UNWRITTEN LAW

OUTLINE:

✓ Introduction
• English Law
• Judicial Decision
• Customary Law
• Islamic Law

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1.0 INTRODUCTION
The term “Sources of Law” may sometimes refer to:

• historical sources or factors which influence the development of law but is not
recognised as law. Examples are religious events, local customs and opinions of
jurists.
• where law is found example statutes, law reports, legal textbooks or judicial decisions.
• legal sources i.e. legal rules that make up the law.

Sources of law

Unwritten Sources Written Sources

English law Federal Constitution

Legislation and
Judicial decision
delegated legislation

Customary law

Islamic law

1.1 Unwritten Sources

Unwritten sources comprise of law that are not enacted by Parliament or the State
Legislative Assemblies. Unwritten sources include:

• English law
• Judicial decision
• Customary law
• Islamic law

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1.1.1 ENGLISH LAW

Definition - English law means both principles of common law and equity; made by
the superior courts of United Kingdom.
“Common Law” means rules of law that were made by royal judges based on the
customary laws that were commonly applied by the people.
According to the English legal history the early Courts in England were established
by William the Conqueror. The courts sold writs to those who wished to take their
case before the court. With the sale of writs the King was able to collect revenue.
Cases that were determined by the courts were decided on the customary laws
that were used by the local people. With centralization of courts the principles of
law were commonly applied onto the people. Among the common law courts
established were Hundred Courts, Country Courts, Justices of Eyre and Itinerant
judges. Assizes, Star Chamber, King’s Bench, Court of Exchequer and Court of
Common Pleas.
Equity are principles of law that were made by the Lord Chancellor of the Court of
Chancery. Equity is to supplement the common law. Equity does not contradict the
common law but aims to correct its rigidity. The following maxims reflect the
intention and spirit of Equity:

• Equity follows the law

• He who seeks equity must do Equity
• He who comes to Equity must come with clean hands
• Equity is equality
• Where the equities are Equal, the first in time prevails.

Reception and Application of English Law in Malaysia

Starts with the informal reception in the Straits Settlement. Led to the Malay States
through the intervention of the British Resident and advisors. As for the Borneo
states since they became British protectorates in 1888, they too informally received
English Law. The English Law was formally received through the legislation of
three statutes:
 Civil Law Ordinance 1956 for Peninsular Malaysia
 Application of Laws Ordinance 1951 for Sabah
 Application of Laws Ordinance 1949 for Sarawak
All the three statutes are now incorporated into the Civil Law Act 1956. The
principles of English law can be applied in Malaysia by virtue of section 3 and 5 of
the Civil Law Act 1956. It provides for the application of the principles of English
law in Malaysian courts provided that:
✓ there is a lacuna in law
✓ the principles of English law are suitable to the local circumstances.

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 Application of English
Law in Malaysia

Section 3(1) of Civil Section 5 of the Civil

Law Act 1956 Law Act 1956

➢ Section 3(1) of Civil Law Act 1956 (Revised 1972) provides:

Cut Off Date

West Malaysia Sabah Sarawak

1st December 12th December

7th April 1956.
1951. 1949.

Sec. 3(1)(a) of the CLA provides that the Court shall in West Malaysia apply
the English common law and rules of equity as administered in England on
7 April 1956. This means that only English law, which was used in England
as at 7 April 1956 can be used in West Malaysia. Further development of
English law after this date cannot be so applied. However, they may be
persuasive, especially in the absence of local statutory provisions or case
law.
Sec. 3(1(b) of the CLA provides that the Court shall in Sabah apply the
English common law, rules of equity and statutes of general application as
administered or in force in England on 1 December 1951.
As for Sarawak, sec. 3(1)(c) of the CLA allows the Court to use English
common law, rules of equity and statutes of general application in force in
England on 12 December 1949.
In Mokhtar v. Arumugam (1959) 25 MLJ 232 where a gardener was
arrested by the police under the Moneylenders Ordinance 1951 and the
police seized documents without a search warrant. The documents
however were later returned. In an action against the police the court of
first instance awarded damages to the gardener without him claiming for it.

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 The police appealed against the decision. The court held that in England
damages could be awarded for the delay in returning of goods but such
remedy was provided under a statute not a principle of the common law.
Since English statutes are not applicable in the country the remedy cannot
be awarded.
In Jamil bin Harun v. Yang Kamsiah (1984) 1 MLJ 217, where a seven-year
old child has suffered severe injuries in a road accident. The Federal Court
had awarded the plaintiff after categorizing and classifying all the injuries.
Privy Council held the Malaysian Courts could follow and applied English
court decisions but in circumstances that is permitted and render necessary
by local circumstances. The application of common law and equity is
allowed if there is lacuna in the local law.
In Attorney-General Malaysia v. Manjit Singh Dhillon (1991) 1 MLJ 167, the
Supreme Court held that in the absence of local statute concerning
contempt of court, the common law of contempt mentioned in R v. Gray
(2000) QB 36 should be applied.
In summary, the application of common law and equity is allowed subject
to the provisions of Section 3(1) namely of there is absence of local
statutes and if the local circumstances permit and render necessary.

➢ Section 5 of the Civil Law Act 1956 (Revised 1956)

As for English commercial law, sec. 5(1) of the CLA provides that for West
Malaysia (except for Penang and Malacca), the principles of English
commercial law as at 7 April 1956 shall be applied in the absence of local
legislation.
As for the states of Penang, Malacca, Sabah & Sarawak – sec. 5(2) of the
CLA provides that the principles of English commercial law as at the date
on which the matter has to be decided is to be used, where there is no
Malaysia legislation on that area.
However, as there are an increasing number of Malaysian statutes on
commercial law, sec. 5 CLA is of diminishing importance.
The local circumstances clause in sec 3 CLA is absent in sec 5 CLA, but in
practice, sec 5 has been interpreted as if it is subject to this clause as -
Shaik Sahied bin Abdullah Bajerai v Sockalingam Chettiar.
In Seng Djit Hin v. Nagusrdas Purshotumdas (1923) AC 444 where the
supplier failed to supply sugar to the buyer because all ships had been
taken by the British government because of war. Privy Council held that the
defence provided in the Ordinance Civil 1889, Defence of the Realm
(Amendment) Act No. 2 1915 and Courts (Emergency Powers) Act 1917
could be applied by the supplier for failing to supply the sugar to the buyer.
Eventhough the statutes were not related to commercial matters, since the
seizure of ships were done by the government. These statutes were
administered in England then could be used by the Straits Settlements.

