TAKE HOME EXAMINATION

5/2022

BDAU2103

FINAL EXAM

NO. MATRIKULASI : 950402085967001

NO. KAD PENGNEALAN : 950402085967

 PART A

1. (a) Laws and rule differ

The penalties for breaching laws and norms are what distinguish them most from one
another. While both are designed to promote a sense of harmony, justice, and safety, a law
carries a lot more weight than a guideline does.

Laws resemble the formalised form of rules. As a child, you must abide by the rules that your
parents establish. In a society, you must abide by the laws that the government establishes.
When a rule is broken, the repercussions are often unpleasant but minor in comparison to
when a law is breached.

A higher governmental office, often the police and the prosecutor's office, is responsible for
enforcing the law. Laws are codified in certain ways to allow for flexible interpretation. If
you breach the law, you might face legal repercussions if you are detected.

Rules are more lenient and have minor repercussions. Rules for the house, games, and even
fights and intimate acts with a partner can all be established. Rules are inherently
individualised, and as the environment and circumstances of the household change, they are
frequently modified.

To be effective, laws must be passed after following the correct procedures. A law first
appears as a bill and must pass a number of votes, checks, and balances before becoming a
law. Rules are only made and changed when necessary, and they should be abided by out of
respect for the people who made them.

We learn to adapt to society by following the rules. When we are young, we often learn that
there are laws against beating, stealing, lying, and wasting money. We are made responsible
for these laws as young people by following the law. Laws are supposed to be enforced; they
are not intended to establish guidelines. Breaking the law might result in jail or even death.
By the time you are mature enough to cope with the law (apart from child murder), you have
already mastered the procedure via navigating several sets of guidelines.
(b) relationship between law and justice

The relationship between law and justice has been an important issue in the field of legal
thought.

1. Particularly, the tension between formal legal procedures and "rules of law" and the
achievement of substantively "fair" outcomes in individual cases. Law and justice are not the
same thing. Justice is a basic value that oversees the scope and content of the law.

2. It serves as a catalyst for the enforcement, amendment, or abrogation of laws.

3. The belief in justice is one of the most prominent theoretical concepts in law and is a
regular theme in discussions about public life.

4. It is a belief that is widely held, particularly in light of its negative connotation, "injustice."
Justice is a fundamental ethical principle that may be upheld in situations involving
consciousness, relationship, and morality.

5. On the other hand, law is viewed as a tool for achieving justice. People from Latin
America to the United States have called on the law to account for justice, to provide a
language for justice, and to demand that it promote a just society as much as possible.

6. This essay will focus on the relationship between the law and justice.

It will explore the many philosophical viewpoints that have evolved throughout the history of
legal theory on what is meant by justice and its relationship to law, and it will reflect on a
contemporary interpretation of the relationship between the two. One of the fundamental
tenets in which philosophers have defined the relationship between law and justice is the
natural law theory, which has been primarily defined by philosophers like Аrіstоtlе.

7. Аrіstоtlе proposed that justice is based on the premise that a just law will enable
individuals to realise their potential in society.

8. He distinguished between distributive and corrective justice and believed that distributive
justice should aim to achieve morality while corrective justice should correct injustice and
restore equality. A distributive justice principle specifies how rights, goods, and well-being
should be allocated across various social classes. According to Aristotle, the fundamental
principle is "treating equals equally."

9. The equality and disparity of status and rights between individuals are crucial.
10. In contrast, the principle of universal equality before the law is presupposed when one
considers both civil and criminal corrective legal justice.

2. (a)
There are three sources of law in Malaysia, namely:

Written law;

Unwritten law; and

Islamic law

Written law is defined as the Federal Constitution, the State Constitutions, the Acts of
Parliament, the Ordinances and Enactments of the State legislative Assembly, and the
Subsidiary legislation in Section 3 of the Interpretation Act 1948 and 1967 (Act 388)
(Consolidated and Revised 1989).

