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Malayan Law Journal Articles/2009/Volume 3/THE MALAYSIAN LEGAL SYSTEM: THE ROOTS, THE INFLUENCE AND THE FUTURE [2009] 3 MLJ xcii Malayan Law Journal Articles 2009

Shamrahayu A Aziz Assistant Professor Ahmad Ibrahim Kulliyyah of Laws, International Islamic University Malaysia [Some of the ideas in this article can be found in my chapter entitled 'The Development of Shariah Legal System' in Syed Arabi Aidid, Malaysia at 50: Achievements and Aspirations, Kuala Lumpur: Thomson, 2007, pp 231-239] INTRODUCTION The Malaysian legal system shares a substantial heritage with the common law and has England as its prototype. Some essential flavours from other Commonwealth jurisdictions, such as India are also embodied in the system. However, upon a closer examination one finds that it is not entirely English or foreign in orientation, as some local and autochthonous values are found in the system. This was further strengthened after independence by subsequent developments to the law and legal system. It may be said that the Malaysian legal system contains plural legal systems, which are formed from a mixture of the Syariah law, customs and British law. This article seeks to discuss the roots of the legal system followed by a discussion on the British influence on the legal system. The discussion includes the earlier legal system, that is the system that was prevalent before the coming of the British and the system introduced and applicable during the British administration. Following that the discussion is focused on the system that was established within the independent constitution. The development of the legal system after independence is later discussed and this is followed by the recent developments in the system. Included in the discussion are my observations and estimation on the future of the Malaysian legal system. Before a discussion of the focal issues the article begins with, a pithy discussion on the relationship between law and order. This discussion is necessary to appreciate the necessity for a legal system that is suitable and adaptable to the needs and demands of society. LAW AND SOCIAL ORDER Law has certain functions in society. Apart from ensuring order it satisfies social wants -- expresses the values and convictions of a given society. As a consequence, law is an indispensable mechanism for the creation and maintenance of peace and stability in society. In order to be effective the law has to be representative; it should not be something that is imposed on society. It should not bring in values that are alien or unacceptable to society. Apart from that, the law is subject to changes, especially when society changes -- social changes are inevitable, and they are a feature of the modern states. Indeed, laws are changed to meet the new needs and requirements of society and law is a response to social 'demands' -laws are shaped by the society in which they are applied.1 This is undoubtedly the Malaysian experience --

6 The then applicable law was Islamic law. assisted by a Mufti (jurisconsult). the local laws had been strongly embedded in the locality before the intervention and English law was not to be applied except when the local situation allowed it. The first landmark of the Malaysian legal system can be traced back to the early Malay Sultanates. especially the Malacca Sultanate. the Unfederated Malay States (Johore.8 It is argued that there was no clear provisions in the Charter that requested for the importation of English law. When the Japanese lost in the second World War.Page 2 its laws and legal system have undergone substantial changes throughout the fifty years of independence. Despite that.10In the Malay States. have a legal history which is somewhat different from each other. the Canon Law of Malacca (Hukum Kanun Melaka) and the Maritime Law of Malacca (Undang-undang Laut Melaka) contained principles of Islamic law relating to civil. the country had a court system prior to the British intervention. It has been argued that the application of English law was not in fact. English law had the greatest influence on the local system.5 It was also a fact that. As such it was obviously a mistake for the English judges to assert that there was no law or legal system applicable in the states. Undang-Undang Pahang. namely Kuala Lumpur. Indeed. that was the Kadhi's Court or the Shariah