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 In Shaikh Sahied bin Abdullah Bajerai v. Sockalingam Chettiar (1933) 2
MLJ 81, where Shaik Sahied had borrowed money from the moneylenders.
The moneylender demanded repayment. Shaikh Sahied referred to the
Moneylenders Act 1900 and 1927 that moneylending transaction is illegal
unless it is registered. Privy Council held that the statutes were not
applicable in the Straits Settlements for the statutes were specific in nature
and intends to control activities in England and is not of general application.

1.1.2 JUDICIAL DECISION

Introduction
Judicial decisions are court decisions which make up the common law of a
country. The courts make law by applying the existing law to new situations
and by interpreting legislations. Judicial decisions form part of the law of
Malaysia through the doctrine of judicial precedent.
This doctrine states that an earlier decision of a superior court is binding
on a later subordinate court, if the facts in both cases are similar. Thus, the
cases heard in a superior court lay down legal principles which must be
followed by the lower court. Once a precedent is made, it remains binding
unless and until overruled by a later decision.
A precedent is commonly defined as “a judgment or decision of a court of
law cited as authority for the legal principle embodied in its decision”. The
general rule regulating the doctrine of precedent is that the decisions of
higher courts bind lower courts and some courts are bound by their
decision. This practice of following precedent is also known as stare decisis
(stand by what has been decided). It is a legacy of the English common
law system. If a judge fails to follow a binding precedent, the decision will
be legally wrong, and it is likely to be reversed on appeal. Where there is
no appeal, it can be overruled in a later case.
How does the doctrine work?
When a case is brought before a court, the facts of the case has to be
established by the court. After the facts are established, the judges will
determine and apply the relevant legal principles (the law) before reaching
their conclusion and decision. It is at this stage that the doctrine of
precedent will control their decision. Although the decision in a particular
case is of importance and interest only to the parties to the litigation, a
judge will give reasons for reaching his decision and in these reasons lies
the ratio decidendi (the reason behind the decision) or the legal principle
behind the decision. The ratio decidendi of an earlier case may bind and
become a precedent for deciding other cases of similar disputes in the
future.
In a judicial decision, there are ratio decidendi and obiter dictum. The ratio
decidendi are the legal principles of the decision and if these are new
principles of law then they will be a contribution of judges to the laws of the
country.

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 Obiter dictum however are merely remarks made by judges on the use of
the principle in other possible situations. Obiter dictum may eventually
become ratio decidendi in cases which eventually adopt and apply it.
The next question is to determine which Court's decision will create a
binding precedent. Binding precedent would depend on a court’s position
in the hierarchy of the courts. If that precedent comes from a court superior
in the hierarchy to the court currently trying the case, the precedent must
be followed. If the precedent is ignored by the lower courts, the decision of
that court is wrong and will be overturned on appeal to a higher court.

Application of the Doctrine of Stare Decisis in Malaysia

Federal
Court

Court Of
Superior Courts
Appeal

High Court

Session Court
Subordinate Courts

Magistrate Court
4

Generally, there are two types of precedents.

i. binding precedents
ii. persuasive precedents

A court is bound to follow its prior or past decisions or the decisions of a court of
the same level or of equal or coordinate jurisdiction or decision of higher courts.
This practice of courts is called the doctrine of binding precedents.

The doctrine of binding precedents works in two directions namely:

1. Vertical 2. Horizontal

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Vertically means the lower court is bound to follow decisions of the courts above
it. For example, the High Court of Malaya is bound to follow the decisions of the
Court of Appeal and the Federal Court.
Horizontally means, the High Court today (2004) is bound by prior decisions of
Courts that were previously instituted or established. Thus, decisions by its
predecessors is binding upon the High Court.
Judges are thus to follow precedents that were previously made by past judges in
similar factual situations and indirectly save court’s time and funds; and to promote
certainly of the law.
Persuasive precedents however are precedents which local superior courts
borrowed from other Commonwealth countries which have similar laws with
Malaysia. For example, the Federal Court may adopt decisions from India,
Australia, Canada and New Zealand. Since the courts of these countries are not
part of the hierarchy of courts in Malaysia, their precedents are merely persuasive
but if adopted and applied by the superior courts will bind the lower courts of the
judiciary.
Generally, the superior courts are bound by prior decisions of previous courts
which they replaced or take over. For example, the High Court today is bound by
decisions of its predecessor, the High Court of the Federation of Malaya. The
present Federal Court is bound by decisions of the Supreme Court and the
decisions of the Privy Council which was the highest court of appeal till January
1985.
The application of the doctrine of stare decisis in Malaysia will be elaborated below.

The Federal Court

 The highest-ranking court and the final court of appeal.
 The decisions of the Federal Court are binding on all lower Courts.
 The Federal Court is only bound by its own decision in civil cases.

The Court of Appeal

 Court of Appeal is bound by the decision of the Federal Court.
 Court of Appeal’s decision is binding on all lower courts, including the
High Court.
 Court of Appeal is also bound by its own decision

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The High Court
 High Court decision is binding on all subordinate courts.
 It is not bound by its own decision

The Subordinate Court

 The Sessions courts and Magistrate courts are bound by the decision of the
Superior Court.
 The Sessions court and Magistrate court decisions are not binding over any court,
including themselves.

