Malayan Law Journal Articles/2009/Volume 3/THE MALAYSIAN LEGAL SYSTEM: THE ROOTS, THE INFLUENCE AND THE FUTURE  3 MLJ xcii Malayan Law Journal Articles 2009
THE MALAYSIAN LEGAL SYSTEM: THE ROOTS, THE INFLUENCE AND THE FUTURE
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 --
its laws and legal system have undergone substantial changes throughout the fifty years of independence. the British came back to Malaya and formed the Federation of Malaya 1948. English law was not to be applied if it caused hardship or injustice to the inhabitants. It has been argued that the application of English law was not in fact. There was only one system of court in the country. the Federated Malay States (Selangor. Singapore was asked to leave Malaysia in 1965. When the Malacca Kingdom was at the height of its power. Terengganu and Perlis) and the Borneo States (Sabah and Sarawak). Kedah. BRIEF HISTORY OF THE MALAYSIAN LEGAL SYSTEM Since the early 14th century. English law had the greatest influence on the local system. Prior to the British. In the Straits Settlement. Kelantan. criminal and even commercial matters. COLONIAL INFLUENCE IN THE LEGAL SYSTEM As mentioned above. Undang-Undang Pahang. Perak. 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. there were early Malay Sultanates in the area of current Malaysia. There are three Federal Territories. Two sets of Malacca law. the influence was done through the introduction of the Charters of Justice. The change had to happen to accommodate the changes and needs of the Malaysian community. Islamic law and local custom were adopted in the legal system and administered accordingly. When the Japanese lost in the second World War. sat as a judge in the court. 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. Pahang and Negeri Sembilan). The British set foot in the area during the late 18th century to the early 19th century. the country had a court system prior to the British intervention. Indeed.10In the Malay States. that was the Kadhi's Court or the Shariah courts. Thesedistinct compositions of Malaysia. Undang-Undang 99 Perak were modelled on the Hukum Kanun Melaka. the Portuguese and Dutch were here. have a legal history which is somewhat different from each other. whereby the Ruler was the highest court of appeal. The country was occupied by Japan from 1942 to 1945. which became independent in August 1957. 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
. Two important decisions by the courts declared that Islamic law is not a foreign 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. Many other code of laws. the Straits Settlements (Malacca and Penang).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. especially the Malacca Sultanate. there were at least four colonial powers in the country before it finally achieved independence.3 These laws of Malacca had a great impact on the development of laws in other Malay states. The most well-known was the Malacca Sultanate.8 It is argued that there was no clear provisions in the Charter that requested for the importation of English law. such as the Undang-Undang Johor.5 It was also a fact that. The first landmark of the Malaysian legal system can be traced back to the early Malay Sultanates. As stated in the Charter. 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.9 Despite that the Penang courts formed an implication that the Charters had introduced English law into the locality. assisted by a Mufti (jurisconsult). Under thetreaties. 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 modern Malaysia is a federation of a number of independent states which comprise of at least four major groups. Islam had a major influence.4 The court must take judicial notice of this position and the court must have recourse to appropriate sources on Islamic law. The Malay Rulers. namely Kuala Lumpur.6 The then applicable law was Islamic law. Islamic law became the root of the law and the legal system of the country. the Unfederated Malay States (Johore. Despite that. Labuan and Putrajaya. British influence on the legal system is the most evident. 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. 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. introduced by the Charters as generally understood.
