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CONSTRUCTION LAW

MALAYSIAN LEGAL SYSTEM, SOURCES OF LAW AND CONTRACT LAW

Siti Suhaidah Sahab 10/22/17 BCM563 CONSTRUCTION LAW


Contents
LESSON OUTCOME .................................................................................................................................. 2
INTRODUCTION ................................................................................................................................... 2
DEFINITION OF LAW............................................................................................................................ 2
RULES OF LAW ........................................................................................................................................ 3
CONSTRUCTION LAW .............................................................................................................................. 3
SOURCES OF LAW.................................................................................................................................... 4
WRITTEN LAW ..................................................................................................................................... 4
DEFINITION...................................................................................................................................... 4
SOURCES OF WRITTEN LAW............................................................................................................ 5
FEDERAL CONSTITUTION ............................................................................................................ 5
STATE CONSTITUTION ................................................................................................................. 8
LEGISLATION ............................................................................................................................... 9
SUBSIDIARY LEGISLATION ......................................................................................................... 11
UNWRITTEN LAW .............................................................................................................................. 14
DEFINITION.................................................................................................................................... 14
CASE LAW .................................................................................................................................. 14
ENGLISH COMMON LAW AND RULES OF EQUITY ..................................................................... 15
CUSTOM .................................................................................................................................... 16
SYARIAH LAW ................................................................................................................................... 18
Works Cited ........................................................................................................................................... 20

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OVERVIEW OF CONSTRUCTION
LAW
LESSON OUTCOME
By the end of the lesson, students are able to;

i. Define law and sources of law


ii. Distinguish sources of law and its composition
iii. Illustrate sources of law in Malaysia

INTRODUCTION
Law is applied to attain justice in society. It provides a view on right or wrong, equality and a sense of
fairness. Malaysia applied both common law system and the civil law system. The distinguishing
characteristic of common law is that it is based more on precedent than on a codified set of laws and
regulations (Hayes, n.d.). Civil law systems rely on a large legal code that is constantly updated and
which establishes legal procedures, punishments, and what can and cannot be brought before a court
(Hayes, n.d.).

The core concept of litigation in Malaysia is the Adversarial System. It is a system where a case is
argued by prosecutor and defendant’s attorney and it will be decided by a judge that acts as an umpire
(BusinessDictionary.com, n.d.).

DEFINITION OF LAW
The enforceable body of rules that govern any society (Law & Martin, 2014)

The system of rules which a particular country or community recognizes as regulating the actions of
its members and which it may enforce by the imposition of penalties (Law, n.d.)

John Austin defines ‘law’ as a command set by superior being to an inferior being and enforced by
sanctions (punishments).

All rules to which people in any society conform, whether by custom or by enforceable governmental
regulation (Sinha & Narula, 2005).

Clause 2 of Article 160 of the Federal Constitution the word ‘law’ holds the meaning of:

‘WRITTEN LAW, the COMMON LAW in so far as it is in operation in the Federation or any part
thereof and any CUSTOM or usage having the force of law in the federation or any part
thereof’ (Board, 2015)

“RULE of HUMAN CONDUCT IMPOSED upon and ENFORCED among the MEMBERS of a State”

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RULES OF LAW
The rule of law was based on the idea that laws should conform to a minimum standard of fairness
(Dicey, 1885)

a) No person must be punished except for breach of the law


b) All persons are equal before the law irrespective of status or position
c) The rights or freedom of citizens are enforceable in the courts

CONSTRUCTION LAW
The law is one of the enabling mechanisms to provide for the management and regulation of the
relationship between the parties to a technological endeavour.

The term “construction law” is now universally understood to cover the whole field of law which
directly affects the construction industry and the legal instruments through which it operates (Uff,
2013).

Construction law is neither a legal term of art nor a technical one. It is used to cover the whole field
of law which, in one way or another, affects the construction industry (Singh, 2011).