2.2.2.4 Advantages and Disadvantages of Judicial Precedent

Flexibility

Consistency Advantages
And of Judicial New
Predictabilit Precedent
y
Precedent

Time
Saving

Rigid

Disadvantages
of Judicial
Precedent
Slow
Uncertain
Development

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1.1.3 CUSTOMARY LAW
Definition
Malay customary law or adat can be defined as customs and traditions in the Malay
community which in the course of time have obtained the character of laws and as
such can be enforced by the chiefs or elders. Being the living law at a certain time
in a certain place adat is elastic and adaptable to social needs and as such is not
suitable for codification. The chiefs however are not given a free hand to make
decisions. When the Malays became Muslims they adopted variations to suit their
local circumstances. The enforcement of selected customs by the council of elders
give it the legal status of law. Many writers claim that the personal law of the Malays
are a mixture of Hindu law and Islamic laws.
Malay Customary Law in West Malaysia
According to R.J. Wilkinson in his book “Papers on Malay subjects”, there are two
legal systems in the Malay community: Adat Temenggung and Adat Perpatih.

➢ Adat Temenggung
Adat Temenggung is practised by most Malay states of the Peninsula
except for Melaka and Negri Sembilan. Most of the customary laws related
to patterns of response in situations of conflicts or breach of the law. The
traditional practices of the community is importance because it reveals the
rules of laws of the Malay society. There are rules relating to title to land,
succession to property, rules to marriage and divorce or election of the
officials.
In adat temenggung, proprietary right over land is created by clearing of
the land and continuous occupation of it. In adat temenggung, property
could be inherited by both male and female but the portion of the male will
be more than the female. The property inherited by man will be based upon
strength or energy needed to work the land, and the female might inherit
the house and its fillings. Among the Ninety-nine Laws of Perak, there are
many verses that glorified the status of the ruler. A Malay raja is personally
sacred, he has powers to perform miracles. He was the source of all honour
and the fountain of justice. The king could do whatever he deems best in
his own eyes. In theory the Sultan has absolute power but the Malays did
not believe in primogeniture or rights of first born of the royal house. A
younger brother may take over the post of the unworthy elder brother.
Criminal law under adat temenggung is characterized by the principle of
retaliation (lex. Talionis) the offender shall lose the limb that was used in
committing the offence, unless he is of a higher status in the social order.
In Laton v. Ramah (1927) 6 FM SLR 116
the Chief Kathi of Selangor gave evidence in the Supreme Court and stated
that where a husband and wife acquired property and when one of them
dies, such property is divided equally between the survivors and heirs of
the deceased. He admitted that this rule is not provided in the Al-Quran.

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➢ Adat Perpatih
Adat perpatih is practiced in Negeri Sembilan and Nanning.
According to adat perpatih, customary land is inherited by woman only. A
man generally will lived on his wife’s land, he cultivated the soil and was
entitled to his maintenance out of the proceeds. When the man moved into
the wife’s family, his wife’s relations become responsible for him.
If they find that the marriage of their kinswomen is disastrous they could
get her divorced and on fair terms: such as “cari bahagi, dapatan tinggal,
bawa kembali”. If a man within the clan has been killed, the wrongdoer or
his family must pay “blood-money” to support the family of the deceased.
Any disputes within the clan will be settled by the buapak if not by the
lembaga.
There are three kinds of property:
i. Ancestral property (harta pusaka) which is entrusted to the woman.
On death the property passes on the female descendants of the
deceased.

ii. Property of husbands (harta pembawa) and property of wife (harta

dapatan) are property acquired before marriage and on death goes
back to the family.

iii. Property jointly acquired during marriage (harta sepencarian), on

divorce will be equally divided. On death, however it devolves to the
surviving partner if there is no issue.

Hooker in his book entitled “Adat Laws in Moderm Malaya” considers adat
perpatih as a system of social organisation, a matrilineal social system. The
most important kinship tie is the ‘perut’. The relationship with the woman
covers matters such as inheritance, land tenure, and election of the chiefs
(buapak, lembaga, undang and Yang di-Pertuan Besar). Traditionally,
there are twelve clans in Negri Sembilan. Under adat, marriage within the
clan is prohibited, especially marriage between the children of sisters and
that of brothers. These persons are members of the same descent group
(the lineage) and such marriage is regarded as incest (sumbang).
In Dato’ Mentri Othman bin Baginda v. Dato’ Ombi Syed bin Syed Idrus
(1981) 1 MLJ 29, the seat of the Undang of Jelebu became vacant with the
death of the fourteenth Undang in November 1979. The appointment of the
fifteenth Undang was challenged on the ground that he lacked the proper
adat lineage. The court was asked to declare the appointment as void. On
appeal the Federal Court declared that the appropriate body to decide the
matter was the Dewan Keadilan Undang-undang, the adat constitutional
body under the Constitution of Negri Sembilan.

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Malay Customary Law in Sarawak and Sabah
In Sabah, Malay adat is a mixture of Islamic law and adapt and is applicable in
matters concerning marriage, inheritance, division of property, bethotral and etc.
In Matusin bin Simbi v. Kawang bt. Abdullah (1953) SCR 106, a couple who
resided with the Bajau community in Sabah for forty years adopted three children
in accordance to Bajau customs. On his death a dispute arose as to how his
property should be administered. The High Court had declared that the whole
estate be inherited by the widow. The Supreme Court held that since adoption of
the children was made according to Bajau laws, they were considered as legitimate
children for all purposes and were entitled to share in the inheritance and none
goes to the deceased’s sister.
In Sarawak, Malay adat were codified by the Rajahs under Undang-undang
Mahkamah Melayu Sarawak (1915) and the Muslim Wills Ordinance 1896 (Cap
96) (Revised laws of 1958). In S. M. Mahadar bin Datu Tuanku Mohamed v. Chee
(1941) SCR 96 the court upheld that according to custom that the oath of a
pregnant woman that the particular man was the father was acceptable through
contrary to English law.
In Sheripah Unci and Sheripah Ta’siah v. Mas Poeti and Anor (1949) SCR 5, a
child adopted under adat was recognised as the legitimate child of the couple
though contrary to Islamic law.
Hindu and Chinese Customary Law
The Indians and Chinese who arrived as traders of settlers brought along with them
their customary laws. The British administrators had to deal with customary laws
related to inheritance.
In the case of Regina v. William (1856) 3 Ky., Maxwell R stated:
“If a Muhammedan or Hindu or Chinese marriage celebrated here according to the
religious ceremonies of the parties be valid it is not because the Charters make it
so – but because the Law of England recognises it.”
In Choa Choon Neo v. Spottiswoode (1869) 1 Ky. 216 – Maxwell C. J.again
emphasised:
“In questions of marriage and divorce it would be impossible to apply, our law to
Mohammedans, Hindus and Buddhists, without the most absurd and intolerable
consequences, and it is therefore held inapplicable to them.”
Chinese polygamous marriage was recognised in Choo Ang Chee v. Neo Chan
Neo (Six Widows) (1911) 12 S.S.L.R. 120. However, later it was decided that
succession to estates was not governed by Chinese customary law, and that the
English rule against perpetuities was applicable (see the case of Ong Cheng Neo
v. Yeop Cheah Neo (1872) 1 Ky. 326).
Today, the Law Reform (Marriage and Divorce) Act 1976 governs the marriage of
non-Muslims. The marriage vows must be made before the registrar, who needs
to record the marriage. The couple could then proceed to perform a church
wedding, a temple ceremony or the Chinese tea ceremony.

