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Lex; in Breve

The online supplement to our eponymous journal features concise and


insightful articles penned by law students from the University of Malaya, as
well as guest writers.

11/27/2017 0 COMMENTS

Malaysian Legal System - An Introduction

Professor Emeritus Datuk Dr Shad Saleem Faruqi is the holder of the Tunku
Abdul Rahman Foundation Chair

I. CONCEPT OF A LEGAL SYSTEM

A legal system refers to the overall legal regime of a country. It provides


institutions, principles, rules and methods for regulating the relationship
between law and society. It describes law’s connection with authority and with
morality.

It describes the sources from which the law springs. It provides the procedures
and methods for making law and resolving disputes. It encompasses the
institutions, principles and procedures for the exercise of power and the limits
thereon. It includes a set of laws and the manner in which the laws are
interpreted and enforced.

It outlines the rights, responsibilities, and duties of citizens towards each other
and towards the state. It provides for the imposition of punishments.

It provides for the classification of laws into various categories (civil law and
criminal law, public law and private law, procedural law and substantive law, the
law of tort and law of contract) and the differences and similarities between
these categories.

Over the millennium, the world has known many types of legal systems. The
oldest were built on custom and religion. In modern times, it is believed that
there are six primary categories of legal systems; civil law systems, common law
systems, religious systems, customary systems and supranational systems, and
mixtures of the five. The choice of one or the other is affected by history, politics,
and social traditions.

A. Civil Law Systems

In civil law systems, the central source of law is an enacted Constitution and a
plethora of comprehensive Codes passed by legislatures or other law-giving
authorities. For example, the Hammurabi’s Code in ancient Babylon (1745-
1702BC) and Code Napoleon (1804). Only legislative enactments (and not
judicial precedents as in common law systems) are considered legally binding.
Legislators play a central role in the development of the law. A significant
feature of this system is the extensive codification and consolidation. Another
significant feature is that court proceedings are inquisitorial instead of
adversarial. Judges conduct investigations, and call and question witnesses.

B. Common Law Systems

This is a system in which the seminal or primary source is the authoritative


decisions by judges in cases that are litigated before the courts. Court
proceedings follow the adversarial system of justice. The decisions are
perpetuated by a system of binding judicial precedent or stare decisis.

Alongside judicial precedents, stand statutes passed by the legislature.


However, the relationship between courts and the legislature is complex. Courts
interpret statutes, often very creatively, and to understand the law one has to
supplement legislation with case studies. Often, the law is what the courts say it
is! The American jurist Oliver Wendell Holmes once said that “the prophecies of
what the courts will do in fact, and nothing more pretentious, are what I mean
by the law”.

In some common law countries like the USA[1], India, Malaysia[2], and Australia
the superior courts have the power to review the constitutionality of legislative
enactments. Even constitutional amendments passed in accordance with
constitutional procedures can be declared beyond the power of Parliament if
the amendments destroy the “basic structure” of the Constitution.[3] Recently in
Semenyih Jaya Sdn Bhd[4] a unanimous Federal Court Bench held that the
1988 constitutional amendment to Article 121(1) cannot take away the
sacrosanct constitutional principles of separation of powers and judicial
independence.

C. Religious Systems
In these systems, the religious law is the highest law of the land and is
interpreted, not by ordinary judges, but by judges of religious or ecclesiastical
courts and scholars with prescribed religious qualifications. As the ultimate law
is believed to be from a divine source, it is unalterable and beyond the reach of
any democratic legislature.

The most common religious system in the world today is the Islamic legal
system of syariah. The syariah refers (i) to the Holy Qur’an (ii) the Sunnah and
Hadith (the practices and sayings of the Holy Prophet) and (iii) the fiqh (Islamic
jurisprudence of the jurists).

Syariah is based on both divine law (derived from the Qur'an, Sunnah and
Hadith), and the rulings of ulama (jurists). An ulamauses the methods
of ijma (consensus), qiyas (analogical deduction), ijtihad (research),
and urf (common practice) to derive a fatwā (legal opinion). An ulama is
generally required to qualify for an ijazah (legal doctorate) at a Madrasa (law
school/college) before he could issue a fatwā.

During the Islamic Golden Age, classical Islamic law had wide influence and
contributed greatly to the development of common law and several civil law
institutions.[5]

In the 21st century, syariah law governs a number of Islamic countries including
Saudi Arabia, Pakistan, and Iran. Most Muslim countries use syariah only as a
supplement to national law in some specified fields primarily of personal law. In
Malaysia, the original scheme of things in 1957 was to apply the syariah (i) to
only 24 topics of Muslim personal law and some minor crimes not covered by
the federal Penal Code, and (ii) to restrict its application to only those professing
the religion of Islam.[6] However, since the eighties, due to the policy of
Islamisation, the reach of syariah laws is being expanded through legislation as
well as judicial decisions to other areas of law like constitutional law,
commercial law, banking, insurance, provident funds, and family law. Conflict of
law situations are now endemic.

D. Customary Legal Systems

In many African nations, legal systems are grounded in customary law which
reflects the traditional cultural values.

E. Supranational Legal Systems

In many European states, supranational regional legal systems have developed.


Britain, France, most other Western and some Eastern European countries now
fall under the jurisdiction of the European Court of Justice (the ECJ in
Luxembourg) which deals with common economic issues. There is also the
European Court of Human Rights (the ECHR in Strasbourg in France).[7]

II. MALAYSIA – ITS GEOGRAPHY, HISTORY AND PEOPLE

A. Geography

Geographically, Malaysia consists of two non-contiguous regions; Peninsular


Malaysia and East Malaysia. These two regions are separated by 1,200 kms of
the South China Sea.

Peninsular Malaysia was formerly called the Federation of Malaya. It consists of


11 states plus the two federal territories of Kuala Lumpur and Putrajaya.
Together they comprise only 132,090 sq kms or 39.7% of Malaysian territory, but
are home to 79% of the population.

East Malaysia consists of the two Borneo states of Sabah and Sarawak, plus
the federal territory of Labuan. The three regions comprise 198,847 sq kms or
60.3% of Malaysian territory, but have only 21% of the population.
The 2017 population of Malaysia is estimated to be about 31.5 million.

B. History of Malaya

In the mists of distant time, Malaya was inhabited by the ancestors of Negritoes
and Senoi, the Proto-Malays from South China and the Deutro Malays from
Yunnan in South West China. From the beginning of the first to the thirteenth
century, migration from India resulted in the establishment of several Hindu and
Buddhist kingdoms in Indo-China. The Buddhist Kingdom of Sri Vijaya in
Sumatra around the seventh century and the Javanese kingdom of Majapahit
in Sumatra in the fourteenth century are well known.[8] Muslim traders from
India and the Arab peninsula introduced the Malays to Islam in the fourteenth
century.

In the fifteenth century, a prince from Palembang, Parameswara, took refuge in


Malacca and established the Malacca Sultanate. His conversion to the Islamic
faith provided the impetus for the Islamisation of the entire peninsula and the
gradual replacement of indigenous animistic practices and Hindu and Buddhist
tenets with Islamic principles. The patriarchal adat temenggong easily
absorbed principles of Islamic law. The legal system, however, continued to
exhibit the richness and diversity of animistic traditions, Malay adat, Hindu and
Buddhist feudal and princely traditions, and Islamic tenets. By the time the
Portuguese colonialists arrived in 1511, Islam had become the identifying
feature of Malay society.

A remarkable development during the reign of Sultan Muzaffar Shah (1444-


1456) was that orders were issued to compile laws into Hukum Kanun for the
sake of promoting uniformity of justice. Between the fifteenth and nineteenth
centuries, Digests and Codes were compiled – among them were the Undang-
Undang Melaka (Risalut Hukum Kanun 1523), Undang Laut Melaka, Pahang
Digest 1596, Kedah Digest 1605, Johor Digest, and the Ninety Nine Laws of
Perak.
From 1511 onward, Malaya was colonised by the Portuguese (1511-1641); the
Dutch (1641-1786); and the British (1786-1957). The 171 years of British colonial
rule are especially significant. The colonial period reshaped Malayan legal
traditions and supplied a large corpus of statutory and common law to replace
Malay customs and Islamic law that were prevalent in Malaya before the advent
of the British. Opinions vary on the legacy of the British to the legal system of
Malaysia[9] but what is certain is that British influence – both good and bad – is
still felt 60 years after Merdeka.

C. History of Borneo States

The regions of (North Borneo) Sabah and Sarawak have their own distinct
ancestry and history. They were populated by Dayaks; descendants of the
proto-Malays who had migrated across the Malay peninsula between 2500 and
1500 BC. There were also the Bataks of Sumatra, Negritoes or Senoi, deutro-
Malays from the peninsula, and the Chinese around the fifteenth century.[10]

By the sixteenth century, the Borneo territories were under the sovereignty of
the Sultan of Brunei. In 1841, Raja Muda Hashim, in exchange for assistance to
suppress an uprising, installed British trader James Brooke as the Governor of
Sarawak. This ushered the era of British colonialism through the White Rajahs –
James Brooke 1841-1868, Charles Brooke 1868-1917, and Vyner Brooke 1917-
1941. In 1847, Labuan was ceded to the British. James Brooke was appointed
as the British Consul-General for Brunei and Borneo. The British North Borneo
Company was formed by the Royal Charter in 1882. In 1888, Britain declared
Brunei, Sabah, and Sarawak to be protectorates. Though the Codes of Law and
the Royal Charters were enacted, indigenous customs, native law and matters
of religion were left untouched. British law was introduced only in 1928 through
the Law of Sarawak Order.[11]

The British ruled North Borneo (Sabah) and Sarawak for 123 years till 1963.
D. Merdeka for Malaya

The 11 states of the Malay Peninsula were under British rule till Malaya’s
independence on August 31, 1957. A new and supreme Constitution drafted by
the British-led Reid Commission was launched at midnight on August 31, 1957
when Malaya met its tryst with destiny.

E. From Malaya to Malaysia

In 1963, the Federation of Malaya joined the British territories of Sabah,


Sarawak and Singapore to create a vastly enlarged federation with a new
name “the Federation of Malaysia”. However, the Constitution of 1957 was
retained but with eighty or so amendments to accommodate the special
autonomy of Sabah, Sarawak and Singapore.

F. Exclusion of Singapore

In 1965, the Constitution was again amended significantly to allow Singapore to


leave the Federation to become an independent, sovereign state.

