A DEFINITIONAND

cLASSIFICATIoN oF tAW
I
I}TTRODUCTION

Law has many definitions. This chapter wiil discuss come of the meanings of law by
jurists from the various schools of though. This chapter wlll also look into the function
of law and the classification of law. The following figure will illustrate the structure of
Chapter 1.

Figure 1.1 Structure of Chapter I

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SOURCES OF LAW

rof
3.0 INTRODUCTION

"sources of Law"'can be given the following meanings:

,a) historical sources or factors which influence the development of law but is not
recognised as law. Examples are religious events, local customs and opinions of
jurists.

b) where law is found example statutes, law reports, legal textbooks or judicial
decisions.
c) legal sources i.e. legal rules that make up the law-

lf the term "law" is applied in the third context then the sources of law in Malaysia can
be classified as written and unwritten law. Figure 3.1 outlines the structure of Chapter
3.

Written Sources
Unwritten Sources

I t
Federal
English law
Constitution
Customary law
Legislation and
delegated
lslamic law
legislation
Judicial decision

Figure 3.1 The Structure of Chapter 3

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XTEARNTNG oBJEcrvES:
After studying this chapteq you should be able to:

1. ldentify unwritten and written sources of law

2- Analyse the importance and the application of each source of law. d
l'
I

fi
t

&

3.1 UNWRITTEN SOURCES

Unwritten sources comprise of law that are not enacted by parliament

or the State
Legislative Assemblies. Unwritten sources includes:

. * English
law
o Customary laws
r lslamic law
. Judicial decisions of the superior courts

3.2 ENGLISH LAW

The topic will be discuss as follows:

a Definition
a Application of English Law in Malaysia

3.2.1 Definition

English law means both principles of common law and equity;

made by the
superior courts of United Kingdom.

"common Law" means rules of law that were

made by royaljudges based on
the customary laws that were commonly applied by the people. According
to
the English legal history the early Courts in England were established by
as vrataysian Legatsystem
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 Wttwn fire Corqueroc The corrtssoHwlits to thosewho wBhed b take their
me before the court Wth the sde of writs the lGng was aHe to ollect
revenue. Cases that were determhed by the courts were decided on the
customary laws that were used by the local people. With centralisation of
courts the principles of law were commonly applied onto the people. Among
the common law courts established were Hundred Courts, Country Courts,
Justices of Eyre, ltinerant judges. Assizes, Star Chamber, King's Bench,
Court of Exchequer and Court of Common Pleas. Equity are principles of law
that were made by the Lord Chancellor of the Court of Chancery. Equity is to
supplement the common law. Equity does not contradict the common law but
aims to correct its rigidity. The foltowing maxims reflect the intention and spirit

a of Equity:

late
a Equity follows the law
a He who seeks equity must do Equity
a He who comes to Equity must come with clean hands.
a Equity is equality
a Where the equities are Equal, the first in time prevails.

3.2.2 Application of English Law in Malaysia

Section 3(1) of Civil Law Act 1956 (Revised 1972) provides:

(a) ln West Malaysia or any part thereof apply the common law of England
and the rules of equity as administered in England on the 7th day of
April 1956.

(b) ln 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't day of December 1951.
'le

(c) ln Sarawak, apply the common law of England and the rules of equity,
together with statutes of general application, as administered or
)n
enforce in England on the 12th day of December 1949-
to

)y

Malaysian LegalSystem 39
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 Provided ahmys ttnt the said common law, ndes of equty and staMes of
general apBlication shall be applied so far only as the circumstances of the
States of Malaysia and their respective inhabitants permit and subject to such
qualifi cations as loca[ circumstances render necessary.

The difference of wordings between section 3(1)(a), (b) and (c) has raised a
controversy as to whether Engtish statutes of general application are
applicable in West Malaysia,

Prof. Bartholomew in his article entitled, 'The commercial law of Malaysia: A

study of the reception of English law (196s) MLJ p.p. 26 - 32, holds the view
that English statutes is applicable in Malaysia. Joseph chia expressed a
contrary view in his works entitled "Reception of English law under section 3
and 5 of the Civil Law Act 1956 (Revised 1972)", JMCL, {1974\p.42.The
following cases further elaborate the application of English law in Malaysia.

ln Mokhtar v. Arumugam (1959) 25 MLJ 2rz where a gardener was

arrested by the police under the Moneylenders ordinance 1g51 and the
police seized documents without a search warrant. The documents however
were later returned. ln an action against the police the court of first instancp
awarded damages to the gardener without him claiming for it. The police
appealed against the decision. The court held that in England damages could
be awarded for the delay in retuming of goods but such remedy was provided
under a statute not a principle of the common law. Since English statutes are
not applicable in the country the remedy cannot be awarded.

ln Leong Bee v. Liang Nam Rubber works (1970) 2 MLJ 45 the plaintiff
claimed for damages for the destruction of his damages building die to fire
which spread from the neighbouring land. The plaintiff claimed for nuisance
and negligence. The Privy council held that if the common law principle has
been displaced by the English statute, it is no longer part of the common law
and cannot be applied in west Malaysia. The use of English Law under
Section 3 must be permitted by circumstances and subject to such
qualifications as local circumstances render necessary.

