SOURCES OF LAWShad Saleem Faruqi Concept of Law in Legal Philosophy Law is an indispensable attribute of every society, ancient or modern. It has existed since times immemorial in myriad 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 recognized 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. legal positivist. social practices. and any custom or usage having the force of law in the Federation or any part thereof. custom. rules of international law and private law unless these are incorporated into or derived from a recognized source of law. It is noteworthy that under Article 160(2) religion. ethics. 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. Law is a command of the sovereign. British statutes at cut off dates may be applied throughout the country if there is no local legislation. British statutes at cut off dates may be applied as law if there is no local legislation. sociological. This narrow. From the above definition. It states that “law” includes written law. (ii) English common law and Malaysian judicial precedents. Acts of the Federal Parliament. morality. the common law in so far as it is in operation in the Federation or any part thereof. Much depends on whether you belong to the historical and anthropological. realist or post-modernist approach.Which of the above sources or forms of law qualify as legal sources? There is no right answer. ethics. Unlike in the civil law system. (iii) Customs or usages. Law is state made. Our legal system does not address the question whether an unjust law (“a lawless law”) is law? However. 13 State Constitutions. Article 160(2) of the Federal Constitution supplies an authoritative definition of law. This category includes the Federal Constitution. In the context of Sabah and Sarawak. adoption or being posited into a written statute or (ii) by acceptance into a judicial precedent. Enactments and Ordinances of State Assemblies. Malaysian Concept of Law In Malaysia. religion. rules of international law and private law may be admitted into law in two ways: (i) by incorporation. Federal Subsidiary Legislation. it is clear that at least three categories of rules qualify as law in this country: (i) Written law. In the field of commercial law. morality and custom are not law per se on their own strength or quality. Emergency Ordinances by the Yang di-Pertuan Agong under Article 150. Other types of rules or norms need direct or indirect recognition by the state or it agencies before they acquire the status of law and enforceability as a legal norm. State Subsidiary Legislation and local authority bye-laws. 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. Neither is there legal recognition for social practices. . These become law if recognised by statute or common law. natural law. these historical or material sources are not.Only those rules of social and legal practice are enforceable in a court which have passed through a “legal filter”. religious or customary norms. 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”. moral. These norms supply the lifeblood of the law. Sources of Law in Malaysia The Federal Constitution in Article 160(2) defines ‘law’ to include three sources: 1 H L A Hart. by themselves. 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. superior courts are increasingly incorporating principles of Islamic jurisprudence into their judicial decisions. In Sabah and Sarawak a great deal of native custom is codified. Thus. a “rule of recognition” or a “criterion of validity”. pp. A third meaning is those formal categories or species of rules that are recognized in the legal system as constituting the law of the land. 97-106. Another meaning of “source” is the institutions or authorities that are authorized by a particular legal system as having the power to enact law.1 In practice statutory recognition of custom or religious precepts is quite frequent. These terms refer to the fountains from which the content of the law is derived. some parts of the legal system are inspired by and based on cultural. . and courts are the source of common law. entitled to be called “law” unless they are formally posited or converted into law by legislation or judicial precedent. 