The Federal Constitution's Article 160(2) defines law as "written law, the common law to the
extent it is applicable in the Federation or any part thereof, any custom or usage having the
force of law in the Federation or any part thereof," except Section 3 of Act 388. Islamic law
was progressively enacted on the Malay Peninsula prior to the arrival of European colonial
powers. Muslim law was not an alien legal system; rather, it was national and local law.
(View the Ramah v. Laton [1927]6 FMSLR 128 case.) Currently, List II of the State List of
the Ninth Schedule of the Federal Constitution has the authority to enact Islamic law.
ILLUSTRATE

SOURCES OF LAW

WRITTEN LAW UNWRITTEN LAW ISLAMIC LAW

a. Federal constitution a. English law Islamic law is derived

b. State Constitution (The laws of from the Quran and
(13 states) England Sunnah.
c. Legislation apply under
(Applicable to Muslims
(Passed by state and the
and implemented by
federal legislatures. For circumstances
Shariah courts in
instance, enactments, here.)
specific locations as
laws, and acts of b. Judicial
stated in the Stated List
parliament. decision
of the Federal
d. Subsidiary Legislation c. Customs
Constitution's Ninth
(created by individuals (Local
Schedule.)
or organisations acting residents'
within the authority traditions that
granted by Acts of the courts
Parliament or State have
Assemblies. Rules, approved.)
regulations, and bylaws,
for instance.)

EXPLAINATION OF ALL SOURCES

The Federal Constitution, State Constitutions, Legislation, and Subsidiary Legislation

compose the Written Law, which is the most significant source of law in the Malaysian legal
system. The Federal Constitution is the written constitution of 13 of our states. Another way
to say written law is the law that is enshrined in the Federal Constitution, which is the
ultimate law of Malaysia and protects each person's basic rights. The "Yang di-Pertuan
Agong," who owes his position to the Constitution and conducts himself in accordance with
it, is another provision of the Federal Constitution. The Constitution may be amended with
the support of two-thirds of the legislature's total members. The Federal Constitution is made
up of several Articles that cover a wide range of linked topics, including the welfare of
indigenous peoples, education, health care, and social security. A state's constitution, often
known as the state constitution, governs the state government in addition to the federal
constitution. The provisions of the State Constitutions are given in the eighth schedule. The
clause covers the Ruler, the Executive Council, the legislature, as well as other relevant
topics including the Legislative Assembly, financial clauses, public servants, and
constitutional change. State legislative assembly and parliament both have legislative
authority at the federal level, where laws are enacted. Ordinance refers to legislation passed
by Parliament in 1946. Following Merdeka, legislation passed by Parliament are referred to
as Acts, while those passed by State Legislative Assemblies are referred to as Enactments
and, in Sarawak, as Ordinances. The State Legislatures and Parliament are not paramount.
The Federal and State Constitutions' provisions must be followed when they pass legislation.
While the state is qualified to create laws on topics in List II, Parliament has the authority to
do so for those included in List I of the 9th schedule. Both agencies have concurrent authority
over items in List III. Delegated legislation is legislation created by a person or group while
acting within the authority granted to them by a parliamentary act. It is significant because
the laws created by the state and by Parliament are insufficient to provide the rules required
to regulate daily affairs.

The Unwritten Law is another source of law in the Malaysian legal system. English
legislation, court rulings, and conventions make up unwritten law. The English Law
influenced a portion of Malaysian law. Both English Common Law and equity rules contain
it. However, there are two restrictions on how the law is applied: it is only used when there
are no local legislation on a certain issue, and only the portions of English law that are
appropriate for the local situation are used. Judicial precedent refers to the fundamental
judgments issued by judges in related circumstances and includes decisions made by the High
Court, Court of Appeal, and Federal Court. These courts were adhering to the "doctrine of
binding judicial precedent," or upholding previously decided decisions. They adhere to
established norms and do not make arbitrary case decisions. In Malaysia, judges constantly
contribute to the expansion of customary law. The courts in this nation have given several
local customs, such as Adat Perpatih, Adat Temenggung, and customs relating to family law,
legal sanction. In Sabah and Sarawak, local customs are applied to family problems and land
deals over native customary lands.
 The Muslim Law, which is solely relevant to Muslims and is governed by a different
court system, the Syariah Courts, is the third source. The court that upholds Islamic law with
regard to matrimonial, divorce, and family problems is known as the Syariah Court. Its
foundations include the Quran, Hadith, Fatwa, and Ijma Ulama. According to the Federal
Constitution, the States are authorised to enforce Muslim Law. The State Legislature has the
power to enact Islamic legislation that apply to those who identify as Muslims, as well as to
the Syariah Courts' structure, process, and organisation.