+o uaUvsian Legalsystem
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33d ln Jamil bin Harun v- Yang Kamsiah (1984) t fL, 217, utrere a se\ren-year
,f the old ctrild has suffered severe injuris in a road am'denl The Federal Court
such had awarded he plaintiff after categorising and classifoing all the injuries.
Privy Council held the Malaysian Courts could follow and applied English
court decisions but in circumstances that is permitted and render necessary
eda by local circumstances. The application of common law and equity is allowed
are if there is lacuna in the local law.

ln Attorney-General Malaysia v. Manjit Singh Dhillon (1991) t MLJ 167,

A:A the Supreme Court held that in.the absence.of local statute concerning
dew contempt of court, the common law of contempt mentioned in R v. Gray

:p
(2000) QB 36 should be applied.

fhe ln summary, the application of common law and equity [s allowed subject to
the provisions of Section 3(1) namely of there is absence of local statutes and
if the local circumstances permit and render necessary.
VAS

the 3.2.3 Section 5 of the Civil Law Act 1956 (Revised 1956)
ver
lce Section 5 provides:
ice
uld (1) ln all questions or issues which arise or which have to be decided in
ed the states of West Malaysia other than Malacca and Penang with
rref respect to the law of partnerships, corporations, banks and banking,
principals and agents, caniers by air, land and sea, marine insurance,
average life and fire insurance, and with respect to mercantile law
riff generafly, the law to be administered shall be the same as would be
re administered in England in the case at the date of the coming into
ra
force of this Act, if such question or issue had arisen or had to be
IS decided in England, unless in any case other provision is or shall be
:w made by any written law.
3r

;h (z'.) ln all questions or issue which arise or which have to decided in the
States of Malacca, Penang, Sabah and Sarawak with respect to the
law conceming any of the matters refened to in subsection (1), to the
law to be administered shall be the same as would be administered in

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 England in frre fike case at the correspondrg pedod, if $Jch question
or issue had arisen or had to be decided in England, unless in any
case other provision is or shall be made any written law. lt has be
proposed that section 5 introduces where applicable, the whole of
English law including statutes.

The different wordings of section 5(1) and 5(2) reflect the following:

(a) Section 5(1) relates to the former Malay states whilst section
5(2) covers Melaka, Penang, Sabah and Sarawak.

(b) Section 5(1) introduces into the former Malays states, the law
administered in England on 7th April 1956 but section 5(2)
allows the use of the law existing in England on the date the
issue has to be decided in Melaka, Penang, Sabah and
Sarawak. Thus there is a continuous reception of English law
in Melaka, Penang, Sabah and Sarawak

The debate over section 5(1) and section 5(2) is seen in the case of Seng Djit
Hin v. Nagurdas Purchotumdas (1923) AC 444 and Shaik Sahied,bin
Abdullah Bajerai v. Sockallngam Chettiar (1933)2 MLJ 81.

ln Seng Djit Hin v. Nagusrdas Purshotumdas (1923) AC 444 where the

supplier failed to supply sugar to the buyer because all ships had been taken
by the British govemment because of war. Privy Council held that the defence
provided in the Ordinance Civil 1889, Defence of the Realm (Amendment) Act

No. 2 1915 and Courts (Emergency Powers) Act 1917 could be applied by the
. supplier for failing to supply the sugar to the buyer. Eventhough the statutes
were not related to commercial matters, since the seizure of ships were done
by the government. These statutes were administered in England then could

I
be used by the Straits Settlements.
i

I
i
i

i
ln Shaikh Sahied bin Abdullah Bajerai v. Sockalingam Chettiar (1933) 2
l
{
t,
MLJ 81, whe.re Shaik Sahied had borrowed money from the moneylenders.
i
fi The moneylender demanded repayment. Shaikh Sahied referred to the
Pr
&
B Moneylenders Act 1900 and 1927 that moneylending transaction is illegal
&
x
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D
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ftn fratthe statubswe not applicaHe
rdes5 it is registered- Priv:f Courul tleld
,tt in tre Sfarc Setthrnents for the stahrtes were specifrc in nafure ard intends
tbe to confiol activities in England and is not of general application.
ed
Consider whether English law is still applicable in Malaysia?

tron 3,3 CUSTOMARY LAW

The topic will be discussed as follows:

lattr

5{2) a Definition
the a Malay Customary Law in West Malaysia
and a Malay Customary Law in Sarawak and Sabah
hw ra Hindu and Chinese Customary Law

3.3.1 Definition
Diit
bin Malay customary law or adat can be defined as customs and traditions in the
Malay community which in the course of time have obtained the character of
laws and as such can be enforced by the chiefs or elders. Being the living law
the at a certain time in a certain place adat is elastic and adaptable to social
:enf needs and as such is not suitable for codification. The chiefs however are not
Ice given a free hand to make decisions. When the Malays became Muslims they
\ct adopted variations to suit their local circumstances. The enforcement of
he selected customs by the council of elders give it the legal status of law. Many
:ES
writers claim that the personal law of the Malays are a mixture of Hindu law
ne and lslamic laws.
rld