courts. which became independent in August 1957. Singapore was asked to leave Malaysia in 1965. As stated in the Charter. Islam had a major influence. the Portuguese and Dutch were here. The modern Malaysia is a federation of a number of independent states which comprise of at least four major groups. Prior to the British. the Sultans agreed to receive British Advisers (in all the Unfederated Malay States) or Residents (in all the Federated Malay States) and the Sultans were to follow . introduced by the Charters as generally understood. Under thetreaties. Undang-Undang 99 Perak were modelled on the Hukum Kanun Melaka. Many other code of laws. The most well-known was the Malacca Sultanate.4 The court must take judicial notice of this position and the court must have recourse to appropriate sources on Islamic law. the Federated Malay States (Selangor. the Straits Settlements (Malacca and Penang). There are three Federal Territories. Labuan and Putrajaya. British influence on the legal system is the most evident.9 Despite that the Penang courts formed an implication that the Charters had introduced English law into the locality. The British set foot in the area during the late 18th century to the early 19th century. The Malay Rulers.2 It has to be admitted that when the British set foot into the area in the late 18th century a legal order was already in place. Terengganu and Perlis) and the Borneo States (Sabah and Sarawak). English law was not to be applied if it caused hardship or injustice to the inhabitants. the British came back to Malaya and formed the Federation of Malaya 1948. The country was occupied by Japan from 1942 to 1945.3 These laws of Malacca had a great impact on the development of laws in other Malay states. When the Malacca Kingdom was at the height of its power. Pahang and Negeri Sembilan). Kelantan. Two important decisions by the courts declared that Islamic law is not a foreign law. there were early Malay Sultanates in the area of current Malaysia. In the Straits Settlement. sat as a judge in the court. There was only one system of court in the country. the influence was done through the introduction of the Charters of Justice. Islamic law became the root of the law and the legal system of the country. COLONIAL INFLUENCE IN THE LEGAL SYSTEM As mentioned above. there were at least four colonial powers in the country before it finally achieved independence. Kedah. Two sets of Malacca law.7 This condition may be considered clear proof that the local inhabitants of Malaya had their own laws and legal system prior to British intervention though these laws were probably not in any systematic form. the British managed to influence the local legal system through a number of treaties with the Malay Sultans and also through some formal introduction of English law. Thesedistinct compositions of Malaysia. Perak. BRIEF HISTORY OF THE MALAYSIAN LEGAL SYSTEM Since the early 14th century. in that case the inhabitants were allowed to apply their personal laws as the English law sometimes came into sharp conflict with the morals and values of the local populace. criminal and even commercial matters. whereby the Ruler was the highest court of appeal. Malaysia was formed in 1963 when the former British colonies of Singapore and the East Malaysian states of Sabah and Sarawak on the northern coast of Borneo joined the Federation. The change had to happen to accommodate the changes and needs of the Malaysian community. such as the Undang-Undang Johor. Islamic law and local custom were adopted in the legal system and administered accordingly.

Furthermore. and in fact an attestation to the fact that Islam and the Malay custom had a special place in the local system and that they were left unaffected by the British. For instance.12 even before the British introduced it through formal legislation. except on matters relating to Islam and Malay custom.13 The courts' attitude contributed to the 'importation' of English laws into local cases. the civil court and the Kadhi's Courts. Apart from the Civil Law Ordinance. Despite the general purpose of the Act. the judges and barristers. Courts of Magistrate First Class. In similar breath. Courts of Penghulu. When the country achieved independence in 1957 the Constitution which was drafted by the Constitutional Commission. the Penal Code. This is an indication. known also as the Reid Commission. Terrell Ag CJ pointed out that English law had long been introduced in the country.Page 3 the advice of the Advisers or Residents in all matters. indicating British reservation to the application of its laws and values into the local system. Courts of Magistrate Second Class. Despite the influential effect of the treaties on the state administration. In 1948. It had been done indirectly by the British. there were no express provision in the Ordinance regarding the segregation. the Ordinance 1948 also had a provision asserting the prevalent effect of itself over other written laws. and excluded the Kadhi's court from the hierarchy. Various types of legislation were also introduced by the British during their administration to restructure the local court system. the British asked the Malay Sultans to adopt statutory laws from India. The legislation was therefore a mere recognition to what had been done by the English judges. Formal importation of the common law of England and the rules of equity into the local system was made through a legislation called the Civil Law Ordinance. They were inclined to find solutions from England. it expressly states that the common law and the rules of equity 'shall be applied in so far as the circumstances of the States of Malaysia and their respective local inhabitants permit and subject to such qualifications as local circumstances render necessary'.comprising of the Court of Appeal and Courts' of Judges. a High Court judge stated that he had no hesitation in adopting the principles pronounced in English cases should the provisions of law in both countries be identical. the application of this proviso was very much dependant on the courts' attitude. significant changes were made to those laws in order for them to suit to present needs. The Courts Ordinance 1948 created a new hierarchy of courts. whereby the Kadhi's Courts were placed as the second last court in the hierarchy. renamed as the Civil law Act 1956 Act 67. which were actually English common law that was codified. Courts' of Kadhi/Court of Assistant Kadhi and lastly. and the laws of England and the imported statutory laws from India were applied. This continues even after independence. Special emphasis was focused on the position of Islam and the Malays.14 The British introduced the Courts Enactment 1919. allowed indigenous legal regime to continue. the Courts Enactment 1919. the non-Islamic matters were placed under the civil court's jurisdiction. While all provisions in the Courts Enactment 1919 were repealed. The representatives of the Malayan people . the law shall only be applied if the local circumstances allowed or whenever there is the lacunae in the law. Although these laws still remain. which was first introduced in the Straits Settlements in 1878. though in principle.11This qualification is similar to that imposed by the British in treaties with the Malay Rulers. As a consequence. It is a general understanding that the Civil Law Ordinance was meant to impose on the judges the obligation to bring in the common law of England and the rules of equity into the local cases. including the provisions of the Courts Enactment 1919 on the Kadhi's Court. The Civil Law Ordinance 1956 remains until today and it was revised in 1972.15 However. such as the Evidence Act. The Ordinance also repealed all the provisions in the Courts Enactment 1919. Mohamed Imam argued that the British had created a mischief in the local court system by introducing two parallel court systems. The Islamic matters were left with the Kadhi's Court and Islamic laws were applied. However. except for the provisions on Kadhi's Courts. This was done through decisions made by English judges in local cases. its provisions on Kadhi's Courts were retained. the position of Islam and Malay custom remained invulnerable. the Supreme Court -. the British introduced the final version of the Civil Law Ordinance. As one can see. The judge further stated that the English court's decision would have a 'salutary effect' in the Malaysian courts. being trained in England were more familiar with English law. especially when the law of both countries was identical. the British introduced the Courts Ordinance 1948. Just one year before Malaya achieved its independence. the Criminal Procedure Code and the Contract Act. To some extent. which created a hierarchy of courts. created a single system of court. from time to time.

