Introduction to the Malaysian Legal System and Sources of Law

By Dr. Sharifah Suhanah Syed Ahmad

Dr Sharifah Suhanah Syed Ahmad retired as an Associate Professor of the Faculty of Law, University of Malaya, Kuala Lumpur, Malaysia in October 2013.  She continues to teach part-time at the University.

Published April 2014
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Table of Contents

1.      Introduction: Early Legal Systems

2.      The Malacca Sultanate (1400-1511)

3.      The British Era

3.1.     Introduction

3.2.    Legislation

3.3.     Case Law as a Principal Source of Law

4.      The Modern Era

4.1.      The Federal Constitution

4.2.    Acts of Parliament, State Enactments, Subsidiary Legislation

4.3.    Dispute Settlement

4.3.1.     The Courts System

4.3.2.     The Growth of Alternative Dispute Resolution (ADR)

4.4.     The Application of English Common Law and Rules of Equity—Limitations Under the Civil Law Act, 1956.

4.5.   International Treaties/Conventions

5.      The Position of Islamic Law

6.      Conclusion

1.      Introduction: Early Legal Systems

Prior to colonization by western powers, a form of rudimentary, tribal legal system was said to exist on the Peninsula. [1] Various aboriginal tribes had been in occupation of the Peninsula as well as Borneo long before foreign settlers arrived.  Although their laws were primitive and unwritten, their organizational abilities were adequate and served as a model for later Malay villages or kampongs .  For example, the head of the village or penghulu was an organizational social structure derived from the Negrito tribe. [2] The penghulu of any village or kampong usually had full civil and criminal powers over his flock.

Although the early peoples of the Malay Peninsula were varied, they shared a similar belief system, which enabled the easy absorption of the Hindu religion, which was to follow.  These early societies were characterized by animism and ancestor worship.  Nature and all natural elements were important, as being primarily agriculturalists, they relied heavily on a bonding with nature. [3]

Records regarding the existence of a large Hindu empire in the Malay Archipelago were derived from the Tang Dynasty (AD 618-906).  The empire encompassed lands across the Straits of Malacca and parts of Java, including a place north of Palembang in Sumatra called Melayu.  This was the kingdom of Srivijaya.  Srivijayan society was known to be both highly civilized and cultured and the kingdom itself a centre of learning.  One of the most lasting legacies of this Hindu rule is the system of monarchy.  The concept of kingship is based on the Hindu concept of sakti , which literally translates into the king having powers which are not of this realm.  During the Malacca Sultanate, this concept evolved into the concept of daulat .  The concept of daulat differs from sakti in that the king is not regarded as one having supernatural powers, but the idea of kingship is rooted to those having particular or peculiar characteristics, which separates him from the rest of the ordinary populace.  Hence, this clothed the king, or raja with his right to rule.  The king’s power and rule over his subjects were absolute and it was not possible for any subject to question or go against his wishes or orders.  This concept survived well into and beyond the Malacca Sultanate.

Another lasting legacy of Hindu rule is the adat or customary laws they leave behind.  Prior to the arrival of the British in Malaya, the Malays and the natives of Sabah and Sarawak, followed their own customs and traditions or adat .  There are two main streams of adat – the adat perpateh and the adat temenggong.  Both forms of adat are believed to have originated from Sumatra, especially from the district of Minangkabau.  Early migrants from Minangkabau concentrated themselves in two districts of the Malay Peninsula – Naning in Malacca, and the State of Negeri Sembilan.  The adat temenggong is patrilineal while the adat perpateh is matrilineal.  The system of administration of the adat temenggong is autocratic, while that of the adat perpateh is democratic.  In the administration of civil and criminal law, both forms of adat admit opposing characteristics.  For example, in the adat temenggong criminal punishment is on the basis of an eye for an eye, while in the adat perpateh, the emphasis is not so much upon punishment for the offence but upon remedial measures to correct an injustice. [4]

The British colonial administration was brought into contact with elements of the Malay adat, particularly the adat perpateh , through disputes pertaining to property, in particular the issue of division of property between husband and wife upon divorce.  A substantial amount of case law grew around this issue of harta sepencarian , or jointly acquired property. [5]  Subsequently, the British colonial administration enacted legislation to protect some instances of custom, particularly those pertaining to land.  An example of this is the Customary Tenure Enactment of Negeri Sembilan (Cap 215). [6]  In Malaccam, custom received legislative sanction through the Malacca Land Customary Rights Ordinance. [7]