The study of law in conjunction to building and civil engineering contract involves consideration of the
following (Singh, 2011);

a) The English law of contract and Tort


b) Local legislation which adds to or overrides the English law
c) Case law (precedent)
d) The terms of the particular contract (express or implied)

EXERCISE
Fill in the blanks.

1) Definition of law; of HUMAN CONDUCT IMPOSED upon and


among the of a State
2) John Austin defines ‘law’ as a set by being to an
being and enforced by (punishments).
3) All to which people in any society , whether by
or by enforceable governmental (Sinha & Narula,
2005).
4) Construction law is neither a legal term of art nor a technical one. It is used to cover the
which, in one way or another,
the construction industry (Singh, 2011).
5) Minimum standard of fairness; All persons are before the law irrespective
of status or position

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SOURCES OF LAW

SOURCES OF LAW

WRITTEN LAW UNWRITTEN LAW SYARIAH LAW

Federal Constitution Case Law

State Constitution English Common law

Legislation Custom

Subsidiary Legislation

WRITTEN LAW
It is the most important source of law. Where statute law and common law conflict, statute law will
prevail. According to Clause (2) of Article 160;

Written law includes Federal Constitution and the constitution of any State
DEFINITION
Legal source of law refers to all that law that has been reduced to, or is present in the written form
(Singh, 2011).

Written law refers to the law embodied in the Federal and state constitutions and in a code or a statute
including subsidiary or delegated legislation (Rau & Kumar, 2008).

Law made by Parliament and any subordinate bodies to whom Parliament has delegated power to
legislate (Peng & Detta, 2009).

Referring to Section 3 of the Interpretation Acts 1948 and 1967 (Act 388), “written law” is defined as
(Federal Constitution, 2012):

i. The FEDERAL CONSTITUTION and the STATE CONSTITUTION


ii. ACTS OF PARLIMENT and SUBSIDIARY LEGISLATION made thereunder
iii. Ordinances and Enactments (including any federal or state law styling itself an Ordinance or
Enactment) and subsidiary legislation made thereunder; and

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iv. Any other legislative enactments or legislative instruments ( including Acts of Parliament of
the United Kingdom of Great Britian and Northern Ireland and Orders in Council and other
subsidiary legislation made thereunder) which are in force in Malaysia or any part thereof.

SOURCES OF WRITTEN LAW

Federal
Constitution

State
Constitution

Legislation

Subsidiary
Legislation

FEDERAL CONSTITUTION
Definition

A frame of political society organized through and by law, in which law has established
permanent institutions with recognized functions and definite rights (Rau & Kumar,
2008)
Article 4(1) of the Federal Constitution:

This constitution 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 (Federal Constitution, 2012)
The supremacy of the Federal Constitution only applies to law made after Merdeka Day, any laws
made before Merdeka are dealt with in Article 162 (6)

Any court or tribunal applying the provision of any existing law has not been modified
on or after Merdeka Day under this Article or otherwise may apply it with such
modifications as may be necessary to bring it into accord with the provisions of this
constitution.

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Any pre- Merdeka law which is inconsistent with the Federal Constitution shall be continued with
necessary modification to render it consistent with the Federation.

Federal Constitution acts as a yardstick to measure the validity of laws (Hamzah, 2009). Any law
inconsistent or contravened with the Federal Constitution may be challenged in court. In Dewan
Undangan Negeri Kelantan & Anor v. Noordin bin Salleh & Anor [1992] 1 MLJ 697, the Supreme Court
declared a law passed by the Kelantan State Legislative Assembly to be void under Article 4(1) of the
Federal Constitution.