The Courts Ordinance 1948 created a new hierarchy of courts. the Criminal Procedure Code and the Contract Act. created a single system of court. such as the Evidence Act. Courts of Magistrate Second Class. 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. 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. known also as the Reid Commission. While all provisions in the Courts Enactment 1919 were repealed. In similar breath. the position of Islam and Malay custom remained invulnerable.comprising of the Court of Appeal and Courts' of Judges. the judges and barristers. As a consequence. As one can see. This was done through decisions made by English judges in local cases. The Ordinance also repealed all the provisions in the Courts Enactment 1919. Various types of legislation were also introduced by the British during their administration to restructure the local court system. except on matters relating to Islam and Malay custom.11This qualification is similar to that imposed by the British in treaties with the Malay Rulers. Courts of Magistrate First Class. including the provisions of the Courts Enactment 1919 on the Kadhi's Court. the British asked the Malay Sultans to adopt statutory laws from India. from time to time. It had been done indirectly by the British. Courts' of Kadhi/Court of Assistant Kadhi and lastly. Terrell Ag CJ pointed out that English law had long been introduced in the country.14 The British introduced the Courts Enactment 1919. being trained in England were more familiar with English law. the Ordinance 1948 also had a provision asserting the prevalent effect of itself over other written laws. This continues even after independence. The legislation was therefore a mere recognition to what had been done by the English judges. The representatives of the Malayan people
.12 even before the British introduced it through formal legislation. 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. the Courts Enactment 1919. renamed as the Civil law Act 1956 Act 67. However. Despite the general purpose of the Act. there were no express provision in the Ordinance regarding the segregation. the non-Islamic matters were placed under the civil court's jurisdiction. To some extent. In 1948. allowed indigenous legal regime to continue. Special emphasis was focused on the position of Islam and the Malays. especially when the law of both countries was identical. Mohamed Imam argued that the British had created a mischief in the local court system by introducing two parallel court systems. the British introduced the final version of the Civil Law Ordinance. whereby the Kadhi's Courts were placed as the second last court in the hierarchy. the application of this proviso was very much dependant on the courts' attitude. The Islamic matters were left with the Kadhi's Court and Islamic laws were applied. When the country achieved independence in 1957 the Constitution which was drafted by the Constitutional Commission. the Penal Code. The Civil Law Ordinance 1956 remains until today and it was revised in 1972. The judge further stated that the English court's decision would have a 'salutary effect' in the Malaysian courts.13 The courts' attitude contributed to the 'importation' of English laws into local cases. This is an indication. its provisions on Kadhi's Courts were retained. For instance. 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. Despite the influential effect of the treaties on the state administration. the Supreme Court -. Just one year before Malaya achieved its independence. Furthermore.Page 3
the advice of the Advisers or Residents in all matters. the civil court and the Kadhi's Courts. the British introduced the Courts Ordinance 1948. 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'. and the laws of England and the imported statutory laws from India were applied. except for the provisions on Kadhi's Courts.15 However. They were inclined to find solutions from England. which created a hierarchy of courts. which was first introduced in the Straits Settlements in 1878. significant changes were made to those laws in order for them to suit to present needs. the law shall only be applied if the local circumstances allowed or whenever there is the lacunae in the law. though in principle. and excluded the Kadhi's court from the hierarchy. Although these laws still remain. which were actually English common law that was codified. Apart from the Civil Law Ordinance. Courts of Penghulu. indicating British reservation to the application of its laws and values into the local system.
Furthermore. Although the Constitution has become the first primary source of law. one should not forget that the executive too plays a role in law-making. The court. the position of Islam.19 The 1956 Act. the Civil Law Ordinance. this British legacy remains a hiccup in the growth of the Malaysian legal system and its laws. To some extent. Being a federal type of government. in fact. Malaysia is ready to invent its own laws and legal system according to the demands of its society. In the absence of the Civil Law Act. The constraint however. As in other countries the legal system in Malaysia is part of the constitutional structure. The Constitution also preserves the position of the Malays whose special privileges are embodied in it. The Federal Constitution created a federal type of government. Though the Civil Law Act was not an issue in the case. at the age of more than fifty years. the executive has huge influence in the law-making process. However. The most striking are. the Court of Appeal and the High Courts. The preservation of these autochthonous values signifies the perpetuity of such values. may not be true given the fact that the judiciary may find solutions from the indigenous or local recipe. namely the Federal Court. As a result. This is simply because there are various executive directions on certain practices or specific procedures.20 Though the application of English common law and equity is restrictive to the situation when there is no written law in the country. The Constitution. 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.Page 4
tried their best to preserve the local indigenous values in the Constitution. although the comprehensive nature and the position of Islam before the British administration were acknowledged. the provisions on the status of the Malays and the recognition of the Shariah courts. the Federal Constitution became the primary source of Malaysian law and was also regarded the supreme law of the country. 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. Those in the Legislature are at the same time in the executive body and they are the active players in the law-making process. it shows how the judiciary has forgotten the role that Islamic law played in the past. there would have been no problems filling the lacunae as Islamic law would be able to fill the gap and to provide possible solutions. 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. Malaysia has at least two levels of government. the country's own inspirations and the country's rapid development Malaysia should be able to create its own identity and legal