3.3.2 Malay Gustomary Law in West Malaysia

2 According to R.J. Wilkinson in his book "Papers on Malay Subjects", there are
's.
two legal systems in the Malay community: Adat Temenggung and Adat
1e Perpatih.
ral

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 Adat Ternenoorn'o

Adat Temenggung is practised by most Malay states of the Peninsula except

for Melaka and Negri Sembilan. Most of the customary laws related to
pattems of response in situations of conflicts or breach of the law. The
traditional practices of the community is importance because it reveals the
rules of laws of the Malay society. There are rules relating to title to land,
succession to property, ruJes to marrlage and divorce or election of the
officials.

ln adat temenggung, proprietary right over land is created by clearing of the

land and continuous occupation of it. ln adar temenggung, property could be
inherited by both male and female but the portion of the male will be more
than the female. The property inherited by man will be based upon strength or
energy needed to work the land, and,the female might inherit the house and
its fillings. Among the Ninety-nine Laws of Perak, there are many verses that
glorified the status of the ruler. A Malay raja is personally sacred, he has
powers to perform miracles. He was the source of all honour and the fountain

of justice. The king could do whatever he deems best in his own eyes. ln
theory the Sultan has absolute power but the Malays did not believe, in
primogeniture or rights of first born of the royal house. A younger brother may

take over the post of the unworthy elder brother.

Criminal law under adat temenggung is characterized by the principle of

retaliation (lex. Talionis) the offender shall lose the limb that was used [n
committing the ofience, unless he is of a higher status in the social order.

,,ln Laton v. Ramah (1927) 6 FM SLR 116 the Chief Kathi of Selangor gave
evidence in the Supreme Court and stated that where a husband and wife
acquired property and when one of them dies, such property is divided
I

equally between the survivors and heirs of the deceased. He admitted that
this rule is not provided in the Al-Quran.

Adat Perpatih

Adat perpatih is practiced in Negri Sembilan and Nanning.

+a vrataysian Legal System
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 According to adat perpatih, customary land is inherited by womdn only. A
xcept man generally will lived on his wife's land, he cultivated the soil and was
{to entifled to his maintenance out of the proceeds. When the man moved into
The he wife's family, his wife's relations become responsible for him.
s the
land, lf ttrey find that the maniage of their kinswomen is disastrous thay could get
i the her divorced and on fair terms: such as "cari bahagi, dapatan tinggal, bawa
kembali". lf a man within the clan has been killed, the wrongdoer or his family
must pay "blood-money" to support the family of the deceased. Any disputes
I the within the clan will be settled by the buapak if not by the lembaga.

lil
hor
There are three kinds of property:

and (1) Ancestral property (harta pusaka) which is entrusted to the woman. On
that death the property passes on the female descendants of the

has deceased.
tain

.ln (2) Property of husbands (harta pembawa) and property of wife (harta
in dapatan) are property acquired before marriage and on death goes
lay back to the family.

(3) Property jointty acquired during marriage (harta sepencarian), on

or! divorce wilt be equally divided. On death, however it devolves to the
in surviving partner if there is no issue.

Hooker in his book entitled "Adat Laws in Moderm Malaya" considers adat
VE perpatih as a system of social organisation, a matrilineal social system. The
ife most important kinship tie is the 'perut'. The relationship with the woman
ld covers matters such as inheritance, land tenure, and electlon of the chiefs
at (buapak, lembaga, undang and Yang di-Pertuan Besar). Traditionally, there
are twelve clans in Negri Sembilan. Under adat, marriage within the clan is
prohibited, especially marriage between the children of sisters and that of
brothers. These persons are members of the same descent group (the
lineage) and such marriage is regarded as incest (sumbang).

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 ln Dato'Hentri Othman bin Baginda v. Dato'Omtf Syed bin Syed ldrus
(1gg1) 1 trllJ 29, the seat of the Undang of Jelebu became vacant with the
death of the fourteenth undang in November 1979. The appointment of he
fifteenth Undang was challenged.on the ground that he lacked the proper
adat lineage. The court was asked to declare the appointment as void' On
appeal the Federal Court declared that the appropriate body to decide the
matter was the Dewan Keadilan Undang-undang, the adat constitutional body

under the Constitution of Negri Sembilan'

Customary Land Tenure

The owner of ancestral land is required to endorse "customary law" on the

tifle to ancestral land and such endorsement would restrict the transferabili$
of ancestral property. The Customary Tenure Enactment (FMS Cap' 215) was
passed to replace in whole or in part the unwritten law of customs by the
written law of the enactment.

ln Re Mansur bin Duseh (1940) MLJ 110, where mukim registers have not
been endorse it is open to the collector to hold an inquiry under section 4 of
the enactrnent and to decide whether or not land is occupied subject to the
cudtom; his recorded decision is the onty conclusive evidence that the land is
or is not occupied according to custom.

tn Haijah Sitam v. Hassan and Anc,r (1973) 2 MLJ 110, where the appellant

sued for recovery of immoveable property which she claimed as being

wrongfully occupied by the respondents, who were her granddaughter and
the latter's husband. The defence was inter alia that since the land in question
.was customary land it was rested under customary law in the waris of the
plaintiff and not sotely in the plaintiff so that the second appellant was one of
the co-owners of the land. lt was argued that the action concerned a dealing
in customary land within the meaning of s.5 of the Customary Tenure