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According to Chinese customary laws, the male and not female will be bestowed
with property since the male carry on the family name. Today however, property
can be distributed to any member of the family by will.

Native Law
➢ Native Customary Laws of Sabah

In Sabah, native customary laws can be found in codes compiled by G.C.

Woolley, who was in North Borneo Civil Service. They were published and
reprinted in 1953 and 1962 as the Native Affairs Bulletin No. 1 – 7. The
codes are:

• Native Affairs Bulletin No. 1, Adat Timogun

• Native Affairs Bulletin No. 2, Adat Tuaran
• Native Affairs Bulletin No. 3, Adat Murut
• Native Affairs Bulletin No. 4, Adat Dusun
• Native Affairs Bulletin No. 5, Adat Dusun
• Native Affairs Bulletin No. 6, Adat Kwijau
• Native Affairs Bulletin No. 7, Adat Dusun Custom in Putatan District

Native Estates (Administration of Native and Small Estates) Ordinance

cover distribution of an estate of deceased natives irrespective of its values.
If there is no will, the property is distributed according to interesting rules
under the Interstate succession (Ordinance of 1960) (No. 1 of 1960). A
collection of Native law cases has been compiled by Tan Sri Lee Hun Hoe,
a former Chief Justice of the High Court of Borneo. Other law reports
include:

• North Borneo Law Reports 1935 – 1939

• Supreme Court Reports 1928 – 1941
• Malayan Law Journal from 1963

Cases of customary law covers a variety of issues such as betrothal,

marriage, and divorce, division of matrimonial property, adoption and
succession.
➢ Native Customary Laws in Sarawak
Since the days of Rajah James Brooke native customary law has been
recognised. The Ondang-ondang Lapan of 1843 was the first codification
of native law. In 1955, the Native Customary Laws Ordinance (Cap. 51)
was passed.
Among its contents are:

• The Sea Dayak (Iban) Code of Fines 1952 or the Tusun Tunggu,
codified first in the Third Division and extended to the Fourth and
Fifth Divisions.
• Orang Ulu Customary Code of Fines (Belaga Sub-District) Order
and the Orang Ulu Customary Code of Fines (Fourth Division)
Order.

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Apart from these, there were two compilations of adat by A.J.N. Richards,
namely:

• Dayak (Iban) Adat Law 1963 and Dayak (Bidayuh) Adat Law 1964.
These are now replaced by the Adat Iban 1993 (Swk. L. N. 18) and
the Adat Bidayuh 1994 (Swk. L. N. 27).

The Adat Iban 1993 Order covers:

• The longhouse construction and rules of social behaviour for

members or visitors of the longhouse community;
• Customs relating to farming, gardening, rules on farmwork groups;
taboos and rituals associated with farming;
• The conduct of marriages according to adat and matrimonial and
sexual offences;
• Customs relating to property, whether movable, immovable,
inherited or acquired;
• Customs relating to death, burials, maintenance of community
cemetery and related offence;
• Customs relating to child adoption; and
• Miscellaneous matters including the procedure for commencing
proceedings in a Native relating to breach of any custom not
expressly provided for in the provisions. With codification of
customary laws, there is now certainty on various aspects of native
customary law.

The Council for Customs and Traditions (Majlis Adat Istiadat Sarawak) was
established in 1977 and is vested with responsibility to amend any
customary laws and its decision needs approval of the Majlis Mesyuarat
Kerajaan Negeri (State Supreme Council). Under section 6 of the Native
Customs (Declaration) Ordinance 1996 a code of native customs may be
amended if there is error in any code or its translated version or where
there is omission of any recognised customs. If after consultations with the
headmen and chiefs of the community concerned, the custom is no longer
to be practiced or is obsolete, the code may amended. Once amended the
“code shall be conclusive as to the customs of the native race of which its
compilation and correctness cannot be questioned in any court
whatsoever. If the customs is inconsistent with any written law, the latter
shall prevail. The guardianship of Infants Ordinance 1958 (Cap 93) applies
to native infants, notwithstanding that its provisions may be inconsistent
with any customs.

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1.1.4 ISLAMIC LAW

Introduction
Under the Ninth Schedule of the Federal Constitution, with reference to
Legislative Lists, Islamic Law falls under List II – State List where it provides:
“Except with respect to the Federal Territories of Kuala Lumpur and
Labuan, 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; wakaf and 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 customs; 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, organisation and procedure of Syariah courts which shall have
jurisdiction only over persons professing the religion of Islam and in respect only
of any of the matters included in 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.”
Since Islamic law is a state matter the State Legislative Assembly can make laws
for the state for the Federal Territories Parliament will be the Legislative Authority.
Position of Islam in the Federal Constitution

➢ Article 3(1) of the Federal Constitution of Malaysia provides “Islam is the

religion of the Federation; but other religions may be practised in peace
and harmony in any part of the Federation.”
The Yang di-Pertuan Agong will be Head of the religion of Islam for states
that does not have a Ruler and for Federal territories of Kuala Lumpur and
Labuan. The Ruler will be Head of the religion of Islam in his state in the
manner and to the extent acknowledged and declared by the constitution
of the state.
According to the Ninth Schedule on Legislative lists, Islamic law is enlisted
under List II – State List.
The State’s Legislative Assemblies are empowered to make law relating to
succession, testate and intestate, betrothal, marriage, divorce, dower,
maintenance, adoption, legitimacy, guardianship, gifts, partitions and non-
charitable trusts, wakaf, charitable and religions trusts; zakat fitrah and
Baitulmal or similar religious revenue mosques or any Islamic public places
of worship.