.18 The courts play a major role in developing the law. and to an extent 'making' the law by moulding and developing it in creative interpretation. there is no clearly stated reason for the retention. which cannot now be simply pulled out of the system without having a tremendous effect on the legal system. in a way sought to retain the demarcation between Islam and the legal system as created by the British.16 LEGAL ORDER IN THE POST-INDEPENDENCE After independence. 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. Given the position of Islam in the country. The Constitution creates the superior courts of the country. And given the needs of the society. which was based on the Westminster model has some local or indigenous characters. this is not something that can be regarded as pleasant. the federal and the state governments. the court did not revert to the complete history of Islam in the country. Much has been written and discussed on the unfavourable effect of the 1956 Act on the modern Malaysian law and legal system. The Constitution is the source of Malaysian law and its legal system. In the Supreme Court case of Che Omar bin Che Soh21 for instance. The Constitution provides for a separate jurisdiction for the two levels of government. the position of Islam in most Malay states constitutions was upheld by the Federal Constitution. there is no rigid separation of membership between the Legislature and executive. 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. This also brought into prominence the doctrine of constitutional supremacy. Probably. the legislature and the judiciary.17 Parliament is the principal law-making body. The obvious legacies are. Islam is acknowledged as the religion of the Federation and the Constitution also has various provisions highlighting the status of Islam in the Constitution. the statutory laws from India and the judicial system.
from January 1978.25 having jurisdiction over Muslims only and decide over Islamic civil and criminal matters. appeals to the Privy Council were abolished in stages. the British had divided the court system into two. it would appear that Shariah courts have limited jurisdiction regarding punishment under the Act. all criminal cases were tried by jury. the Shariah Courts (Criminal Jurisdiction) Act was legislated in 1965 and the law was revised in 1984. the hierarchy of superior courts had been changed. The laws applicable in the Shariah courts are state Islamic law (except for the Federal Territories). In the independence process. Given the fact that Malaysia is a prime example of a society severely divided along ethnic lines. the Constitutional Commission recommended the retention of appeals to the Privy Council as the final appellate body in Malaya. Subsequent to independence. The British left Malaya leaving in place appeals to the Privy Council. Thus. Shariah courts shall have jurisdiction over matters pertaining to offences against the precepts of Islam.22 which remained the last resort for appeal for almost thirty years after independence. The abolition of appeals to the Privy Council may indicate the Malaysian readiness to build up its own legal system and develop its autonomy. This system is probably better in the sense that it gives more appeal opportunities to the unsatisfied parties in legal proceedings.27 Thus. not only restricted jurisdiction regarding the types of triable crimes. but the earliest reported appeal case to the Privy Council was in 1875.In criminal trials the British legacy was obvious. beginning from 4 October 1975.24appeals to the Privy Council in security cases was abolished. The Federal Constitution allows Parliament to legislate law conferring jurisdiction on the Shariah courts. The civil courts would have the general jurisdiction. except matters regarding Islamic law. the Dangerous Drugs Act 1952 and cases under the Internal Security Act 1960. The British left with the Malayan court a jury trial in criminal cases involving a death penalty. their penal jurisdiction is very limited. and that the judges should be more proactive in making their decisions. where social
. in a way. The Federal Constitution retains the segregation between the two court systems and Malaysia is having two parallel court systems. except a few offences under Firearms (Increased Penalties) Act 1971. the need for such appeals was abolished in a period less that thirty years after independence. In mid-1994 the courts' hierarchy was again restructured to introduce a three-tier system. Since independence. some view that the Malaysian courts should pay less attention to the Privy Council decisions. having powers and jurisdiction to hear all types of cases. the Privy Council was the highest court of appeal. The Shariah courts on the other hand. are the state courts.Page 5
system and should be able to mould the system according to the general wish of the people. prior to 1985. prior to its abolition in 1995. Appeals to the Privy Council are another significant British legacy. the administration of justice in Malaysia has undergone at least three significant changes. as this was not clearly spelt out in any of the British legislation. In its criminal jurisdiction. The actual starting date for appeals to the Privy Council could not be ascertained. a Court of Appeal followed by a Federal Court was introduced with the federal Court being the highest court of appeal in the country. created by the state law (except in the case of Federal Territories). Although appeals to the Privy Council were around for almost a century since they were first introduced. but also restricted jurisdiction regarding punishment.000 or whipping not exceeding six strokes or any combination thereof. the abolition is.23 Judges sitting on the bench of the Privy Council were Members of the House of Lords in England. As mentioned earlier. 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. Under this new court structure. The Supreme Court was introduced as the apex court of the country. an attempt to break away from British influence and a move by independent Malaysia to develop its own system of law. In this respect. Thus. 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. the civil courts and the Shariah courts. 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. After the abolition of appeals to the Privy Council. Appeals to the Privy Council were introduced during the British administration in the Straits Settlements.