G. Culture

Malaysia is a multi-ethnic, multi-cultural, multi-linguistic and multi-religious


society and its legal system reflects its cultural diversity and its colonial history.

H. Language

Malay language is the official language under Article 152. However, subject to
some limitations, the teaching, learning and use of other languages are allowed
in all educational institutions whether public or private and at all levels.[12]
Languages other than Malay may be used for non-official purposes.
I. Islam

Islam is recognised by Article 3 of the Constitution as the official religion, but


other religions may be practised in peace and harmony. The religious
breakdown of the population is 61.3% Muslim; 19.8% Buddhist; 9.2% Christian;
6.3% Hindu; 1.3% Confucianism, Taoism and other Chinese faiths; 1.4% other
religions and 0.7% no religion.

J. Ethnic Composition

Ethnically, Malays constitute 55% of the population; Sabah and Sarawak


indigenous people (“Bumiputeras”) constitute 14%; Chinese 23%; Indians 7%
and Others 1%.

III. PROMINENT FEATURES, PRINCIPLES AND LAWS OF THE MALAYSIAN


LEGAL SYSTEM

A. Legal Pluralism

The Malaysian legal system consists primarily of secular Codes drafted by


legislative authorities. However, there are syariah laws for Muslims in 24 or so
personal law matters enumerated in the Constitution. In addition, the customs
of the Malays and the people of Sabah and Sarawak are part of our law. At one
time, the Chinese and Hindu customs were recognised in family law relations.
However, due to the passage of the Law Reform (Marriage and Divorce) Act
1976, family law for non-Muslims has now been codified.

There is legal pluralism in that there are different systems of law and different
systems of courts which operate within their assigned spheres. We have a
hierarchy of civil courts, a different hierarchy of syariah courts, and another
hierarchy of native courts in Sabah and Sarawak. Unfortunately, conflict of laws
between civil courts and syariah courts in West Malaysia, and native courts and
syariah courts in Sabah and Sarawak is endemic and increasingly, the various
streams of law compete with each other for ascendency.

B. Written and Supreme Federal Constitution

We have written constitutions at the federal level as well as in all 13 states.


The Federal Constitution is supreme throughout the land. It is declared in Article
4(1) that this Constitution is the supreme law of the Federation and any law
passed after Merdeka Day which is inconsistent with this Constitution shall, to
the extent of the inconsistency, be void.[13]

The State Constitutions are supreme in the respective states but subject to the
primacy of the Federal Constitution in the sense that all State Constitutions
must contain some “essential provisions” prescribed by the Federal
Constitution.[14]

C. Judicial Review

The supremacy of our Constitution is supported by judicial review. The


Constitution in Articles 4(1), 4(3), 4(4), 128(1), and 128(2) is explicit about the
power of the superior courts to examine the constitutionality of all executive[15]
and legislative actions. As in many other countries, Malaysian courts are
reluctant to employ the instrument of unconstitutionality to dissect state
actions. Nevertheless, a fair amount of case laws has developed on
constitutional challenges in the area of federal-state division of powers;[16]
unlawful interference with fundamental rights;[17] violation of constitutional
amendment procedures;[18] abuse of emergency powers;[19] and the
Attorney-General’s exclusive power under Article 145 to commence
prosecutions.[20]

D. Islam as the Official Religion


Article 3(1) declares Islam to be the religion of the Federation. However, there
are protections for believers of all other faiths as follows;
Article 3(1) states that all other religions may be practised in peace and
harmony.
Non-Muslims cannot be subjected to Islam because their freedom of
religion is guaranteed by Article 11.
There is explicit provision in Schedule 9 List II Para 1 that syariah courts
have jurisdiction only over persons professing the religion of Islam.

Muslims are, however, compulsorily subjected to the syariah and to the


jurisdiction of the syariah courts. The syariah law that is applicable in Malaysia is
largely of the Shafie school of Islam with influences of the Malay adat. The
formulation of Islamic Law Enactments is largely left in the hands of the State
Assemblies, each of which enacts laws for its territory. The three federal
territories of Kuala Lumpur, Putrajaya and Labuan have a separate Act
applicable to them.

It must be noted that though Islam is the religion of the Federation, Malaysia is
not a theocratic, Islamic state. The Federal Constitution is the highest law.
Islamic law applies compulsorily to all Muslims but only in 24 areas (primarily of
family law) enumerated in Schedule 9 List II Para 1. In all other areas like crime,
contract and tort, Muslims are governed by secular laws enacted by elected
assemblies.

However, since the eighties, a policy of Islamisation is in effect and some areas
of federal legislation (like banking, insurance, loans) are being influenced by
syariah principles that are being posited into legislation applicable to all
persons. There is increasing assertiveness by the syariah establishment in
many areas of social life that affect Muslims[21] as well as non-Muslims.[22]
Some very painful and intractable conflict of jurisdiction cases between civil and
syariah courts remain unresolved.[23]
E. Federal System

Malaysia has a federal system of government but with a heavy central bias.
However, the East Malaysian regions of Sabah and Sarawak enjoy some
executive, legislative, judicial and financial autonomy not available to the 11
Peninsular states. This asymmetrical arrangement for special treatment is
entrenched in the 1963 amendments to the Constitution.[24]

F. Constitutional Monarchy

We have a constitutional monarchy at both the federal and state levels. The
unique aspects are that (i) we have not one but nine Rulers – one at the federal
level and nine hereditary Sultans/Rajas at the state levels while four states
without hereditary rulers have State Governors, and (ii) the federal monarchy is
elected and rotational. The King is elected by his nine brother Rulers for a period
of five years.

G. Democratic System

The Malaysian legal system has most of the formal attributes of a democracy –
elections to choose the federal and state governments; a bicameral Parliament
at the federal level; a unicameral Assembly in each of the States; a well-
developed electoral system; a system of political parties; a judiciary with
safeguards for judicial independence; and constitutional protection for
enumerated human rights in Article 5-13. But unfortunately, there are also
constitutional permission for executive detention without trial, laws about
sedition, treason, official secrets, prior restraints on free speech through
licensing and permits for the media, police control over assemblies and
processions and censorship and banning of books and publications.

H. Parliamentary System
We emulated the British, Westminster style of parliamentary government at
both federal and state levels.

I. Electoral System

The Constitution and laws provide for the main electoral principles. We have a
single member constituency system. Every citizen of age 21 who has registered
as a voter in a constituency is eligible to vote unless he or she suffers from an
electoral disqualification. Right to seek elected office is likewise protected and
no racial, religious, gender, educational or income criteria apply. Victory in a
constituency is on a “simple plurality” vote and there is no proportional
representation. There are no reserved seats for the army,[25] police or any race
or religion in the elected House of Representatives.

The federal Senate is, however, mostly appointed. It has 44 appointed members
and 26 indirectly elected Senators – two from each State indirectly elected by
the 13 State Assemblies.

Regrettably, Malaysia has no local authority elections though these did exist in
the early years of independence.

J. Fundamental Rights

The Federal Constitution in Article 5-13 confers a number of civil and political
liberties. Among them are;
the right to not be deprived of life and personal liberty save in accordance
with law: Article 5
abolition of slavery and forced labour: Article 6
protection against retrospective criminal laws: Article 7(1)
protection against repeated trials: Article 7(2)
equality before the law and protection against unconstitutional
discrimination: Article 8
protection against banishment: Article 9(1)
freedom of movement: Article 9(2)
freedom of speech and expression: Article 10(1)(a)
freedom of assembly: Article 10(1)(b)
freedom of association: Article 10(1)(c)
freedom of religion: Article 11
rights in respect of education: Article 12, and
right to property: Article 13.

Elsewhere in the Constitution, there is a right to vote (Article 119), right to seek
elective office (Articles 116-117), protection for public servants (Articles 135 and
147), and some protection for preventive detainees (Article 151).

A number of ordinary statutes confer rights to the women, children, workers,


pensioners, consumers, trade unionists etc.

K. Access to the Courts

In theory, the right of access to the courts for the enforcement of rights is
regarded by some judges as part of the constitutional guarantee of personal
liberty. According to Justice Gopal Sri Ram, JCA as he was then, the right to go
to courts is part of the constitutional right to personal liberty.

Regrettably, for 70% of the accused in lower courts who are unrepresented, the
right of access is unenforceable because of the high cost of litigation and the
infancy of legal aid and advice. In Malaysia, lawyers are not allowed to seek
contingency fees, give rebates or advertise their services. These rules impact
adversely on citizens’ ability to seek legal redress.
L. Indigenous Features

Though the 1957 Constitution was drafted by a foreign Commission appointed


by the British, it worked closely with the then political leaders of Malaya and the
multiracial Alliance to incorporate into the basic law some unique and
indigenous features of the Malay archipelago. Among them are:
the unique system of multiple Malay monarchs united by a Conference of
Rulers;
the system of Malay Reserve Lands;
Islam as the state religion but freedom of religion for all other religions;
affirmative action provision to preserve the special position of the majority
Malay community (and in 1963 for the natives of Sabah and Sarawak);
Protection for Malay customs (and in 1963 for native law and custom of
Sabah and Sarawak); and
Bahasa Melayu as the national language.

M. Nationality

Nationality is not equated with ethnicity but with citizenship and exclusive
allegiance. Double citizenship is not allowed.

N. No immunity for the Sultans and the Government

Most remarkably, the King and the Malay Rulers are subject to the civil and
criminal law and can be taken to a special court. The government is not immune
from civil proceedings in contract or tort.[26] However, it enjoys some
procedural advantages: the time limit in contract and tort to sue the
government is reduced from 6 years to 36 months. Evidence may be withheld in
the public interest. Facts may be suppressed under the Official Secrets Act.
Some remedies like injunction and specific performance are not available
against the government. In some situations, the government may even have
total immunity.
O. Civilian Control over the Forces

Even during the communist insurgency (1957-1989) or during racial riots in 1969
or during the emergency (1964-2012), there has been civilian control over the
army and the police. We have had no coup d’etats or “stern warnings” from the
armed forces. Separation of the police force from the armed forces, and a parity
between the top echelons of the army and the police achieve an admirable
check and balance between the two.

P. Branches of Law

Almost all branches of law have developed in Malaysia. There are statutory
codes on court procedure and evidence; cyber laws; human rights; children’s
protection; protection for women; personal and family laws; labour relations and
workers’ rights; banking, commercial relations, contract, sale of goods, hire
purchase; environmental protection; intellectual property; official secrets;
whistle blowers’ protection; laws relating to land and tenancies and; laws to
regulate education. Laws on international trade and commerce are gaining
foothold.