Enactment (FMS Cap 215). The learned magistrate dismissed the claim. The
High Court held that the dealings contemplated in s.5 of the Customary
Tenure Enactment must be the nature of transfer, charge or transmission and
does not include a suit for ejectment or for the recovery of immovable
property. The appeal is allowed and remitted for retrial'

t +o
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th the Other lands endorsed as 'otstomary land' under the Customary Tenure
of tfre Enactunent (FMS Cap 215) and the National Land Code (Penang and
)roper Malacca Ttles) Act 1963 can only be fansfened, charged, leased or
J. On transmitted to a Malay being a person who professed the religion of [slam.
e the
body ln Tan Eng Lok v. The Estate of Tan Kim Tion (1999) the question was
whether Malacca customary land was transmissible by will to the defendant
who was not a Malay, or the natural child of the deceased. Although the spirit
of the legislation is to dissuade Malays from parting with interests in Malacca
customary land, any certificated person who is the proprietor of any such
r the customary land has a permanent and heritable right of ownership and may
bili!p transmit land according to any succession law in force. The will was thus
WAS valid.
the
3.3.3 Malay Customary Law in Sarawak and Sabah

not ln Sabah, Matay adat is a mixture of lslamic law and adapt and is applicable
4of in rnatters concerning marriage, inheritance, division of property, bethotral
the etc.
dis
ln Matusin bin Simbi v. Kawang bt. Abdullah (1953) SCR 106, a couple
who resided with the Bajau community in Sabah for forty years adopted three
.n! children in accordance to Bajau customs. On his death a dispute arose as to
lng how his property should be administered. The High Court had declared that
rnd the whole estate be inherited by the widow. The Supreme Court held that
on since adoption of the children was made according to Bajau laws, they were
he considered as legitimate children for all purposes and were entitled to share
of in the inheritance and none goes to the deceased's sister.
ng

re ln Sarawak, Malay adat were codified by the Rajahs under Undang-undang

te Mahkamah Melayu Sarawak (1915) and the Muslim Wills Ordinance 1896

ry (Cap 96) (Revised laws of 1958). ln S. M. Mahadar bin Datu Tuanku

rd Mohamed v. Chee (1941) SCR 96 the court upheld that according to custom
le that the oath of a pregnant woman that the particular man was the father was
acceptable through contrary to English law.

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 In Sheripah Unci and Sheripah Ta'siah v. tas Poeti and Anor (19{9} SCR
5, a child adopted under adat was recognised as he legitimate child of the
couple though contrary to lslamic law.

3.3.4 Hindu and.Chinese Customary Law

The lndians and Chinese who arrived as traders of settlers brought along with
them their customary laws. The British administrators had to deal with
customary laws related to inheritance.

ln the case of Regina v. William (1856) 3 Ky. Maxwell R stated:

"lf a Muhammedan or Hindu or Chinese marriage celebrated here

according to the religious ceremonies of the parties be valid it is not
because the Charters make it so - but because the Law of England
recognises it."

ln Choa Ghoon Neo v. Spottiswoode (1869) 1 Ky. 216 - Maxwell C. J,

again emphasised:

"ln questions of marriage and divorce it would be impossible to apply,

our law to Mohammedans, Hindus and Buddhists, without the most

absurd and intolerable consequences, and it is therefore held
inapplicable to them."

Chinese polygamous mariage was recognised in Choo Ang Chee v. Neo

Ghan Neo (Six Widows) (1911) 12 S.S.L.R.120. However, later it was
decided that succession to estates was not governed by Chinese customary
law, and that the English rule against perpetuities was applicable (see the
case of Ong Cheng Neo v. Yeop Cheah Neo (1872) 1 Ky. 326).

Today, the Law Reform (Marriage and Divorce) Act 1976 governs the
marriage of . non-Muslims. The maniage vows must be made before the
registrar, who needs tc record the maniage. The couple could then proceed

+s uataysian Legalsystem
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ldrus
th the Other lands endorsed as "customary land' under the Customary Tenure
of the Enactment (FMS Cap 215) and the National Land Code (Penang and
lroper Malacca Ttles) Act 1963 can only be transfened, charged, leased or
J. On transmitted to a Malay being a person who professed the religion of [s]am.
e the
body ln Tan Eng Lok v. The Estate of Tan Kim Tion t1999) the question was
whether Malacca customary land was transmissible by will to the defendant
who was not a Malay, or the natural child of the deceased. Atthough the spirit

of the legislation is to dissuade Malays from parting with interests in Malacca

customary land, any certificated person who is the proprietor of any such
r the customary land has a permanent and heritable right of ownership and may
bili!l transmit land according to any succession law in force. The will was thus
was valid.
the
3.3.3 Malay Customary Law in Sarawak and Sabah

