CHAPTER 5: SOURCES OF LAW

(UNWRITTEN LAW)

PREPARED BY:
MADAM NAMIRAH MOHD
AKAHSAH
 LEARNING OUTCOMES

The students must be able to:

Describe the various sources of
law
Distinguish the various sources of
law
 SOURCES OF MALAYSIAN
LAW
LAWS THAT
ENACTED BY
LEGISLATIVE
1 BODIES
WRITTEN LAW i. FEDERAL CONSTI
ii. STATE CONSTI,
iii. LEGISLATION,
iv. SUBSIDIARY
LEGISLATION

SOURCES OF 2
UNWRITTEN LAW THAT HAS
MALAYSIAN NOT BEEN
LAW LAW ENACTED BY THE
LEGISLATURE.

i. ENGLISH LAW
3 ii. JUDICIAL
SYARIAH LAW PRECEDENT
(ISLAMIC LAW) iii. CUSTOM
 STRUCTURE OF LECTURE
2 3
There are OTHERS
unwritten law which
SYARIAH LAW
- Sources of shariah
are:
1 law
- judgement of
- Position of Islamic
foreign courts, UNWRITTEN law in FC
- writing of jurists. LAW - Cases related

English
Customary Judicial
common law
law Precedent
& equity
UNWRITTEN LAW
English common law & equity
Customary law
Judicial precedent
Judgments of foreign courts
Writing of jurists

1/2/2017
 What is unwritten law? it is
portion of Malaysian law which is
not written and is found in cases
decided by the courts, local
customs and etc
Law that not passed by Parliament
or State Legislative Assemblies
 1. ENGLISH COMMON LAW &
EQUITY
English law is part of Malaysian Law the definition of law in
Art. 160 includes the common law in so far as it is in
operation in the Federation or any part thereof.
English law comprises of two parts:
(1) COMMON LAW (2) EQUITY
- Body of rules that - Body of rules developed
developed by the old first by the Lord Chancellor
common law courts. (the Kings right hand).
- Common law is unwritten - Not complete body of rules
or unenacted law of which can exist on its own.
England, the law based - Supplement to common
solely on decisions of the law, to correct its defects
courts. and mitigate its harshness.
 General application of English law in
Malaysia
The extent of the application of English law is prescribed in
Section 3, Section 5 and Section 6 of the Civil law Act 1956.
1
Section 3(1) CLA 1956:
In West Malaysia, the courts shall apply the Common Law
of England and the Rules of Equity as administered in
England on the 07.04.1956 (cut off date).
In Sabah and Sarawak, the courts shall apply the English
Common law and Rules of Equity, together with statutes of
general application, as administered or force in England on
the 01.12.1951 and Sarawak 12.12.1949 respectively.
Common law & equity apply under s. 3(1)
subject to the following qualifications:

Conditions in
applying English Law Absence of local
in Malaysia legislation

Local
Cut-off dates
circumstances
 1. Absence of Local Legislation

This qualification is contained in the opening proviso.

S.3(1) in the absence of written law, the courts of Malaysia
shall apply the common law and rules of equity existing in
England ..
A statutory recognition of judicial practice of resorting to
English law to fill lacunae (gaps) in the local law.
Case: Attorney-General, Malaysia v Manjeet Singh
Dhillion [1991] 1 MLJ 167 - The Court held that in the
absence of any specific local legislation concerning contempt
of court, the common law of contempt as stated in R v Gray
[1900]2 QB 36 should be applied under Section 3 of CLA 1956.
 2. Cut-off dates
Only common law and rules of equity (and in Sabah and
Sarawak, English statutes of general application) existing in
England on the dates specified can be applied to fill lacunae in
local law:
i. 7 April 1956 for West Malaysia
ii. 1 December 1951 for Sabah and;
iii. 12 December 1949 for Sarawak
Can be applied to fill lacunae in local law.
After the cut off date, English law does not become law in
Malaysia. Thus, Section 3 (1) connotes the strict application of
the English law in Malaysia before the cut off date.
 Case : Lee Kee Cheong v Empat Nombor Ekor
Sdn. Bhd. [1976] 2 MLJ 93 - their Lordships
need not consider developments in English
law after 1956 because under Section 3(1)
Civil Law Ordinance 1956- any subsequent
March in English authority is not embodied.
 However, in practice the courts may follow the
developments in English common law after such dates.
The application of English law in Malaysia is not binding,
but merely persuasive. The courts will have regard to the
circumstances of the States of Malaysia.