Q. Various Classifications of Laws


Legal rules are of many types. They may be classifiable in a number of classes
which are not watertight. Such classification has distinct consequences not all
of which are desirable. Such classifications are;
Criminal laws and civil laws
Law of tort and law of contract
Substantive laws and procedural Laws
Common law and equity
Public law and private law
Constitutional law and ordinary law
International law and domestic law
IV. SOURCES OF LAW

A. Concept of Law in Legal Philosophy

Law is an indispensable attribute of every society- ancient or modern. Law has


existed since times immemorial in myriad of forms. There is no universal
concept of law. There are many competing conceptions. Much depends on your
upbringing, pre-conceptions and political and legal philosophy. An all-
encompassing definition is not possible. But if we were forced to supply one, we
could say that law is “a norm or rule of conduct”.
The problem is that rules of conduct exist in many forms and originate from a
myriad of sources.
In early history, almost all law was in the form of custom.
Later in history, religion began to direct human conduct. Is religion within
the definition of law?
Concepts of morality, ethics and justice evolved. These concepts, in turn,
developed rich subdivisions. For example, ‘morality’ can refer to
‘conventional morality’, ‘contemporary morality’, ‘social morality’ etc.
‘Justice’ can mean ‘legal justice’, ‘corrective justice’, ‘distributive justice’
etc. Are morality, ethics and justice entitled to the nomenclature of law?
In the 16th century, the concept of political sovereignty developed. The
state took shape. It began to enact formal, positive law. The agencies of
government acquired a near monopoly over the making of enacted law.
Despite the proliferation of state made law, a great deal of social,
commercial, banking, and business practice is regulated by social,
business and professional practices. Should social practices be
recognised as law by the courts, as the sociological jurists recommend us
to do?
In common law systems, much of the law is judge made. Should judicial
precedents be regarded as binding? The common law and civil systems
differ sharply.
Relationships at home, in school and college, in the work place, in the
club, business association and political party are mostly regulated by the
private law of contract. Is ‘private law’ within the definition of law?
In a globalizing world, the norms of international conduct are acquiring
the status of law in many lands.

Which of the above sources or forms of law qualify as legal sources? There is no
right answer. Much depends on whether you belong to the historical and
anthropological, natural law, legal positivist, sociological, realist or post-
modernist approach.

B. Malaysian Concept of Law

In Malaysia, Article 160(2) of the Federal Constitution supplies an authoritative


definition of law. It states that “law” includes written law, the common law in so
far as it is in operation in the Federation or any part thereof, and any custom or
usage having the force of law in the Federation or any part thereof. From the
above definition, it is clear that at least three categories of rules qualify as law in
this country:

1. Written law

This category includes the Federal Constitution, Acts of the Federal Parliament,
Emergency Ordinances by the Yang di-Pertuan Agong under Article 150,
Federal Subsidiary Legislation, 13 State Constitutions, Enactments and
Ordinances of State Assemblies, State Subsidiary Legislation and local
authority by-laws. In the context of Sabah and Sarawak, British statutes at cut
off dates may be applied as law if there is no local legislation. In the field of
commercial law, British statutes at cut off dates may be applied throughout the
country if there is no local legislation.

2. English common law and Malaysian judicial precedents


Unlike in the civil law system, judicial precedents formulated by Malaysian and
UK judges in the course of deciding cases have the force of law, and are
honoured by a system of stare decisis.

3. Customs or usages

These become law if they are recognised by statute or common law.

It is noteworthy that under Article 160(2) religion, ethics, morality and custom are
not law per se on their own strength or quality. Neither is there legal recognition
for social practices, rules of international law and private law unless these are
incorporated into or derived from a recognised source of law. Our legal system
does not address the question whether an unjust law (“a lawless law”) is law.

However, religion, ethics, morality, custom, social practices, rules of international


law and private law may be admitted into law in two ways: (i) by incorporation,
adoption or being posited into a written statute or; (ii) by acceptance into a
judicial precedent.

This narrow, unhistorical and amoral (morally neutral) approach to the definition
of law indicates that in Malaysia the English philosophy of “legal positivism” is
the preferred approach. Law is a command of the sovereign. Law is state-
made. Its morality or immorality, its reasonableness or justice are irrelevant in
determining its validity. Besides state-made law, other types of rules or norms
need direct or indirect recognition by the state or it agencies before they can
acquire the status of law and enforceability as a legal norm. This means that
only those rules of social and legal practice are enforceable in a court which
have passed through a “legal filter”, a “rule of recognition” or a “criterion of
validity”.[27]

In practice, statutory recognition of custom or religious precepts is quite


frequent. In West Malaysia, it is quite common to see Muslim family law statutes
containing a clause to the effect that “the law on this point shall be the law of
the Syafie school of Islam and Malay adat”. In Sabah and Sarawak, a great deal
of native custom is codified.

Though judicial practice is not always consistent, there is no dearth of cases in


which judges give judicial recognition to Malay and Chinese customs and native
law in Sabah and Sarawak. Since the nineties, superior courts are increasingly
incorporating principles of Islamic jurisprudence into their judicial decisions.

C. Meaning of ‘Sources’

The term “sources of law” can have many meanings. One meaning is “historical
sources” or “material sources”. These terms refer to the fountains from which
the content of the law is derived. Everywhere in the world, some parts of the
legal system are inspired by and based on cultural, moral, religious or
customary norms, scholarly opinions or the edicts of religious or customary
authorities. These norms supply the lifeblood of the law; the clay from which law
is fashioned. However, in legal systems influenced by the approach of legal
positivism, these historical or material sources are not, by themselves, entitled to
be called “law” unless they are formally posited or converted into law by
legislation or judicial precedent.

Another meaning of “source” is the institutions or authorities that are authorized


by a particular legal system as having the power to enact law. Thus, Parliament
and State assemblies are the source of legislation. The Yang di-Pertuan Agong
is the source of Emergency Ordinances; and courts are the source of common
law.

The third meaning of “source” is those formal categories or species of rules that
are recognized in the legal system as constituting the law of the land.
D. Sources of Law in Malaysia

The Federal Constitution in Article 160(2) defines ‘law’ to include three sources:(i)
written law, (ii) the common law and (iii) any custom having the force of law. This
means that legislation, subsidiary legislation, judicial precedents and
recognized customs are the “source of law” in Malaysia.

Under the Civil Law Act 1956, British common law and equity on particular cut-
off dates are statutorily recognised as sources of law.

Under the Civil Law Act, British statutes in the field of commercial law on cut-off
dates are applicable throughout Malaysia if suitable to our circumstances. Also,
British statutes of general application on cut-off dates, if suitable for Sabah and
Sarawak, are applicable in Sabah and Sarawak.

Under Article 162(6), “existing laws” of the pre-independence era may continue
to exist but subject to modification to make them fall in line with the supreme
Constitution.

The effect of the above provisions is that there are multiple sources of law in
Malaysia. They can be divisible broadly into: (i) written sources and (ii) unwritten
sources.

1. Written sources

“Written” means formally “enacted” into legislation or subsidiary legislation.


Written does not mean “in print” or in black and white. The written sources at
the federal level are:
1. Federal Constitution.

2. Federal statutes or Acts of Parliament under Articles 73-79 of the Federal


Constitution.
3. Emergency Ordinances by the Yang di-Pertuan Agong under Article 150.
4. Federal subsidiary legislation.

5. In the field of commercial law, British statutes at cut off dates may be
applied throughout Malaysia if there is no local legislation and if the
British law is suitable to our circumstances.
6. To these could be added “existing law” or pre-Merdeka law under Article
162.

At the state level, the written sources are:


1. The thirteen State Constitutions;
2. State Enactments (in Sarawak, Ordinances) under Articles 73, 74, 76A and 77
of the Federal Constitution or under the enabling provisions of their own State
Constitutions;
3. State subsidiary legislation including municipal by-laws; and
4. In the context of Sabah and Sarawak, British statutes of general application
at cut-off dates may be applied if there is no local legislation and if the law is
suitable to our
circumstances.

(a) Federal Constitution

The Federal Constitution is the supreme law of the land, the law of laws- the
grundnorm. It sits at the apex of our legal hierarchy. What was achieved by
Marbury v Madison[28] in the USA is explicitly provided for in Articles 4, 128 and
162(6) of Malaysia’s Federal Constitution. Any law, whether post-Merdeka or
pre-Merdeka, primary or secondary, federal or state, secular or religious, that
violates the Constitution can be declared null and void by the courts.

The supremacy of our Constitution is supported by judicial review. The


Constitution in Articles 4(1), 4(3), 4(4), 128(1) and 128(2) is explicit about the
power of the superior courts to examine the constitutionality of all executive[29]
and legislative actions. As in many other countries, Malaysian courts are
reluctant to employ the instrument of unconstitutionality to dissect state
actions. Nevertheless, a fair amount of case laws has developed on
constitutional challenges.

In the area of federal-state division of powers, we have The Government of


Kelantan[30]; The City Council of George Town[31]; Government of Malaysia[32];
Mamat Daud[33]; Abdul Karim Abdul Ghani[34]; Ketua Pengarah Jabatan Alam
Sekitar[35]; Robert Linggi[36]; Dato’ Ting Cheuk Sii[37] ; and Fung Fon Chen@
Bernard.[38] In relation to unlawful interference with fundamental rights, there
are hundreds of applications to the courts. Some of the prominent ones are PP v
Yee Kim Seng[39]; Che Ani Itam v PP[40]; Tye Ten Phin[41]; Pihak Berkuasa
Negeri Sabah[42]; Yii Hung Siong v PP[43]; Ooi Kean Thong v PP[44];
Muhammad Hilman Idham[45]; Fathul Bari Mat Jahya[46]; Nik Noorhafizi Nik
Ibrahim v PP[47]; Nik Nazmi Nik Ahmad v PP[48]; Berjaya Books[49]; Mat
Shuhaimi Shafiei v PP[50]; Titular Roman Catholic Archbishop of Kuala
Lumpur[51]; PP v Azmi Sharom[52]; State Government of Negeri Sembilan[53];
PP v Yuneswaran Ramaraj[54]; Pathmanathan Krishnan[55]; ZI
Publications[56]; Majlis Agama Islam WP[57]; Maria Chin Abdullah lwn Pedakwa
raya[58]; YB Khalid Abdul Samad[59]; and Khairuddin Abu Hassan[60].