not ln Sabah, Malay adat is a mixture of lslamic law and adapt and is applicable
4of in matters concerning marriage, inheritance, division of property, bethotral
the etc.
dis
ln Matusin bin Simbi v. Kawang bt. Abdullah (1953) SCR 106, a couple
who resided with the Bajau community in Sabah for forty years adopted three
children in accordance to Bajau customs. On his death a dispute arose as to
'no
lng how his property should be administered. The High Court had declared that
rnd the whole estate be inherited by the widow. The Supreme Court held that
on since adoption of the children was made according to Bajau laws, they were
he considered as legitimate children for all purposes and were entitled to share
of in the inheritance and none goes to the deceased's sister.
ng ..t

re ln Sarawak, Malay adat were codified by the Rajahs under Undang-undang

1e Mahkamah Melayu Sarawak (1915) and the Muslim Wills Ordinance 1896

ry (Cap 96) (Revised laws of 1958). ln S. M. Mahadar bin Datu Tuanku

rd Mohamed v. Chee (1941) SCR 96 the court upheld that according to custom
le that the oath of a pregnant woman that the particular man was the father was
acceptable through contrary to English law.

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 3.5 ISLAi,|IC LAW
hnd to
Iate by
The topic is skuctured as follows:

a lntroduction
said:
a Position of lslam in the Federal Constitution
o Sources of lslamic Law
r Land
a Administration of lslamic Law
fi tifle
a Codificailon of lslamic Law
nd he

3.5.1 lntroduction

ough
under the Ninth Schedule of the Federal constitution, with reference to
:nt of
Legislative Lists, lslamic Law falls under List ll - State List where it provides:
se of

'1. Except with respect to the FederatTerritories of Kuala Lumpur and

Labuan, lslamic law and personal and family law of persons

and
professing the religion of lslam, including the lslamic law relating to
Chin
succession, testate and intestate, betrothal, marriage, divorce, dower,
)na
maintenance, adoption, legitimacy, guardianship, gifts, partitions and
eto and definition and regulation of
non-charitable trusts; wakafs
ry of
charitabte and religious trusts, the appointment of trustees and the
,'O incorporation of persons in respect of lslamic religious and charitable
rt of
endowments, lnstitutions, trusts, charities and charitable institutions
tive
operating wholly within the state; Matay customs; zakal, Fikah and
Iers
Baitulmal or similar lslamic religious revenue; mosques or any lslamic
rad
public places of worship, creation and punishment of offences by
be
persons professing the religion of lslam against precepts of that
rnd
religion, except in regard to matters included in the Federal List; the
constitution, organisation and procedure of Syariah courts which shall
have jurisdiction only over persons professing the religion of Islam and
to
in respect only of any of the matters included in this paragraph, but
de
shall not have jurisdict'ron in respect of offences except in so far as
to
conferred by federal law, the control of propagating doctrines and
beliefs among persons professing the retigion of lslam; the

Malaysian r-egalsYstem 55
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 detenninatbn d maters of ldanic hu, and docfrtrc dd Malay
custom.'

Since lslamic law is a state matter the State Legislative Assembly can make
laws for the state for the Federal Tenitories Parliament will be the Legislative
Authority.

3.5.2 Position of lslam in the Federal Constitution

Article 3(1) of the Federal Constitution of Malaysia provides "lslam is the

religion of the Federation; but other religions may be practised in peace and
harmony in any part of the Federation."

The Yang di-Pertuan Agong will be Head of the religion of lslam for states
that does not have a Ruler and for Federal tenitories of Kuala Lumpur and
Labuan. The Ruler will be Head of the religion of lslam in his state in the
manner and to the extent acknowledged and declared by the constitution of
the state.

According to the Ninth Schedule on Legislative lists, lslamic law is enlisled

under List Il- State List.

The States Legislative Assemblies are empowered to make law relating to

succession, testate and intestate, betrothal, marriage, divorce, dower,
maintenance, adoption, legitimacy, guardianship, gifts, partitions and non-
charitable trusts, . wakafs, charitable and religions trusts; zakat fitrah and
Baitulmal or similar religious revenue mosques or any lslamic public places of
workship.

The Federal legislature however has power to make laws on constitution,

organization and procedures of the Syariah courts, the control of propagating
doctrines and beliefs among persons professing the Islamic faith.

Article 11(a) of the Federal Constitution provides:

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 -State law and !n respect of the Fedet"al Tenitorbs of Kuda Lumpur

and l.abuan, fedsal law may conbol or restict the propagation of any
religious doctine or belief among persons professing tre religion of
make lslam.'
lative

Article 12(3) states:

"No person shall be required to receive instruction in or to take part in

any ceremony or act worship of a religion other than his own."

the
and Article 12(4) provides:

"The religion of a person under the age of eighteen years shall be

ates decided by his parent or guardian."
and
the 3.5,3 Sources of lslamic Law
lof
The primary sources of lslamic Law is the Al-Quran and Al-Sunnah. The Al-
Quran or Holy Book of Allah contains verses of revelation on thi laws of
ted conduct that Muslims should follow and abide by. Al-Sunnah consists of
traditions or reports of the actions and sayings of Prophet Muhammad that
supported and elaborated the laws of the Quran.

