SUBJECT

MALAYSIAN LEGAL SYSTEM 1

(LAW 431)

PROGRAM
BACHELOR OF LEGAL STUDIES
(LW213)

TITLE
ASSIGNMENT
(MALAYSIAN LEGAL SYSTEM)
DECEMBER 2018
QUESTION 1

“To provide for monogamous marriages and the solemnization and registration of such
marriages: to amend and consolidate the late relating to diverse; and to provide for matters
incidental thereto” is applied to non-Muslims in Malaysia after the The Law Reform (Marriage
& Divorce) Act 1976 was enforced on 1st March 1982. This Act is integrating well in the
inference of sections 3,5,6,7,11, 22 (1) (c), 24, 51, 69 (a), 69(d) in the respects of solemnization
of marriage, conversion to Islam, same sex marriage, monogamous marriage as the Act has
include religious practice in the establishments distressed. The section 51 has perplexed on the
universal conversion of a child’s religion that should be resolved. Marriages should be registered
in Malaysia as it only recognizes civil marriages in order to provide apparatus that discusses
legal protection to parties involved while also avoid cases of bigamy as stated, “apply to all
persons in Malaysia, and to all persons domiciled in Malaysia, but are resident outside
Malaysia.”

Before this Law Reform (Marriage and Divorce) was enacted in 1982, their own
customary laws and also civil marriages laws such as Civil Marriage Ordinance 1952, Christian
Marriage Ordinance 1956, Sarawak Chinese Marriage Ordinance 1948 and others governed the
marriages. However, this does not apply according to Act 164, does not apply to the natives in
Sabah & Sarawak. The people can also choose to be married under the acts, which is either
Christian Marriage Ordinance (Sabah), or under the Church and Civil Marriage Ordinance
(Sarawak). It is also said in section 3(4) which says “This act shall not apply to any native Sabah
& Sarawak or any aborigine of West Malaysia whose marriage and divorce is governed by native
customary law or aboriginal custom.”

Marriages for Muslims were governed by the Syariah Law before the Act was enacted. In
a decided case, the plaintiff wanted to claim damages from the defendant on the ground that the
defendant had breached the contract to marry where two of them were muslims. The HC allowed
to claim damages but it was important to note that during that time, Article 121 (1A) of the
Federal Constitution, “One in the States of Malaya, which shall be known as the High Court in
Malaya and shall have its principal registry at such place in the States of Malaya as the Yang di-
Pertuan Agong may determine;” So now, after it was amended, the civil court now has no
jurisdiction on the marriages of Muslims as stated in the Law Reform (Marriage and Divorce) act
1976 which does not apply to Muslims as they are governed by their own syariah law.

The Civil Marriage Ordinance 1952 had directed a large portion of the common
marriages which it could likewise apply to the marriages despite the fact that one gathering was a
Christian. In any case, this Mandate did not have any significant bearing to the marriages where
one of the gatherings was a Muslim because of Muslims were entirely administered by their very
own Islamic Law. The marriages which were solemnized and enrolled under the Law were
legitimate if the recorded necessities were altogether satisfied. Most importantly, the male and
female must not be below 16 and 14 years of age separately. The consent of the parent or
gatekeeper must be accomplished in the event that one of the gatherings to enter the marriage
was a minor except if the minor had married previously. In addition, the gatherings were not
allowed to marry they were observed to be inside the restricted degrees of related or partiality.
The marriages solemnized under this mandate were all entirely to be monogamous and the two
gatherings needed to give their own agree unreservedly to the marriage. The required procedure
and conventions set down in the mandate should like wise be trailed by the gatherings.

Until LRA 1982, there was a decent variety of family laws in Malaysia, the utilization of
which frequently brought about relationship clashes. Individuals proclaiming as Muslim married
via Islamic law while the Hindus, Chinese, and the locals of East Malaysia, could wed by their
own law or traditions, as dictated by the Courts.

All standard or social marriages and different marriages directed by Chinese or Hindu
rituals before 1st March 1982 are legitimate marriages and are substantial according to Section 4
of the LRA. After 1st March 1982, a marriage that isn't solemnized by the arrangements of the
demonstration is considered to be invalid. For instance, X and Y had a sanctuary wedding in
1981, the marriage regardless of whether not enrolled is legitimate. If they are married after the
said date, their marriage is considered not valid.