On the violation of constitutional amendment procedure, there are cases like


The Government of Kelantan[61] and Robert Linggi[62].

On the exercise or abuse of emergency powers we have Teh Cheng Poh v P [63]
and Abdul Ghani Ali @ Ahmad v PP[64].

On the Attorney-General’s exclusive power under Article 145 to commence


prosecutions, we have a dozen or so cases including Subramaniam Gopal v
PP[65].

Despite the above cases, one can say regrettably, that 60 years after
independence the Constitution has not yet become the chart and compass, the
sail and anchor of the nation’s legal endeavours. Its imperatives have not
become the aspirations of the people or the institutions of the state.
The federal Parliament and the State legislatures often enact laws that
confer absolute discretion on the executive and, in addition, exclude
judicial review through ouster clauses.
In the last two decades, laws relating to Islamic matters are regarded by
politicians, policy makers, the syariah establishment and many civil
judges as NOT subject to constitutional control and not amenable to the
civil courts’ jurisdiction. A parallel, religious legal system seems to be
emerging though this was not the intention of the constitution-makers.
A great deal of delegated legislation ignores constitutional limits.
Most lawyers, perhaps due to unfamiliarity with constitutional
jurisprudence, avoid raising constitutional challenges in the courts.
Barring some honourable exceptions, most judges avoid or evade
constitutional issues and convert issues of constitutional law into issues of
administrative law.
The area of non-justiciability is very wide.
Constitutional safeguards are often made inapplicable because
according to the courts, the case is one of private law to which public law
principles are not applicable.
Despite the protests of constitutional lawyers, government policies and
Circulars often trump the Constitution. Many decisions are regarded as
part of royal prerogatives, not subject to judicial review.

(b) Federal legislation by the elected parliament

There are nearly one thousand federal statutes on record. They are called Acts
of Parliament or statutes. All are printed in the Government Gazette and are
accessible without cost to anyone who cares to obtain them. The Government
claims no copyright to its legislation.
Interpretation Acts supply a guide to statutory interpretation. The relevant laws
are the Interpretation and General Clauses Ordinance 1948 applied for the
interpretation of the Constitution and the Interpretation Acts 1948 and 1967 (Act
388).

Though there is widespread codification, there is overlapping legislation and


consolidation is an unmet need.

(c) Emergency ordinances by the Yang di-Pertuan Agong

The King, acting on advice, possesses the power to promulgate Emergency


Ordinances having the force of law (i) during an emergency and (ii) if both
Houses are not in session concurrently. The power of the King is co-terminus
with that of Parliament.

(d) Federal delegated (subsidiary) legislation

It exceeds parliamentary legislation by a ratio of 1:20. Regrettably, it is not


subject to much parliamentary control. In many countries, delegated legislation
is statutorily made subject to:
Consultation with affected interests
Laying procedures – laying in draft or laying in instrument; laying subject
to affirmative resolution or laying subject to negative resolution;
Scrutiny committees of one or both Houses of Parliament; and
Publication requirement.[66]

Regrettably, in Malaysia, consultation and laying are very rare. Scrutiny


committees are unknown in Malaysian legislatures.[67]

However, subsidiary legislation, both federal and state, is subject to judicial


review on the principles of unconstitutionality, ultra vires and unreasonableness.
[68]
(e) British commercial statutes

Under the Civil Law Act 1956, section 5(1), English commercial law as it stood on
7 April 1956 applies in the nine former Malay states. Under section 5(2) which
applies to Penang, Melaka, Sabah and Sarawak, English commercial law at the
date at which the matter has to be decided applies. The qualification is that
there must be no local legislation on the point.

(f) Pre-Merdeka laws

Article 162 specifically provides that all existing laws on Merdeka Day shall
continue to be applied until repealed. But any court applying them may apply
them with such modification as may be necessary to bring them into accord
with the Constitution. “Modification” includes amendment, adaptation and
repeal.[69]

(g) Thirteen State Constitutions

Each of the 13 States has its own Constitution which is required by Article 71
and the Eighth Schedule to contain some “essential provisions” prescribed by
the Federal Constitution. These essential provisions are that the Ruler must act
on advice; there must be provisions for an Executive Council; and an elected
legislature with powers and procedures for enacting laws.

(h) State enactments

These Enactments can be made on any areas assigned to the State Legislature
under Schedule 9, Lists II and III. The State Assemblies of Sabah and Sarawak
have additional powers under Lists IIA and IIIA.

(i) State delegated (subsidiary) legislation


State Enactments may delegate power to any state institution including local
authorities and religious officials and committees to enact subsidiary
legislation.

(j) British statutes of general application

Under section 3(1), statutes of general application on particular cut-off dates


may apply in Sabah and in Sarawak if there is no local legislation on point. For
Sabah the date is December 1, 1951; for Sarawak the date is December 12,
1949.

2. Unwritten sources

These are all of non-statutory origin. They are divisible into legal and non-legal
sources.
British common law and equity at cut off dates. This is a legal but
unwritten source.
Judicial precedents of superior courts in Malaysia. These are a legal but
unwritten source.
The principles of the Syariah are part of our corpus juris (body of law) in
three different ways: (i) they may have been “posited” into a Syariah
Enactment in which they are part of written, statutory law, and (ii) they
may have been incorporated into a judicial decision in which case, they
are part of unwritten law. (iii) They may not have been incorporated into a
statute or a judicial decision but nevertheless exert an influence on
administrative decision-making. For example the behavior of NRD in the
Bin Abdullah case in which the NRD defied a statute and a Court of
Appeal judicial decision and followed a non-binding fatwa.
Customary law including Malay adat,
Native practices in Sabah and Sarawak,
Chinese and Hindu customs (unless incorporated into a written law or
judicial precedent),
Conventions of the Constitution,
International law (unless incorporated into a written law or judicial
precedent), and quasi-legislation in the form of Government Circulars,
Schemes, Directions and Policy Statements.
Quasi-legislation

(a) Unwritten legal sources

(i) British common law and equity

The Constitution recognises common law as a source of law. Under the Civil
Law Act 1956, the term ‘common law’ means British common law and equity
subject to (i) cut-off dates and (ii) a local circumstances proviso. The cut off
dates are 7 April 1956 in West Malaysia;1 December 1951 in Sabah; and 12
December 1949 in Sarawak. These dates reflect the pre-independence
incorporation by the British of their legislation into the colonial territories of
Malaya, Sabah (North Borneo) and Sarawak.

Many other Malaysian statutes, like the Contracts Act, permit our courts to take
note of equitable considerations.

The Civil Law Act 1956 is subject to tremendous criticisms. First, some say that
the umbilical cord that bound us to Britain in 1957 is not necessary 60 years
after the growth and development of our own legal system. Second, it is
improper to set different cut-off dates (Sarawak 1949; Sabah 1951 and Malaya
1956) for our three different regions. Third, it is silly that ancient and not
contemporary English common law is applicable in Malaysia. English common
law has developed by leaps and bounds since the fifties. Fourth, why should
England have the monopoly of influencing our jurisprudence? In constitutional
law, for example, Britain offers no help due to its unwritten Constitution while the
Indian and Australian jurisprudence would be much more relevant.

For the above reasons, arguments are periodically raised that the Civil Law Act
should be amended or repealed and Malaysian courts should develop their own
common law. In many areas that is, without doubt, already taking place. This is
because the Civil Law Act itself wisely permits Malaysian courts to accept or
reject British common law and equity by taking into consideration local
circumstances.

(ii) Precedents of Malaysian superior courts

On the lines of the English legal system, Malaysia follows the doctrine of binding
judicial precedent. Traditionally the doctrine applied vertically as well as
horizontally.

The Federal Court: The decisions of Federal Court bind all other courts in the
country. But as an apex court, the Federal Court has the power to overrule its
own previous decisions. In the interest of certainty, this power is exercised
sparingly. The Federal Court has the power to overrule all other courts and this it
does quite often.

Court of Appeal: The Court of Appeal is bound by the Federal Court but all other
courts are bound by the Court of Appeal. The Court of Appeal generally follows
its own decisions but has the power, without overruling it, “to depart” from its
previous precedents.[70] It can overrule the High Courts.

High Courts: The two High Courts are bound by the Federal Court and the Court
of Appeal, but all inferior courts and tribunals are bound by the High Courts. The
High Courts generally follow decisions of other High Courts but have the power,
without overruling it, “to depart” from a previous precedent of the High Court. It
can overrule the inferior courts on appeal as well on review.
Previous courts: It is noteworthy that the judicial decisions of superseded
superior courts like the Supreme Court, the former Federal Court and the
Judicial Committee of the Privy Council continue to have legal status and
protection of the doctrine of binding judicial precedent.

The Special Court under Article 182: This court has the exclusive jurisdiction to
try all offences committed by the Yang di-Pertuan Agong (YDPA) and the Rulers
of the States. It also has the exclusive jurisdiction in all civil actions by or against
the YDPA and the Rulers in their personal capacity. It is not clear whether the
doctrine of stare decisis applies to the Special Court. Under Article 182(5), “the
practice and procedure applicable in any proceedings in any inferior court, any
High Court and the Federal Court shall apply in any proceedings in the Special
Court”.

Balance between rigidity and flexibility: Despite the belief that the doctrine of
binding judicial precedent stifles judicial creativity, the reality is that it achieves a
fine balance between certainty and flexibility.
Laying down hitherto unknown principles in novel cases which could not
have been foreseen (original precedents) is clearly creative.
Extension of existing principles to new situations as in Dutton v Bognor
Regis. “The application of existing law to new circumstances can never
be clearly distinguished from the creation of a new rule of law.” (Cross).
In overruling a previous decision-judicial creativity is fully in play when a
previous decision is overruled.
In distinguishing between ratio and obiter- judicial creativity is again in
play when a hitherto binding rule contained in a precedent is denied the
dignity of law by interpreting it as obiter dictum. Such an interpretation is
of considerable importance forit , in effect, unmakes law.
Restricting the operation of a binding rule by declaring it to be too wide
involves creativity.
Rewriting the ratio (while only claiming to follow it) in the light of
concurring judgments and taking the “spirit” of the judgment in
consideration in effect makes new law. Contrary to what is generally
believed, there is no such thing as a fixed ratio decidendi of a case for all
time to come. The principle of law for which a case is authority is
determined in the light of earlier and later cases so that the principle is
always changing subtly.
In distinguishing cases on facts for the purpose of applying or refusing to
apply a previous precedent, the judge acts creatively.
In the USA, India and Malaysia, courts have adopted the doctrine of
prospective overruling. The decision whether to overrule a previous
decision or invalidate a statutory enactment prospectively or
retrospectively is guided, not by the law, but by policy and expediency.