1961. Since the nineties. The Yang di-Pertuan Agong is the source of Emergency Ordinances. esp. ch VI on “Rule of Recognition and Legal validity”. Everywhere in the world. But in legal systems influenced by the approach of legal positivism. One meaning is “historical sources” or “material sources”. Meaning of ‘Sources’ The term “sources of law” can have many meanings. Parliament and State assemblies are the source of legislation. scholarly opinions or the edicts of religious or customary authorities. ELBS. the clay from which law is fashioned. The Concept of Law. Ordinances) under Articles 73. 10.(i) written law. 8. State Enactments (in Sarawak. 5. Written does not mean “in print” or in black and white. 9. British statutes in the field of commercial law on cut-off dates are applicable throughout Malaysia if suitable to our circumstances. In the context of Sabah and Sarawak. subsidiary legislation. Also. This means that legislation. (ii) the common law and (iii) any custom having the force of law. The effect of the above provisions is that there are multiple sources of law in Malaysia. 76A and 77 of the Federal Constitution or under the enabling provisions of their own State Constitutions. 2. Federal Constitution. British common law and equity on particular cut-off dates are statutorily recognised as sources of law. British statutes of general application on cut-off dates. are applicable in 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. 6. Federal statutes or Acts of Parliament under Articles 73-79 of the Federal Constitution. “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. They can be divisible broadly into: (i) written sources and (ii) unwritten sources. To these could be added “existing law” or pre-Merdeka law under Article 162. Under the Civil Law Act 1956. Emergency Ordinances by the Yang di-Pertuan Agong under Article 150. 74. Under Article 162(6). the written sources are: 7. 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. The written sources at the federal level are: 1. Federal subsidiary legislation. if suitable for Sabah and Sarawak. judicial precedents and recognized customs are the “source of law” in Malaysia. Written Sources “Written” means formally “enacted” into legislation or subsidiary legislation. . Under the Civil Law Act. State subsidiary legislation including municipal bye-laws. In the field of commercial law. At the state level. 4. The thirteen State Constitutions. 3. Malaysian courts are reluctant to employ the instrument of unconstitutionality to dissect state actions. As in many other countries. Directions and Policy Statements. British common law and equity at cut off dates. The supremacy of our Constitution is supported by judicial review. FEDERAL CONSTITUTION The Federal Constitution is the supreme law of the land. Customary law including Malay adat. 128 and 162(6) of Malaysia’s Federal Constitution. the law of laws. .Unwritten sources These are all of non-statutory origin. 16. Any law. 19. 11. Nevertheless. They are divisible into legal and non-legal sources. The Constitution in Articles 4(1). and quasi legislation in the form of Government Circulars. It sits at the apex of our legal hierarchy. These are a legal but unwritten source. (ii) They may have been incorporated into a judicial decision in which case they are part of unwritten law. This is a legal but unwritten source. ZI Publications v Selangor [2016] 1 MLJ 153. Arunamari Plantations v Lembaga Minyak Sawit [2011] 1 MLJ 705. whether post-Merdeka or pre-Merdeka. Chinese and Hindu customs (unless incorporated into a written law or judicial precedent). Quasi-legislation 1. International law (unless incorporated into a written law or judicial precedent). 4(4). Principles of the Syariah. Native practices in Sabah and Sarawak. 18. Judicial precedents of superior courts in Malaysia. that violates the Constitution can be declared null and void by the courts. These 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. 4(3). statutory law. a fair amount of case law has developed on constitutional challenges. What was achieved by Marbury v Madison in the USA is explicitly provided for in Articles 4. (iii) They may not have been incorporated into a statute or a judicial decision but nevertheless exert an influence on administrative decision-making. 128(1) and 128(2) is explicit about the power of the superior courts to examine the constitutionality of all executive2 and legislative actions. Conventions of the Constitution. the grundnorm. 