The arrival of the British in North Borneo likewise transformed native customary law from being an incidence of an inherited oral tradition to a set of clearly defined, written rules operating within an established administrative and judicial framework.  This formalization of native customary law ensures its survival through written codes.  Some examples of this codification include the Sea Dayak (Iban) Fines 1952 and the Orang Ulu Customary Code of Fines 1957.  The customary laws of the Dayaks of the Third, Fourth and Fifth Divisions of Sarawak have been codified in the Tusun Tunggu , a code of customary law, most of it pertaining to land matters. [8]  In Sarawak, the Native Courts Ordinance 1955, which was later replaced by the Native Courts Ordinance 1992, established a system of native courts to hear and try cases involving native customary law.  In Sabah, native courts are established under the Native Courts Enactment, 1992.

2.              The Malacca Sultanate (1400-1511)

The success of Srivijaya as a great trading nation was continued by the new kingdom of Malacca.  Founded by a runaway prince from Palembang, the significance of Malacca to the Malaysian legal system began with the coming of Islam to the Peninsula from about the beginning of the ninth century AD.  By the thirteenth century, trade in Southeast Asia was overtaken by Muslim traders from India.  Malacca was believed to have received Islam in the early fifteenth century.

As a result of the Islamisation of Malacca, and subsequently other states in the Peninsula, Islamic laws were introduced and in the early days, were applied alongside with the adat or customary law.  This period also saw what was possibly the first evidence of the emergence of written law, as the kingdom of Malacca produced two major legal digests, which formed the main source of written law in Malacca – the Hukum Kanun Melaka , and the Undang-Undang Laut Melaka   The Hukum Kanun consists of 44 chapters, which touched upon matters such as the duties and responsibilities of the Ruler, prohibitions amongst members of society and penalties for civil and criminal wrongs and family law.  The Undang-Undang Laut consists of 25 chapters, which covered maritime matters, such as the duties and responsibilities of ships’ crew, laws pertaining to voyages and trade.  The law continued in the above written codes are said to be based on Islamic law of the Shafii School, together with elements of local custom. [9]   Adat , in particular the adat temenggong influenced the laws pertaining to crime and punishment.

The Malacca written codes were responsible for the growth of other written codes in other states of the Peninsula: Pahang Legal Digest 1595, the laws of Kedah 1605, the Laws of Johore 1789, and the 99 Laws of Perak, 1878.

In 1511, Malacca was overrun by the Portuguese, and in 1641, by the Dutch.  While much is known about the system of administration of both the Portuguese and the Dutch, [10] not much is known about the laws which were applied to the local inhabitants of Malacca.  It was recorded that the Dutch East India Company had decided on a standard regulation, which would apply in all its territories in the Indian Archipelago.  Consequently, law books containing a collection of the most-used regulations in Java were sent to Malacca.  These books were supposed to have guided the Court of Justice in Malacca. [11] The question remains, as in the  case of the Portuguese, whether the regulations contained in these books were applied to all inhabitants of Malacca, local as well as foreign, and it was not clear how the Dutch treated the  issue of personal laws should these come into conflict with the laws contained in the books.  The issue is now academic as the arrival of the British firmly entrenched English law as the “law of the land” or lex loci of Malaysia.

3.               The British Era

3.1       Introduction

From the perspective of legal history, an argument could be made that the British colonisation of Malaysia left behind such a lasting legacy of laws and a legal system due to a difference of opinion on the issue of interpretation of the First Charter of Justice granted to Penang in 1807.  In the case of Regina v Willans , [12] the court would not accept Penang as an inhabited territory when it was ceded to the East India Company by the Sultan of Kedah.  This was despite the fact that evidence showed there were settlers on the island (four Malay families were found encamped upon it when it was first occupied by the British). [13]  There was a state of “legal chaos”, where Malays followed Muslim law, and the Chinese and Indian settlers followed their own personal laws.  Due to the legal confusion which existed in Penang, the presumption was that the Charter of 1807 was granted with the aim of providing a remedy, and that was that the law of England be administered in Penang. [14] Two principal sources of law emerged – legislation and case law.