(b) Unwritten, non-legal sources

(i) The syariah

The syariah was and is an important part of the Malay identity. In the days of the
British, the courts often accepted and occasionally rejected Muslim law in
deciding cases.[71] The most prominent cases involving Islamic law were In the
Goods of Abdullah[72]; Fatimah & Ors v Logan[73]; Re Maria Huberdina
Hertogh[74]; Koh Cheng Seah Administrator of the Estate of Tan Hiok Nee Decd.
v Syed Hassan[75]; Ramah binti Taat[76]; Re Ismail Rentah, Decd., Haji Hussain
bin Singah v Liah binte Lerang[77]; In re Timah binti Abdullah Decd[78]; Ainan
bin Mahmud[79]; Chulas and Kachee[80]; Anchom binte Lampong v PP[81]; In
the Matter of Omar bin Shaik Salleh Shaik Salleh[82]; Shaik Abdul Latif v Shaik
Elias Bux[83]; PP v D J White @ Abdul Rahman[84].

In the post-independence era, with the adoption of a written Constitution, the


legal position of Islamic law is that the principles of the syariah are not law per
se under Article 160(2). But State Assemblies are authorized by Schedule 9, List
II Para 1 to enact laws on Islam (in 24 areas, mostly of personal law) and on
matters of Malay custom.
In the era between 1957 and 1988, despite the existence of syariah courts, , the
civil courts continued to interpret, apply or dismiss principles of Islamic law in
cases before them: Nafisah v Abdul Majid[85]; Martin v Umi Kelsom[86]; AG of
Ceylon v Reid[87]; Myriam v Mohamed Ariff[88]; Abdul Rahim v Abdul
Haleem[89]; and Re Dato Bentara Luar Dcd., Haji Yahya[90].

However, this reception and adjudication of Islamic law in civil courts came to
an end with the constitutional amendment to Article 121 and the addition of
Article 121(1A) to the effect that the civil courts “shall have no jurisdiction in
respect of any matter within the jurisdiction of the Syariah courts”. Refer to
Mansur bin Mat Tahir[91].

Since Mahathir Mohamad and Anwar Ibrahim’s Islamisation policy in the 80s,
there has been a steady expansion of the syariah in areas outside family law.
Syariah authorities occasionally exercise jurisdiction beyond the 24 areas
assigned to them by Schedule 9 List II Para 1. In addition, they violate the
chapter on fundamental rights. Judicial review of such excess of power is,
however, rather rare.

Today, there is talk of an “Islamic state”, “two parallel legal systems”, and “one
country with two systems”. The states of Kelantan and Terengganu have even
tried but unsuccessfully to legislate hudud laws i.e. criminal laws with penalties
prescribed in the Qur’an, Hadith, and the fiqh (jurisprudence) of early Muslim
scholars.[92]

The legal system is facing intractable disputes between syariah authorities and
some Muslims on issues such as Muslim apostasy, cross dressing, freedom of
speech, “deviationist teachings” and Islamic education. Constitutional issues
are often raised and more often than not rejected by the superior courts.

The steady expansion of Islamic laws and the widening jurisdiction of syariah
authorities have also brought them in painful disputes with non-Muslims over
issues such as the dissolution of a non-Muslim marriage when one partner
converts to Islam, the conversion of the children of the marriage into Islam
without the consent of the non-converting spouse, and custody and
guardianship of the children. Syariah authorities are also flexing their muscles in
such matters as use of the term “Allah” by non-Muslims[93], burials of non-
Muslims who were suspected by the syariah authorities to have converted to
Islam before their death.

Islamic law is in resurgence and is often in direct conflict with the constitutional
grundnorm.

(ii) Malay adat (custom)

Before the arrival of the British in 1786, custom was the dominant source of law
in Malaya. For the Malay community, custom referred to the composite,
indigenous Malay adat enriched by Hindu and Buddhist elements and overlaid
with principles of the Syafie school of Islamic law. Though Malay adat (custom)
and the Syariah (Islamic law) are distinct, the Malays often see them as
synonymous. That is why Malay custom is enforced in syariah courts! Unlike in
Sabah and Sarawak, there are no separate adat courts in the peninsula for
Malay custom.

As colonialism took root, common law became the dominant law of Malaya and
Malay adat and Islam were relegated to personal matters, and that too if not
repugnant to British notions of natural justice, equity and good conscience. In
Sahrip v Mitchell[94], a land tenure case, the Malay custom of tithe or one-tenth
of the total produce was accepted as reasonable. In Jainab bt Semah[95], the
Malay custom of adoption in Pahang was recognised. However, in Mong binti
Haji Abdullah v Daing Mokkah Daing Palamai[96], - a breach of promise to
marry case – the court refused to apply Muslim law as that would lead to
oppressive results.[97]
In post-independence Malaya, Malay customs have constitutional recognition in
several articles of the Constitution including Article 150(6A), 160(2) and
Schedule 9 List II, Para 1. However, there is no carte blanche recognition of
customary law. Under Article 160(2) ‘law’ includes only those customs and
usages having the force of law. This means that customs are not law per se.
They need the kiss of life from a statute or a judicial precedent. After
independence, the role of Islamic law and Malay adat has been gradually
enhanced and given statutory basis in the Syariah Enactments of all the states
and in some other laws. Custom is occasionally elevated to the status of law by
judicial recognition if the custom meets the criteria of morality, reasonableness
and justice in the opinion of the court.[98] What standards does the court
apply? It is doubtful that 60 years after Merdeka, English standards of
reasonableness will apply lock, stock and barrel to customs in Malay society.
There is recognition in Khoo Hooi Leong[99] that English law must be applied
with modification to alien races.

(iii) Native law in Sabah & Sarawak

In Sabah and Sarawak, native law and custom have constitutional and
statutory recognition as law. For example, the Sarawak Native Court Ordinance
1992 defines customary law as “customs or body of customs to which the law of
Sarawak gives effect”. There are many significant cases of native rights to land
being litigated in the courts. Decisions have gone both ways, in favour of and
against the natives.[100]

Native law in family and personal matters is enforced by a hierarchy of Native


Courts. But there is no dearth of cases before 1963 and after 1963 when the
High Court exercised jurisdiction and gave important decisions on matters of
native law: Abdul Latiff Avarathar v Lily Muda[101]; Chan Bee Neo[102]; Kho
Leng Guan[103]; SM Mahadir bin Datu Tuanku Mohamad[104]; Serujie &
Hanipah[105]; Liu Kui Tze v Lee Shak Lian (f) [1953] SCR 85.[106] The review of
native courts’ decisions by the High Court is in contrast with the independence
and autonomy of syariah courts under Article 121(1A).

(iv)Chinese and Indian customs

Malay adat is holding its ground in family and personal law matters, but non-
Muslim customs are in decline and have been replaced by secular Codes in
independent Malaya. Historically, however, many Chinese and Indian customs
were recognized e.g. polygamous Chinese marriages and legitimization of an
illegitimate son by a subsequent marriage were recognized in the Matter of
Choo Eng Choon, Deceased[107]. Chinese customs were recognized in the
distribution of intestate estates: Ong Cheng Neo[108]. Customary Hindu money-
lending contracts by the Chettiar community have been recognized by the
courts. However, the Chinese custom of legitimization of a natural but
illegitimate son was rejected in Khoo Hooi Leong v Khoo Chong Yeok[109] on
the ground of morality.[110]

(v) Constitutional conventions

In the area of constitutional law, hundreds of constitutional customs (called


conventions) have developed over the years. For example, there is a daily
Question Time in Parliament. During a dissolution of the Dewan Rakyat, the
Prime Minister who advises the dissolution stays in office in a caretaker capacity
till the new PM and government are inducted into office after the election.

As with all customs, these constitutional conventions are not laws and not
enforceable in a court of law.[111] They are the political morality of the day.
They are the rules of political practice that are regarded as binding by those to
whom they apply, but no legal sanction attaches to their disobedience.[112]
However, conventions can influence judicial decisions in two ways: first, a court
may use a well-established convention as an aid to interpretation of statutory
law.[113] Secondly, in some circumstances a court may adopt a constitutional
convention as part of his judicial reasoning, thereby elevating the convention to
the status of common law.[114]

(vi) International law

In the definition of ‘law’ in Article 160(2), international law is conspicuously left


out. This means that, the norms of international law and practice are not part of
our corpus juris unless they are posited into law. This can be done in three ways:
First, by statutory incorporation into a local statute. An example is our Human
Rights Commission Act which incorporates the Universal Declaration of Human
Rights into our law subject to the Constitution. Second, international law can be
admitted to our shores by our judges by treating it as part of international
“custom or usage” which the judges have power to recognize under Article
160(2). Third, it is noteworthy that in the definitional clause in Article 160, the
words of the Constitution are “law includes” (and not “law means”). The
definition of law is inclusive, not exclusive. The courts have some discretion.
Fourth, the courts can adopt a constitutional presumption that, unless the
Parliament explicitly excludes international law, the norms of all international
laws and treaties ratified by the government must be grafted on to every
Malaysian statute even if the Parliament has not adopted international law into
local statutes. This is what happened in Noor Fadilla Ahmad Saikin[115] and Lai
Meng v Toh Chew Lian.[116] Such a presumption is justified because in this age
of globalization, our government must be seen as committed to harmonising its
practices and laws with the law of nations.

(vii) Quasi-legislation

Quasi-legislations by way of Administrative Circulars, Notifications, Instructions,


Schemes and Directives do not have the status of law unless framed under the
authority of a parent law. In actual practice, these administrative directives are
issued regularly and are regarded by the civil service as absolutely binding.
Disregarding them can disqualify a citizen from applying for a job, licence,
scholarship, loan, passport or permit. Disregard of Government Circulars by a
public servant can expose him to internal proceedings for indiscipline though no
court case for breach of law can be initiated if the Circular has no legal status
and is mere administrative in nature. For a learned judicial decision on the
distinction between administrative circulars and subsidiary legislation, see Teh
Guat Hong v Perbadanan Tabung Pendidikan Tinggi Nasional[117].