13. secular or religious. 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. 15. 17. 12. 14. primary or secondary. federal or state. Berjaya Books v Jawi [2014] 1 MLJ 138. Schemes. In the area of federal-state division of powers we have The Government of Kelantan v The Government of the Federation of Malaya and Tunku Abdul Rahman Putra Al-Haj (1963) 29 MLJ 2 Persatuan Aliran v Minister [1988] 1 MLJ 442. Its imperatives have not become the aspirations of the people or the institutions of the state. Dato’ Ting Cheuk Sii v Datuk Hj Muhammad Tufail Mahmud [2009] 1 CLJ 899. Muhammad Hilman Idham v Kerajaan Malaysia [2011] 6 MLJ 507. [2015] 6 MLJ 736. Ooi Kean Thong v PP [2006] 3 MLJ 389. Pathmanathan Krishnan v Indira Gandhi Mutho [2016] 1 CLJ 911. Nik Nazmi Nik Ahmad v PP [2014] 4 MLJ 157. . State Government of Negeri Sembilan v Muhammad Juzaili Mohd Khamis [2015] 8 CLJ 975. Pihak Berkuasa Negeri Sabah v Sugumar Balakrishnan [2002] 4 CLJ 105. [1980] AC 458 and Abdul Ghani Ali @ Ahmad v PP [2001] 3 MLJ 561. On exercise or abuse of emergency powers we have Teh Cheng Poh v PP [1979] 1 MLJ 50. ZI Publications v Kerajaan Negeri Selangor [2016] 1 MLJ 153. 2 MLJ 238.355. Majlis Agama Islam WP v Victoria Jayaseele Martin [2016] 2 MLJ 309. Maria Chin Abdullah lwn Pedakwa raya [2016] 9 MLJ 601. 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. Ketua Pengarah Jabatan Alam Sekitar v Kajing Tubek [1997] 3 MLJ 23. Berjaya Books v Jabatan Agama Islam WP [2014] 1 MLJ 138. and Khairuddin Abu Hassan v Kerajaan Malaysia [2016] MLJU 990. On violation of constitutional amendment procedure there are cases like 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. Government of Malaysia v Government of the State of Kelantan [1968] 1 MLJ 129. 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 [1983] 1 MLJ 252. Yii Hung Siong v PP [2005] 6 MLJ 432. 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 [2010] 2 MLJ 525. and Fung Fon Chen@ Bernard v The Government of Malaysia [2012] 6 MLJ 724. Fathul Bari Mat Jahya v Majlis Agama Islam NS [2012] 4 MLJ 281. Mamat Daud v Government of Malaysia [1988] 1 MLJ 119. Abdul Karim Abdul Ghani v Legislative Assembly of Sabah [1988] 1 MLJ 171. The City Council of George Town v The Government of the State of Penang [1967] 1 MLJ 169. Titular Roman Catholic Archbishop of Kuala Lumpur v Menteri Dalam Negeri [2014] 6 CLJ 541. Nik Noorhafizi Nik Ibrahim v PP [2013] 6 MLJ 660. Despite the above cases. PP v Azmi Sharom [2015] 6 MLJ 751. Tye Ten Phin v Menteri Hal Ehwal Dalam Negeri [1989] 2 CLJ 877. Y B Khalid Abdul Samad v Majlis Agama Islam Selangor [2016] MLJU 338. PP v Yuneswaran Ramaraj [2015] 9 CLJ 873. Che Ani Itam v PP [1988] 1 MLJ 113. one can say regrettably. Robert Linggi v The Government of Malaysia [2011] 2 MLJ 741. Mat Shuhaimi Shafiei v PP [2014] 2 MLJ 145. avoid raising constitutional challenges in the courts. most judges avoid or evade constitutional issues and convert issues of constitutional law into issues of administrative law. EMERGENCY ORDINANCES BY THE YANG DI-PERTUAN AGONG The King. 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). 4. Regrettably it is not subject to much parliamentary control. perhaps due to unfamiliarity with constitutional jurisprudence. In the last two decades. the syariah establishment and many civil judges as NOT subject to constitutional control and not amenable to the civil courts’ jurisdiction. Interpretation Acts supply a guide to statutory interpretation. acting on advice. 3. FEDERAL DELEGATED (SUBSIDIARY) LEGISLATION It exceeds parliamentary legislation by a ratio of 1:20. exclude judicial review through ouster clauses. the case is one of private law to which public law principles are not applicable. in addition. Most lawyers. Barring some honourable exceptions. Constitutional safeguards are often made inapplicable because according to the courts. The Government claims no copyright to its legislation. not subject to judicial review. The power of the King is co-terminus with that of Parliament. FEDERAL LEGISLATION BY THE ELECTED PARLIAMENT There are nearly one thousand federal statutes on record. The federal Parliament and the State legislatures often enact laws that confer absolute discretion on the executive and. policy makers. In many countries delegated legislation is statutorily made subject to . A great deal of delegated legislation ignores constitutional limits. 