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 The Federal legislature however has power to make laws on constitution,
organization and procedures of the Syariah courts, the control of
propagating doctrines and beliefs among persons professing the Islamic
faith.
➢ Article 11(4) of the Federal Constitution provides:
“State law and in respect of the Federal Territories of Kuala Lumpur and
Labuan, federal law may control or restrict the propagation of any religious
doctrine or belief among persons professing the religion of Islam.”
➢ Article 12(3) states:
“No person shall be required to receive instruction in or to take part in any
ceremony or act worship of a religion other than his own.”
➢ Article 12(4) provides:
“The religion of a person under the age of eighteen years shall be decided
by his parent or guardian.”

Sources of Islamic Law

The primary sources of Islamic Law is the Al-Quran and Al-Sunnah. The Al-Quran
or Holy Book of Allah contains verses of revelation on the laws of conduct that
Muslims should follow and abide by. Al-Sunnah consists of traditions or reports of
the actions and sayings of Prophet Muhammad that supported and elaborated the
laws of the Quran.
The secondary sources are Ijma’ (Consensus), Ijtihad (Analogy), Qiyas
(Deduction), Istihsan (Equity) and Musalah wal mursaleh (Common or public
Good).

Administration of Islamic Law

➢ Majlis Agama Islam

According to Section 4 of the Selangor Administration of Islamic Law
Enactment 1989, Islamic Law in the State of Selangor is administered by a
body corporate called Majlis Agama Islam Selangor. The members consist
of the Chairman, Deputy Chairman, the Mufti, State Advisor, State
Financial Officer, State Chief Police Officer and ten (10) other members of
which at least five are alim ulama’. These members who are Muslims shall
be appointed by his Royal Majesty on the advice of the Menteri Besar for a
term of not exceeding three (3) years. The Director of the Islamic Religious
Department of Selangor shall be the Secretary. The Majlis will appoint
committees to assist it in the performance of its duties or powers. The Majlis
shall advise the Sultan in respect of all matters relating to the religion of
Islam, except matters of Hukum Syarak and those relating to the
administration of justice. The Majlis also has power to register and control
the running of Islamic religious schools in the State of Selangor.

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➢ Mufti
Section 29 of the Selangor Administration of Islamic Law Enactment 1989
provides that the Sultan will appoint a Mufti for the State. The Mufti shall
aid and advise the Sultan in respect of all matters of Hukum Syarak and in
all such matters he shall be the chief authority in the State of Selangor after
His Royal Highness the Sultan.
Under Section 31 of the Selangor Administration of Islamic Law Enactment
1989, the Mufti may on his own initiative or on the request of any person
made by letter addressed to the Mufti and shall on the direction of His Royal
Highness the Sultan make and publish in the Gazette fatwa or opinion on
any unsettled or controversial question of or relating to Hukum Syarak. No
statement made by the Mufti shall be taken as fatwa until it is published in
the Gazette. Upon publication a fatwa shall be binding on every Muslim
residing in the State of Selangor as a dictate of his religion and it shall be
his religious duty to abide by and uphold the fatwa, unless he is permitted
by Hukum Syarak to depart from the fatwa in matters of personal
observance, belief or opinions. A fatwa shall be recognized by all Court in
the State of Selangor as authoritative of all matters laid down therein.
Under Section 33, the Mufti may amend, modify or revoke any fatwa that
has been issued earlier by him or by any previous Mufti.

➢ Islamic Legal Consultative Committee

The Islamic Legal Consultative Committee is constituted under Section 34
of the Selangor Administration of Islamic Law Enactment 1989. The
Committee consists of the Mufti (as Chairman), the Deputy Mufti, the State
Legislative Adviser of Selangor, an officer of the Islamic Religious
Department of Selangor and at least two, but not more than five persons
appointed by the Majlis Agama Islam. The Committee that will conduct a
study or research and prepare the working paper on Fatwa. The issuance
of any fatwa is after discussion and consensus of accepted views by
reference to views of Mazhab Syafie, Hanafi, Maliki or Hanbali. At the
National level, Majlis Fatwa Kebangsaan sits to consider and decide on
fatwas that should be implemented.

➢ Prosecution and Religious Enforcement

The Sultan on advice of the Majlis will appoint the Chief Syariah Prosecutor
who shall have powers exercisable at his discretion to prosecute, conduct
and not to continue any proceedings for an offence before a Syariah Court.
The Majlis may appoint Religious Enforcement Officer to assist in the
investigation of offences under the Enactment.

➢ Baitulmal and Mosques

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 Baitulmal shall be the trustee of all mosques in the State of Selangor and
every mosque together with the land on which it stands shall upon
registration under the National Land Code 1965, be vested in Baitulmal for
purposes of the Enactment. No person shall, without the permission in
writing of the Majlis, erect any building to be used as a mosque, or dedicate
any building to be used as a mosque. The Majlis shall ensure that all
mosques in the State of Selangor are kept in proper state of repair and that
the compounds thereof are maintained in a proper state of cleanliness; and
the Majlis may raise and apply, or authorize the raising and application of,
special funds for the purpose of such repairs and maintenance. The Imam
and Bilal shall be appointed by the Majlis from among persons serving in
the Religious Administration. The Majlis make rules for the establishment
and functions of the Jawatankuasa Kariah which is responsible for the
administration of the mosque and the Muslim burial grounds within its
kariah.