Case: Jamil Bin Harun v Yang Kamsiah Anor (1984) 1 MLJ

217; It is for the courts of Malaysia to decide, subject
always to the statute law of the Federation, whether to
follow English law. Modern English authorities may be
persuasive, but are not binding.
 3. Local circumstances

English law is applicable only to the extent

permitted by local circumstances and
inhabitants, and subject to qualifications
necessitated by local circumstances.
This qualification, contained in the
concluding proviso to s.3(1), is commonly
referred to as the local circumstances
proviso.
 Case : Syarikat Batu Sinar v UMBC Finance [1990] 2
CLJ 691 , Peh Swee Chin J held that difference in law
and practice in Malaysia constitutes such a
distinctive local circumstances of the local
inhabitants of west Malaysia that English cases
should not be follow. The learned judge stated that
..we have to develop our own common lawby
directing our minds to the local circumstances or
local inhabitants.
2
Section 5 CLA relating to Commercial Law:
Section 5 (1)- All states except Penang, Malacca, Sabah and
Sarawak apply English Commercial Law as administered in
England on the 07.04.1956.
Section 5 (2)- Penang, Malacca, Sabah and Sarawak can
use relevant and applicable English Commercial Law
continuously.

Case: Seng Djit Hin v Nagurdas Purshotumdas (1923) AC 444.

the action was for damages for failure to deliver goods,
delivery having been prevented by a shortage of ships owing
to wartime requisitioning. The court held that two statutes
were part of the mercantile law of England were allowed to
applied in Straits Settlement by virtue of s. 6.
3 Section 6 CLA relating to Land Law: (excludes the application in
Malaysia concerning land tenure)
Nothing in this Part shall be taken to introduce into
Malaysia or any of the States comprising therein any part of
the law of England relating to the tenure or conveyance or
assurance or succession to any estate, right or interest
therein

Case: United Malayan Banking Corp. Bhd v Pemungut Hasil

Tanah Kota Tinggi ; The National Land Code is a complete
and comprehensive code of law governing the tenure of land
in Malaysiano room for the importation of any rules of
English law in that field except in so far as the Code itself may
expressly provide for this.
 2. CUSTOMARY LAW

Custom is the regular pattern of social behaviour,

accepted by a given society as binding upon itself.
Customs are proved through repeated acts practised
over long period of time, leading to conclusion that
by common consent they have become accepted
norm, or the law of the place, exclusion of ordinary
law.
Article 160 FC laws includes...customs and
usages having the force of law.
 In Malaysia, it refers to the customs of the local inhabitants
which have been accepted as law by courts in Malaysia.

CUSTOMS

MALAY CHINESE INDIAN

CHINESE INDIAN
ADAT ADAT
CUSTOMARY CUSTOMARY
PERPATIH TEMENGGUNG
LAW LAW

NATIVE
CUSTOMARY
LAW
 Native customary law

Applied to the society in Sabah and Sarawak.

Remains important to adjudicate personal matters
involving Natives like family law, property, customary
land rights.
Administered by Native Courts (This court has the
jurisdiction to decide matters pertaining to native law
and customs between natives)
Para 13 of List IIA of the Ninth Schedule of Federal
Constitution permits each state of Sabah and Sarawak
to establish native courts.
 3. JUDICIAL PRECEDENT

The decisions of the higher courts in previous

cases must be followed by the lower courts in
similar cases/situations judicial precedents*.
Judicial Precedent can be obtained from the
decision of the superior courts namely:
Federal Court
Court of Appeal
High Court
 The judicial decisions of superior courts bind
subordinate courts in the doctrine of judicial
binding precedent or stare decisis, which
means to stand by cases already decided.
Stare decisis ensures that cases must be
decided the same way when their material
facts are the same, as justice requires similar
treatment of similar cases.
Cases*
 Under judicial precedent, it is only the
ratio decidendi binding on later
courts but not the whole case. Ratio
decidendi is the rationale for a
decision. It is the legal principle of the
case which will provide precedents for
judges to follow in future cases.
The remaining judgement is known as
obiter dictum. Obiter dictum is
comment made by judges which does
not form part of the reasoning and
therefore not part of the precedent. It
is not binding but persuasive only.
2 ways operation of doctrine stare
decisis

1. VERTICAL 2. HORIZONTAL
- a court is bound by - some courts are bound
by:
decision of higher
its own previous
court. decision;
- The superior courts decision of predecessor;
bind all courts court with co-ordinate
subordinate to it jurisdiction
Exceptions to the rule of stare
decisis

Judges may ignore or overrule a precedent laid down by a

1 lower court, where the case is on appeal.

They may refuse to apply the earlier precedent is it is

2 arrived at per incuriam (made in ignorance of a statute
or a binding precedent).

