Sources of law and legal traditions

3.1 Writtenlaw

Since Malaysia is a federation of 13 states, its written law is made up of both fed­eral and state laws. Malaysianwritten law consists of the following: the Constitu­tions (federal and state); legislation enacted by Federal Parliament (hereinafter Parliament) and the State Legislative Assemblies; and subsidiary or delegated legislation made by persons or bodies authorised by Acts of Parliament, or by Enactments of the State Legislative Assemblies.

Constitutions

The Federal Constitution is the supreme law of the land.²⁵ Each of the 13 states in the Federation has its respective state Constitution.

Legislation

Generally, laws enacted by Parliament are referred to as Acts. However, those made between the period of the Malayan Union in 1946 and 10 September 1959 are called Ordinances. Laws made by State Legislative Assemblies are called Enactments, with the exception of Sarawak, whose laws are called Ordinances.

The federal and state legislatures may enact laws only as authorised by the federal and state Constitutions. First, they may only pass laws on subject matters authorised by the Constitution. The powers are divided between Parliament and the State Legislative Assemblies. Parliament and the states are conferred specific powers to enact laws on matters spelled out under List I²⁶ and List II²⁷ of the Ninth Schedule respectively.

It is important to note that, other than legislation passed by Parliament and the various State Legislative Assemblies existing presently in Malaysia, Malaysia’s

23 Elaborated further in section 4, �Legal institutions’, below.

24 Federal Constitution, s 150(2C).

25 Federal Constitution, art 4(1).

26 FederalConstitution,art74(1).

27 FederalConstitution,art74(2).

28 Federal Constitution, art 74(1)-(2).

29 FederalConstitution,art75.

legislation also emanates from many other sources, as a result of the country's historical background. The effect of art 162 of the Federal Constitution is to ensure that laws passed before independence remain binding until amended or repealed by the relevant authority. Consequently, a variety of statute laws are currently in operation in Malaysia:

• emergency Ordinances made by the King under art 150 of the Federal Constitution

• post-independence Acts of Parliament (since 1957)

• post-independence Enactments of the 11 states of Peninsular Malaysia (since 1957)

• Enactments of Sabah made after Malaysia Day (since 1963)

• Ordinances of Sarawak made after Malaysia Day (since 1963)

• Ordinances of North Borneo and Sarawak made before Malaysia Day (pre- 1963)

• pre-war Ordinances of the former Straits Settlements still in force in Penang and Malacca

• pre-war Enactments of the Federated Malay States still in force in Penang and Malacca

• pre-war Enactments of the Federated Malay States still in force and in some cases extended to other states in Peninsular Malaysia

• pre-war Enactments of the Unfederated Malay States

• Malay Union Ordinances

• Federation of Malaya Ordinances.^[503]

The intention of the Revision of Laws Act 1968 was to provide a revised edition of Malaysian laws.

Revised laws are published in the Gazette.^[505] The system of numbering of laws has been revised. Instead of commencing a new numerical series for the laws enacted each year, a continuing series of numbers, integrated with the numbers allotted to revised laws, is used.^[506] Amending Acts and Acts which are intended to be of short duration are prefixed with the letter A and carry a different series of numbers.

Delegated or subsidiary legislation

Subsidiary legislation is defined in s 3 of the Interpretation Act 1948 and the InterpretationAct 1967 to mean �any proclamation, rule, regulation, order, noti­fication, by-law or other instrument made under any Ordinance, Enactment or other lawful authority and having legislative effect'. It forms the bulk of exist­ing legislation. Such legislation is made by administrative authorities under the powers conferred on them by Parliament. The legislature usually only states the general principles and policies relating to the subject matter in question, leav­ing matters of detail to administrative authorities.

One important advantage of subsidiary legislation is its flexibility. A ministe­rial regulation can be easily rescinded if it becomes impractical or outdated.^[510] This power was originally conferred by s 23 of the Interpretation and General Clauses Ordinance 1948, but is now found in the Eleventh Schedule of the Federal Constitution.^[511] In contrast, in the absence of express authorisation, an Act of Parliament or the State Assembly can only be amended or repealed by another Act of the same legislature.^[512] Such flexibility is welcome in an event of sudden emergency, which requires quick measures on the part of the government to deal with the situation.