2b. COMMON LAW

Through the implementation of the Royal Charters of Justice in the Straits
Settlements and the administrative frameworks to the Malay States, common law was
accepted in Malaysia. Through a number of enabling laws, common law was
formalised in 1937. Common law was used similarly in the Borneo States.

As of right now, Malaysian law specifically recognises English law as a component of

Malaysian law. The common law is cited as a source of law and as a definition of law
in Article 160 of our Federal Constitution. When Malaysia was established in 1963,
three different legislation permitted the use of English law there:

The Civil Law Ordinance (Extension) Order 1971 included East Malaysia, Sabah, and
Sarawak to the scope of the Civil Law Ordinance 1956 when Malaysia was formed.
This took effect on April 1st, 1972. All three of the preceding legislation were merged
into the Civil Law Act 1956 (Act 67) (Revised 1972), which provides the formal
framework for the use of English law in Malaysia. Three sections—Sections 3, 5, and
6—show how English law is being applied.

Conditions must be met in order for Malaysia to apply English common law and
equity rules (or, in Sabah and Sarawak, English legislation of broad applicability).
There are three restrictions:
Cutoff dates, suitability to local law, and absence of local statutes or legislation
covering the same issue.
Only the common law and equity rules that were in effect in England on the periods
mentioned (as well as English legislation of universal application in Sabah and
Sarawak) may be used to fill in the gaps in the local law. The dates for West Malaysia
are 7 April 1956, Sabah is 1 December 1951, and Sarawak is 12 December 1949.

Only to the degree that local conditions and residents enable it and subject to any
modifications made necessary by those conditions, English law is applied. The Civil
Law Act of 1956's Section 3(1)(b) has this criterion. Although English law may be
best suited in its own country, it may not always work effectively in other countries.
The foreign system is being imposed on a society that is socially and culturally
distinct from English culture.

PART B
POSITION OF ISLAMIC LAW IN MALAYSIA BEFORE INDEPENDENCE.
1. Understanding the origins of Islamic law in Malaysia requires an understanding of
historical context. As of now, an inscription on a stone in Terengganu named Batu
Bersurat Terengganu, which dates back to 1303, is the first evidence of Islamic
law in Malaysia (Al-Attas 1984; Nor et al. 2012; Halim et al. 2012). In accordance
with the requirements of the Qur'an and Sunnah, it stipulates penalties for various
offences. This is the law relating to the punishment for zīnā (adultery).

If a free person (not a slave) and they engage in unlawful sexual activity with a
woman or a man, God will punish them as follows: if they are free and unmarried,
they will receive a hundred lashes; if the free man or free woman has a wife or a
husband, they will be buried to the waist and stoned to death.

This rule is in line with the fundamental principles of Islam. The Malacca Rules
(Undang-undang Melaka), which were compiled on the ruler's instructions while
Malacca was a Malay kingdom in the early 15th century, demonstrate the Islamic
impact on Malay customary laws (Ibrahim 2000; Jusoh 1991).

A hybrid text is the Undang-undang Melaka (Fang 1976). In other words, it is

made up of several individual writings bonded into a single manuscript. It was
duplicated and then redone, and although while it surely became recognised as a
single text, the individual pieces are still readily apparent. Six manuscripts make
up the Malacca Laws (Hooker, 1986):
(1 ) The Undang-undang Melaka (proper)
(2) The Maritime Law (partly)
(3) Muslim Marriage Law
(4) Muslim Law of Sale and Procedure
(5) The Undang-undang Negeri
(6) The Undang-undang Johor

Islam became Malacca's official religion, as evidenced by the social customs

described in the Sejarah Melayu (Malay Annals) (Baharudin 2008). It is obvious
that the monarchs had selected judges (Qds) to serve as their advisors on religious
matters during its governance. This was demonstrated by the attendance of
renowned religious figures including Maulana Abu Bakar, Kadi Yusof, and Kadi
Monawar (Ismail 1998).