They may distinguish the case when they find that there
3 are material differences in facts between the case before
them and the case laying down the precedent.
DOCTRINE OF JUDICIAL PRECEDENT

Decisions of Federal Court

FEDERAL binds all lower courts
COURT(FC) COA is bound by the decision of FC.
COAs decision is binding on all lower
COURT OF courts.
COA is also bound by its own
APPEAL(COA) decision

HIGH COURT(HC) HC decision is binding on all

subordinate courts

SUBORDINATE Bound by the decisions of the

COURTS(SC) superior courts.
27
 DECISIONS FROM OTHER COMMON LAW
COUNTRIES

Decisions of courts outside the Malaysian judicial hierarchy

are not binding. They are only persuasive.
There are areas in which decision of English court are
influential are:
(2) The basic common law principles of
evidence, criminal law, and procedure
area in which Malaysia has enacted
legislation based on Indian legislation
which in turn, based on English principles.
(1) The basic common law principles
of tort, contract and the commercial The decision of English court are helpful
laws. not only in understanding and applying
the legislation, but also filling lacunae or
gaps in the legislation
 JUDGEMENTS OF FOREIGN
COURTS
Commonwealth countries have generally inherited the
English common law tradition.
Malaysia has enacted statutes modelled on those of
Commonwealth countries, for examples, the Penal
Code, Criminal Procedure Code and Contracts Act are
based on India, the National Land Code is based on land
law of South Australia.
Commonwealth countries judgements can be given
consideration if pari materia with Malaysian Courts.
The precedents are merely persuasive and not binding.
29
 Case: Director-General of Inland Revenue v Kulim Rubber
Plantation Ltd [1981] 1 MLJ 214:
In so far as the decision of other courts...are concerned,
we have always treated this judgments as only persuasive
authority, but we never lightly treated them or refused to
follow them...
Case: Leonard v Nachiappa Chetty [1923]4 FMSLR 265:
Decisions of the Indian Courts are of course not binding
here, but they are very valuable guides and have always
been treated with the greatest respect by the Courts in this
country
 WRITING OF JURISTS
Refers to the article written by an expert on legal subjects.
Normally found in a multi-volume encyclopedia.
Opinions of the jurists based upon their interpretation of
the relevant statutes and cases, as to what the law is
believed to be.
These opinions are persuasive but if the court adopts them
as part of the ratio of a decision, then they become law.
Islamic Law matters Professor Hashim Kamalis views
were referred to in deciding several cases for example,
Meor Atiqulrahman (Serbans case).
31
ISLAMIC LAW (SHARIAH
LAW)
What is Shariah?
What are sources of Islamic law?
Positions of Islamic Law in FC

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 ISLAMIC LAW (SHARIAH)
Syariah is an Arabic word which means the path to
be followed.
Literally it means the way to a watering place.
It is the sacred law of Islam as revealed through
Prophet Muhammad in the Quran and Sunnah. It is
the totality of Gods commands that regulate the
lives of Muslims in all its aspects.
Islamic law is mean the legal rules that are part of
the Syariah and enacted as legislations in accordance
with the procedures prescribed in the Federal and
state constitutions.
33
 Sources of Islamic Law

Quran
Primary
sources
Sunnah/ Hadith

Ijma
ISLAMIC LAW

Qiyas

Secondary Maslahah
sources mursalah

Urf

Istihsan 34
 PRIMARY SOURCES SECONDARY SOURCES

1) Al-Quran - words of Allah 1) Ijma - unanimous agreement

revealed to and transmitted by of the mujtahidun of the
the Prophet Muhammad. Muslim community of any
2) As-Sunnah - utterance, action period following the demise of
or indirect approval by the the Prophet Muhammad SAW
Prophet Muhammad on any matter.
2) Qiyas - analogy, reasoning, and
legal precedent to decide new
case law
3) Maslahah mursalah -
unrestricted public interest
4) Urf - customs and practices of
a given society
5) Istihsan - juristic preference
 Position of Islamic Law in
Malaysia`
The Islamic law which applies in Malaysia is of the
Shafii School of jurisprudence, as modified by Malay
adapt (customary) law.
In Malaysia, Islamic law only applies to Muslims and is
administered at State levels by a separate system of
courts called the Shariah Courts.
Islamic law matters include marriage, divorce,
adoption, legitimacy and certain religious offences.
The Federal Constitution provides that the States have
the power to administer Islamic law.
36
 The position of Islamic law in Malaysia is
provided in the Federal Constitution (FC) :

Article 3 FC: Islam is the religion

Article 11 FC: Every person has
of the Federation, but other
the right to profess and practice
religions may be practiced in
his religion and, subject to
peace and harmony in any part
clause 4, to propagate it.
of the Federation.