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. They are called Acts of Parliament or statutes. The area of non-justiciability is very wide. laws relating to Islamic matters are regarded by politicians. 2. Though there is widespread codification. Many decisions are regarded as part of royal prerogatives. religious legal system seems to be emerging though this was not the intention of the constitution-makers. Despite the protests of constitutional lawyers. government policies and Circulars often trump the Constitution. All are printed in the Government Gazette and are accessible without cost to anyone who cares to obtain them. A parallel. there is a great of overlapping legislation and consolidation is an unmet need. However. 3 Surinder Singh Kanda v Govt of Malaya [1962] 1 MLJ 169. But any court applying them may apply them with such modification as may be necessary to bring them into accord with the Constitution. BRITISH COMMERCIAL STATUTES In the field of commercial law. laying subject to affirmative resolution or laying subject to negative resolution. and there must be provisions for an Executive Council and an elected legislature with powers and procedures for enacting laws. 9. consultation and laying are very rare. Scrutiny committees of one or both Houses of Parliament. Aminah v Supt of Prisons [1968] 1 MLJ 92. Sagong Tasi v Kerajaan Selangor [2005] 6 MLJ 289. in Malaysia. 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. and Publication requirement. Regrettably. “Modification” includes amendment. both federal and state. subsidiary legislation. THIRTEEN STATE CONSTITUTIONS Each of the 13 States have their own Constitutions which are required by Article 71 and the Eighth Schedule to contain some “essential provisions” prescribed by the Federal Constitution. STATE ENACTMENTS These Enactments can be made on any areas assigned to the State Legislature under Schedule 9. The State Assemblies of Sabah and Sarawak have additional powers under Lists IIA and IIIA. adaptation and repeal. 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. Assa Singh v MB Johor [1979] 2 MLJ 30. 8.3 7. Lists II and III. These essential provisions are that the Ruler must act on advice. . 6. Consultation with affected interests Laying procedures – laying in draft or laying in instrument. is subject to judicial review on the principles of ultra vires and unreasonableness. Scrutiny committees are unknown in Malaysian legislatures. 5. PRE-MERDEKA LAWS Article 162 specifically provides that all existing laws on Merdeka Day shall continue to be applied until repealed. already taking place. The cut off dates are 7 April 1956 in West Malaysia. English common law has developed by leaps and bounds since the fifties. Many other Malaysian statutes like the Contracts Act permit our courts to take note of equitable considerations. For the above reasons. Sabah and Sarawak. 1 December 1951 in Sabah. BRITISH COMMON LAW AND EQUITY The Constitution recognises common law as a source of law. PRECEDENTS OF MALAYSIAN SUPERIOR COURTS . 1951. UNWRITTEN LEGAL SOURCES 11. 1949.g. English commercial law as it stood on 7 April 1956 applies in the nine former Malay states. it is silly that ancient and not contemporary English common law is applicable in Malaysia. 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. First.10. and 12 December 1949 in Sarawak. The Civil Law Act 1956 is subject to tremendous criticisms. Britain offers no help due to its unwritten Constitution and Indian and Australian jurisprudence would be much more relevant. 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. Under section 5(2) which applies to Penang. statutes of general application on particular cut-off dates may apply in Sabah and in Sarawak. it is improper to set different cut-off dates (Sarawak 1949. Second. 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. for Sarawak the date is December 12. Third. without doubt. Sabah 1951 and Malaya 1956) for our three different regions. For Sabah the date is December 1. These dates reflect the pre- independence incorporation by the British of their legislation into the colonial territories of Malaya. Fourth. Sabah (North Borneo) and Sarawak. why should England have the monopoly of influencing our jurisprudence? In constitutional law e. section 5(1). Under section 3(1). BRITISH STATUTES OF GENERAL APPLICATION Under the Civil Law Act 1956. 