Nearly a quarter of Malacca's local laws, including those governing marriage,

sales, and criminal proceedings, are Islamic in nature (Jusoh 1991).

Five chapters—Chapters 36, 39, 40, 41, and 42—discuss criminal law. These
chapters' texts are as follows:

Apostasy laws are discussed in Chapter 36.

36.1 A Muslim who apostatizes will receive three calls to repentance. According
to the rule of God, it is OK for someone to be murdered if he refuses to turn from
his sin. Additionally, his body shouldn't be cleansed, no prayer should be recited,
and he shouldn't be interred in a Muslim cemetery.
Chapter 39 Rules governing killing (qiṣāṣ).

39.1 If a person who is sane and of age willfully murders a Muslim, he or she
should be executed regardless of the victim's size, gender, or gender identity.

It is not acceptable to murder a Muslim for killing an unbeliever, just as it is not

acceptable to kill a free man for killing a slave or a parent for killing his son.
Even if the Jew has converted to Islam, he must be punished in accordance with
God's law if he murders a Christian, an infidel, or even a fire worshipper and the
crime goes unreported for some time before it is discovered.

Chapter 40 Rules relating to unlawful intercourse (zīnā)

A man who is muan (legally married), that is, a man who has been married in a
legal marriage, and a man who is non-muan (unmarried), that is, a man or a
woman who has never been married, are the two situations of zn (illegal
intercourse), respectively.

He will be stoned to death and given the rajm penalty when muan. He will receive
100 lashes for being non-muan, and he will be forced to leave the nation for a
year.

Being muan means four things: first, being a Muslim; second, being of legal age;
third, having full mental capacity; and fourth, not being mad.
Slander rules are covered in Chapter 41.

41. If a man defames another man and the defamer claims there were no
witnesses, the defamer will get eighty lashes of scourging.

The liar will receive forty lashes if he is a slave. When a slave slanders another
slave or an unbeliever, the offender must be imprisoned until the judge assigns
him a ta'zr penalty.

Chapter 42 Regulates alcoholic beverages.

Anyone who consumes alcoholic beverages or any other intoxicating beverage is

subject to a forty-stroke scourging penalty for free men and a twenty-stroke
penalty for slaves.

Thus, it is evident that both customary law and Islamic law were applied. As a
result, it is noteworthy that in many chapters of the law dealing to punishment for
a specific offence, the text also includes different alternative penalties according
to "hukum Allah" (the law of God), following prescribing the penalty according to
hukum adat (the law of local custom) (Jusoh 1991).

According to Malaysia's Federal Constitution, Islam

The Constitution of a nation is crucial to how it is governed. The Constitution
does not always provide exhaustive information, nevertheless. For instance,
neither "the powers of the government" nor "the powers of the Prime Minister" are
specified in Malaysia's Federal Constitution. The practise, convention, or custom
of the constitution, sometimes known as the "unwritten constitution," has
therefore been the case.

The court's function assumes significance as a result of this ambiguity. This is

made clear by the court's decision to approve (or reject) particular practises during
the litigation process. However, it happens frequently that court rulings are less
clear and ineffective in solving the issue.
The same situation applies to how Islam is portrayed in the Constitution; this topic
must be covered before talking about Islamic criminal law. In general, Islam has a
limited role in the Constitution. Islam is recognised as the Federation's official
religion by Article 3 (1) of the Federal Constitution. It reads:

The official religion of the Federation is Islam, however other faiths are permitted
to be practised in all areas of the Federation in peace and cooperation.
Islam is acknowledged as the official religion of the Federation under Article 3
(1), however it is constrained by Subsection 4. It reads:

This Article does not alter any other clauses in the Constitution.

Syariah and civil law are practised in Malaysia, and as can be seen in the
preceding subsection, the Syariah Court has a narrow scope of authority. Though
other religions are allowed for adherents to practise them freely, Islam has a
greater position and is recognised by the government (Bari 2002).
Although the state has the authority to make laws for Muslims, these laws only
apply to and are governed by personal and family affairs. The Syariah Courts
(Criminal Jurisdiction) Act 1965 (updated 1988 (Act 355)) governs criminal cases
as well. This indicates that the state governments' authority to adopt legislation to
handle Islamic criminal situations is still constrained. For instance, a Muslim who
commits zina is not subject to the punishments outlined in the Qur'an (24:2).