'"'a The secondary sources are ljmak (Consensus), ljtihad (Analogy), Qiyas
)n- (Deduction), lsteshan (Equity) and almusalah wal mursaleh (Common or
nd public Good).

of
3.5.4 Codification of lslamic Law

rlJ, Examples of lslamic law that have been codified by Parliament for the Federal
1g Territories are:

a Administration of lslamic Law (FederalTerritories)Act 1993 (Act 505)

a lslamic Family Law (FederalTenitories) Act 1984 (Act 303)
a Syariah Criminal Offences (FederalTenitories) Act 1997 (Act 559)
a Syariah Criminal Procedure (Federal Territories) Act 1997 (Act 560)

Malaysian Legalsystem 57
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 . S)'adah Court EvtuJence (Federal Tenitobs) Act 1997 (Act 561)

Examples of lslamic law that have been codified in the State of Selangorare:

a Syariah Criminal Procedure Code Enactment 1991

a Syariah Civil Procedure Code Enactment'1991
a Administration of lslamic Law Enactment, 1989
a lslamic Family Law Enactment, 1984

Other examples of lslamic Law that has been codifred:

a lslamic Banking Act 1983

a Takaful Act 1984

3.5.5 Administration of lslamic Law

Mailis Aqama lslam

According to Section 4 of Selangor Administration of lslamic Law Enactment

1989, lslamic Law in the State of Selangor is administered by a body
corporate called Majtis Agama lslam Selangor. The members consist of the
chairman, Deputy chairman, the Mufti, state Advisor, state Financial officer,
State chief Police officer and ten (10) other members of which at least five
(5) are alim ulamak. These members who are Muslims shall be appointed by
his Royal Majesty on the advice of the Mentri Besar for a term of not
exceeding three (3) years. The Director of the lslamic Religious Department
of selangor shall be the secretary. The Majlis will appoint committees to
assist it in the performance of its duties or powers. The Majlis shall advise the
Sultan in respect of all matters relating to the religion of lslam, except matters
of Hukum syarak and those relating to the administration of justice. The
Majtis also has power to register and control the running of lslamic religious
schools in the State of Selangor.

Malaysian LegalSystem
 Mutu-

are: Section 29 ofthe Selangor Administation of Islamic Law Enactment 1989

provides that the Sultan will appoint a Mufti for the State. The Mufti shall aid
and advise the Sultan in respect of all matters of Hukum Syarak and in all
such matters he shall be the chief authority in the State of Selangor after His
Royal Highness the Sultan.

Under Section 31 of the Selangor Administration of lslamic Law Enactment

1989, the Mufti may on his own initiative or on the request of any person
made by letter addressed to the Mufti, and shall on the direction of His Royal
Highness the Sultan make and publish in the Gazette fatwa or opinion on any
unsettled or controversial question of or relating to Hukum Syarak. No

statement made by the Mufti shall be taken as fatwa until it is published in the
Gazette. Upon publication a fatwa shall be binding on every Muslim residing
in the State of Selangor as a dictate of his retigion and it shalt be his religious
duty to abide by and uphold the fatwa, unless he is permitted by Hukum
Syarak to depart from the fatwa in matters of personal observance, belief or

rent opinions. A fatwa shall be recognized by all Court in the State of Selangor as

ody authoritative of all matters laid down therein. Under Section 33, the Mufti may

the amend, modify or revoke any fatwa that has been issued earlier by him.or by

]er, any previous Mufti.

live

b0 Islamic Leoal Consultative Committee

not
ent The lslamic Legal Consultative Committee is constituted under Section 34 of

to the Selangor Administration of lslamic Law Enactment 1989. The Committee

:he consists of the Mufti (as Chairman), the Deputy Mufti, the State Legislative

)rs Adviser of Selangor, an officer of the lslamic Religious Department of

he Selangor and at least two, but not more than five persons appointed by the

US Majlis Agama lslam. The Committee that willconduct a study or research and
prepare the working paper on Fatwa. The issuance of any fatwas is after
discussion and consensus of accepted views by reference to views of
Mazhab Syafie, Hanafi, Matikior Hanbali.

Malaysian t-egalsystem
I ss
 At tte Natfud level, Mi[s Fatura Kebangsaan sits to @rrsirer and decftle on

, fatwas that sflouH be implemented.

Prosecution and Relioious Enforcement

The Sultan on advice of the Majlis will appoint the Chief Syariah Prosecutor
who shall have powers exercisable at his discretion to prosecute, conduct and
not to continue any proceedings for an offence before a Syariah Court. The
Majlis may appoint Religious Enforcement Officer to assist in the investigation
of offences under the Enactment-

Baitulmal and Mosoues

Baitulmal shall be the trustee of all mosques in the State of Selangor and
every mosque together with the land on which it stands shall upon registration
under the National Land Code 1965, be vested in Baitulmal for purposes of
the Enactment. No person shall, without the permission in writing of the
Majlis, erect any building to be used as a mosque, or dedicate any building to
be used as a mosque. The Majlis shall ensure that all mosques in the State of
Selangor are kept in proper state of repair and that the compounds thereof
are maintained in a proper state of cJeanliness; and the Majlis may raise and
apply, or authorize the raising and application of, special funds for the
purpose of such repairs and maintenance. The lmam and Bilal shall be
appointed by the Majlis from among persons serving in the Religious
Administration. The Majlis make rules for the establishment and functions of
lhe iawatankuasa kariah which is responsible for the administration of the
mosque and the Muslim burialgrounds within its kariah.