Sources and their hierarchy: A difficult question about the sources of law is
whether the 19 multiple sources outlined above exist in a clear hierarchy or as
competing streams of law? Theory supports the idea of a hierarchy with the
Federal Constitution at the apex. In reality however, the situation is exceedingly
complex for many reasons. First, the Constitution is what the judges say it is. For
example, Article 5(3) mandates that every arrestee “shall be allowed to consult
and be defended by a legal practitioner of his choice”. However, in Ooi Ah
Phua[118] the court held that the right can be exercised only after police have
completed their investigation. The glittering generalities of Article 5(3) have to be
read in the light of judicial precedents which, functionally speaking, become
integral parts of the Constitution. Second, the Constitution is often read in the
light of other sources of law i.e. legislation, judicial precedents, customs,
principles of the syariah and even norms of international practice. A broad,
holistic view of the law requires us to see the law as a coordinate whole rather
than as separate, hierarchical set of rules.

V.PROMINENT INSTITUTIONS

Malaysia has a fully developed system of courts, tribunals and dispute resolving
and remedial mechanisms.

A. Civil Courts

At one time, the Privy Council was the highest civil court. In 1985, the Privy
Council was abolished. Now we have a court hierarchy headed by:
the Federal Court
the Court of Appeal
the two High Courts
the Sessions Courts
the Magistrates Courts and Juvenile Courts
the Penghulu (village headman) courts (in West Malaysia only). These
were abolished on 1 March 2013.

The first three courts are labelled superior courts and have original, appellate
and review jurisdiction. The Federal Court also has advisory jurisdiction.

In line with the common law tradition, our legal system is wedded to stare
decisis with all its virtues and vices. The highest court (Federal Court) has the
freedom to depart from its own previous decisions. Other superior courts (the
Court of Appeal and the High Courts) can also refuse to follow their own
previous decisions. However, all civil courts (other than the Federal Court) are
bound by the decisions of courts above them in the hierarchy.

Around the Commonwealth, there are doubts about whether stare decisis
should apply rigidly in constitutional and criminal laws matters. It is also notable
that this doctrine has no place in the Islamic jurisprudence and in the Europe’s
civil law system.

B. Syariah Courts

Each state creates its own hierarchy of syariah courts. These courts have
jurisdiction only over persons professing the religion of Islam. The civil and
criminal jurisdiction of Syariah courts is confined to the 24 matters mentioned in
Schedule 9 List II, Para 1. Their power to impose punishments is confined to
three years’ jail, six strokes of the cane and five thousand ringgit fine (or
commonly known as the 3-6-5 formula). This approximately translates to the
criminal law powers of Magistrates.
In the exercise of their powers the syariah courts are not subject to the control of
the civil courts as long as they stay within their jurisdiction under Article 121(1A).
The dilemma of the legal system is that the syariah courts often interpret their
powers expansively but the civil courts are reluctant to interfere.

A most remarkable (or undesirable) feature of the administration of Muslim law


in Malaysia is that each state has its own syariah law statute and its own
syariah courts. Occasionally, there are serious problems of reciprocal
enforcement of judgments. Another remarkable feature of West Malaysian
syariah courts is that they enforce not only the syariah but also Malay adat even
though in some cases adat and syariah clash.

C. Native Courts

In Sabah and Sarawak, there is a hierarchy of native courts. An engaging issue


in Sabah and Sarawak is that sometimes the Muslim parties are subject to both
native law and syariah law and difficult issues arise as to which forum and
which law should apply. The State Syariah enactment mandates that if parties
are Muslims, the Syariah should apply to the exclusion of native law. In practice,
however, many Muslims prefer to submit to the jurisdiction of the Native Courts.

D. Tribunals

Hundreds of inferior tribunals (known by many names) exist to resolve disputes


in such areas as labour disputes, income tax disputes, compulsory land
acquisition cases, staff discipline and small claims. These tribunals are less
formal than the regular courts, ess expensive and more expeditious. They can
be created by statute or be domestic. Whatever their nature is, they are subject
to the supervisory jurisdiction of the High Court by way of certiorari, prohibition,
mandamus, declaration etc.
E. Alternative Dispute Resolution (ADR) Techniques

Over the last few decades, a host of ADR techniques like Arbitration,
Conciliation and Mediation have developed. Regrettably, they are as expensive
as the courts. In a third world setting, attention must therefore turn to informal,
expeditious and inexpensive remedies like the Ombudsman, Public Complaints
Bureau, Letter to the Editor column, Question Time in Parliament, Parliamentary
Committee on Complaints to resolve disputes without the hassle of formal
judicial proceedings.

F. Human Rights Commission

We have a statutorily created, independent Human Rights Commission. It issues


annual reports and makes recommendations. However, its reports are generally
disregarded by the government and parliament.

G. Law Reform

There is yet no independent Law Reform Commission and the task of reforming
the law periodically is handled by a unit in the Attorney-General’s office.

H. Elected Legislatures

Malaysia practices electoral democracy in that every five years the federal and
state governments have to return to the electorate to renew their mandate.

Primary laws are enacted by the legislatures, but there is an overwhelming


amount of subsidiary legislation and most of it goes uncontrolled.

Public participation in the legislative process is insignificant. Procedures of


referendum, initiative and recall are unknown in Malaysia. Appointment of Pre-
Legislation Committee in Parliament with NGO or public participation is entirely
at the discretion of the government. Parliamentary Bills are kept secret till laid in
Parliament. The UK tradition of White Papers, Pre-Legislation or Second
Reading Committees in Parliament has not taken roots in Malaysia.

Regrettably, local authorities are not elected but appointed by the state
governments. Local government elections were a colourful feature of our
political landscape but were abolished in the 70s.

I. Independent Legal Profession

The States of Malaya and Sabah and Sarawak have their own Bar Councils
existing under separate statutes. The profession is highly regarded and has
maintained its independence and integrity despite many attempts to silence it.

For two decades after independence, each and every member of the Bar was
foreign trained and had no direct knowledge of the Malaysian legal system at
entry point. Due to official recognition of foreign degrees from the UK, Ireland,
Singapore and Australia, and no requirement to do a bridging course on the
Malaysian legal system before being called to the Bar, the scandalous situation
was and still continues that a person can be called to the Malaysian Bar or be
appointed a judge without ever having attended a course on the Malaysian
Constitution.

J. Legal Education and Legal Literacy

Till 1972, no Malaysian university offered a course in local laws. External


degrees were the only route to a legal career. However since then, the
profession is being served by local law faculties as far as numbers go.
Regrettably however, legal education in Malaysia is very Western-centric and
remains a colonial construct. Almost all our university courses are built around
the theories and assumptions of great European or American scholars. Their
theories are drilled as if they are universal while ignoring or undermining other
forms of knowledge.
There is woeful ignorance of Eastern contributions from China, India and Persia.
The books and icons remain Western. Our course in jurisprudence, our concept
of law, our categories of law, our concept of human rights and human wrongs
all remain Western.

A further problem is that legal education is too profession-oriented and not


sufficiently people-oriented. The law school does not reach out to society or to
spread legal literacy.

K. Constitutional Commissions

The Constitution and laws have created a number of independent Commissions


and Councils that are supposed to oversee particular aspects of governance.
There is the Election Commission, Armed Forces Council, Judicial and Legal
Services Commission, Pubic Services Commission, Police Force Commission,
Education Service Commission, Anti-Corruption Commission and the Human
Rights Commission. In addition we have the Auditor General and the Attorney-
General. Whether these Commissions and institutions act with integrity and
independence or whether they are under the control of an omnipotent executive
is a matter of opinion.

L. Powerful Federal Police Force

The Police Force is a federal force and is charged with the responsibility of
maintaining security, public order and investigating crime. However, the power
to launch a prosecution lies with the Attorney-General who doubles up as the
government’s chief lawyer as well as the Public Prosecutor.

M. Law Reporting

Law reports have existed since the 30s and their standard of reporting is quite
high. Unfortunately, the responsibility of publishing is undertaken by the private
sector and not by the courts themselves. As such, the cost is high and
subscribing to these reports is out of the reach of most people. Most High Court
cases go unreported due to shortage of space which is taken up by Court of
Appeal and Federal Court decisions. Also, Malaysian law reports do not include
a summary of the lawyers’ submissions and merely report the judges’ decisions.

N. Legal Aid

A government run Legal Aid Bureau and a Bar-run Legal Aid Centre do
yeomen’s service but due to the Means Test and self-imposed limitations, the
situation of legal aid in Malaysia is unsatisfactory.

VI: PROCEDURES & REMEDIES

A. Law-making

The Constitution and laws provide for procedures for law making. At the federal
level, the relevant provisions are: Articles 40, 40(1A), 44, 62, 66, 67 and 68. Bills to
amend the Constitution require special procedures, special majorities and, in
some cases, consent of persons or institutions outside of Parliament; Articles
2(b), 159, 161E.

B. Civil and Criminal Procedure

Civil and criminal trials are regulated by enacted court rules, a Criminal
Procedure Code and a highly developed law of evidence. In particular, criminal
justice is regulated by several statutes relating to police powers of arrest,
search and seizure, admissibility of evidence, confessions, investigation, search
procedures and constitutional rights of the accused. Under security laws, the
police have powers to detain preventively subject to procedural compliance.
There is no dearth of complainants going to the courts against the police.
Judicial review of police actions is known though it is rare.
A notable feature in Malaysia is that there are no jury trials.

C. Prosecutorial Power
The Attorney-General’s power to raise or refuse to raise prosecution, to choose
the law under which to charge the accused, to transfer a case laterally or
vertically has been held by the courts to be non-reviewable. If the police and the
AG refuse to investigate, charge and prosecute a public official, there is nothing
a citizen can do. The legal system is weak when it comes to punishing
misfeasance by state officials. A civic-minded citizen will have no locus standi.
He has no right to information due to the Official Secrets Act. There is as yet no
right to Public Interest Litigation. Relator Actions require the AG’s consent.