The Constitution also preserves the position of the Malays whose special privileges are embodied in it. requires the Malaysian courts to refer to the common law of England and the rules of equity in so far as the people in the country permit and circumstances render it necessary. the legislature and the judiciary. Being a federal type of government. The preservation of these autochthonous values signifies the perpetuity of such values. there is no rigid separation of membership between the Legislature and executive. the country's own inspirations and the country's rapid development Malaysia should be able to create its own identity and legal . In the absence of the Civil Law Act. may not be true given the fact that the judiciary may find solutions from the indigenous or local recipe. By virtue of ss 3 and 5 of the Civil Law Act 1956 the common law of England and rules of equity may be said to be the most influential and controversial British legacy. Although the Constitution has become the first primary source of law. which cannot now be simply pulled out of the system without having a tremendous effect on the legal system.17 Parliament is the principal law-making body. namely the Federal Court. the executive has huge influence in the law-making process. this is not something that can be regarded as pleasant. the Court of Appeal and the High Courts. The most striking are. This is simply because there are various executive directions on certain practices or specific procedures. the provisions on the status of the Malays and the recognition of the Shariah courts. the statutory laws from India and the judicial system. The court. Those in the Legislature are at the same time in the executive body and they are the active players in the law-making process. In the Supreme Court case of Che Omar bin Che Soh21 for instance. The obvious legacies are. Malaysia is ready to invent its own laws and legal system according to the demands of its society. The judiciary should not forget that Malay-Muslim law was the basic law before the British came and Islamic values are accessible to the general population. it is necessary to trace along the path of colonisation to discover the legacy of laws and values left or imposed by the foreign power on this country. the federal and the state governments. at the age of more than fifty years. and to an extent 'making' the law by moulding and developing it in creative interpretation. Though the Civil Law Act was not an issue in the case. Probably. the Federal Constitution became the primary source of Malaysian law and was also regarded the supreme law of the country. And given the needs of the society. Much has been written and discussed on the unfavourable effect of the 1956 Act on the modern Malaysian law and legal system.20 Though the application of English common law and equity is restrictive to the situation when there is no written law in the country. It is Parliament's responsibility to legislate laws for the whole country and each state Legislature legislates on matters under the state jurisdiction and the law shall be operative in the respective state. the court did not revert to the complete history of Islam in the country. The constraint however.16 LEGAL ORDER IN THE POST-INDEPENDENCE After independence. The Constitution. Furthermore.19 The 1956 Act. Islam is acknowledged as the religion of the Federation and the Constitution also has various provisions highlighting the status of Islam in the Constitution. As in other countries the legal system in Malaysia is part of the constitutional structure. The Federal Constitution created a federal type of government. this British legacy remains a hiccup in the growth of the Malaysian legal system and its laws. Malaysia has at least two levels of government.18 The courts play a major role in developing the law. This also brought into prominence the doctrine of constitutional supremacy. However. there is no clearly stated reason for the retention.Page 4 tried their best to preserve the local indigenous values in the Constitution. As a result. one should not forget that the executive too plays a role in law-making. although the comprehensive nature and the position of Islam before the British administration were acknowledged. the position of Islam. The Constitution is the source of Malaysian law and its legal system. the position of Islam in most Malay states constitutions was upheld by the Federal Constitution. To some extent. the Civil Law Ordinance. Given the position of Islam in the country. The Constitution creates the superior courts of the country. in fact. which was based on the Westminster model has some local or indigenous characters. The Constitution provides for a separate jurisdiction for the two levels of government. there would have been no problems filling the lacunae as Islamic law would be able to fill the gap and to provide possible solutions. in a way sought to retain the demarcation between Islam and the legal system as created by the British. it shows how the judiciary has forgotten the role that Islamic law played in the past.