According to Section 2 of the Syariah Court (Criminal Jurisdiction) Act 1965, the
following penalties may be imposed by the Syariah Court for criminal offences
(including zina):

(1)
imprisonment not more than three years, or

(2)
fine not more than RM 5000, or

(3)
whipping not more than six strokes, or

(4)
the combination of all those punishments

Due to a violation of Article 74 (2) of the Federal Constitution, the state

administration is unable to apply or execute Islamic law outside of what has been
included under the State List.

The Legislature of a state may pass legislation regarding any of the items listed in
the State List (i.e., the Second List given out in the Ninth Schedule) or the
Concurrent List, without affecting any other article's authority to do so.

In this case, the court will deem the aforementioned statutes to be unlawful
because they violate the Federal Constitution. Article 4 (1) of the Federal
Constitution makes reference to this.
 Any law passed after Merdeka Day that conflicts with this Constitution would be
invalid to the extent of the conflict. This Constitution is the highest law of the
Federation.

Thus, it is evident that only a very limited application of Islamic law is

recognised, and even this limitation is open to interference (Jusoh 1990). The
main goal of making Islam the official religion of the Federation is only for formal
functions, such as to allow prayers to be performed in a good manner and the
coronation function of the Yang di-Pertuan Agong, among others, so Hairuddin
Megat Latif came to the conclusion that this situation is not so strange (Latif
1992).
Based on the foregoing explanation, it can be concluded that historically,
Malaysia's laws before to colonisation were mostly influenced by Islam. Despite
not being founded on the Quran or Hadith, some of them were in line with Islam
(they were based on customary laws). If we were to compare how Islam was
viewed under the Malacca Sultanate to how it is viewed today, we would find that
the Malacca Laws had a larger reach because they did not just address personal
and familial affairs but also criminal, civil, economic, and commercial issues. The
Malaysian society's tolerance and respect for diversity, as well as its pluralistic
nature, had an impact on the modifications and developments to the Muslim
legislation.

2. MEANING OF JUDICIAL PRECEDENT

When the facts are sufficiently comparable, judges will follow previously decided
cases according to judicial precedent. The concept of stare decisis, or "to stand by
the determined," is used in the idea of judicial precedent. In actuality, this implies
that lesser courts must uphold the legal standards established by superior courts in
preceding instances. According to this theory, a court's judgement will be used as
support for a legal principle that was incorporated into that decision when
determining a case with identical facts. The common law has evolved over time as
a result of precedents being expanded upon by subsequent precedents.
Advantages and Disadvantages of the Judicial Precedent

Advantages

Certainty
This theory offers legal clarity. A person may predict the outcome of a choice and
make plans appropriately.

Uniformity
This idea ensures that the law is consistent. The same approach will be taken in
similar circumstances. This is crucial so that the attorneys may counsel their
clients on prospective lawsuits and so that the court can deliver justice to the
general public. It develops a system that the general people may use.

Fairness
Comparable instances receive similar treatment. Justice and fairness are served by
this.

Availability
This theory depends on accurate record keeping, which can speed up judicial
proceedings. The majority of problems have already been solved. Lack of record-
keeping might make it challenging for further instances to be followed.

Practicality
This concept emphasises application. As opposed to law, it is based on actual
facts.
Disadvantages.

Rigidity
Although the law is definite, the system is overly inflexible and prevents the law
from evolving properly.

Confusion
Although this theory promotes consistency, several incidents are nonetheless
recorded every year. It is therefore challenging to identify the pertinent precedent
to follow.

Injustice
Even while this theory promotes justice by treating similar situations equally, its
stringent guidelines may result in unfairness in particular circumstances,
particularly when higher courts render incorrect decisions.

Slow Progress
This notion slows down the development of the law. Before a case on a particular
issue of law is heard by one of the higher appellate courts, the law cannot be
modified.

Complexity
Even if it is founded on actual events, the law will grow complicated since there
are so many subtle differences.