It enshrines the basic/ fundamental rights of individuals. Federal Constitution comprises of sixteen
parts and one hundred and eighty three articles. Federation has power and control over subject
matter which can be considered essential to the nation as a whole as enumerated in the Federal List
such as;

i. External Affairs
ii. Defence
iii. Internal Security
iv. Civil and Criminal Law and procedure and the administration of justice
v. Citizenship
vi. Finance
vii. Trade
viii. Education
ix. Medicine

Amendments of the Federal Constitution can be achieved via:

i. 2/3 majority of both houses


Amendment by a Bill has to be supported by not less than two- thirds of the total number of
members of each Dewan on its second and third readings.
ii. Simple majority
Amendment through ordinary bill supported by a simple majority of members present and
voting in each Dewan.
iii. Consent of Majlis Raja- Raja
Concerned with ‘sensitive issues’; Majlis Raja- Raja, the precedence of Rulers and Governors
the special position and privileges of the Malays, citizenship etc.
iv. Consent of Yang di- Pertua Negeri Sabah and Sarawak
Constitutional amendments affecting special ‘safeguards’ arranged for Sabah and Sarawak.

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EXERCISE
Fill in the blanks.

DEFINITION
FEDERAL CONSTITUTION Article 4(1) of the Federal Constitution:

AMENDMENT

1)

2)

3)

4)

5)

6)

7)

8)

9)

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STATE CONSTITUTION
Malaysia is a Federation of thirteen states, despite the Federal Constitution being the supreme law of
the federation, in many cases, State Constitution are much older than the Federal Constitution. Each
member of the State agreed to surrender some of its power to the federation, example; the state
agreed to the formation of a strong Malaysian Federation and common citizenship (Rau & Kumar,
2008).

Each State Constitution has to contain certain essential provision as stated in Article 71(4) of the
Federal Constitution;

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.
The State has the power to control over matters that was included in the Eight Schedule to the Federal
Constitution and in the State list;

i. Ruler to act on advice


ii. Executive council
iii. Legislature of the State
iv. Malay Reservations
v. Permits and licences for mines
vi. Transfer of land
vii. Escheat
viii. Agriculture
ix. Forests
x. Local administration
xi. Licensing of theatres, cinemas etc
xii. Road, bridges and ferries
xiii. Islamic law
xiv. Public holiday

Article 75 provides if any State law is inconsistence with a Federal law, the Federal law shall prevail
and the State law shall, to the extent of the inconsistency, be void;

If any State law is inconsistent with a federal law, the federal law shall prevail and
the State law shall, to the extent of the inconsistency, be void.
Government of Malaysia v. Government of the State of Kelantan [1968] 1 MLJ 129

Fact; The Kelantan Government granted a mining and forest concession to Timbermine Industrial Corp
Ltd which agreed to pay advance payments of the royalty to the State Government. It was agreed that
when the corporation extracted timber and minerals on which royalty was due, it had to pay only 50%,
retaining the other 50% until the whole amount prepaid was refunded. In certain circumstances, the
amount advanced could be forfeited.

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Held; The Federal Court held that this did not amount to borrowing as there was no legal relationship
of lender and borrower between the State Government and the corporation and the State Government
would not be obliged to repay if the advance payments were forfeited for breach of conditions.

LEGISLATION
In Malaysia the power to enact the law is vested in Parliament at the Federal level and the State
legislative Assembly at the State Level. The Parliament and the State Legislative Assembly are not
supreme and are entitled to enact law within the limits and the manner prescribed by the Federal and
State Constitutions (Hamzah, 2009).

The statement is supported by Article 73 of the Federal Constitution that vested PARLIAMENT is
empowered to make laws for the whole or any part of the Federation and also having the effect
outside as well as within the Federation.

Article 44 of the Federal Constitution vested the legislative authority of the Federation;

Constitution of Parliament
44. The legislative authority of the Federation shall be vested in a Parliament, which
shall consist of the Yang di-Pertuan Agong and two Majlis (Houses of Parliament) to
be known as the Dewan Negara (Senate) and the Dewan Rakyat (House of
Representatives).
Legislation is enacted by Parliament by introducing a Bill which is passed by both Dewans and assented
by the Yang di- Pertuan Agong (Article 66 (1) of the Federal Cosntitution). A bill may originate in either
Dewan and there are two main stages in the process: Pre- Parliamentary and Parliamentary. Chapter
4 of Part IV of the Federal Constitution provides explanation on the constitution of both houses of
Parliament.