For the betterment of the administration of justice in the Shariah courts.33 Without other constitutional amendments. or the original position of Islam and the Shariah courts in the Malaysian legal system. due to the demands of society. the amendment also prevented the High Court from having any jurisdiction over matters that fell within the jurisdiction of the Shariah courts. In 1968. unlike previously. 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. Some federal institutions. it is a mere administrative federalisation. civil and criminal procedure. 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. legal education had also been developed. The university produces law graduates trained in civil laws and also Islamic law. The connotation 'federalised' here. in matters involving the determination of the religious status of Muslims. For the purpose of improvement in the administration of justice. there may be some serious constitutional issues to be dealt with before such a merger can materialise. a technical committee was set-up to streamline the various states' Islamic laws. cl (1A) was inserted into art 121. Other than specific developments in the administration of justice. which gives a constitutional 'facelift' to the Shariah courts.29 Through this amendment. Since the early eighties. Islamic criminal law. It merely restored and asserted the indigenous.31 Furthermore. the Conference of Rulers meeting had established a National Religious Council to advise the Rulers. it is common therefore for the states to have different sets of Islamic legislation. though the lower courts remain in the hands of the states. In its present set-up. the state government and the Islamic Religious Council on matters pertaining to the administration of Islamic law. There are comprehensive codifications of law on matters pertaining to Islamic family law. various improvements have also been made in the administration of Shariah courts. Islamic law of evidence and procedural law. For instance.30 As a result of the amendment. the position of Islam and the position of the Malay Rulers.
. These issues would include matters such as the separation of powers between the federal government and the state government. and social customs and behaviour. s 421A of the National Land Code was also amended to expand the jurisdiction of Shariah courts.32 Together in the amendment was the inclusion of a proviso to cl (4) of art 5. various improvements have been made to enhance the position of Shariah courts. cases decided by the Shariah courts. such as the International Islamic University Malaysia had started to introduce courses on Islamic law. The amendment was intended to free the Shariah courts from any interference from the civil court. various aspects of Islamic law have been codified. This is to ensure a uniform and systematic application of Islamic law in the country. The amendment states that the Shariah offender shall be brought to the Shariah court within twenty four hours. This piece of amendment in a way did not introduce anything new to the system. In the event. according to this amendment the land administrator shall register the name of a person so ordered by the Shariah courts. The most significant is the constitutional amendment in 1988. the Shariah High Courts and the Shariah Appeal Courts. the Shariah courts apply a three-tier system. the Shariah Appeal Court has been 'federalised' through the Department of Shariah Judiciary Malaysia (JKSM). Furthermore.instead of having different panels for different states. some have suggested merging the two systems. Nonetheless.Page 6
and cultural pluralism is not limited to simple ethnic composition but includes differences in religion. public universities. As a result. Being a state matter.28 the segregation between the two court systems sometimes becomes problematic as conflict involving religion is inevitable. for instance. are no longer subject to appeal in the civil courts. does not involve transfer of state power to the federal government. the Shariah Subordinate Courts. whereby there is only one and the same panel of judges to form the bench of this Shariah apellate court throughout the country -. This has been made clear.