3.2       Legislation

The Straits Settlements comprised of Penang, Singapore and Malacca and was a British colony under direct British administration.  The Charters of Justice (1807, 1826 and 1855) introduced and applied English law and established courts of justice.  The Straits Settlements were treated as part of the British Indian Empire and came under the legal, political and executive sovereignty of the Bengal Presidency. [15] As a result, the laws introduced were based upon similar laws introduced and applied in India, for example, contract law which is based upon the Indian Contracts Act, evidence, criminal law and criminal procedure.

The Straits Settlements ceased to be part of the Indian administration from April 1867 with the passing of the Government of the Straits Settlements Act 1866 (29 & 30 Victoria c 115), whereby the Legislative Council of the Straits Settlements was given legislative authority.  Ordinances began to be promulgated and published with the establishment of the Straits Settlements government gazette on 1 April 1867. [16]

While the Straits Settlements were colonies under direct British rule, the rest of the states in Peninsula Malaysia were ruled by Sultans who were embroiled in various succession disputes in their respective states.  In the tin-rich state of Perak, succession disputes became intertwined with disputes between Chinese secret societies for possession of the rich tin deposits.  British intervention in these disputes consolidated British political power in the Malay states.  Treaties were entered into whereby in return for British protection, it was agreed that the Sultan “receive and provide a suitable residence for a British officer, to be called a Resident, who shall be accredited to his court, and whose advice must be asked and acted upon all questions other than those touching upon Malay religion and custom.” [17]  With the signing of the Treaty of Federation 1895, four states – Perak, Selangor, Negeri Sembilan and Pahang became “Protected States” or more commonly known as the Federated Malay States (FMS).

Administrative coordination was achieved by the Governor of the Straits Settlements who was concurrently designated the High Commissioner of the FMS.  Legislation was enacted by a Federal Council constituted in 1909 with the rulers as members.  This arrangement continued until the amalgamation of all states by the British Military Administration in 1946 to form the Malayan Union. [18]

The difference between the Unfederated Malay States (UMS – Kelantan, Kedah, Perlis, Trengganu and Johore) and the FMS is that these states maintained some autonomy over local issues, but control over foreign affairs and other important aspects of government were in the hands of the British.  These states were likewise administered by the Governor of the Straits Settlements who acted as High Commissioner of these states.

Legislation was enacted by the State Council of each state.  Laws passed by the UMS are recorded in the following sources: [19]

(a)       Enactments of  Johore form 1907-1942, published annually by the Government Printing Office in Johore Bahru;

(b)      Government of Kedah Enactments, published in Alor Star from 1906-1928. Between 1929 and 1938, ten further volumes entitled State of Kedah Enactments were published;

(c)       Enactments of the State of Kelantan, published annually from 1904-1941;

(d)      Enactments of Perlis, published annually by the Government Press, in Jawi and English, from 1909-1942;

(e)       Annual Volumes of Trengganu Enactments, 1904-1914.

Following  the end of the Japanese occupation of Malaya (1942-1945), the British government mooted the idea of a Malayan Union comprising all the Malay states and Penang and Malacca.  However, this was vehemently opposed by the Malays, as a result of which it was disbanded in 1948 in exchange for a federal system.  The Malayan Union government press published the following laws:

(a)                the Malayan Union Government Gazette, published from 1 April 1946-31 January 1948;

(b)               Ordinances and Rules, 1946-1947;

(c)                Malayan Union and Federal Ordinances and State and Settlements Enactments passed during the year 1948.

The concept of federation established a central Federal Government while preserving the integrity of the individual states and their Rulers.  The Federation of Malaya Agreement 1957, which revoked the earlier Agreement of 1948, gave birth to the Federal Constitution and an independent Malaya on 31 August 1957.

Laws that were promulgated at Federal and State levels were published as part of the respective Federal and State Gazettes.  After 1957, Federal Legislation continued to be termed “Ordinances” due to constitutional provision which provided for the Legislative Council established under the Federation of Malaya Agreement 1948 to continue functioning until 1959.  The Council was dissolved in 1959 by proclamation, and thereafter Federal Legislation came to be termed “Acts” with the first Parliament sitting on 11 September 1959.

The Malaysia Act 1963 created the State called Malaysia, which is made up of eleven states of the former Federation of Malaya, Sabah, Sarawak and Singapore.  In 1965, Singapore left Malaysia and became an independent State.

3.3       Case Law as a Principal Source of Law

In addition to legislation introduced by the British colonial government  which was based on English law, English law was liberally applied by English judges.  However, in matters of personal law, such as marriage and divorce and inheritance, judges made decisions based on local customs. [20]  However, in matters of trade and commerce the position was different.  This is because there is a dearth of local custom or established customary law pertaining to such matters which could have formed the basis for the eventual development of “local” commercial law.