PRE PARLIAMENTARY STAGE


The stage includes the proposal, consultation and drafting stage. The Government proposal
proposals that may come from various sources have to be accepted in
principle by the Cabinet.

Source of proposal: Meetings between relevant


government bodies
i. Election manifesto
ii. Policy decisions of ministry
iii. Recommendations of royal commissioners; Drafting of bill by the
iv. Pressure group parliamentary draftsperson

Cabinet approval of bill

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PARLIAMENTARY STAGE
A Bill is introduced into Parliament by the Minister responsible for the subject matter. When it has
been passed, after debate and voting by the House of Representative it is referred to Senate where it
goes through the same process (c.5 Legislative procedure) http://www.parlimen.gov.my/index.php

i. First Reading
Minister introduce Bill in the D.R. / H.R The clerk of the Dewan will read out the title of the
bill. Formality stages where the Minister just introducing the “Short" or “Long Title" to the
representatives (tabling the bill)
ii. Second Reading
The bill will be print out and be given to all of the Dewan Rakyat members. The Minister will
give the thorough detail about the bill, and let the representative to argue about the general
detail. The representatives are allowed to debate and discuss the bill after the Minister
present it for the second time
iii. Committee Stage
The representatives will group themselves into several committees to discuss the bill detail in
more formal procedure. The representatives are not allowed to discuss the general details
which had been debated in the second reading. The bill is reported to the Dewan Rakyat to
ask for their approval. If there is no objection then, no debate will allowed again.
iv. Third Reading
The Minister will inform the member of Dewan Rakyat that the bill has gone through the first
three stages, either without any changes or with changes. If there is no objection than the bill
is ready to be passed to Dewan Negara
v. Senate
The bill will undergo the four stages again in the Dewan Negara. Any disagreement will be
resolved by joint committee of both houses. Senate has no power to reject the bill, however
has the ability to delay the passage of the bill. The senate have no complaint about the bill,
the bill will be, sent to Yang Di-Pertuan Agong to get his consent.
vi. Royal Assent
YDPA affixes Public Seal within 30days of presentation (Clause (4) of Article 66). With the
power of Article 66, whether the Yang di-Pertuan Agong agree or disagree, the bill will be
passed as recognise law.
vii. Publication
Act comes into force once it is published. Publication is done in the Federal Gazette (Clause
(5) of Article 66).

EXAMPLES
Federal Law

i. Arbitration Act 2005.


ii. Architects Act 1967 (Revised 1973) Act 117.
iii. Companies Act 1965 (Revised 1973 – Reprint 1988) Act 125.
iv. Contracts Act 1950 (Revised 1974 – Reprint 1997) Act 563 & (Amendment) 1976 Act 136.
v. Drainage Works Act 1954 (Revised 1988) Act 354.
vi. Environment Quality Act 1974 Act 127.
vii. Fire Services Act 1988 Act 341.
viii. Government Contracts Act 1949 (Revised 1973) Act 120.

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State Law

i. Enakmen Hutan Sabah 1968


ii. Undang- undang Tubuh Kerajaan Perak
iii. Malay Reservations Enactment Perlis 7/1353
iv. Enakmen Pentadbiran Agama Islam (Negeri Johor) 2003
v. Water supply Johore Enactment No.119.
vi. Settlement Enactment Terengganu No. 65/1356.

EXERCISE
Categorise the following;

FEDERAL LAW STATE LAW

ACT ENACTMENT PARLIAMENT MALAY RESERVATIONS ENACTMENT PERLIS 7/1353

STATE LEGISLATIVE ASSEMBLY DRAINAGE WORKS ACT 1954 ENAKMEN HUTAN SABAH
1968

SUBSIDIARY LEGISLATION
The Interpretation Act 1967 defines ‘Subsidiary Legislation’ as:

“any proclamation, rule, regulation, order, notification, by- law or other instrument
made under any Ordinance, Enactment or other lawful authority and having
legislative effect”
Curzon defined Subsidiary legislation as:

“Legislation made by some person or body (eg a minister or local authority) under
authority delegated by Parliament under Statute. It may take the form of statutory
orders in council departmental orders, regulations, and rules. Known as ‘subordinate
legislation...”