the law and the legal system must be designed to be mutually advantageous to all the races and religious communities of the country. It must secure the national order and ensure prosperity for the country. not much adjustment to the local need was actually made by the British judges in the reception of English law. Ramah binti Ta'at v Laton binti Malim Sutan (1927) 6 FMSLR 128. is still developing. Robert. 10 See Rutter F. Ahmad Towards a History of Law in Malaysia and Singapore. at pp 261-262 for instance. 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'. 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'. Michael.
1 Gordon W. Singapore. at p 116. 2 The historical facts on the British administration in those states are somewhat different. 1989. 4 See Re Timah binti Abdullah. De D  MLJ Rep 44. at p 645. 7 There are various cases decided on this issue. 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. the Malaysian legal system depends very much on its constitutional structure. 11 Section 3 of the Civil Law Act 1956. Kuala Lumpur: Dewan Bahasa dan Pustaka. For further reading on this see for instance Ibrahim. at pp 151-179. such as the creation of the Islamic banking bench in the civil courts. In Fatimah v Logan (1871) 1 Ky 255. AC. 8 See Gopal. As a result of this development. DJ Muzaffar Tate (Trans) Kuala Lumpur: Dewan Bahasa dan Pustaka. Nonetheless. The system. As such. Islam and Malay Kingship (1981) JMBRAS. 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'. See also Choa Choon Neoh v Spottiswoode (1869) 1 Ky 216. 5 Re Timah binti Abdullah. Constitutionally speaking the two parallel court system seems to be the direction. Singapore. 1992. (ed). Malayan Law Journal Pte Ltd. As a concluding remark. The Applicable Law in Singapore and Malaysia. for further reading on this see for instance. With growth. The Banking and Financial Institution Act 1989 was introduced to allow conventional banks to introduce Islamic Banking services using their current facilities. Michael The Applicable Law in Singapore and Malaysia. 12 See Yong Joo Lin Yong Shook Lin and Yong Yoo Lin v Fung Poi Pong  MLJ Rep 63. esp para 3. Some Critical Theories of Law and Their Critics in Khairys. However. De D  MLJ Rep 44. at p 45. in early 2003 a Muamalat Division was created in the civil courts to deal with matters involving Islamic banking and takaful.7. David. the legal system also has links with history which form the norms in its constitution. Mohan English Law in Singapore: The Reception that Never Was  1 MLJ xxv. the Islamic content in the legal system is increasing with the introduction of an Islamic banking and finance system. in some cases. 1989. In addition. Developments in Islamic banking and finance laws are amazing. we have seen how exceptions have been created.5. The Politics of Law: A Progressive Critique New York: Basic Books. which includes recent developments that have taken place naturally.35 The creation of such a division causes a constitutional debate. at p 72. at p 221. Rutter R. 3 See Muhammad Yusoff Hashim. the country's legal system appears to have been restored into its earlier form ie to a system that existed before the British influence.
. 1998. CONCLUDING REMARK As in other countries. 9 Ibid. 1992.Page 7
At present. however. The Malay Sultanate of Malacca. para 3. at pp 117-118. 6 See Miller. Malayan Law Journal Pte Ltd. The Supreme court was created by the Court Ordinance 1948. whether the present two parallel court system will remain or continue to develop on separate tracks is still unclear.