Secondly, it could be argued that it was acceptable to apply local customs or customary law to family-related matters because it would not have created much of an impact beyond the personal or family unit itself.  However if, by accepting a particular custom it would create an impact beyond the family unit, especially if it has economic or financial implications, such custom would not be acceptable as it would be contrary to “public policy”. [21]  Where custom was found to be unacceptable, the court would apply principles of English law to displace the custom.  In this way, some customs do “die” to be replaced with a principle of law which was essentially alien to the people and their way of life.

In commercial matters or “mercantile law” generally there is almost a wholesale application of English law.  It began through the work of English judges or an English trained judiciary, [22] and was later formalized through legislation.  The Civil Law Enactment was passed in 1937 for the Federated Malay States, which provided for the reception of English Law.  In 1951, the Enactment was extended to the other Malay States and in 1956, the Civil Law Ordinance was enacted which introduced English law uniformly throughout the Federation of Malaya. [23]

The Sarawak Application of Laws Ordinance 1949 applied the common law of England, rules of equity and English statutes of general application to Sarawak, while in Sabah similar provision existed in the Sabah Application of Laws Ordinance 1951.

However, no part of the law of England relating to the tenure or conveyance or assurance of or succession to any immovable property is applicable in Malaysia. [24]

4.               The Modern Era

Malaysian legislation comprises of the following:

1.                 The Federal Constitution

2.                 Constitutions of each of the 13 States of Malaysia

3.                 Federal Acts of Parliament

4.                 State Enactments

5.                 Subsidiary Legislation.

4.1       The Federal Constitution

Article 4(1) of the Federal Constitution declares the Constitution as the “supreme law of the Federation”, and any law passed after Merdeka Day, which is inconsistent with the Constitution, shall, to the extent of the inconsistency, be void.

What is the position of laws passed  on or before Merdeka Day which are inconsistent with the Federal Constitution?  The answer is found in Article 162(1) which provides that existing laws shall, until repealed by the authority having power to do so under this Constitution, continue in force on and after Merdeka Day with such modifications as may be made therein under this Article and subject to any amendments made by Federal or State law.

Under Article 162(6), any court or tribunal applying the provision of  any existing law which has not been modified on or after Merdeka Day may apply it with such modification as may be necessary to bring it into accord with the provisions of the Constitution. [25]

Malaysia is a federation with a strong central government at its core and 13 state governments.  Power is divided between the federal government and the various state governments in accordance with Part VI of the Federal Constitution, which addresses the issue of relations between the Federation and the States.

With regard to the legislative power of the Federation and the States, Article 74(1) provides that Parliament may make laws with respect to any of the matters enumerated under the Federal List [26] or the Concurrent List of the Ninth Schedule.  Article 74(2) provides that the Legislature of a State may make laws with respect to any of the matters enumerated in the State List or the Concurrent List of the Ninth Schedule. [27] Article 75 provides that if any state law is inconsistent with a federal law, the federal law shall prevail and the state law shall, to the extent of the inconsistency, be void.

4.2       Acts of Parliament, State Enactments and Subsidiary Legislation

Malaysian legislation is published in the Gazette , and the format and mode of publication of the Gazette are stipulated under section 18 of the Interpretation Acts 1948 and 1967 (Act 388).  This section provides that the Federal Gazette shall be published in five parts:

(a)            Acts Supplement, published as and when necessary, which contains all Acts of Parliament and all Ordinances promulgated by the Yang diPertuan Agong.

(b)           Legislative Supplement A, published as and when necessary, which contains all Royal Proclamations, Orders, rules, regulations and by-laws.

(c)            Legislative Supplement B, which contains all subsidiary legislation other than that required to be published in Legislative Supplement A.

(d)           Bills Supplement, containing all Bills.

(e)            Matters required to be published in the Gazette or which the Government deems it necessary to publish for general information.

State laws, termed Enactments (or Ordinance in Sarawak) are published in the State Gazettes.  Since 1969, all Federal Acts are issued under Laws of Malaysia series by virtue of the Revision of Laws Act 1968.  This Act empowers the Commissioner for Law Revision to revise as well as print such laws as the Commissioner deems fit.  All Acts of Parliament are now sequentially numbered, beginning with the Revision of Laws Act 1968 as “Act 1”.