This system is probably better in the sense that it gives more appeal opportunities to the unsatisfied parties in legal proceedings. The Shariah courts on the other hand. The civil courts would have the general jurisdiction. appeals to the Privy Council were abolished in stages. prior to 1985. In its civil jurisdiction Shariah courts shall hear cases on family and some personal Muslim matters such as inheritance. Although Shariah courts have jurisdiction over criminal matters.24appeals to the Privy Council in security cases was abolished. The British left with the Malayan court a jury trial in criminal cases involving a death penalty. Thus. a Court of Appeal followed by a Federal Court was introduced with the federal Court being the highest court of appeal in the country. their penal jurisdiction is very limited. in a way. After the abolition of appeals to the Privy Council. where social . The British left Malaya leaving in place appeals to the Privy Council. the administration of justice in Malaysia has undergone at least three significant changes. prior to its abolition in 1995.27 Thus. the need for such appeals was abolished in a period less that thirty years after independence.Page 5 system and should be able to mould the system according to the general wish of the people. the civil courts and the Shariah courts. Shariah courts shall have jurisdiction over matters pertaining to offences against the precepts of Islam. Subsequent to independence. some view that the Malaysian courts should pay less attention to the Privy Council decisions. Under this new court structure. the Constitutional Commission recommended the retention of appeals to the Privy Council as the final appellate body in Malaya. Given the fact that Malaysia is a prime example of a society severely divided along ethnic lines. the British had divided the court system into two. it would appear that Shariah courts have limited jurisdiction regarding punishment under the Act. The Federal Constitution retains the segregation between the two court systems and Malaysia is having two parallel court systems. The laws applicable in the Shariah courts are state Islamic law (except for the Federal Territories). Since independence. the hierarchy of superior courts had been changed. appeals on criminal and constitutional cases were abolished and appeals on other cases were abolished from 1 January 1985.26 The maximum penalty that can be imposed by the Court according to the Act is three years imprisonment or a fine not exceeding RM5. In mid-1994 the courts' hierarchy was again restructured to introduce a three-tier system.In criminal trials the British legacy was obvious. but the earliest reported appeal case to the Privy Council was in 1875. As mentioned earlier.23 Judges sitting on the bench of the Privy Council were Members of the House of Lords in England.22 which remained the last resort for appeal for almost thirty years after independence. from January 1978. the abolition is. but also restricted jurisdiction regarding punishment. and that the judges should be more proactive in making their decisions. Although appeals to the Privy Council were around for almost a century since they were first introduced. Though some may argue that the abolition of appeals to the Privy Council does not mean a total rejection of English law and the Privy Council's decisions remain highly persuasive. In this respect. In its criminal jurisdiction. the Dangerous Drugs Act 1952 and cases under the Internal Security Act 1960. are the state courts. all criminal cases were tried by jury.25 having jurisdiction over Muslims only and decide over Islamic civil and criminal matters. In the independence process. The Supreme Court was introduced as the apex court of the country. the Shariah Courts (Criminal Jurisdiction) Act was legislated in 1965 and the law was revised in 1984. except a few offences under Firearms (Increased Penalties) Act 1971. not only restricted jurisdiction regarding the types of triable crimes. Thus. an attempt to break away from British influence and a move by independent Malaysia to develop its own system of law. The actual starting date for appeals to the Privy Council could not be ascertained. as this was not clearly spelt out in any of the British legislation. The Federal Constitution allows Parliament to legislate law conferring jurisdiction on the Shariah courts. The abolition of appeals to the Privy Council may indicate the Malaysian readiness to build up its own legal system and develop its autonomy. the Privy Council was the highest court of appeal. Appeals to the Privy Council are another significant British legacy. except matters regarding Islamic law.000 or whipping not exceeding six strokes or any combination thereof. having powers and jurisdiction to hear all types of cases. created by the state law (except in the case of Federal Territories). Appeals to the Privy Council were introduced during the British administration in the Straits Settlements. beginning from 4 October 1975.