D. Judicial Review
In the area of public law, courts have the power of judicial review on the
traditional grounds of ultra vires and natural justice. Administrative law is
developing well and some judges have “constitutionalised” the principles of
administrative law. Thus, the right to go to the courts for judicial review is part of
“personal liberty”. Natural justice is part of the constitutional promise of equality
and due process.
On the remedial aspects of the law, there is a multiplicity of pigeon-hole
remedies among them: Certiorari, Prohibition, Mandamus, Injunction,
Declaration, Quo Warranto and Action for Damages. As yet, no “public interest
litigation” is available. The procedure of “Relator Action” has never been
invoked.

VII: LOOKING TO THE FUTURE

Malaysia has a well-developed legal system. However, in some areas rethinking


is necessary to achieve global standards of administrative justice, good
governance, accountability and democracy.

A. Supremacy of the Constitution or Supremacy of the Syariah?

This is a question that is increasingly being raised. The “Islamic state” sentiment
is widespread and though it has no basis in the Constitution,[119] its political
appeal is immense.
B. Federal-state Division of Powers

Schedule 9 divides legislative power between the federal and state legislatures.
Islamic personal law is in the State List. Regrettably, many State Assemblies are
breaking free of constitutional limitations, trespassing on matters in the Federal
List and in exercising their power, are violating the fundamental rights of
Muslims and non-Muslims. The civil courts look the other way.

C. Human Rights

The jurisprudence of human rights is developing, but is still in its infancy.

D. Jurisdictional Conflicts

The last few decades have seen painful, unresolved disputes between civil and
syariah courts. Article 121(1A) gives autonomy to syariah courts in matters within
their jurisdiction. The problem is that even when the powerful syariah
establishment exceeds its powers or violates the Constitution or infringes
fundamental rights, most civil judges refuse jurisdiction to entertain the
complaint even when there are issues of constitutionality and the rights of non-
Muslims are being breached by the actions of syariah authorities.

E. The Aborigines (Orang Asli)

Despite affirmative action provision for the aboriginal people of the Malay
Peninsula in Article 8(5)(c), the orang asli remain forgotten and marginalized.
There is however some judicial recognition of their customary rights to land
though judicial decisions have gone both ways.[120]

F. Electoral Process

The process of drawing up electoral lists, cleaning up these lists of unauthorised


voters and delineating the constituencies is under the control of the Election
Commission and Parliament. There is no openness or transparency or
accountability about the process. Voters’ attempts to seek judicial review have
consistently failed. The courts are not willing to enter this political thicket.

G. Remedies

The law on remedies is well developed but due to the technicality and cost of
court proceedings, justice is not accessible to most citizens. The remedial
aspects of the legal system need to be strengthened. Indigenous, non-legal,
informal, inexpensive and expeditious remedies against wrongs need to be
created.

H. Artificial Distinctions

The legal system is built on the traditional but artificial distinction between
public law and private law, crimes and civil wrongs, contract and tort, municipal
and international law. These distinctions do not always serve us well. For
example, constitutional rights are not always available in private or contractual
relationships between employer-employee, school-pupil, university-student and
parent-child relationships.

I. Reception of International Law

Our legal system is built on the dualistic theory of international law. However, in
an age of globalisation, we must dismantle the legal dykes we have built
against the reception of international law.

J. No Internalisation of Ideals

The ideals of rule of law, separation of powers, openness and accountability in


government, protection of human rights and the ideals of constitutionalism have
not taken roots in our legal system. A large number of lawyers, judges, law
teachers and students are legal technicians and lack a social conscience and a
social perspective.
Despite the above, one can harbour the hope that on the solid legal foundation
that already exists we can build institutions, principles and procedures to
strengthen constitutionalism and rule of law in our nascent democracy.

Written by Professor Emeritus Datuk Dr Shad Saleem Faruqi, the holder of the
Tunku Abdul Rahman Foundation Chair, and a lecturer in the Faculty of Law,
University of Malaya.

Edited by Hanan Khaleeda.

Footnotes:

[1] Marbury v Madison (1803) 1 Cranch 137

[2] Ah Thian v Govt [1976] 2 MLJ 112

[3] Golak Nath v St of Punjab AIR 1971 SC 1643; Keshavananda v Bharati v Ker ala 1973 AIR
1461. Cf. Loh Kooi Choon v Govt. [1977] 2 MLJ 187

[4] Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat [2017] 3 MLJ 561

[5] List of National Legal System, Wikipedia. 5th of November 2017


<https:en.wikipedia.org/wiki/list-of-national-legal-systems>

[6] Federal Constitution, Schedule 9, List II, Para 1 and Schedule 9, List I, Para 4(k).

[7] Simon T.W., Law & Philosophy: An Introduction With Readings (McGraw Hill, 1945) p. 33-34

[8] Wu Min Aun, The Malaysian Legal System, 2nd ed. (Longman, 1999) p. 3.

[9] Shad Saleem Faruqi, “Western Intellectual Imperialism in Malaysian Legal


Education” Decolonising The University, The Emerging Quest for Non-Eurocentric
Paradigms, edited by Claude Alvares and Shad Saleem Faruqi (Penang, USM, 2012) p. 267-284;
See also Shadrack Gutto, Decolonising the Law: Do We Have a Choice?, p. 290-308.

[10] Wu Min Aun, The Malaysian Legal System, 2nd ed. (Longman, 1999) p. 28-31.

[11] See footnote 10 above.

[12] Refer to section 2 of the Education Act and Merdeka University Sdn Bhd v Government of
Malaysia [1982] 2 MLJ 243.

[13] Gobind Singh Deo v Yang Dipertua Dewan Rakyat [2010] 2 MLJ 674; ZI Publications v
Kerajaan Negeri Selangor [2016] 1 MLJ 153; Gan Boon Aun v PP [2016] 4 MLJ 265; Tuan Mat
Tuan Wil lwn Kerajaan Kelantan [2016] 7 MLJ 704.

[14] Federal Constitution, Article 71(4) and Part I of the Eighth Schedule.

[15] Persatuan Aliran v Minister [1988] 1 MLJ 442; Arunamari Plantations v Lembaga Minyak
Sawit [2011] 1 MLJ 705; Berjaya Books v Jawi [2014] 1 MLJ 138; ZI Publications v Selangor
[2016] 1 MLJ 153;

[16] The Government of Kelantan v The Government of the Federation of Malaya and Tunku
Abdul Rahman Putra Al-Haj (1963) 29 MLJ 355; The City Council of George Town v The
Government of the State of Penang [1967] 1 MLJ 169; Government of Malaysia v Government of
the State of Kelantan [1968] 1 MLJ 129; Mamat Daud v Government of Malaysia [1988] 1 MLJ
119; Abdul Karim Abdul Ghani v Legislative Assembly of Sabah [1988] 1 MLJ 171; Ketua
Pengarah Jabatan Alam Sekitar v Kajing Tubek [1997] 3 MLJ 23; Robert Linggi v The
Government of Malaysia [2011] 2 MLJ 741; Dato’ Ting Cheuk Sii v Datuk Hj Muhammad Tufail
Mahmud [2009] 1 CLJ 899; and Fung Fon Chen@ Bernard v The Government of Malaysia [2012]
6 MLJ 724.

[17] PP v Yee Kim Seng [1983] 1 MLJ 252; Che Ani Itam v PP [1988] 1 MLJ 113; Tye Ten Phin v
Menteri Hal Ehwal Dalam Negeri [1989] 2 CLJ 877; Pihak Berkuasa Negeri Sabah v Sugumar
Balakrishnan [2002] 4 CLJ 105; Yii Hung Siong v PP [2005] 6 MLJ 432; Ooi Kean Thong v PP
[2006] 3 MLJ 389; Muhammad Hilman Idham v Kerajaan Malaysia [2011] 6 MLJ 507; Fathul Bari
Mat Jahya v Majlis Agama Islam NS [2012] 4 MLJ 281; Nik Noorhafizi Nik Ibrahim v PP [2013] 6
MLJ 660; Nik Nazmi Nik Ahmad v PP [2014] 4 MLJ 157; Berjaya Books v Jabatan Agama Islam
WP [2014] 1 MLJ 138; Mat Shuhaimi Shafiei v PP [2014] 2 MLJ 145; Titular Roman Catholic
Archbishop of Kuala Lumpur v Menteri Dalam Negeri [2014] 6 CLJ 541; PP v Azmi Sharom
[2015] 6 MLJ 751; State Government of Negeri Sembilan v Muhammad Juzaili Mohd Khamis
[2015] 8 CLJ 975, [2015] 6 MLJ 736; PP v Yuneswaran Ramaraj [2015] 9 CLJ 873; Pathmanathan
Krishnan v Indira Gandhi Mutho [2016] 1 CLJ 911; ZI Publications v Kerajaan Negeri Selangor
[2016] 1 MLJ 153; Majlis Agama Islam WP v Victoria Jayaseele Martin [2016] 2 MLJ 309; Maria
Chin Abdullah lwn Pedakwa raya [2016] 9 MLJ 601; Y B Khalid Abdul Samad v Majlis Agama
Islam Selangor [2016] MLJU 338; and Khairuddin Abu Hassan v Kerajaan Malaysia [2016] MLJU
990.

[18] The Government of Kelantan v The Government of the Federation of Malaya and Tunku
Abdul Rahman Putra Al-Haj (1963) 29 MLJ 355 and Robert Linggi v The Government of Malaysia
[2011] 2 MLJ 741.

[19] Teh Cheng Poh v PP [1979] 1 MLJ 50, 2 MLJ 238, [1980] AC 458 and Abdul Ghani Ali @
Ahmad v PP [2001] 3 MLJ 561.

[20] Subramaniam Gopal v PP [2010] 2 MLJ 525.

[21] YB Khalid Samad v Majlis Agama Islam Selangor [2016] MLJU 338; Tuan Mat Tuan Wil v
Kerajaan Kelantan [2016] 7 MLJ 704; State Govt. of NS v Muhammad Juzaili Mohd Khamis
[2015] 6 MLJ 736; Fathul Bari Mat Jahya v Majlis Agama Islam NS [2012] MLJU 427;

[22] Titular Roman Catholic Archbishop v Menteri [2014] 4 MLJ 765; Berjaya Books v Jabatan
Agama Islam WP [2014] 1 MLJ 138, [2015] 3 MLJ 65; Majlis Agama Islam WP v Victoria
Jayaseele Martin [2016] 2 MLJ 309;

[23] Pathmanathan Krishnan (Muhammad Riduan Abdullah) v Indira Gandhi a/p Mutho [2016] 4
MLJ 455; Kelantan v Wong Meng Yit [2012] 6 MLJ 57; Indira Gandhi v Pengarah Jabatan Agama
Islam [2013] 5 MLJ 352.