➢ Religious Teaching Advisory Committee

This committee which is appointed by the Majlis shall consists of the Mufti
(as Chairman) and not less than three ulamaks. The Secretary of the Majlis
shall be the Secretary of the Committee and will be responsible for
implementing the decision of the Committee. The Committee shall have
power to grant a tauliah for purposes of teaching of any aspect of the
religion of Islam and to withdraw such tauliah.

➢ Registrar of Mualaf
The conversion of persons to the Islamic religion is allowed if he is of the
age of majority and of sound mind. The person’s conversion needs to be
registered in the Register of Mualaf which is kept by the Registrar. A
certificate of conversion to Islam shall be conclusive proof of the
conversion. The converted person will be treated as a Muslim. If any
question arises within the State of Selangor whether the person is a
muallaf, the question shall be decided by the Syariah Court.

➢ Syariah Courts
Under Section 37, Syariah Subordinate Courts, Syariah High Court and
Syariah Appeal Court are constituted to administer Islamic law in Selangor.
The Chief Syarie Judge, Syariah Appeal Court Judge and Syariah High
Court Judge shall be appointed by the Sultan on advice of the Majlis.
(Further information on the jurisdiction of the Syariah Court is in Chapter
4).

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 WRITTEN LAW
OUTLINE:
✓ Introduction
✓ Federal Constitution and State Constitution
• Basic Concepts Relating to Constitution
➢ Supremacy of Constitution
➢ Separation of Power
➢ Rule of Law
✓ Legislation
✓ Subsidiary Legislation
• The Needs of Subsidiary Legislation
• Control of Subsidiary Legislation

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1.2 WRITTEN LAW
Written law is the most important source of law in Malaysia. It is in writing and includes the
following:

• Federal Constitution and State Constitution

• Legislations

• Subsidiary Legislation

1. FEDERAL CONSTITUTION AND STATE CONSTITUTION

The term ‘Constitution’ could mean:

• The body of legal and non-legal rules concerning the government of a state

• A single written document having special legal status, which establishes the
state, and sets out the structure and powers of the state
Article 4(1) of the Federal Constitution states that any general law that is
inconsistent with Federal Constitution shall be void.
The Federal Constitution is the supreme law of the land and govern throughout
Malaysia. Whereas, State Constitution regulates the government of the particular
state in Malaysia
Besides laying down the powers of the Federal and State Governments, the
Federal Constitution also enshrines the basic or fundamental rights of an
individual.
In Malaysia, there is one Federal Constitution and 13 States Constitutions. Each
state in Malaysia has its own constitution.
The State Constitution contains provisions which include matters concerning the
Ruler, the Executive Council, the State Legislative Assembly, and etc.

Basic Concepts Relating to the Constitution

A constitution is the document which exhibits the most important laws of the
country. These laws constitute the foundation and bedrock of the state.
Constitution binds on the courts and all persons concerned.
There are basic concepts relating to constitution such as supremacy of
constitution, doctrine of separation of power for branches of government,
fundamental liberties and rule of law.

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➢ Supremacy of the Federal Constitution

Article 162:
Position of Pre
Article 4(1): Supreme Merdeka Laws
Law of Federation
Difficult to be amended
Case: Dewan Undangan
Negeri Kelantan & Anor
v. Noordin Bin Salleh &
Anor
Supremacy of Federal
Constitution
Case: Ah Thian v
Government of
Malaysia (1976) 2
MLJ 112

Literally supreme means having the highest position of power, important. If we say
our law is supreme, it means that it is the main law and supreme authority in the
country.

In the case of Ah Thian v Government of Malaysia (1976) 2 MLJ 112, Suffian LP

pointed out that the doctrine of Parliamentary Supremacy does not apply in
Malaysia. Here we have a written constitution. The power of Parliament and State
Legislatures in Malaysia is limited by the Constitution.

The legislature, the executive and the judiciary and all institutions created by the
Federal Constitution and deriving their powers from it are subject to the provisions
of the Federal Constitution.

Article 4 (1) declares that the Federal Constitution is the supreme law of the
federation and any law passed after the Merdeka Day that is inconsistent with
constitution, to the extent of the inconsistency, be void.

Article 162 further states that pre Merdeka laws shall be applied with such
modifications as may be necessary to make them accord with the Federal
Constitution

In the case of Dewan Undangan Negeri Kelantan & Anor v. Noordin Bin Salleh &
Anor. The Supreme Court declared that a law passed by the Kelantan State
Legislative Assembly to be void as the said state law contravened the provisions
of the Federal Constitution that guaranteed the freedom of association.

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 In countries where the constitution is a written document, the law is more difficult
to be amended. This is due to the fact that usually there is a supremacy clause in
the written constitution. In accordance to the clause, constitution can only be
amended by a special procedure.

The rationale behind the supremacy clauses is to restrict the government in power
from abusing their powers and authorities.

➢ Features of the Federal Constitution

YDPA

Conference
Judiciary of Rulers

Legislative Executive

✓ Yang Di Pertuan Agung (YDPA):

Article 32 states that the Yang Di Pertuan Agong (YDPA) is the Supreme
Head of the Federation. YDPA will appoints Prime Minister, Ministers,
Judges, Ambassadors, and also play a role as a Supreme Commander of
armed forces in Malaysia. As the Supreme Head the Constitution gives him
precedence over all Rulers.

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YDPA is the head of all three branches of the government i.e. legislative,
executive and judiciary and also the head of Islam.

Previously YDPA is immune from any proceeding in court but amendment

was made to be able to subject the YDPA in his personal capacity, of
misconduct or misbehaviour in a Special Court for Ruler.

In Article 32, YDPA shall be elected by the Conference of Ruler for a term
of five years.

✓ Conference of Rulers:

Conference of Rulers consists of all nine Rulers and all four Governors in
Malaysia. It is the most prestigious assembly in the country.

Among the functions are:

• to elect and remove YDPA and elect deputy YDPA

• to deliberate on questions of national policy
• to appoint member of the Special Court

✓ Executive:

Article 39 provides that executive authority of the Federation shall be

vested in the YDPA and exercisable by him or the Cabinet or any Minister
authorised by the Cabinet.