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Subsidiary Legislation made in contravention of either a parent Act of the Constitution is void. There
are several reasons why subsidiary legislation were used as a mode for enacting laws in Malaysia such
as;

i. Insufficient time - detailed in every aspect, required in modern society


ii. Highly technical - best left to experts
iii. Flexible - can be change to adapt unforeseen events
iv. Legislature not continuously in session and the procedures are cumbersome
v. Emergency situations - no mandatory procedures needed to enact SL

To avoid misuse of power, several control mechanism were introduced. This will avoid any conflict of
interest or contravention of SL with parent Act or the Constitution.

i. Judicial control

Judicial review lies in ss 23(1) and 87(d) of the Interpretation Acts 1948 and 1967. Control by the
courts. It is the power of the High Court to exercise judicial review under the following grounds:

a) Subsidiary legislation is unconstitutional


Subsidiary legislation is inconsistent with a provision in the Federal Constitution
b) Parent Act is unconstitutional
The parent act which delegated legislative powers to the authority concerned is itself
unconstitutional.
c) Substantive ultra vires
The subsidiary legislation goes beyond the scope of the authority conferred by the parent
act.
d) Procedural ultra vires
The subsidiary legislation was not made in accordance with the procedures laid down by
the parent act.
ii. Legislative control
Parliament can revoke or rescind the subsidiary legislation by repealing the Parent Act.
iii. Preliminary control
By consulting the effected groups and advisory bodies before making the subsidiary
legislation.
iv. Publication
Serially numbered either the prefix:
a) Legislative Supplement A : proclamations, rules, regulations, order and by-laws
b) Legislative Supplement B: contains all other subsidiary legislation

EXAMPLE
i. Uniform Building by Laws 1984
ii. Parking by laws by state local government enactment
iii. Trade Descriptions (Halal) Order 1975
iv. Gunong Mulu National Park Proclamations
v. By-laws (on professional ethics, conduct and practice) of the malaysian institute of
accountants
vi. NGO by-laws
vii. Perintah kawalan harga (penandaan harga oleh penjual runcit) 1993
viii. Perintah kualiti alam sekeliling (aktiviti yang ditetapkan) (penilaian kesan kepada alam
sekeliling) 1987

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EXERCISE
Match the following;

By consulting the effected groups and


The Interpretation Act 1967 advisory bodies before making the
subsidiary legislation.
Insufficient time Uniform Building by Laws 1984
Can be change to adapt unforeseen
Flexible
events
Parliament can revoke or rescind the
Preliminary control subsidiary legislation by repealing the
Parent Act.
Detailed in every aspect, required in
Procedural ultra vires
modern society
Any proclamation, rule, regulation,
order, notification, by- law or other
Legislative control instrument made under any Ordinance,
Enactment or other lawful authority
and having legislative effect
The subsidiary legislation was not made
Examples in accordance with the procedures laid
down by the parent act.

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UNWRITTEN LAW
It constitutes the part of the local law that is not recognized as ‘written law’ in the Malaysian context.

All that portion of the law, observed and administered in the courts, which has not
been enacted or promulgated in the form of a statute or ordinance, including the un
enacted portions of the common law, general and particular customs having the force
of law, and the rules, principles, and maxims established by judicial precedents or the
successive like decisions of the courts (Black's Law Dictionary)

DEFINITION
A law that rests for its authority on custom, judicial decision, etc., as distinguished from law originating
in written command, statute, or decree. (Dictionary.com)

Unwritten rules, principles, and norms that have the effect and force of law though they have not
been formally enacted by the government.

Unwritten laws are laws which are not contained in any statutes and can be found in case decisions.