for instance. civil and criminal procedure. The amendment states that the Shariah offender shall be brought to the Shariah court within twenty four hours. the position of Islam and the position of the Malay Rulers. some have suggested merging the two systems. according to this amendment the land administrator shall register the name of a person so ordered by the Shariah courts. or the original position of Islam and the Shariah courts in the Malaysian legal system. As a result. such as the Department of Islamic Development Malaysia (JAKIM)34 and the Department of Shariah Judiciary Malaysia (JKSM) were established in order to co-ordinate the administration of Islamic matters throughout Malaysia. cl (1A) was inserted into art 121. such as the International Islamic University Malaysia had started to introduce courses on Islamic law. it is a mere administrative federalisation. This is to ensure a uniform and systematic application of Islamic law in the country. the Conference of Rulers meeting had established a National Religious Council to advise the Rulers. There are comprehensive codifications of law on matters pertaining to Islamic family law.30 As a result of the amendment.Page 6 and cultural pluralism is not limited to simple ethnic composition but includes differences in religion.33 Without other constitutional amendments. legal education had also been developed. various improvements have also been made in the administration of Shariah courts. Furthermore. does not involve transfer of state power to the federal government.28 the segregation between the two court systems sometimes becomes problematic as conflict involving religion is inevitable. the Shariah Appeal Court has been 'federalised' through the Department of Shariah Judiciary Malaysia (JKSM). and social customs and behaviour. Since the early eighties. This has been made clear. Islamic law of evidence and procedural law. The connotation 'federalised' here. These issues would include matters such as the separation of powers between the federal government and the state government. In 1968. various improvements have been made to enhance the position of Shariah courts. there may be some serious constitutional issues to be dealt with before such a merger can materialise.29 Through this amendment. Other than specific developments in the administration of justice. s 421A of the National Land Code was also amended to expand the jurisdiction of Shariah courts. a technical committee was set-up to streamline the various states' Islamic laws. various aspects of Islamic law have been codified. In the event. whereby there is only one and the same panel of judges to form the bench of this Shariah apellate court throughout the country -. Some federal institutions. In its present set-up. unlike previously. The amendment was intended to free the Shariah courts from any interference from the civil court. Being a state matter. in matters involving the determination of the religious status of Muslims. the Shariah courts apply a three-tier system. Nonetheless.32 Together in the amendment was the inclusion of a proviso to cl (4) of art 5. which gives a constitutional 'facelift' to the Shariah courts. For instance. though the lower courts remain in the hands of the states.31 Furthermore. public universities. the Shariah High Courts and the Shariah Appeal Courts. it is common therefore for the states to have different sets of Islamic legislation. This piece of amendment in a way did not introduce anything new to the system. the amendment also prevented the High Court from having any jurisdiction over matters that fell within the jurisdiction of the Shariah courts. The most significant is the constitutional amendment in 1988. DEVELOPMENT OF THE LEGAL SYSTEM AFTER INDEPENDENCE The subsequent development of the law can be observed by examining the constitutional amendments and also amendments to various other laws.instead of having different panels for different states. It merely restored and asserted the indigenous. . Islamic criminal law. For the betterment of the administration of justice in the Shariah courts. cases decided by the Shariah courts. The university produces law graduates trained in civil laws and also Islamic law. the state government and the Islamic Religious Council on matters pertaining to the administration of Islamic law. For the purpose of improvement in the administration of justice. are no longer subject to appeal in the civil courts. the Shariah Subordinate Courts. due to the demands of society.