12. Melaka. English commercial law at the date at which the matter has to be decided applies. without overruling it. 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 reality is that it achieves a fine balance between certainty and flexibility. Under Article 182(5). 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 Federal Court: The decisions of Federal Court bind all other courts in the country. “the practice and procedure applicable in any proceedings in any inferior court. 4 Kerajaan Negeri Terengganu v Sr Syed Azman Syed Ahmad Nawawi [2013] 7 MLJ 52. without overruling it. The Federal Court has the power to overrule all other courts and this it does quite often. “to depart” from a previous precedent of the High Court. It also has exclusive jurisdiction in all civil actions by or against the YDPA and the Rulers in their personal capacity. The Special Court under Article 182: This court has exclusive jurisdiction to try all offences committed by the Yang di-Pertuan Agong (YDPA) and the Rulers of the States. Malaysia follows the doctrine of binding judicial precedent. Balance between rigidity and flexibility: Despite the belief that the doctrine of binding judicial precedent stifles judicial creativity. (No. In the interest of certainty. Previous courts: It is noteworthy that the judicial decisions of superseded superior courts like the Supreme Court. 2) [2013] 7 MLJ 145. 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 High Courts generally follow decisions of other High Courts but have the power. 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. The Court of Appeal generally follows its own decisions but has the power. It can overrule the inferior courts on appeal as well on review.4 It can overrule the High Courts. this power is exercised sparingly. It is not clear whether the doctrine of stare decisis applies to the Special Court. But as an apex court. the Federal Court has the power to overrule its own previous decisions.On the lines of the English legal system. any High Court and the Federal Court shall apply in any proceedings in the Special Court”. “to depart” from its previous precedents. Contrary to what is generally believed. In distinguishing cases on facts for the purpose of applying or refusing to apply a previous precedent the judge acts creatively. In re Timah binti Abdullah Decd. V Syed Hassan [1930] 1 MC 180. The decision whether to overrule a previous decision or invalidate a statutory enactment prospectively or retrospectively is guided. Malaysian Legal History: Cases & Materials. India and Malaysia courts have adopted the doctrine of prospective overruling. 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 overruling a previous decision. FMS v Magari Mohihiko [1941] 10 MLJ 51. Such an interpretation is of considerable importance for it in effect. 1993. 18. THE SYARIAH The syariah was and is an important part of the Malay identity.5 The most prominent cases involving Islamic law were In the Goods of Abdullah [1835] 2 Ky. 255. In the USA. Re Ismail Rentah. Haji Hussain bin Singah v Liah binte Lerang [1940] 9 MLJ 98. but by policy and expediency . 163. 62-95. 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. NON-LEGAL SOURCES 13. 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. Ainan bin Mahmud v Syed Abu Bakar [1939] MLJ Rep. Chulas and Kachee v Kolson binti Seydoo Malim (1867) Leic. 462.” (Cross).8. UNWRITTEN. Koh Cheng Seah Administrator of the Estate of Tan Hiok Nee Decd. unmakes law. there is no such thing as a fixed ratio decidendi of a case for all time to come. In distinguishing between ratio and obiter. not by the law. “The application of existing law to new circumstances can never be clearly distinguished from the creation of a new rule of law. Dewan Bahasa dan Pustaka. the courts often accepted and occasionally rejected Muslim law in deciding cases. pp. Restricting the operation of a binding rule by declaring it to be too wide involves creativity. . The Official Administrator. Anchom binte Lampong v PP [1940] MLJ Rep. Fatimah & Ors v Logan [1871] 1 Ky. Ramah binti Taat v Laton binti Malim Sutan (1927) 6 FMSLR 128. In the days of the British. Ec. Extension of existing principles to new situations as in Dutton v Bognor Regis. 