However, in order to avoid the abdication of the legislature's proper consti­tutional role in favour of the executive, controls on delegated legislation are necessary. It is important to ensure that the powers are used properly and only for the purpose for which they are conferred. Such safeguards are found in the judiciary and the legislature. The judiciary is able to declare a delegated leg­islation to be invalid on some specific grounds.^[513] This is done by applying the doctrine of ultra vires. Parliament may also supervise the enactment of delegated legislation, usually by a laying procedure or parliamentary scrutiny by a specially appointed parliamentary committee.^[514]

3.2 Non-enacted law

The unwritten law of Malaysia consists of the following: judicial decisions of the superior courts; judicial decisions of superseded superior courts; principles of English law applicable to local circumstances; customary law accepted by the courts; and Islamic law.

Judicial decisions

Judicial decisions of the superior courts (that is, the High Courts, the Court of Appeal and the Federal Court)^[515] - and the superseded superior courts (that is, the Supreme Court, the former Federal Court and Judicial Committee of the Privy Council) make up part of the unwritten law of Malaysia.

Similar to other common law jurisdictions, the doctrine of judicial precedent applies in Malaysia. However, the many organisational changes in the courts over the years make the operation of the doctrine rather confusing. The operation of the doctrine is further complicated by the reluctance of courts to clearly articulate the juristic basis on which a new court continues to be bound by decisions of its predecessor court.^[516]

Malaysian and Singaporean courts have often cited s 88(3) of the Malaysia Act 1963^[517] as authority for the applicability of past decisions. In principle, under the doctrine of precedent as understood in England and Malaysia, a court of appeal, for example, is bound by a decision of a higher court (Federal Court, Supreme Court, House of Lords) in the same hierarchy and by decisions of other courts of appeal of equal status within the same hierarchy. It is therefore very important to know which of the many separate courts of appeal in the history of Malaysia are of equal status within the same hierarchy. Presumably, all decisions of the various courts of appeal mentioned in the saving provision continue to be binding.^[518] Therefore, in order to determine if a particular precedent in the hierarchy is binding, it is important to decide whether a particular court has succeeded to another or is a completely new court.

The relevant court at that time was the Federal Court, which was later recon­stituted as the Supreme Court. The present Federal Court was established in 1994 and is the successor of the defunct Supreme Court.^[519] Although the section makes no reference to the status of the former Federated Malay States Court of Appeal and the former Straits Settlements Court of Appeal, it has been estab­lished by Thompson CJ in China Insurance Co Ltd v Loong Moh Co Ltd^[520] that a Straits Settlements Court of Appeal decision is binding on the Federal Court then sitting in Singapore.

Special mention should be made of the status ofPrivyCouncil's decisions. Final appeals to the Privy Council in London were a part of the colonial system. This practice continued even after Independence, but from 1 January 1978 appeals on criminal and constitutional matters were no longer permitted, and from 1 January 1985 appeals on civil matters were also discontinued. The status now of Privy Council decisions as precedent is best explained by the consideration of two different periods: pre-abolition and post-abolition of appeals to the Privy Council.

Prior to the abolition, Privy Council decisions were binding on Malaysian courts if they were given on appeal from Malaysia; or if they were given on appeal from another Commonwealth country, where the law was in pari materia to that of Malaysia.^[521] The persuasiveness of Privy Council decisions that came down after the abolition is a matter for Malaysian courts to decide. It should be noted, however, that lower courts may still feel bound by decisions of the Privy Council prior to the abolition until the Federal Court has spoken otherwise.^[522]

English common law and rules of equity

The English common law and the rules of equity suitable to local circumstances form part of the laws of Malaysia. English law has been either expressly or impliedly^[523] received in Malaysia.^[524] The express or formal reception of English law is intricately linked to Malaysia’s colonial history.

