GLUP1013 MALAYSIAN LEGAL SYSTEM KOAY XIAN LIT (273677)

RECEPTION OF ENGLISH LAW

Before the reception of English Law

 People were ruled by local beliefs, religious practices, customs and the opinion of jurists.
- Penghulu of any village usually had full civil and criminal powers to impose penalties
and punishments.
 Two main streams of Adat
- Adat perpateh – Democratic, not so much upon punishment but upon the remedial
measures to correct injustice.
- Adat temenggong – Autocratic, criminal punishment is on the basis of an eye to eye.
 Transformed native customary law from being an incidence of an inherited oral tradition
to a set of clearly defined written rules.
 Two legal digests that formed the main source of written law in Malacca
- Hukum Kanun Melaka
- Undang-undang Laut Melaka
After the reception of English Law
 Straits Settlements are the first who started applied for the English Law because they were
colonies under direct British rule.
 The rest of the Peninsular Malaysia were ruled by Sultan who embroiled in various
succession disputes in their respective states.
- Disputes between Chinese secret societies for possession of tin deposits consolidated
British political power in the Malay States due to British intervention.
 Federated Malay States (FMS) receive and provide suitable residence for a British officer
(Resident) who advice must be asked and acted upon all questions except Malay religion
and custom.
 Unfederated Malay States (UMS) maintained autonomy over local issues except
- Foreign affairs
- Important aspects of government Under British control
 When customs was found to be unacceptable, the court would apply principles of English
law to displace custom.
 1937- Civil Law Enactment English law was introduced uniformly
1956- Civil Law Ordinance throughout the Federation of Malaya.

 Sarawak Application of Laws Ordinance 1949 applied the common law of English, rules
of equity and English statutes while similar provision also applied to Sabah.

SOURCES OF LAW
 Sources of Malaysian Law comprises of the following:
 GLUP1013 MALAYSIAN LEGAL SYSTEM KOAY XIAN LIT (273677)
1. The Federal Constitution
Article 4(1) of the Federal Constitution declares the Constitution as the "supreme law of the
Federation", and any law passed after Merdeka Day which is inconsistent with the Constitution
shall be void.
2. State Constitution
Power is divided between the federal government and the various state governments. Article 74(1)
provides that Parliament may makes laws to any matters enumerated under Federal list or
Concurrent List while Article 74(2) provides that the Legislature of a State may make laws to any
of the matters enumerated in the State List or the Concurrent List of the Ninth Schedule.
3. Legislation
Malaysian legislation is published and stipulated under section 18 of the Interpretation Acts 1948
and 1967 (Act 388). This section provides that the Federal Gazette shall be published in five parts,
which are Acts Supplement, Legislative Supplement A, Legislative Supplement B, Bills
Supplement and matters required to be published in the Gazette or which the Government deems
it necessary to publish for general information.
4. Judicial Decision
The common law system relies heavily on case law or judicial opinions. Malaysian law can also
be found in the judicial decision of High court, Court of Appeal and the Federal Court. Decisions
of these court were made and still being made by the ‘doctrine of binding precedent’.
5. English common law and equity
The direction under the Civil Law Act 1956 to apply the common law of England and rules of
equity is limited, in West Malaysia, by the cut-off date of 7 April 1956.

THE POSITION OF ISLAMIC LAW

 The Federal Constitution declares that Islam is the "religion of the Federation."
- Due to British colonization, the religion of Islam became separated into two separate
aspects, the public aspect and the private aspect.
- The role of the religion of Islam in the public aspect was diminished and limited only
to the private aspect such as marriage, divorce, inheritance and maintenance.

 Under the Federal Constitution, Islamic law is a matter falling within the State List.
- It is a matter over which the State Legislature has jurisdiction and not Parliament.
- The Ninth Schedule of the Constitution identifies some specific subjects of Islamic
law and personal and family law of persons professing the religion of Islam over which
the State Legislature has jurisdiction.
- The position of Shariah courts is respected by the Constitution and its jurisdiction to
decide matters within its "exclusive jurisdiction” protected under Article 121 (lA)
which provides that the civil courts shall not have jurisdiction in respect of any matter
within the jurisdiction of the Shariah courts.