37-46. Judicial creativity is fully in play when a previous decision is overruled. In the Matter of Omar bin Shaik Salleh Shaik Salleh v 5 Refer to Salleh Buang. Re Maria Huberdina Hertogh [1951] 17 MLJ 164. Laying down hitherto unknown principles in novel cases which could not have been foreseen (original precedents) is clearly creative. Decd. But 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”.. “deviationist teachings” and Islamic education. Hadith and the fiqh (jurisprudence) of early Muslim scholars.6 The legal system is facing intractable disputes between syariah authorities and some Muslims on such issues as Muslim apostasy. But State Assemblies are authorized by Schedule 9. Today there is talk of an “Islamic state”. Since Mahathir Mohamad and Anwar Ibrahim’s Islamisation policy in the 80s. freedom of speech. Constitutional issues are often raised and more often than not rejected by the superior courts. Syariah authorities occasionally exercise jurisdiction beyond the 24 areas assigned to them by Schedule 9 List II Para 1. 6 The Syariah Criminal Code (II) Enactment 1993 of Kelantan sought to apply Islamic criminal law to all residents of Kelantan including non-Muslims. the civil courts continued to interpret. Martin v Umi Kelsom [1963] 29 MLJ 1. despite the existence of syariah courts. they violate the chapter on fundamental rights. criminal laws with penalties prescribed in the Qur’an.e. Abdul Rahim v Abdul Haleem [1983] 2 MLJ 78. AG of Ceylon v Reid [1965] 2 MLJ 34. .Mariambee (1948) 14 MLJ 186. Judicial review of such excess of power is. with the adoption of a written Constitution. In the era between 1957 and 1988. Haji Yahya v Hassan [1982] 2 MLJ 264. mostly of personal law) and on matters of Malay custom. the legal position of Islamic law is that the principles of the syariah are not law per se under Article 160(2). In the post-independence era. there has been a steady expansion of the syariah in areas outside family law. however. . rather rare. The states of Kelantan and Terengganu have even tried (but unsuccessfully) to legislate hudud laws i. cross dressing. PP v D J White @ Abdul Rahman [1940] MLJ Rep 170. Shaik Abdul Latif v Shaik Elias Bux [1915] 1 FMSLR 204. apply or dismiss principles of Islamic law in cases before them: Nafisah v Abdul Majid [1969] 2 MLJ 174 and 175. List II Para 1 to enact laws on Islam (in 24 areas. Myriam v Mohamed Ariff [1971] 1 MLJ 265. and Re Dato Bentara Luar Dcd. “two parallel legal systems” and “one country with two systems”. In addition. Refer to Mansur bin Mat Tahir v Kadi Daerah Pendang Kedah [1989] 1 MLJ 106. 9 In post-independence Malaya Malay customs have constitutional recognition in several articles of the Constitution including Article 150(6A). there is no carte blanche recognition of customary law.8 See also Sahrip v Mitchell (1870) Leic. conversion of the children of the marriage into Islam without the consent of the non-converting spouse. That is why Malay custom is enforced in syariah courts! Unlike in Sabah and Sarawak. For the Malay community. Custom is occasionally elevated to 7 Titular Roman Catholic Archbishop v Menteri [2014] 4 MLJ 765 8 Wan Arfah Hamzah & Ramy Bulan. . custom was the dominant source of law in Malaya. the Malay custom of tithe or one-tenth of the total produce was accepted as reasonable. However. equity and good conscience. Syariah authorities are also flexing their muscles in such matters as use of the term “Allah” by non-Muslims7. In Sahrip v Mitchell (1877) Leic Reports 466. burials of non-Muslims who were suspected by the syariah authorities to have converted to Islam before their death. and that too if not repugnant to British notions of natural justice. After independence. 56-61. Para 1. common law became the dominant law of Malaya and Malay adat and Islam were relegated to personal matters. . In Jainab bt Semah v Mansor bin Iman [1951] 17 MLJ 62. pp. the Malay custom of adoption in Pahang was recognised. MALAY ADAT (CUSTOM) Before the arrival of the British in 1786. pp. indigenous Malay adat enriched by Hindu and Buddhist elements and overlaid with principles of the Syafie school of Islamic law. Jainah v Mansor (1915) 17 MLJ 62. This means that customs are not law per se. Malaysian Legal History: Cases & Materials. the Malays often see them as synonymous. and custody and guardianship of the children.a breach of promise to marry case – the court refused to apply Muslim law as that would lead to oppressive results. An Introduction to the Malaysian Legal System. 