wef 10 June 1988. This clause does not include Federal Territories as one of the states. the Kathi's Courts Enactment 1953 (Kelantan). 1990. a Study in Direct and Indirect Rule. See ss 40-57 of the Administration of Islamic Law (Federal Territories) Act 1993 Act 505. 23 That is the case of Yeap Cheah Neo v Ong Cheng Neo (1875) LR6 PC 381. 18 The subordinate courts are created by the Subordinate Courts Act 1948 (Revised 1972). Courts Enactment 1905 (Federated Malay States). Selangor and Terengganu'. Abdul Aziz Bari. 20 Ibid. Mohd Foad Sakdan. Singapore: Oxford University Press. 1970.The Provisions and the Implications  6 CLJ xxxiii. The Indiginous Roots of the Malaysia Constitution -. 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. Pahang. 1999. the magistrates' courts and the Penghulu's Courts. It was amended in 1984 by the Muslim Courts (Criminal Jurisdiction) (Amendment) 1984 (Act A612) to increase the punishment jurisdiction of the Syariah Court. Article 1(2) of the Federal Constitution reads: 'The States of the Federation shall be Johor. 1975. 17 See art 74 and the 9th Schedule of the Federal Constitution. Salleh Abas. Hussin Mutalib. 28 For further reading on this see for instance. Sabah. Rupert Emerson. Islam and Ethnicity in Malay Politics. 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. Kuala Lumpur: Malayan Law Journal. as administered or in force in England on the 1 December 1951. Sarawak. See also Farid Suffian Shuaib. Petaling Jaya: Penerbit Fajar Bakti Sdn Bhd 1986. as administered or in force in England on the 12 December 1949. Mohammad 'Syariah/Civil Courts' Jurisdiction in Matters of Hukum Syara: A Persisting Dichotomy  1 CLJ lxxxi. The Constitution of Malaysia: Further Perspectives and Developments. Kuala Lumpur: University of Malaya Press. It was made applicable to all the states of Malaysia. apply the common law of England and the rules of equity. The original punishment provided by the 1965 Act was six months imprisonment. 27 The proviso to s 2 of the Shariah Courts (Criminal Jurisdiction) Act 1965. together with statutes of general application. 2003. 22 Privy Council traces the history as a body of personal advisers to the Crown. This Act was revised in 1988 and renamed the Syariah Courts (Criminal Jurisdiction) Act 1965 (Act 355). the Privy Council is the ultimate judicial body. Kelantan. Courts Enactment 1919 (Federated Malay States -. 15 See Imam. Kuala Lumpur: Dewan Bahasa dan Pustaka. Traditional Elements of the Malaysian Constitution. at pp 1-17. 26 The former name of the Shariah Courts (Criminal Jurisdiction) Act 1965 was Muslim Courts (Criminal Jurisdiction) Act 1965. apply the common law of England and the rules of equity. the Muslim Courts Enactment 1953 (Kedah). Malaysia. the court shall: a)in West Malaysia or any part thereof. c)in Sarawak. Malacca. see.
25 The Syariah courts in the Federal Territories are created by Parliament. Penang. The subordinate courts are the sessions courts. Powers and Jurisdiction of Syariah Courts in Malaysia. PU(A) 362/75. 14 For instance. 30 See Mohamed Habibullah bin Mahmood v Faridah bte Dato Talib  2 MLJ 793.
. together with statutes of general application. Perak. 29 Act A704.repealed the 1905 Enactment). For Commonwealth countries or countries under the British Empire. at p 106. in Trindade and Lee (eds). Pengetahuan Asas Politik Malaysia. revised 1988. Negeri Sembilan. See s 3 of the Act. apply the common law of England and the rules of equity as administered in England on 7 April 1956. Perlis. subject however to sub-s (3)(ii): Provided always that the said common law. b)in Sabah. 16 For further reading on indigenous elements in constitution. or one thousand fine or a combination of both. 21 See Che Omar bin Che Soh v PP  2 MLJ 55.Page 8
13 See Re Tanjung Puteri Johore State Election Petition  2 MLJ 111 at p 112. 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. 24 See Essential (Security Cases) (Amendment) Regulations. Kedah.
The Amendment to art 121 of the Federal Constitution: Its Effect on Administration of Islamic Law  2 MLJ xvii. 33 Section 2 of Act A704.
. http://www.gov. 32 See for instance.islam.htmlas retrieved on 2 April 2007. the decision in Soon Singh a/l Bikar Singh. 35 Practice Direction No 1/2003. Registration Muamalat Cases in court (Classification Code). JAKIM also has been relied upon to enact and standardised laws and procedures.my/english/index. also to co-ordinate their implementation in all the states'.Page 9
31 See Ahmad Ibrahim. 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.