Religious Teachino Advisory Committee

This committee which is appointed by the Majlis shall consists of the Mufti (as
Chairman) and not less than three ulamaks. The Secretary of the Majlis shall
be the Secretary of the Committee and wilt be responsible for implementing
the decision of the Committee. The Committee shall have power to grant a
tauliah for purposes of teaching of any aspect of the religion of lslam and to
withdraw suchtauliah.
eO mataysian Legalsystem
I
.,,,! ,..
nde'on

Pusat Zaftat Sdanqor

Pusat Zakat Selangor manages the collection of zakat for tre State of
Selangor.
cutor
t and Reoistrar of Mualaf
The
ation The conversion of persons to the Islamic religion is allowed if he is of the age
of majority and of sound mind. The person's conversion needs to be
registered in the Register of Mualaf which is kept by the Registrar. A
certificate of conversion to lslam shall be conclusive proof of the conversion.
The converted person will be treated as a Muslim. lf any question arises
and within the State of Selangor whether the person is a muallaf, the question
rtion shallbe decided by the Syariah Court.
sof .
the Svarfah Courts
gto
eof Under Section 37, Syariah Subordinate Courts, Syariah High Court and
.eof Syariah Appeal Court are constituted to administer lslamic law in Selangor.
and The Chief Syarie Judge, Syariah Appeal Court Judge and Syariah High Court
the Judge shall be appointed by the Sultan on advice of the Majlis. (Further
be information on the jurisdiction of the Syariah Court is in Chapter 4).
,uf
rof ln Soon Singh a/l Bikar Singh v. Pertubuhan Kebaiikan lslam Malaysia
lhe (PERKIM) Kedah & Anor (1999) 1 MLJ 489, (Federal Court), the appellant,
who was brought up as a Sikh, converted to lslam without the knowledge and
consent of his widowed mother, whlle he was still a minor. Upon reaching 21
years old, he went through a baptism ceremony into the Qikh faith, thereby
renouncing lslam. He then executed a deed poll in which he declared'he was
AS a Sikh. Subsequently, he filed for a declaration in the High Court of Kuala
all Lumpur; that he was no longer a Muslim. Counsel for Jabatan Agama lslam
tg Kedah raised a preliminary objection against the application contending that
c, the High Court has no jurisdiction on the matter as it was under the
to jurisdiction of the High Court.

Malaysian Legalsystem 61
I
 The H(Ih Courtiudgp uPheld the ob.ieclion and dismissed the application' The
appellant appealed to the Federal Court daiming that there was no express
provision in the Kedah Administration of Muslim Law Enactment 1962
confening jurisdiction onto the syariah court and that his conversion while a
minor and without knowledge of his motherwas invalid.

The Federal Court dismissed the appeal, stating that the jurisdiction of the 3.6

syariah courts to deal with conversions out of lslam, although not expressly
provided for in some State Enactments, can be read into those enactments by

implication derived from the provisions concerning conversion into lslam. lt is

inevitable that since matters on conversation to lslam come under the
jurisdiction of the syariah courts, by implication conversion out of lslam should

also fall under the jurisdiction of the same courts (Lim Chan Seng v'
Pengarah Jabatan Agama lslam, Pulau Pinang (1996) 3 CLJ 231 not
followed).

ln Tongiah Jumali and Anor v. Kerajaan Negeri Johor (2094) 5 MLJ 40

(High Court, Muar), the plaintiff sought declarations from the High Court that
she is a Christian and not subject to lslamic laws of Johore and that her
marriage with the second plaintiff is valid under the Malaysian law- ,The
defendants claimed that the High Court had no jurisdiction to grant the reliefs
sought by the plaintiffs. The defendants submitted that the power of the civil
courts to grant declaration had been taken away by Article 121(1A| of the
Federal Constitution, and that conversion out of Islam was within the province
of the Syariah Court which had inherent jurisdiction over the matter' The
plaintiffs contended that the Administration of lslamic Law Enactment 1978
(Johore Enactment No. 14 of 1978) contained no provisions regarding the
conversion out of lslam.

The High Court of Muar, held the jurisdiction of the Syariah Court to deal with
conversions out of tslam although not expressly provided for in the State
Enactments may be read into them by implication derived from the provisions
concerning conversion into lslam. The jurisdiction of the Syariah Court is
express wherever the State Enactment contains provisions regarding
conversion into tslam. The Civil Court has no jurisdiction to hear an

oz ualaysian Legalsystem
I
r. The appscatbnconcemirgcgtrrersbnoutinvbwofArtidel2l(1A)ofr|e
press Federal ConstiMion'
1962
hile a lnsummary,lslamiclawappliedinMalaysiaislimitedandnotasextensive
that aPPlied in Saudi Arabia'

rf the 3.6 JUDICIAL DECISION

essly
ts by The topic will be structured as follows:
,ltis
the , lntroduction
rould . Doctrine of Store Decisis
gra , Application of Doctrine of Stare Decisis
in Malaysia

not
3.6.1 lntroduction

contribute to the creation of law of

,4A Judges of the superior courts of Malaysia
consist of the High courts' court
that the country. The superior courts of Malaysia
her ofAppealandtheFederalCourt.Thedecisionofthesuperiorcourtsare
fhe recordedandreported.Thesecourtsdeliberatedonquestionsoflaw.
iefs
and obiter dictum' The ratio
:ivil In a judicial decision, there are ratio decidendi
the decidendiarethelegalprinciplesofthedecisionandifthesearenew
rcf principles of law then they will be a contribution
of judles to the laws of the