Before 1 April 1972 several statutes provided the authority for the reception of the law of England into the country. In Peninsular Malaysia, it was the Civil Law Ordinance 1956 (ss 3(1), 5(1) and (2)); in Sabah, the Application of Laws Ordinance 1951; and in Sarawak, the Application of Laws Ordinance 1949.^[525] These enactments have since been incorporated into a comprehensive Civil Law Act 1956 (Revised 1972) which came into force on 1 April 1972. Sections 3 and 5 of the Civil LawAct provide for the express adoption of English law in modern Malaysia. In accordance with the Act, courts:

(a) in West Malaysia apply the common law and rules of equity as administered in England on the 7 April 1956

(b) in Sabah apply the common law and rules of equity, together with statutes of general application, as administered in England on 1 December 1951

(c) in Sarawak apply the common law of England and the rules of equity, together with statutes of general application, as administered in England on 12 December 1949.

Strictly speaking, paragraph (a) of s 3(1) of the Civil LawAct does not empower the courts in Malaysia to apply provisions in English statutes, as opposed to paragraphs (b) and (c) where the word �statutes'is expressly mentioned.^[526] While Professor G W Bartholomew takes the view that English legislation passed before 7 April 1956 is applicable because of sheer necessity, Joseph Chia in his article �The Reception of English Law under ss 3 and 5 of the CivilLawAct 1956 (Revised 1972),'^[527]4 disagrees.^[528] The Federal Court decision Permodalan Plantations Sdn Bhdv Rachuta SdnBhd^[529] appears to have set the matter to rest. The case suggests that s 3(1) should be read narrowly, thus excluding the local application of English statutes in West Malaysia.

It is important to note that the application of English law to Malaysia is subject to two limitations. It is only applied in the absence of local statutes covering the same matter,^[530] and in so far as the circumstances of the states of Malaysia and their respective inhabitants permit, subject to such qualifications as local circumstances make necessary.^[531] As such, English law is often not applicable in areas such as personal customary law, family matters and certain testamentary dispositions, particularly in respect to Muslims.^[532]

Instead, English law is more applicable in areas of commercial matters, and its application in this area is governed by s 5 of the Civil Law Act. There is a difference in the extent to which English commercial law is applicable in the former Malay States on the one hand, and Penang, Malacca, Sabah and Sarawak on the other. In the former group, it is English commercial law as it stood on 7 April 1956 that is applicable. In the latter group, there is a continuing reception of English commercial law in the absence of local legislation. This section is only applicable if a particular question or issue concerning the areas enumerated in it has arisen. Although this section has not been interpreted consistently by the courts,^[533] the issue does not seem to be of much practical importance as much of the mercantile law is now contained in local legislation.^[534]

The Law Revision Committee is responsible for the ongoing task of harmonis­ing the laws of the various states.^[535] Once an English rule is voluntarily accepted by Malaysian courts, it becomes local law and is binding under the doctrine of judicial precedent.

Islamic law

Islamic law applies only to Muslims.^[536] It is estimated that Muslims constitute about 60 per cent of Malaysia's total population. The Syariah is partly divine in origin, being found in the words of God in the holy Quran. Traditionally, the Syariah is considered to be an eternally valid ideal towards which society must aspire. However, Islamic law in Malaysia is not rigid and immutable. Instead, because Islam was grafted onto an indigenous system of customary law, many areas of the law have been modified and successfully adapted to the needs of society.

In Malaysia, by constitutional and statute law, Islamic law is largely limited to personal and family law, although there has been an expansion of the scope of Islamic law, for example, in the area of Islamic criminal law and also some commercial dealings such as Islamic banking and insurance. Under British rule, some areas of the Syariah such as the hudud (divinely ordained punishment for certain offences) were not applied. However, in recent times, there have been unsuccessful calls by more â€?conservative’ Muslims for its introduction. Neverthe­less, the basis of Malaysian law remains secular in nature, with its roots deeply embedded in the English common law.⁶⁴

Islamic law is administered by a separate system of Syariah Courts (Islamic courts) at state levels and in the Federal Territories of Kuala Lumpur and Labuan.⁶⁵ Under the Federal Constitution, Islamic law is a matter over which state legislatures (and not Parliament) have jurisdiction.⁶⁶ Article 121(1A) also provides that the two High Courts of coordinate jurisdiction have no jurisdic­tion in respect of any matter within the jurisdiction of the Syariah Courts. There is therefore almost no interaction between secular and Syariah Courts and no review of Syariah Court decisions by secular ones. The cases which consider the effect of art 121(1A) serve to reinforce the fact that the role played by Islamic law within the system is limited, and is circumscribed by such powers and jurisdiction as may be conferred upon the Syariah Court and its officers under the various state Enactments.⁶⁷