SOURCES OF UNWRITTEN LAW

Case Law

English
Common
law

Custom

CASE LAW
It is a decision made by judges on written and unwritten law on relevant issues in actual cases that
come up before them. Sources of law where past decisions of the judges create law for future judges
to follow. The decisions are the reported and can be sourced from Authorative Law Journals. Case law
may comprise Res Judicata, Ratio Decidendi and Obiter Dictum. It is also known as Judicial Precedent.

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The essence of this doctrine is called Doctrine of Stare Decisis et non quieta movere ie doctrine
according to which previous decisions must be followed meaning ‘stand by decision and do not move
that which is quiet’. If a precedent is ignored by lower court, that decision is considered wrong and
will be overturned to a higher court.

Two way operation:

i. Vertical – bound by the prior decisions of a higher court.


ii. Horizontal – bound by their own prior decisions and prior decisions of a court of the same
level.

Advantages of Case Law:

i. To achieve certainty and uniformity in the law as like cases will be treated alike.
ii. The law developed through the cases is more practical as it is based on actual situations rather
than on hypothetical ones.
iii. Flexibility in the application.

ENGLISH COMMON LAW AND RULES OF EQUITY


The usage of foreign cases is expressly permitted in accordance with and subject to the limitations
imposed by section 3 and 5 of the Civil Law Act 1956;

Section 3 of the Civil Law Act 1956 (Act 67) (Revised 1972) gives the meaning of the
English law which means ‘the common law of England and the rules of equity’ and, in
prescribed circumstances, English statutes.
Section 5 of the Civil Law Act 1956 (Act 67) (Revised 1972) explains the application of
English law in commercial matters with respect to the law of partnerships,
corporations, banks and banking, principals and agents, carriers by air, land and sea,
marine insurance, average, life and fire insurance, and with respect to mercantile law

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generally, the law to be administered shall be the same as would be administered in
England
It is important to take note that the Foreign’ Cases are not binding on the local courts but are of mere
persuasive authority. Listed are the reasons behind the application of English common law in Malaysia;

i. Absence of local legislation


The qualification is applied only in the absence of local status on the particular subject
(lacunae)
Malaysia v Manjeet Singh Dhillon [1991] 1 MLJ 167. The Supreme Court held that in the
absence of any specific local legislation concerning contempt of court
ii. Cut-off dates
English statutes of general application existing in England on the dates specified which were
7th April 1956 for West Malaysia, 1st December 1951 for Sabah and 12th December 1949 for
Sarawak.
iii. Local circumstances
English law is applicable only to the extent permitted by local circumstances and inhabitants,
and subject to qualifications necessitated by local circumstances.
This qualification is contained in the concluding provision to section 3(1), is commonly
referred to as the ‘local circumstances’ proviso.

CUSTOM
Clause 2 of Article 160 of the Federal Constitution the word ‘law’ holds the meaning of:

‘WRITTEN LAW, the COMMON LAW in so far as it is in operation in the Federation or


any part thereof and any CUSTOM or usage having the force of law in the federation
or any part thereof’
Therefore, it’s clear that the application of Custom is permissible in reference to the Federal
Constitution.

Custom is defined as:

Long established practice considered as unwritten law (Curzon)


Long standing practice or usage is binding on those within its scope. It is subsidiary
source of law, though largely unimportant today (Vincent Powell Smith)
As Malaysia is known for its diversity, hence, the Malaysian custom is divided into several category;

i. Malay Customary law


a) Adat Perpatih
Applies in Negeri Sembilan and Naning in Malacca. It is a matrilineal form of
organisation. It concerns with matters such as land tenure, lineage, inheritance and
election of members of lembaga and YDP. Inter-tribal marriage is not allowed among
Adat Perpatih followers. Punishment system in the laws of Adat Perpatih generally
aims to reform or rehabilitate the wrongdoer rather than retaliating against him.
b) Adat Temenggung
Applies in other states. It is a patrilineal form of organisation. It generally involves the
inheritance of property, names or titles from fathers to sons. Marriage between those

