Jurnal Undang-Undang.
Thukiman, K., Abdul Rahman, H., & Suaibah. (2009). PERLEMBAGAAN MALAYSIA
DALAM PERSPEKTIF HUBUNGAN ETNIK. Hubungan Etnik Di Malaysia:
Perspektif Teori Dan Praktik, 88-114.

GT01103
BUSINESS LAW
SUBMISSION DATE: 18th APRIL 2012
MISS YANTI AHMAD SHAFIEE