As such. 1989. 5 Re Timah binti Abdullah. For further reading on this see for instance Ibrahim. Islam and Malay Kingship (1981) JMBRAS. 4 See Re Timah binti Abdullah. at pp 117-118. The Politics of Law: A Progressive Critique New York: Basic Books. It must secure the national order and ensure prosperity for the country. With growth. in some cases. the legal system also has links with history which form the norms in its constitution. In addition. which includes recent developments that have taken place naturally. Some Critical Theories of Law and Their Critics in Khairys. at p 72. Mohan English Law in Singapore: The Reception that Never Was [1983] 1 MLJ xxv. para 3. the Malaysian legal system depends very much on its constitutional structure. (ed).7. Kuala Lumpur: Dewan Bahasa dan Pustaka. Constitutionally speaking the two parallel court system seems to be the direction. DJ Muzaffar Tate (Trans) Kuala Lumpur: Dewan Bahasa dan Pustaka. CONCLUDING REMARK As in other countries. Malayan Law Journal Pte Ltd. such as the creation of the Islamic banking bench in the civil courts. 7 There are various cases decided on this issue. 9 Ibid. Rutter R. 2 The historical facts on the British administration in those states are somewhat different. in early 2003 a Muamalat Division was created in the civil courts to deal with matters involving Islamic banking and takaful. Robert. however. the Islamic content in the legal system is increasing with the introduction of an Islamic banking and finance system. The Supreme court was created by the Court Ordinance 1948. The Banking and Financial Institution Act 1989 was introduced to allow conventional banks to introduce Islamic Banking services using their current facilities. 8 See Gopal. AC. The Malay Sultanate of Malacca. whether the present two parallel court system will remain or continue to develop on separate tracks is still unclear. The Applicable Law in Singapore and Malaysia. However. at pp 261-262 for instance. the country's legal system appears to have been restored into its earlier form ie to a system that existed before the British influence.35 The creation of such a division causes a constitutional debate. Michael. we have seen how exceptions have been created. at p 116. Similar development have taken place in the Shariah courts wherein a federal shariah appellate system was created although the lower court remains at the hands of the states. 1989. See also Choa Choon Neoh v Spottiswoode (1869) 1 Ky 216. 10 See Rutter F. Ahmad Towards a History of Law in Malaysia and Singapore. . De D [1941] MLJ Rep 44. at p 645. Malayan Law Journal Pte Ltd. not much adjustment to the local need was actually made by the British judges in the reception of English law. 1992. at p 221. 3 See Muhammad Yusoff Hashim. Singapore. Terrel Ag CJ stated: 'As the Common law of England has been in effect followed in the Federated Malay States since a Supreme Court was established and now has statutory recognition'.5. Michael The Applicable Law in Singapore and Malaysia.Page 7 At present. As a concluding remark. The system. 11 Section 3 of the Civil Law Act 1956. De D [1941] MLJ Rep 44. As a result of this development. 1998. 6 See Miller. Singapore. 1 Gordon W. and at p 64 the CJ also stated: 'Principles of English law has for many years been accepted in the Federated Malay States where no other provisions has been made by statute'. Developments in Islamic banking and finance laws are amazing. esp para 3. the law and the legal system must be designed to be mutually advantageous to all the races and religious communities of the country. David. at p 45. 12 See Yong Joo Lin Yong Shook Lin and Yong Yoo Lin v Fung Poi Pong [1941] MLJ Rep 63. 1992. Nonetheless. In Fatimah v Logan (1871) 1 Ky 255. is still developing. at pp 151-179. the Penang Court held that English law governed the question on the validity of a will and the court stated that 'it is the fault of the native holders of the property if any inconvenience results from such a decision'. for further reading on this see for instance. Ramah binti Ta'at v Laton binti Malim Sutan (1927) 6 FMSLR 128.