14. 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. They need the kiss of life from a statute or a judicial precedent. As colonialism took root. there are no separate adat courts in the peninsula for Malay custom. 466. 160(2) and Schedule 9 List II. 29-36. custom referred to the composite.The steady expansion of Islamic laws and the widening jurisdiction of syariah authorities has also brought them in painful disputes with non-Muslims over such issues as dissolution of a non-Muslim marriage when one partner converts to Islam. Though Malay adat (custom) and the Syariah (Islamic law) are distinct. a land tenure case. But in Mong binti Haji Abdullah v Daing Mokkah Daing Palamai (1935) 4 MLJ 147. Islamic law is in resurgence and is often in direct conflict with the constitutional grundnorm. Dewan Bahasa dan Pustaka. 151-155 9 Salleh Buang. 1993. Under Article 160(2) ‘law’ includes only those customs and usages having the force of law. 151-155.10 What standards does the court apply? It is doubtful that 60 years after Merdeka English standards of reasonableness will apply lock. NATIVE LAW IN SABAH & SARAWAK In Sabah and Sarawak. Malaysian Legal History: Cases & Materials. There is recognition in Khoo Hooi Leong v Khoo Chong Yeok [1930] AC 346 that English law must be applied with modification to alien races. Director of Forests Sarawak v T R Sandah Ak Tabau [2017] 3 CLJ 1. . Deceased [1911] 12 SSLR 120. Decisions have gone both ways.g. Chinese customs were recognized in the distribution of intestate estates: Ong Cheng Neo v Yap Kwan Seng [1897] 1 SSLR Suppl 1. the Sarawak Native Court Ordinance 1992 defines customary law as “customs or body of customs to which the law of Sarawak gives effect”. CHINESE AND INDIAN CUSTOMS Malay adat is holding its ground in family and personal law matters. 16. stock and barrel to customs in Malay society. Liu Kui Tze v Lee Shak Lian (f) [1953] SCR 85.11 Native law in family and personal matters is enforced by a hierarchy of Native Courts. 15. Madeli bin Salleh [2008] 2 MLJ 677. For example. Racha ak Urud Peter Racha Urud v Ravenscourt Sdn Bhd [2014] 3 MLJ 661. Andawan Ansapi v PP [2011]. But non-Muslim customs are in decline and have been replaced by secular Codes in independent Malaya. many Chinese and Indian customs were recognized e. however. 12 Salleh Buang.13 10 Roberts @ Kamarulzaman v Ummi Kalthom [1963] 1 MLJ 163 11 D G of Environment v Kajing Tubek [1997] 3 MLJ 23. Kho Leng Guan v Kho Eng Guan [1936] SCR 60. S M Mahadir bin Datu Tuanku Mohamad v Chee (f) [1941] SCR 96. Nor Anak Nyawai v Borneo Plantation [2001] 2 CLJ 769. 1993. Chan Bee Neo v Ee Siok Choo [1947] SCR 1. Agi Anak Bungkong v Ladang Sawit [2010] 1 LNS 114. reasonableness and justice in the opinion of the court. 13 Wan Arfah Hamzah & Ramy Bulan. An Introduction to the Malaysian Legal System. There are many significant cases of native rights to land being litigated in the courts. native law and custom have constitutional and statutory recognition as law. Dewan Bahasa dan Pustaka. Customary Hindu money-lending contracts by the Chettiar community have been recognized by the courts. T R Hillary Chukan ak Briak v The Enrich Timber Sdn Bhd [ 2015] MLJU 2007.the status of law by judicial recognition if the custom meets the criteria of morality. Serujie & Hanipah v Sanah binti Haji Amin [1953] SCR 40. polygamous Chinese marriages and legitimization of an illegitimate son by a subsequent marriage were recognized in the Matter of Choo Eng Choon. 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 [1982] 1 MLJ 72. pp 115-126. Historically. But the Chinese custom of legitimization of a natural but illegitimate son was rejected in Khoo Hooi Leong v Khoo Chong Yeok [1930] AC 346 on the ground of morality. in favour of and against the natives .12 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). pp. our government must be seen as committed to harmonising its practices and laws with the law of nations. international law is conspicuously left out. 16 Regina v Secretary ex parte Hosenball [1977] 1 WLR 766. This can be done in three ways: First. 