Section 5,6 and 7 states that t is not legal for a non-Muslim to practice polygamy since
the enactment of LRA 1976. This law is applicable within Malaysia and outside Malaysia too. If
the person marry more than one, it is considered an offence and shall be tried under the Section
494 of the Penal Code. Only a Registrar of Marriages appointed under Act 164 at the National
Registration Department of Malaysia and the Malaysian consulates or an Assistant Registrar of
Marriages in a temple, church or association can solemnize a marriage.

It is important to note below:

REQUIREMENTS FOR MARRIAGE- Section 12

(a) Age

Groom

Aged below 18, are not allowed to marry

Aged between 18 to 21 the parents must consent to the marriage
Aged 21 and above the consent of parent is not required

Bride

Aged below 16, are not allowed to marry

Aged between 16-18, the Chief Minister must consent to the marriage
Aged between 18 to 21 the parents must consent to the marriage
Aged 21 and above the consent of parent is not required

(b) Consent

Both parties must willingly consent to the marriage. It’s an offence to force or threaten someone
to compel him/her to marry against his or her will. {Section 37 LRA}

Who can Consent

(i) father; or
(ii) If the father is dead, the mother; or
(iii) if the child is illegitimate, the mother; or
(iv) if the child is adopted, the adopted father;
(v) if the adopted father is dead, the adopted mother;
(vi) if both parents (whether natural or adopted) are dead, the legal guardian.
 In Rajeswary & Anor v Balakrishnan & Ors, the High Court held that a contract to marry
did not fall within the general principle laid down in Mohori Bibee v Dharmodas Ghose that
contracts with minors are void. Since all of them were Hindus, the ceremony with a contract was
deemed void because of her age. Before the LRA 1976, this contract would be valid if it occurred
before 1st March 1982. The LRA superseded the decision in relation to the minimum age for
marriage. Section 10 of the Act provides that “any marriage purported to be solemnized in
Malaysia shall be void if at the date of the marriage either party is under the age of eighteen
years.”

In conclusion, the LRA plays a significant role in shaping today’s society. As we have
seen in the case of the 14 year old girl marrying a 41 year old man, albeit it is allowed because
she has reached puberty, but in the world now, it is totally unacceptable. If laws such as LRA is
also implemented under the syariah law, such event would not happen anymore. Other than that,
such law has controlled the non-muslims by not allowing them to practice bigamy/polygamy.

QUESTION 2
‘The Nation Charter’ or also known as the Federal Constitution is the written constitution
for Malaysia. Parliament can enact the law for Federal whilst the State Legislative Assembly can
enact the law for the state. However, their ability to enact law is within restrictions which is
under the regulation of the Federal and State Constitutions. Part VI, of Chapter 1 in the FC
shows the dissemination of legislative powers that were established.

Between the 1st of April 1946 and 10th of September 1958, Ordinances were the term
used for the laws that were enacted by the federal legislature and now it is called Acts. As for the
state level, the laws are called Enactments albeit the term Ordinances is still maintained in
Sarawak. Ordinance is also referred to laws declared by the Yang di-Pertuan Agong (YDPA)
during an emergency under the Article 150.
 There are four types of Acts:
1. Principal Act, which is the most common;
2. Amendment Act, which makes changes to a principal Act (in addition, when a principal
Act is heavily amended over the years, the Percetakan Nasional – formerly called the
Government Printer – may print new copies or reprints of the Act);
3. Revised Act, which results from changes (restricted to technical, grammatical and
typographical changes that do not affect the substance of the law) made by the
Commissioner of Law Revision under powers conferred upon him in the Revision of
Laws Act 1968 (Act 1); eg the Civil Law Act 1956 (Act 67) (Revised 1972);
4. Consolidated Act, which brings together in a simple act two or more Acts on a specific
subject-matter which had been passed over a period of time; eg the Interpretation Acts
1948 and 1967 (Act 388) (Consolidated and Revised 1989).