In exercising his functions, YDPA shall act in accordance with the advise
of the Cabinet or of a Minister acting under the general authority of the
Cabinet.

The YDPA under Article 43 (2) shall first appoint the Prime Minister to
preside over the Cabinet who is from House of Representative and who in
his judgment is likely to command the confidence of the majority of the
house. YDPA later will appoint the ministers on the advise of Prime
Minister.

In a parliamentary system, the Prime Minister will have to resign if he lost

the confidence of the majority of the members of the lower house. If he
resigns, he must tender resignation of his Cabinet and the YDPA will
appoint another Prime Minister who is expected to form another
government.

✓ The Legislative:

In Malaysia we have a federal legislature called Parliament and each state

has its own legislature called State Legislative Assembly.

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 The Parliament consists of the YDPA and two Houses i.e House of Senate
& House of Representatives.

The life of Parliament is five years from the date of its first meeting. It stands
dissolved by operation of law at the end of five years, but it may be
dissolved earlier by the YDPA if he accepts advice to dissolve it.

Members of House of Representatives are elected by the public in election

and must not less than 21 years old. Whereas members of House of Senate
are elected and appointed i.e two members elected from each state, two
members for the Federal Territory of Kuala Lumpur, one member from
Federal territory of Labuan and Putrajaya appointed by YDPA and forty
members appointed by YDPA.

Parliament is more than a body making laws. It is the only body that may
authorise the levy or increase the federal taxes and the spending of federal
money. It is also the highest forum where member can air public grievances
and asks questions of a minister responsible for that matter.

✓ Judiciary:

The Constitution gives judicial power exclusively to the Superior Courts and
the Subordinate Courts.

Judicial power means the power to hear and determine in accordance with
the constitution and the law, disputes about legal rights and liabilities. No
other branches of government have this power, and in rare cases where it
is given this power, its decisions are subject to review by judiciary.

Judiciary should be impartial and independence. Impartiality is in the sense

that there is a real separation of power with the other two branches. It is
important so that there is impartial branch to judge disputes between the
two branches, between each or both of them and the citizen and between
citizen and citizen. Independence refers to freedom from control by either
of the two branches or by anybody.

The constitution secures this independence by providing that among others

transfer of judges from one place to another is decided not by the
government but by the respective Chief Justice. So a judge who gives
judgment unpopular with the executive cannot be suddenly transferred as
a punishment. Judges also shall be appointed by YDPA on the advise of
Prime Minister after consulting Conference of Rulers.

➢ Separation of Power
The doctrine of Separation of Power was enunciated by a French philosopher,
Montesquie.
It means no one person or body should exercise all three types of government power
such as executive, legislative and judiciary.

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 The same person should not form part of more than one of the three organs of the
government. Each of the organs of government should not control or interfere with the
exercise of functions by another organ. One organ of government should not exercise
the function of another.
Purpose of the doctrine is in order to avoid an abuse of power.
The underlying assumption of this doctrine is that absolute power corrupts absolutely
and the persons in whom the power is vested are prone to abuse it. Concentration or
accumulation of power in one organ will pose a threat to personal freedom as the organ
can act in arbitrary manner.
Such abuse may be prevented by separation of power.

1. The Relation between Executive and Legislative:

Cabinet collectively
No separation responsible to the
Parliament

Executive VS
Legislative

Example: Prime Minister is

Membership of both organs the head of Cabinet and also
a member of Parliament

2. The Relation between Executive and Judiciary:

No Judge forms part of the

Clear separation
Executive

Executive VS
Judiciary

However, the appointment

But, once Judges are
of judges and procedures of
appointed they are
their removal indicate the
independent to perform
dominance of executive their duty
role

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3. The Relation between Legislative and Judiciary:

The Legislature has no

Clear separation. control over the
The Members of Parliaments appointment and removal of
are elected and no judges judges and the Judiciary as
sitting in Parliament well has no control over the
Legislative.

Legislative VS
Judiciary

However, there are still

Article 63 - The Judiciary relation between these 2
cannot question the validity organs i.e declaration of law
of any proceedings in either become invalid and
House of Parliament application of binding
precedent

➢ Rule of Law
The most comprehensive concept of liberty was enunciated by Dicey in 1885, in what
is known as “The Rule of Law”.
Idea of Rule of Law is where People are ruled by the law
There are various definition of rule of law. The common feature is the idea that the
governmental action should be exercised in accordance with the law and the
government should be subject to law.
Therefore rule of law is against arbitrariness and wide discretion power on the
government since wherever there was discretion, there was room for abuse.
In Malaysia, rule of law was adopted as our 3rd National Principle (Rukun Negara)
whereas our fundamental liberties were recognised by virtue of Part II, Article 5 to 13 of
the Federal Constitution.
There are three main ideas that embodied the Rule of Law which are central to liberty
and freedom:
1. Respect for legality by the government
There must be a government of laws and not of arbitrary power.
Rule of Law is a regulator of government power. The government is ruled
by the law whereby actions of government are bounded by rules.
Laws must not give officials wide discretion because the officials will
misused the power. Persons affected by government action are able to
challenge the legality of action in court.

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 2. Protection of individual freedom
There should be constitutional protection for civil liberties which includes
the right to personal liberty, double jeopardy, freedom of speech, assembly,
association, right to property, fair criminal trial etc.
Equality before the law or equal subjection of all classes to the ordinary law
of the land administered by the ordinary law court i.e every person is
subject to one and the same body of law.
Everybody is subject to the ordinary law and jurisdiction of ordinary courts
irrespective of rank, position, condition etc

3. The independence of judiciary should be guaranteed

Judges must be impartial i.e without fear or favour. This is to enable civil
liberties to be enforced by an independent judiciary.
The court should have power to review parliamentary as well as
administrative actions.

2. LEGISLATION

Parliament enact a law at federal

laws is made by a person/body level whereas and State Legislative
which has power to make law Assembly enact the law at state
level

Legislation

Article 74(1) :Parliament =enacts law

on matters listed in Federal List or
Concurrent List. Article 75: if state law inconsistent
with federal law the federal law
Article 74(2) : State prevails
Legislature=enacts law on matters
listed in State List or Concurrent List.