'he country-
178
made by judges on the use of the
lhe obiter dictum however are merely remarks
principle in other possible situations. obiter
dictum may eventually become

ratiodecidendiincaseswhicheventuallyadoptandapplyit'
ith
rte 3.6.2 Doctrine of Stare Decisis
NS

is Judicial precedent is based on three elements:

1g

tn (1)Theremustbeadequateandreliablereportsoftheearlierdecisions.

Malaysian t-egalsYstem oa
I
 (2) Ttrere must be n es for exfadip from edt eaf,er decision m a
parlinrh set of facb the legal principle b be applbd in reacting a

decision on a difierent set of facts.

(3) Binding precedents must be differentiate from as those which are merely
persuasive.

The decisions of superior courts are precedents for the lower courts.

Generally, there are two types of precedents.

. binding precedents
o persuosiveprecedents

Superior
Courts

High Court of Sabah and Sarawak

Subordinate
Courts

, Figure 3.2 The hierarchy of courts in Malaysia

A court is bound to follow its prior or past declsions or the decisions of a court
of the same level or of equal or coordinate jurisdiction or decision of higher
courts. This practice of courts is called the doctrine of binding precedents.

The doctrine is to be observed by courts in the hierarchy. ln Malaysia

presently the hierarchy of courts are as Figure 3.2.

o+ ruataysian Legalsystem
|
)na The doctrine of binding precedents works in two directions namely vertical
tga and horizontal. Vertically rneans the lower court is bound to follow decisions
of the courts above it. For example, see Figure 3.3, the High Court of Malaya
lrely is bound to follow the decisions of the Court of Appeal and the Federal Court.
Horizontally means, the High Court today (2004) is bound by prior decisions
of Courts that were previously instituted or established. Thus decisions by its
urts. predecessors is binding upon the High Court.

Federal Court Horizontal

Court of Appeal Vertical

L
High Court of the High Court of High Court of Sabah
Federation of Malaya Malaya and Sarawak
-->

Figure 3.3 Vertical and horizontal effects of the High Gourt of Malaya

4 Judges are thus to follow precedents that were previously made by past
judges in similar factual situations and indirectly save court's time and funds;
and to promote certainly of the law

Persuasive precedents however are precedents which local superior courts

bonowed from other Commonwealth countries which have similar laws with
\i
Malaysia. For example, the Federal Court may adopt decisions lrom lndia,
Australia, Canada and New Zealand- Since the courts of these countries are
not part of the hierarchy of courts in Malaysia, their precedents are merely
persuasive but if adopted and applied by the superior courts will bind the

Iower courts of the judiciary.

trt

3r To avoid rigidity of law the doctrine of binding precedents has evolved

exceptions. These are laid down in the case of Young v. Bristol Aeroplane
Co. Ltd. (f 944) K.8.718, where the plaintiff, who was injured in the course of
a employment, received compensation under the Workmen's Compensation
Act. He then sought to obtain damages in the same accident, alleging the
defendants failed to fence one of the machines he was using. The High Court

I
Malaysian LegalSystem II 65

,
 refused his claim and he appea[ to the Court of Appeal. Lord Greene, M.R
stated:

The Court of Appeal is bound to follow its own decisions and those of courts
of co-ordinate jurisdiction and the "full'f court is in the same position in this
respect as a division of the. court consisting of three members. The only
exceptions are:

(a) Where there afe two conflicting decisions the court may choose which

it willfollow, the decision not followed being deemed to be overru[ed.

(b) The court is bound to refuse to follow a decision of its own which,
though not expressly overruled; cannot stand with a later decision of
the House of Lords-
(c) The court is not bound to follow a decision of its own if that decision

was given per incuriam.

3:6,3 Application of the Doctrine of Stare Decisis in Malaysia

Generally, the superior courts are bound by prior decisions of previous courts
which they replaced or take over. For example the High court today is bound
by decisions of its predecessor, the High court of the Federation of Malaya.
The present Federal court is bound by decisions of the supreme court and
the decisions of the Privy Council which was the highest court of appeal till
January 1985.

The application of the'doctrine of stare decisis in Malaysia will be elaborated

below.

Hioh Courts

Presently, under Article 121t1) of the Federal constitution there are two high
courts of jurisdiction i.e. the High court of Malaya and the High court of
Sabah and Sarawak.

The Fligh Court is bound by decision of the courts above itself in hierarchy
and is bound by its own decisions. ln sundralingam v. Ramanathan
66 Malaysian LegalSystem