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who come from the same tribe is allowed. The laws in Adat Temenggung are harsh -
punishment is imposed as retribution.
Jainah bt Semah v Mansor bin Iman & Anor (1951) 17 MLJ 62 (HC)
ii. Native Customary law
a) Iban customary law
Most populous indigenous group in Malaysia other than the Malays. Covers all of the
various customary norms, jury rules and rituals that guide an individual’s conduct and
the sanctions and forms of redress by which rules are upheld. Inheritance under Iban
customary laws, it is based on the membership of the bilik
b) Dusun customary law
Two types of division property – ancestral property (inherited by blood relatives) and
acquired property (property acquired before marriage)
iii. Chinese and Hindu Customary law
Chinese and Hindu CL on marriage and divorce have diminished relevance since the coming
into force of the Law Reform (Marriage and Divorce) Act, 1976. The act introduced a uniform
law on marriage, divorce and its ancillary matters among non-Muslims. It abolished
polygamous marriage among the non-Muslims, introduces a common system of
solemnization and imposed compulsory registration of marriage. The Six Widows’ Case [1911]
12 SSLR 120

EXERCISE
Answer the following questions;

1. Define Doctrine of Stare Decisis et non quieta movere

2. Explain vertical and horizontal precedent in case law

3. Explain the application of English Common Law according to Section 5 of the Civil Law Act
1956 (Act 67) (Revised 1972)

4. Define custom according to Vincent Powell Smith

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SYARIAH LAW
Article 3 of the Federal Constitution states:

“Islam is the religion of the Federation; but other religions may be practiced in peace
and harmony in any part of the Federation”
Islamic law was the law of the land before the coming of British. The Federal Constitution provides
that states have the power to administer Muslim Law. The courts which enforce Muslim Law are the
Syariah Courts. Muslim Law applies to Muslims only and does not apply to non-Muslims.

It is administered by a separate system of Syariah courts particularly in the areas of marriage, divorce,
guardianship, inheritance and the like.

Syariah Law comprises of both Civil and Criminal jurisdiction;

Civil jurisdiction

i. Betrothal, marriage, annulment, divorce and judicial separation;


ii. Distribution of property or claim of property arising from marriage;
iii. Maintenance, legitimacy, custody of children; and
iv. Any other matters as allowed by the enactment

Criminal jurisdiction

i. Matrimonial offences
ii. Sexual offences
iii. Offences relating to intoxication
iv. Offences relating to spiritual aspect of individual life which affect the community
v. Offences relating to conversion of religion
vi. Other offences not provided above

There are THREE authorities that governs Syariah law in Malaysia

i. Syariah Court
ii. Mufti
iii. Majlis Agama Islam

EXAMPLE
Apostasy

i. Sabah Syariah Criminal Offences Enactment 1995 Sec 63(1) provides that if a Muslim intends
to or attempts to convert out of Islam, the Syariah Court shall order such person to be
detained in the Islamic Rehabilitation Centre for a term not exceeding 36 months.
Section 55 (2) provides that a person converting out of Islam is deemed to have insulted the
religion of Islam and may be punished with a fine not exceeding RM 2,000.00 or imprisonment
of one (1) year or both.
ii. Melaka Enakmen No. 6 Tahun 1991 Sec 66(1) provides for apostates to be held at a detention
centre for 6 months for counselling.
Sec 67(1) further provides that if after detention, the apostate does not repent, he can be
subject to a penalty of RM 5,000.00 or imprisonment of 3 years or both.

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iii. Section 185 of the Administration of the Religion of Islam and the Malay Custom of Pahang
provides for a punishment of a fine not exceeding RM 5,000.00 or for a term of imprisonment
not exceeding three years and to whipping of not more than six strokes for a Muslim who
states that he has ceased to be a Muslim.
Similar provisions punishing apostates are found in Kelantan, Terengganu, Negeri Sembilan
and Perak.

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