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 Types of Legislations

Act Enactment Ordinance

• Act: Enacted by Parliament

• Enactment: Enacted by State Legislative Assembly, except in Sarawak known as

Ordinance

• Ordinance: Law enacted by Sarawak State Assembly and Laws enacted by the
Parliament between 1st Apr 1946 – 10th Sept 1959
Legislative Process
Article 44 of the Federal Constitution vests the legislative authority of Malaysia in
Parliament (comprising of the YDPA and the two Houses of Parliament, i.e. the House of
Senate (Dewan Negara) and the House of Representatives (Dewan Rakyat).
The legislative process of law making in Parliament begins with a Bill. The Minister
responsible for the particular portfolio normally presents a Bill to the Parliament.
Normally, a Bill introduced in either House, goes through four stages: First Reading,
Second Reading, Committee Stage and Third Reading.

1. Pre-Parliamentary Stage:
A Bill may be proposed in many ways. It may be recommended by the
Government, Royal commission, institutions or pressure group etc.
After a series of discussion and consultations, the drafted proposal will be sent to
the Parliamentary Draftsperson in the Attorney General’s Chambers to be put into
legal language and form.

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 2. Parliamentary Stage (Article 66-68):

1st Reading Minister mentions the title of the Bill and gives oral notice
as to when he wishes to move the second reading. Title of
the Bill will be read.
2nd Reading Bill must be printed and circulated. The minister will
present an outline of principle of the Bill. The House will
debate on the Bill. The Bill will have to be voted upon to
proceed to the next stage.
Committee Stage Bill sent to a committee and details of the Bill are
discussed. The Committee consists of MPs or occasionally
the whole house sitting in committer. Amendment can be
proposed.
The Minister will report to the House that the Bill has been
considered and accepted by the Committee with or
without amendments. He then moves a motions that the
Bill be read a third time and passed.
3rd Reading Bill is review again. Debates will centered on general
principles. Substantive amendment are no longer allowed
except with permission of the speaker to correct errors or
oversights. A vote is taken and if passed the Bill is sent to
Dewan Negara.

House of The Bill goes through the same stages as in HOR. If the
Senate are amendments made to the Bill, the Bill will be
returned to the HOR. HOS has no power to veto, reject,
or insist on its amendment to a Bill passed by HOR.

Royal Assent When both Houses have approved it, it is presented to

the YDPA for Royal Assent.
A Bill becomes law after receiving the Royal Assent but
no law shall come into force until it has been published
in the Gazette.
The YDPA has 30 days to agree to the Bill. If it is not
approved by then, it automatically becomes law.

Publication Bill become law on being assented to by YDPA but no

law shall come into force until it has been published.
Publication is done in Federal Gazette. An Act comes
into force on a prescribe date and if no date is prescribe,
the date following the date of its publication.

3. SUBSIDIARY LEGISLATION
Subsidiary legislation or sometimes referred to as secondary legislation or subordinate
legislation or delegated legislation is a law made by person or bodies under powers given
or delegated to them by primary legislation or commonly known as Parent Act or Enabling
Act.
Parliament and State Legislative Assembly may confer or delegate some of their
legislative power to a person or a body usually YDPA, Minister, Local Authority.

33
Section 3 of the Interpretation Act 1948 & 1967 defines subsidiary legislation as:
‘Any proclamation, rule, regulation, order, notification, by-law or other instrument
made under any Act, Ordinance or other lawful authority & having legislative
effect.’
Legislature lays down the basic and main laws and the details will be carried out by
persons or bodies who have been delegated with legislative power.
An example of subsidiary legislation is various parking rules set out by municipal councils.
Any contravention with Parent Act or Constitutions, the subsidiary legislation is void.

The needs of Subsidiary Legislation:

✓ It saves Parliamentary time.

It because legislature has insufficient time to enact all legislation
detailed in every aspect required in modern society and it allows
Parliament to concentrate more on broad issues of policy rather than
masses of detail.
✓ It allows technical matters to be determined by those competent
to do so.
Legislature has neither the time nor technical knowledge to enact laws.
For example, if a new piece of legislation needs to be introduced
regarding the running of hospitals, there may only be few members of
parliament in the medical profession, and so there would not be the
necessary background knowledge in Parliament. In this case,
Parliament may delegate the responsibility of creating the legislation to
the Malaysian Medical Association. The next example is enacting law
in local area where only local authority has better knowledge compared
to member of parliament about their area to enact the law such as
parking law.
✓ Urgency & Speedy
Parliament is not always in session and legislative procedure is slow. If
emergency and urgent problem arise and delegated legislation is the
best means of meeting the situation.

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Control of Subsidiary Legislation:
There are some modes of control over subsidiary legislation in order to protect
from the abuse of power:
✓ Judicial Control
It is the most important control exercise by court. The courts have
control over Subsidiary Legislation through judicial review. Section
23(1) and 87(d) of an Interpretation Act provides that any Subsidiary
Legislation which is inconsistent with an Act or Enactment shall be void
to the extent of inconsistency.
Court may declare subsidiary legislation is void on the ground of ultra
vires such as procedural or substantive ultra vires.

✓ Legislative Control
It is a control exercised by legislative body.
How to control?
a. Legislature which grants the power may repeal, revoke or
vary the power.

b. Table the said subsidiary legislation before Parliament or

legislature body for the purpose of legislature’s information
or confirmation.

c. Established Scrutiny Committees which keep under review

all delegated legislation and report their findings to
Parliament (as practice in England).

✓ Consultation
In Malaysia, there is no general statutory provision making prior
consultation a formal requirement for passing subsidiary legislation, but
it does take place on a discretionary and ad hoc basis (administrative
practice).
Some Acts make it mandatory, but the numbers are few. An example
is to consult with respective interest group and advisory body before
any regulation is made.
✓ Publication
There is no general statutory provision requiring publication of
subsidiary legislation. However, a particular enabling statute may
require publication but this is not a norm. If it makes it compulsory, non-
compliance renders the subsidiary legislation void.

35