The 9th Schedule, List II State

List: Islamic law in Malaysia is
Article 121(1A): High Court
confined to the personal laws
cannot interfere with matters in
and within the powers of the
Syariah Court.
State, administered by the
Shariah courts.

37
 Islamic law is not included in the definition of law in
Article 160 of the FC. Article 160 includes only
written law, the common law and any custom or
usage having force of law. Also, Article 4 declares
the supreme law of the federation to be the FC.
However, civil courts still acknowledged the
importance of Islamic Law to local circumstances
and not as foreign law (Ramah v Laton).
38
 Article 3 FC

Islam is the religion of the Federation; but other religions

may be practiced in peace and harmony in any part of the
Federation
However, it does not declare that the federation is an Islamic
state. This was clearly stated in 1958 by Prime Minister Tunku
Abdul Rahman:

39
 Article 11 FC

Every person has the right to profess and practice

his religion and subject to clause (4) to propagate
it
Article 11(4) restrict the propagation of other
religion to Muslims. It is clear that while non-
Muslim are free to practice their religion, they may
not propagate their religion to Muslims, as State
and Federal laws restrict such propagation.

40
 List II State List, Ninth
Schedule
Except with respect to the Federal Territories of Kuala Lumpur, Labuan and Putrajaya,
Islamic law and personal and family law of persons professing the religion of Islam,
including the Islamic law relating to succession, testate and intestate, betrothal,
marriage, divorce, dower, maintenance, adoption, legitimacy, guardianship, gifts,
partitions and non charitable trusts; wakafs and the definition and regulation of
charitable and religious trusts, the appointment of trustees and the incorporation of
persons in respect of Islamic religious and charitable endowments, institutions, trusts,
charities and charitable institutions operating wholly within the State; Malay custom,
Zakat, Fitrah And Baitulmal or similar Islamic religious revenue; mosques or any Islamic
public places of worship, creation and punishment of offences by persons professing the
religion of Islam against precepts of that religion, except in regard to matters included in
the Federal List; the constitution, organization, and procedure of Syariah courts which
shall have jurisdiction over persons professing the religion of Islam and in respect only of
any of the matters included in the this paragraph, but shall not have jurisdiction in
respect of offences except in so far as conferred by federal law, the control of propagating
doctrines and beliefs among persons professing the religion of Islam; the determination of
matters of Islamic law and doctrine and Malay custom 41
 Article 121(1A) FC
Before amendment:
Before amendment of Article 121(1A) of FC, there was
a conflict of jurisdiction between Civil Court and
Syariah Court where matters relating to the
jurisdiction of Syariah Court was interfered by Civil
Court.
Case: Boto Taha v Jaafar Mohamad [1985] 2 MLJ 98
Held: Civil Court has jurisdiction to hear the case of
Harta Sepencarian involving Muslim couples.
42
After amendment:

The Constitution (Amendment) Act 1988, among

others added a new clause (1A) to article 121 which
provides that: The High Courts and inferior courts
established by federal law shall have no jurisdiction in
respect of any matter within the jurisdiction of the
Syariah Court
In effect, it removes the jurisdiction of the civil court in
respect of the matters specified in the State List as set
out in List II of the Ninth schedule of the FC.
43
 Case : Lina Joy v Majlis Agama Islam Wilayah
Persekutuan & Yang Lain

Facts - Lina Joy, who was born Azalina Jailani,

claimed to have converted from Islam to
Christianity, arguing that it came under her right
to freedom of religion under Article 11 of the FC.
She first approached the National Registration
Department (NRD) seeking permission to change
her name to Lina Joy, and also her religious
status. In 1998, the NRD allowed the name
change, but refused to change the religious status
on her identity card.
44
 HIGH COURT ; Joy appealed against this decision in the
High Court, arguing that she should not be subject to sharia
law, having converted to Christianity. In April 2001, the High
Court judge Datuk Faiza Tamby Chik ruled that she could
not change her religious identity, because ethnic Malays
are defined as Muslims under the Constitution.
COURT OF APPEAL ; Joy then took her case to the Court of
Appeal. In September 2005, the court ruled that the NRD
was correct in rejecting Joys application and said it was up
to the Syariah Court to settle the issue by virtue of Article
121(1A) of Fed Constitution.
45
 FEDERAL COURT - Joy further
appealed to the Federal Court. In
May 2007, the Federal Court
dismissed Joy's appeal. The Federal
Court ruled that only the Syariah
Court had the power to allow Joy
to remove her religious
designation of Islam from her
national identity card.
46