[24] Robert Linggi v The Government of Malaysia [2011] 2 MLJ 741; Fung Fon Chen@ Bernard v
The Government of Malaysia [2012] 6 MLJ 724.

[25] Contrast this with Myanmar where 25% of the seats in Parliament are reserved for the
armed forces.

[26] Kerajaan Malaysia v Ambiga Sreenevasan [2016] 5 MLJ 721

[27] Hart, H.L.A., The Concept of Law, “Rule of Recognition and Legal validity”, ELBS, 1961, p. 97-
106.

[28] See footnote 1 above


[29] Persatuan Aliran v Minister [1988] 1 MLJ 442; Arunamari Plantations v Lembaga Minyak
Sawit [2011] 1 MLJ 705; Berjaya Books v Jawi [2014] 1 MLJ 138; ZI Publications v Selangor
[2016] 1 MLJ 153;

[30] The Government of Kelantan v The Government of the Federation of Malaya and Tunku
Abdul Rahman Putra Al-Haj (1963) 29 MLJ 355

[31] The City Council of George Town v The Government of the State of Penang [1967] 1 MLJ
169

[32] Government of Malaysia v Government of the State of Kelantan [1968] 1 MLJ 129

[33] Mamat Daud v Government of Malaysia [1988] 1 MLJ 119

[34] Abdul Karim Abdul Ghani v Legislative Assembly of Sabah [1988] 1 MLJ 171

[35] Ketua Pengarah Jabatan Alam Sekitar v Kajing Tubek [1997] 3 MLJ 23

[36] Robert Linggi v The Government of Malaysia [2011] 2 MLJ 741

[37] Dato’ Ting Cheuk Sii v Datuk Hj Muhammad Tufail Mahmud [2009] 1 CLJ 899

[38] Fung Fon Chen@ Bernard v The Government of Malaysia [2012] 6 MLJ 724.

[39] [1983] 1 MLJ 252

[40] [1988] 1 MLJ 113

[41] Tye Ten Phin v Menteri Hal Ehwal Dalam Negeri [1989] 2 CLJ 877

[42] Pihak Berkuasa Negeri Sabah v Sugumar Balakrishnan [2002] 4 CLJ 105

[43] [2005] 6 MLJ 432

[44] [2006] 3 MLJ 389

[45] Muhammad Hilman Idham v Kerajaan Malaysia [2011] 6 MLJ 507

[46] Fathul Bari Mat Jahya v Majlis Agama Islam NS [2012] 4 MLJ 281
[47] [2013] 6 MLJ 660

[48] [2014] 4 MLJ 157

[49] Berjaya Books v Jabatan Agama Islam WP [2014] 1 MLJ 138

[50] [2014] 2 MLJ 145

[51] Titular Roman Catholic Archbishop of Kuala Lumpur v Menteri Dalam Negeri [2014] 6 CLJ
541

[52] [2015] 6 MLJ 751

[53] State Government of Negeri Sembilan v Muhammad Juzaili Mohd Khamis [2015] 8 CLJ 975,
[2015] 6 MLJ 736

[54] [2015] 9 CLJ 873

[55] Pathmanathan Krishnan v Indira Gandhi Mutho [2016] 1 CLJ 911

[56] ZI Publications v Kerajaan Negeri Selangor [2016] 1 MLJ 153

[57] Majlis Agama Islam WP v Victoria Jayaseele Martin [2016] 2 MLJ 309

[58] [2016] 9 MLJ 601

[59] Y B Khalid Abdul Samad v Majlis Agama Islam Selangor [2016] MLJU 338

[60] Khairuddin Abu Hassan v Kerajaan Malaysia [2016] MLJU 990

[61] The Government of Kelantan v The Government of the Federation of Malaya and Tunku
Abdul Rahman Putra Al-Haj (1963) 29 MLJ 355

[62] Robert Linggi v The Government of Malaysia [2011] 2 MLJ 741

[63] [1979] 1 MLJ 50, 2 MLJ 238, [1980] AC 458

[64] [2001] 3 MLJ 561


[65] [2010] 2 MLJ 525

[66] Delegation of Powers Act 1956 (Act 358); Ratnavale v Government of the Federation of
Malaya [1963] MLJ 393

[67] M P Jain, Administrative Law of Malaysia & Singapore, Fourth Edition, Chapters V, VI and VII

[68] Eng Keock Cheng v PP [1966] 1 MLJ 18; Palm Oil Research and Development Board
Malaysia v Premium Vegetable Oils Sdn Bhd [2005] 3 MLJ 97

[69] Surinder Singh Kanda v Govt of Malaya [1962] 1 MLJ 169; Aminah v Supt of Prisons [1968] 1
MLJ 92; Assa Singh v MB Johor [1979] 2 MLJ 30; Sagong Tasi v Kerajaan Selangor [2005] 6 MLJ
289.

[70] Kerajaan Negeri Terengganu v Sr Syed Azman Syed Ahmad Nawawi [2013] 7 MLJ 52; (No.
2) [2013] 7 MLJ 145; Govt of Sarawak v Chong Chieng Jen [2016] 5 CLJ 169; Utusan Melayu v
Dato Sri DiRaja Hj Adnan Hj Yaakob [2016] 5 CLJ 857.

[71] Refer to Salleh Buang, Malaysian Legal History: Cases & Materials, (Dewan Bahasa dan
Pustaka, 1993) p. 37-46, 62-95.

[72] [1835] 2 Ky. Ec.8

[73] [1871] 1 Ky. 255

[74] [1951] 17 MLJ 164

[75] [1930] 1 MC 180

[76] Ramah binti Taat v Laton binti Malim Sutan (1927) 6 FMSLR 128

[77] [1940] 9 MLJ 98

[78] The Official Administrator, FMS v Magari Mohihiko [1941] 10 MLJ 51

[79] Ainan bin Mahmud v Syed Abu Bakar [1939] MLJ Rep. 163

[80] Chulas and Kachee v Kolson binti Seydoo Malim (1867) Leic. 462

[81] [1940] MLJ Rep. 18


[82] In the Matter of Omar bin Shaik Salleh Shaik Salleh v Mariambee (1948) 14 MLJ 186

[83] [1915] 1 FMSLR 204

[84] [1940] MLJ Rep 170

[85] [1969] 2 MLJ 174 and 175

[86] [1963] 29 MLJ 1

[87] [1965] 2 MLJ 34

[88] [1971] 1 MLJ 265

[89] [1983] 2 MLJ 78

[90] Re Dato Bentara Luar Dcd., Haji Yahya v Hassan [1982] 2 MLJ 264

[91] Mansur bin Mat Tahir v Kadi Daerah Pendang Kedah [1989] 1 MLJ 106

[92] The Syariah Criminal Code (II) Enactment 1993 of Kelantan sought to apply Islamic criminal
law to all residents of Kelantan including non-Muslims.

[93] Titular Roman Catholic Archbishop v Menteri [2014] 4 MLJ 765

[94] (1877) Leic Reports 466

[95] Jainab bt Semah v Mansor bin Iman [1951] 17 MLJ 62

[96] (1935) 4 MLJ 147

[97] Wan Arfah Hamzah & Ramy Bulan, An Introduction to the Malaysian Legal System, pp. 151-
155; See also Sahrip v Mitchell (1870) Leic. 466; Jainah v Mansor (1915) 17 MLJ 62

[98] Roberts @ Kamarulzaman v Ummi Kalthom [1963] 1 MLJ 163

[99] Khoo Hooi Leong v Khoo Chong Yeok [1930] AC 346

[100] D G of Environment v Kajing Tubek [1997] 3 MLJ 23; Director of Forests Sarawak v T R
Sandah Ak Tabau [2017] 3 CLJ 1; Madeli bin Salleh [2008] 2 MLJ 677; Andawan Ansapi v PP
[2011]; Agi Anak Bungkong v Ladang Sawit [2010] 1 LNS 114; Racha ak Urud Peter Racha Urud
v Ravenscourt Sdn Bhd [2014] 3 MLJ 661; T R Hillary Chukan ak Briak v The Enrich Timber Sdn
Bhd [ 2015] MLJU 2007; Nor Anak Nyawai v Borneo Plantation [2001] 2 CLJ 769.

[101] [1982] 1 MLJ 72

[102] Chan Bee Neo v Ee Siok Choo [1947] SCR 1

[103] Kho Leng Guan v Kho Eng Guan [1936] SCR 60

[104] SM Mahadir bin Datu Tuanku Mohamad v Chee (f) [1941] SCR 96

[105] Serujie & Hanipah v Sanah binti Haji Amin [1953] SCR 40

[106] Salleh Buang, Malaysian Legal History: Cases & Materials, (Dewan Bahasa dan Pustaka,
1993) p 115-126.

[107] [1911] 12 SSLR 120

[108] Ong Cheng Neo v Yap Kwan Seng [1897] 1 SSLR Suppl 1

[109] [1930] AC 346

[110] Wan Arfah Hamzah & Ramy Bulan, An Introduction to the Malaysian Legal System, p. 151-
155.

[111] Govt of Kelantan v Govt of the Federation of Malaysia & Tunku Abdul Rahman Putra Al-Haj
(1963) MLJ 355; Re Amendment of the Constitution of Canada (Nos 1, 2 and 3) 1982 125 DLR 3d
1.

[112] Shad Saleem Faruqi, Document of Destiny: The Constitution of the Federation of Malaysia,
p. 101-110.

[113] Regina v Secretary ex parte Hosenball [1977] 1 WLR 766; Liversidge v Anderson [1942] AC
206; Robinson v Ministry of Town & Country Planning [1947] KB.

[114] Tun Datu Haji Mustapha v Tun Datuk Haji Mohamad Adnan Robert [1986] 2 MLJ 420.

[115] [2012] 1 MLJ 832


[116] [2012] 8 MLJ 180; But for contrary approach see Beatrice Fernandez v Sistem
Penerbangan Malaysia [2004] 4 CLJ 403

[117] [2015] MLJU 213

[118] Ooi Ah Phua v Officer Incharge Kedah/Perlis [1975] 1 MLJ 93

[119] Che Omar Che Soh v PP [1988] 2 MLJ 55

[120] Sagong Tasi v Negeri Selangor [2002] 2 CLJ 543; Adong Kuwau v Govt of Johor [1997] 1
MLJ 418.

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