New laws for the administration of Islamic law have been enacted in Malaysia. Suchlawsaretobefoundin the Administration OfIslamicLaw (Federal Territories) Act 1993.⁶⁸ These new laws provide for three principal authorities - the Majlis Agama Islam, the Mufti and the Syariah Courts.⁶⁹ The main function of the Majlis is to â€?promote, stimulate, facilitate and undertake the economic and social development and well-being of the Muslim community in the Federal Territories consistent with Islamic law’.⁷⁰ The primary role of the Mufti is to aid and advise the King in respect of all matters of Islamic law. The Mufti may make and publish in the Gazette a fatwa or opinion on any unsettled or controversial question of or relating to Islamic law.⁷¹ The fatwa will be â€?binding on every Muslim resident in the Federal Territories... and it shall be his religious duty to abide by and

64 Sharifah Suhana Ahmad, op. cit., p. 16.

65 Wu Min Aun, op. cit., p. 97.

66 Federal Constitution, art 74, Ninth Schedule.

67 Sharifah Suhana Ahmad, op. cit., p. 110.

68 HereinafterAct505.

69 Ahmad Ibrahim and Ahilemah Joned, op. cit., p. 49.

70 Act505,s5(4).

71 Act505,s34(1). uphold the fatwa’.^[537] All courts in the Federal Territories shall recognise thefatwa as authoritative of all matters laid down therein.^[538] The function of the Syariah Courts is considered in section 4 of this article.

Customary law

There are several kinds of customary law: Malay customary law, Chinese custom­ary law, Hindu customary law and native customary law in Sabah and Sarawak (which applies only to natives).

Chinese and Hindu customary laws were brought over to Malaysia by immi­grants from China and India respectively. The British were willing to recognise their custom as laws, so long as it was not repugnant to local statutes or their ideas of justice. In present-day Malaysia, such laws remain as laws until amended by Parliament.^[539] Theymainlyapplyin areas of personal law. Chinese customary law covers issues of divorce, charitable trusts and adoption, while Hindu customary law extends to family matters and chettiar money-lending practices. However, both Chinese and Hindu customary laws are very much in decline and of little practical relevance.

Malay customary law is referred to as adat. Adat is not homogeneous; it varies from region to region. There are three streams of adat: (a) adat temenggong, a patriarchal system of customary law in operation in most states, with the excep­tions of Negeri Sembilan; (b) adat perpateh, a matrilineal system of customary law operating in Negeri Sembilan and parts of Malacca; and (c) the native laws and customs of the indigenous peoples of Sabah and Sarawak.^[540] The origins of the different strands of Malay customary law have been discussed in the earlier part of this chapter. Such laws are either enforced by the Syariah Court as part of the Islamic law or as adatperpatih in Negeri Sembilan by the Adat Court.^[541]

In East Malaysia native customary laws serve as the basic law of the states.^[542] The application of these laws is relatively more extensive and systematic than that in West Malaysia. There are three categories of customary laws applied in East Malaysia: Malay customary law; native customary laws applicable to non­Malay natives; and (for Sarawak) Chinese customary law as codified in statutes. The bulk of the native laws in East Malaysia has been collected and codified.^[543] The Native Courts Ordinance of Sabah gives the Native Court jurisdiction to decide cases arising from the breach of native law or custom. There appears to be a perception that customary law is too vague and the procedure of the Native Courts too informal to be compatible with the modern system of jurisprudence now in operation in Malaysia. The importance of customary law and Native Courts continues to decline.

3.3 Stability and accessibility of law

Legislation is more accessible to the general public because a statute is normally required to be published and subsequently sold. Nevertheless, the common law is also readily accessible because of accurate, comprehensive and reliable reporting of cases. Law reporting is usually undertaken by private or semi-private publish­ers. In some cases, decisions are easily accessible online. There is also a wide range of general Malaysian legal information available online.⁷⁹

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