In December 2009, the government established the Malaysian Law Reform Committee.  This Committee is tasked with conducting research into Malaysian laws to examine their relevance as well as their benefit to the community or the public.

4.3       Dispute Settlement

4.3.1    The Courts System

	Federal Court
	Court of Appeal
High Court (Malaya)		High Court (Sabah & Sarawak)
	Sessions Court
	Magistrates’ Courts

Prior to 1985, the Judicial Committee of the Privy Council (JCPC) constituted the highest Court of Appeal. [28]  Appeals to the Privy Council in criminal and constitutional cases were abolished in 1978.  In 1985, all civil appeals to the Privy Council were abolished.

The common law system relies heavily on case law or judicial opinions.  In such a system, it is crucial for the administration of justice that “like cases should be treated alike” otherwise the system becomes a fertile breeding ground for unfairness.  Stare decisis , which means to stand by decisions previously made, serves a useful purpose in this regard, as its application would ensure a measure of certainty in the law and it promotes a systematic and logical development of the common law.  However, a strict adherence to the doctrine could also cripple the development of the common law particularly when faced with new situations which never existed before.  Thus, although the Federal Court had expressed that the principle of stare decisis is a “cornerstone of our system of jurisprudence”, [29] it also recognised that there is a need for the Court to depart from precedence when a previous decision was wrong, uncertain, unjust, outmoded or obsolete under modern conditions. [30]   Similarly, the current Malaysian superior courts do not consider themselves bound by previous decisions of the Privy Council, even though they may be given on appeal from Malaysia. [31]

Just like any other common law jurisdiction, as Malaysian law relies heavily on judicial decisions or case law, a good system of law reporting is essential.  Law reporting in Malaysia began in the latter part of the nineteenth century.  Early law reports record decisions of the Straits Settlements and Federated Malay States judiciary – Straits Settlements Law Reports, 1893-1931; Federated Malay States Law Reports, 1906-1941; Kyshe’s Reports, 1808-1890.  Currently, three major law-publishing houses vie with each other in the publication of law reports.  The Malayan law Journal (MLJ) is published by Lexis-Nexis Malaysia, the Current Law Journal (CLJ) is published by CLJ, and Sweet and Maxwell  publishes the All Malaysia Reports (AMR).  CLJ also publish the Industrial Law Report (ILR) and recently Lexis-Nexis Malaysia began publishing the Industrial Law Journal (ILJ). [32]  A new player has recently emerged on the market, that is, the Legal Review.  They publish the Malaysian Law Review (appellate courts); the Malaysian Law Review (High Court cases), and the Malaysian Employment Law Review for all labour and employment cases.

4.3.2    The Growth of Alternative Dispute Resolution (ADR)

In addition to the traditional courts system, alternative dispute resolution has emerged as a significant method of dispute settlement  in Malaysia in recent years.  Increased litigation, leading to severe backlog of cases in the traditional courts system has resulted in the need to find alternatives to access to justice and dispute settlement in Malaysia which satisfies citizen’s needs for a system which is  speedy, more efficient and cheaper.

Alternative dispute resolution (ADR) services are provided by the following organisations – the Malaysian Mediation Center (MMC), the Financial Mediation Bureau (FMB), the Kuala Lumpur Regional Arbitration Centre (KLRCA), The Industrial Courts, The Subordinate Courts and High Court, and the Legal Aid Department.

The MMC was established under the auspices of the Bar Council Malaysia in 1999.  At present, there are 271 accredited mediators enlisted on the panel who provide mediation services and mediation training. [33]  The mediators on the panel consist of lawyers and other professionals.

The FMB was established as a result of a merger in 2005 between the Bankers Mediation Bureau and the Insurance Mediation Bureau.  The FMB settles disputes between consumers and financial service providers which are its members, and covers disputes pertaining to loans, bank accounts, credit and charge cards, electronic banking and others. [34]  The jurisdiction of the FMB is limited to cases where the sum involved is RM100,000, except in cases of fraud, where the limit is RM25,000.