Traditional Elements of the Malaysian Constitution. Malacca. at p 106. This Act was revised in 1988 and renamed the Syariah Courts (Criminal Jurisdiction) Act 1965 (Act 355). c)in Sarawak. as administered or in force in England on the 12 December 1949. See s 3 of the Act. See also Farid Suffian Shuaib.repealed the 1905 Enactment). Abdul Aziz Bari. Selangor and Terengganu'. together with statutes of general application. Kuala Lumpur: Malayan Law Journal. 24 See Essential (Security Cases) (Amendment) Regulations. . a Study in Direct and Indirect Rule. Sarawak. 30 See Mohamed Habibullah bin Mahmood v Faridah bte Dato Talib [1992] 2 MLJ 793. Kedah. Perak. or one thousand fine or a combination of both. The subordinate courts are the sessions courts. the Kathi's Courts Enactment 1953 (Kelantan). apply the common law of England and the rules of equity as administered in England on 7 April 1956. Petaling Jaya: Penerbit Fajar Bakti Sdn Bhd 1986. Kuala Lumpur: Dewan Bahasa dan Pustaka. the Privy Council is the ultimate judicial body. The Indiginous Roots of the Malaysia Constitution -. in Trindade and Lee (eds). Singapore: Oxford University Press. 25 The Syariah courts in the Federal Territories are created by Parliament. 20 Ibid. 22 Privy Council traces the history as a body of personal advisers to the Crown. rules of equity and statutes of general application shall be applied so far only as the circumstances of the States of Malaysia and their respective inhabitants permit and subject to such qualifications as local circumstances render necessary. For Commonwealth countries or countries under the British Empire. 14 For instance. The original punishment provided by the 1965 Act was six months imprisonment. 29 Act A704. at pp 1-17. Pahang. It was amended in 1984 by the Muslim Courts (Criminal Jurisdiction) (Amendment) 1984 (Act A612) to increase the punishment jurisdiction of the Syariah Court. together with statutes of general application. Negeri Sembilan.Page 8 13 See Re Tanjung Puteri Johore State Election Petition [1988] 2 MLJ 111 at p 112. see. 1999.The Provisions and the Implications [2008] 6 CLJ xxxiii. Mohd Foad Sakdan. The Constitution of Malaysia: Further Perspectives and Developments. 16 For further reading on indigenous elements in constitution. Mohammad 'Syariah/Civil Courts' Jurisdiction in Matters of Hukum Syara: A Persisting Dichotomy [1995] 1 CLJ lxxxi. 27 The proviso to s 2 of the Shariah Courts (Criminal Jurisdiction) Act 1965. 26 The former name of the Shariah Courts (Criminal Jurisdiction) Act 1965 was Muslim Courts (Criminal Jurisdiction) Act 1965. 15 See Imam. Pengetahuan Asas Politik Malaysia. 2003. 1970. the court shall: a)in West Malaysia or any part thereof. 17 See art 74 and the 9th Schedule of the Federal Constitution. 1975. See ss 40-57 of the Administration of Islamic Law (Federal Territories) Act 1993 Act 505. Malaysia. subject however to sub-s (3)(ii): Provided always that the said common law. Hussin Mutalib. Article 1(2) of the Federal Constitution reads: 'The States of the Federation shall be Johor. wef 10 June 1988. Kuala Lumpur: University of Malaya Press. Kelantan. b)in Sabah. Courts Enactment 1919 (Federated Malay States -. the magistrates' courts and the Penghulu's Courts. 19 Section 3(1) of the Civil Law Act 1956 reads: 'Save so far as other provision has been made or may hereafter be made by any written law in force in Malaysia. Powers and Jurisdiction of Syariah Courts in Malaysia. This clause does not include Federal Territories as one of the states. 21 See Che Omar bin Che Soh v PP [1988] 2 MLJ 55. Courts Enactment 1905 (Federated Malay States). Islam and Ethnicity in Malay Politics. PU(A) 362/75. revised 1988. It was made applicable to all the states of Malaysia. 28 For further reading on this see for instance. Rupert Emerson. 23 That is the case of Yeap Cheah Neo v Ong Cheng Neo (1875) LR6 PC 381. It seems not to be applicable to the Federal Territories as its s 1(2) says that: 'This Act shall apply to all the States of Malaysia' and Federal Territories are not 'state' within the meaning of art 1(2) of the Federal Constitution. Perlis. apply the common law of England and the rules of equity. apply the common law of England and the rules of equity. Sabah. Penang. as administered or in force in England on the 1 December 1951. 18 The subordinate courts are created by the Subordinate Courts Act 1948 (Revised 1972). 1990. the Muslim Courts Enactment 1953 (Kedah). Salleh Abas.

htmlas retrieved on 2 April 2007. http://www. also to co-ordinate their implementation in all the states'. 33 Section 2 of Act A704. Registration Muamalat Cases in court (Classification Code). 35 Practice Direction No 1/ .Page 9 31 See Ahmad Ibrahim. The Amendment to art 121 of the Federal Constitution: Its Effect on Administration of Islamic Law [1989] 2 MLJ xvii. the decision in Soon Singh a/l Bikar Singh.islam. 34 JAKIM 'has been responsible to ascertain policies pertaining to the development and advancement of Islamic affairs in Malaysia by fostering and promotion the sanctity of the Akidah and Islamic syariat. JAKIM also has been relied upon to enact and standardised laws and 32 See for instance.