101-110. these constitutional conventions are not laws and not enforceable in a court of law. The courts have some discretion. the Prime Minister who advised dissolution stays in office in a caretaker capacity till the new PM and government are inducted into office after the election. 14 Govt of Kelantan v Govt of the Federation of Malaysia & Tunku Abdul Rahman Putra Al-Haj (1963) MLJ 355. pp. the words of the Constitution are “law includes” (and not “law means”). As with all customs. Liversidge v Anderson [1942] AC 206. 17 Tun Datu Haji Mustapha v Tun Datuk Haji Mohamad Adnan Robert [1986] 2 MLJ 420.16 Secondly.14 They are the political morality of the day. 18 But for contrary approach see Beatrice Fernandez v Sistem Penerbangan Malaysia [2004] 4 CLJ 403 . This is what happened in Noor Fadilla Ahmad Saikin [2012] 1 MLJ 832 and Lai Meng v Toh Chew Lian [2012] 8 MLJ 180. Document of Destiny: The Constitution of the Federation of Malaysia. They are rules of political practice that are regarded as binding by those to whom they apply but no legal sanction attaches to their disobedience. During a dissolution of the Dewan Rakyat. CONSTITUTIONAL CONVENTIONS In the area of constitutional law. 2 and 3) 1982 125 DLR 3d 1. a court may use a well-established convention as an aid to interpretation of statutory law. Re Amendment of the Constitution of Canada (Nos 1. by statutory incorporation into a local statute. 15 Shad Saleem Faruqi. the courts can adopt a constitutional presumption that unless Parliament explicitly excludes international law. 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. hundreds of constitutional customs (called conventions) have developed over the years. The definition of law is inclusive. For example. An example is our Human Rights Commission Act which incorporates the Universal Declaration of Human Rights into our law subject to the Constitution. in some circumstances a court may adopt a constitutional convention as part of his judicial reasoning. Fourth.18 Such a presumption is justified because in this age of globalization. there is a daily Question Time in Parliament. Robinson v Ministry of Town & Country Planning [1947] KB.17 18. INTERNATIONAL LAW In the definition of ‘law’ in Article 160(2).17. it is noteworthy that in the definitional clause in Article 160. Second.15 However. This means that norms of international law and practice are not part of our corpus juris unless they are posited into law. not exclusive. thereby elevating the convention to the status of common law. conventions can influence judicial decisions in two ways: first. the norms of all international laws and treaties ratified by the government must be grafted on to every Malaysian statute even if Parliament has not adopted international law into local statutes. 19. For example. 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 [2015] MLJU 213. In reality however. judicial precedents. licence. Schemes and Directives do not have the status of law unless framed under the authority of a parent law. hierarchical set of rules. holistic view of the law requires us to see the law as a coordinate whole rather than as separate. First. become integral parts of the Constitution. loan. legislation.e. scholarship. these administrative directives are issued regularly and are regarded by the civil service as absolutely binding. But in Ooi Ah Phua v Officer Incharge Kedah/Perlis [1975] 1 MLJ 93 the court held that the right can be exercised only after police have completed their investigation. Sources and their hierarchy: A difficult question about the sources of law is whether the 18 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. the Constitution is often read in the light of other sources of law i. . functionally speaking. the situation is exceedingly complex for many reasons. Notifications. passport or permit. Disregard of them can disqualify a citizen from applying for a job. A broad. Second. In actual practice. Instructions. Article 5(3) mandates that every arrestee “shall be allowed to consult and be defended by a legal practitioner of his choice”. the Constitution is what the judges say it is. principles of the syariah and even norms of international practice. The glittering generalities of Article 5(3) have to be read in the light of judicial precedents which. customs. QUASI-LEGISLATION Quasi-legislation by way of Administrative Circulars.