The KLRCA was established under the auspices of the Asian African Legal Consultative Organisation (AALCO).  It offers three types of services – arbitration, conciliation/mediation and adjudication.  Arbitration in Malaysia is governed by the Arbitration Act 2005 (Amended 2011), which is based on the United Nations  Commission on International Trade Law (UNCITRAL) Model Law on International Commercial Arbitration.  Malaysia is signatory to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958.  Conciliation/mediation is governed by the KLRCA Conciliation and Mediation Rules 2011.  Adjudication by the KLRCA applies mainly to construction contracts covered by the Construction Industry Payment and Adjudication Act 2012 (CIPAA).  The principal objective of the Act is to address cash flow problems in the construction industry, and it applies to all construction contracts carried out partly or wholly in Malaysia.  CIPAA covers the following industries – building, oil and gas, petrochemical, telecommunication, utilities, infrastructure, supply and consultancy contracts. [35]

Conciliation has always been a feature of settlement of labour disputes in Malaysia.  The Industrial Relations Act 1967 provides for the settlement of two types of disputes by the Industrial Court –

(a)   individual disputes, mainly dismissal cases, and

(b)   collective disputes, involving trade unions.

Both types of disputes must be brought through the process of conciliation/mediation by the Director General of Industrial Relations before final settlement through arbitration by the Industrial Court. [36]

Overburdened by a backlog of cases and other problems, the Industrial Court implemented new rules which emphasised the use of ADR in labour disputes.  Early evaluation of cases was implemented in 2010 and voluntary mediation since August 2004 for matters pertaining to dismissal.

For the subordinate courts and High Court, ADR was introduced via Practice Direction No 5 of 2010.  This Practice Direction provides with effect from 13 August 2010, all judges of the High Court and its Deputy Registrars, and all judges of the Sessions Court and Magistrates and Registrars may, at the pre-trial case management stage, give directions that parties facilitate the settlement of the matter by way of mediation.  ADR is encouraged for personal injury and road accident cases, defamation, matrimonial, contractual, commercial and intellectual property disputes.

4.4       The application of English common law and rules of equity – limitations under the Civil Law Act, 1956

The direction under the Civil Law Act 1956 to apply the common law of England and rules of equity is limited, in West Malaysia, by the cut-off date of 7 April 1956. [37] Strict compliance with this provision would mean that developments in the common law after 7 April 1956 cannot be received by Malaysian courts, and the only avenue would be for Parliament to enact laws which would incorporate latest developments, thereby keeping Malaysian law abreast of the changes. Malaysian judges have, on many occasions, ignored this injunction and have received developments made by judges of the common law (particularly English judges) beyond 1956.  For example, in Saad Marwi v Chan Hwan Hua & Anor , [38] the Malaysian Court of Appeal decided that it was time for Malaysia to recognise the broader doctrine of inequality of bargaining power which was developed by English courts after 1956 and applied in other common law jurisdictions such as Australia, New Zealand, Canada and the United States. However, in other cases, especially where policy considerations matter, the injunctive cut-off date of 7 April 1956 has been used by Malaysian courts to deny the importation of developments in the common law.  For example, in Majlis Perbandaran Ampang Jaya v Steven Phoa Cheng Loon & Ors , [39] the Malaysian Federal Court chose to follow old common law authorities which limited the claim for pure economic loss in cases of negligence, in particular severely limiting such claims against a local authority.  In this famous “Highland Towers” case, which saw hundreds of lives lost due to the collapse of a condominium block, the Federal Court came to the defence of local councils:

With limited resources and manpower, local councils would have to have their priorities.  In my view, the provision of basic necessities for the general public has priority over compensation for pure economic loss of some individuals who are clearly better off than the majority of the residents in the local council area. [40]

The reference in the Civil Law Act to “common law” would imply that it is limited to “judge-made” law, and not to statutory law.  What happens if the “common law” has been modified by statute?  In Permodalan Plantations Sdn Bhd v Rachuta Sdn Bhd , [41] the Federal Court noted that – “equitable set-off is included in the expression ‘rules of equity’ which the court is required to apply under the section.  But the legal set-off which is based on statute is in no way included in the expression ‘the common law of England’ which we are required to apply.”

Again, this has  posed problems for Malaysian courts, particularly where there was an obvious lacuna, that is, where no provision existed at all in Malaysia on the particular issue.  For example, in Chan Ah Moi v  Phang Wai Ann, [42] the court had relied on the British Domestic Violence and Matrimonial Proceedings Act 1976 and the cases decided thereon in England to support granting the wife relief from being molested, harassed, threatened, abused and assaulted by the husband.  Subsequently, in the case of Jayakumari v Suriya Narayanan , [43] it was pointed out that Chan Ah Moi might have been mistakenly decided.

Even where provision has been made by of legislation, problems still arise with respect to the application of the common law and rules of equity.  The question is – can it be said that such legislation is so “complete and comprehensive” that it would oust the application of the common law and rules of equity?  Many cases on land law in Malaysia still apply the rules of equity as it has been argued that the National Land Code is not “complete and comprehensive” and that there is still room for the importation of English rules of equity in certain circumstances.

4.5       International Treaties/Conventions

Malaysian courts have recently adopted a more liberal approach towards the interpretation of local laws, especially where such laws are found to impede a citizen’s constitutional right.  In at least two cases, the courts upheld freedom of speech and in redressed gender discrimination by a novel way of interpretation of the Federal Constitution – linking constitutional guarantees to international conventions, including the Universal Declaration of  Human Rights.

In Muhammad Hilman Idham & Ors v Kerajaan Malaysia & Ors , [44] the High Court made this bold move when it clearly stated: “Freedom of expression is one of the most fundamental rights that individuals enjoy.  It is fundamental to the existence of democracy and the respect of human dignity.  This basic right is recognised in numerous human rights documents such as Article 19 of the Universal Declaration of Human Rights and Article 19 of the International Covenant on Civil and Political Rights.”

In Nasid Elias & Ors v TWP Sdn Bhd , [45] the Industrial Court applied the above principle to the interpretation of Article 10 of the Federal Constitution regarding freedom of speech, and held that employees in the private sector enjoyed the protection of Article 10 as a fundamental basis of their human right to free speech. [46]

In Noorfadilla Ahmad Saikin v Chayed Basirun & Ors , [47] the High Court applied Articles 1 and 11 of the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW) in its interpretation of Article 8(2) of the Federal Constitution regarding whether there was discrimination on the basis of gender (an employer refusing to employ a pregnant worker).  The court in no uncertain terms stated:”… in interpreting article 8(2) of the Federal Constitution, it is the court’s duty to take into account the government commitment and obligation at international level especially under an international convention, like CEDAW, to which Malaysia is a party…”.  In this case, the High Court held that the employer’s refusal to employ the plaintiff due to her pregnancy amounted to gender discrimination in accordance with CEDAW, and hence amounted to an infringement of Article 8(2) of the Malaysian Federal Constitution.

5.               The Position of Islamic Law

The Federal Constitution declares that the Constitution is the supreme law of the Federation [48] while Islam is the “religion of the Federation.” [49]  The secular basis of the Malaysian legal system was explained by the Supreme Court in the case of Che Omar bin Che Soh v Public Prosecutor , [50] whereby, due to British colonisation, “the religion of Islam became separated into two separate aspects, the public aspect and the private aspect.”  The role of the religion of Islam in the public aspect was diminished, and it became “nothing more than a mere appendix to the ruler’s sovereignty.”  Thus, the role of Islam was limited only to the private aspect, that is, as the personal law of Muslims, which centers upon issues such as marriage, divorce, inheritance, maintenance, and the like.

Under the Federal Constitution, Islamic law is a matter falling within the State List, that is, it is a matter over which the State Legislature has jurisdiction and not Parliament. [51]  The Ninth Schedule of the Constitution identifies in some detail the specific subjects of Islamic law and personal and family law of persons professing the religion of Islam over which the State Legislature has jurisdiction.  This also includes Islamic criminal law [52] and the constitution, organization and procedure of Syariah courts. [53]  The position of Syariah courts is respected by the Constitution and its jurisdiction to decide matters within its “exclusive jurisdiction” [54] protected under Article 12(1A) which provides that the civil courts shall not have jurisdiction in respect of any matter within the jurisdiction of the Syariah courts.

6.               Conclusion

The common law will continue to play a significant role in the modern Malaysian State although many new pieces of legislation have been enacted and many more are in the pipeline.  Many of these new written laws are based upon or adapted from similar legislation in other Commonwealth countries.  The role of judges in interpreting and giving the desired meaning to the written word is still important.

Parallel to the continued development of the common law would be the development of Islamic law.  As Malaysia develops its competitive potential in Islamic finance and the Islamic capital market, Islamic insurance and other areas of Islamic commercial undertakings, this will result in the mainstreaming of Islamic law principles, especially principles of Islamic commercial law.  However, this does not displace the common law, which forms the basis of “mercantile law” generally under the Malaysian legal system.

 

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