Any amendment takes on fundamental importance and cannot be made easily just like it
is a legally binding contract. The need to change or to make any addition to the original contract
was caused by any circumstances that occurred either if its changes in social, political or
economic, however, within admissible reasons while others are more debatable. Over the next
paragraph is the 3 distinction between constitutional amendments and bill-making.

The three main characteristics that distinguishes between these two legislative processes
are as described below:

Applicable Legislation / Authority

Constitutional Amendments
There are four ways to amend the law which is provided by the Federal Constitution.
Constitutional amendments can be made by referring to the federal law according to Article 159
(1).
There is a legislation process in Parliament that needs to be dealt with in to make any
amendments. The following write-up will discuss the process of such. Article 159 however
establishes special conditions in the modification of the clauses that have been determined.
The following descriptions clarify the rules and special conditions that apply to amend the
regulation.
1st Way: The Present Simple Majority
A simple majority of board members present can approve the Bill to amend the regulation
according to Article 159 (1) & (4) read with Article 62 (3). For a better understanding, the House
of Representatives (12th Parliament) has approximately 222 members (article 46 (1), PP). For
instance, if a quorum of the House of Representatives is 30 members and a speaker of the
Honourable House (Speaker); only 50 members present of the Honorable, not including the
Chairman of the Board as he just present for the session to approve the bill for this constitutional
amendment. Only 26 votes would be required to support the draft bill for the Constitution
Amendment Bill. Quorum systems are applied whereas a number of quorum shall be interpreted
as the minimum number of voting members present to organize a conference. A board or
committee may set the number of a quorum to convene in parliamentary systems. Through
Article 62, PP, the number of quorum stipulated by the relevant council of Parliament of
Malaysia delivers its supremacy. It is understood that if the conference action on the procedure to
be valid for less or do not meet the quorum, it is because the number of members of the House
Representatives that attends is less than the quorum.

2nd Way: A majority of 2 / 3 Two-Two Board Members

This method is frequently used for the amendment as opposed to other methods as this is
the most common way to modify the clause that is contained in the Federal Constitution.
In this way, or in accordance with Article 159(3) of the Federal Constitution, a bill of amendment
shall be supported by at least 2/3 Board members on the Second and Third Reading. At least 148
members of the House of Representative are needed to draft amendment to the constitution
during the Second and Third Readings. The same bill goes to the same process after the approval
of the Parliament. Approximately 47 senators must support this Bill on Second and Third
Reading in the senate. Then, YDPA will present the bills that were passed by both Houses of
Parliament. Subsequently, the new amendments shall be enacted.

3rd Way: A majority of 2 / 3 Two-Two Board Members of Parliament and the assent of the
Council of Rulers
In Article 159 (5), the procedures are the same with 2nd Way. The only difference is that
it needed consent of the Majlis Raja-Raja. Without this consent, the constitutional amendment‘s
bill will not be valid only if Parliament wants to change matters affecting the sovereignty, dignity
and position of the Majlis Raja-Raja or any of the Malay rulers.

4th Way: A majority of 2 / 3 membership of both chambers of Parliament and the assent of
the President of the State of Sabah or Sarawak
Sarawak and Sabah's position in Malaysia is protected by additional requirements
regarding the modification method involving both Borneo states. The President of Sabah or
Sarawak are the only ones that can approve all the amendments written in Article 161E (2) of the
Federal Constitution.

Bill-Making
As stipulated in Article 66 of the Federal Constitution, the Parliament will implement its
command to make laws by the passing of Bills in both Houses (the lower house known as the
Dewan Rakyat or House of Representatives and the upper house known as the Dewan Negara or
Senate).
A Bill could originate in either of the Houses. However, there's one exception with the
"Money Bill". Subject to Article 67 of the Federal Constitution, the "Money Bill" should
originate within the House of Representatives and might solely be introduced by a Minister.
The House, that a Bill is created, shall send it to the opposite House once the Bill has
been passed. When the opposite homes passed the Bill, it should then be conferred to the Yang
Di-Pertuan Agong for his assent under the Article 66(3) of the Federal Constitution.

A Bill goes through many stages of "Reading", in each the Houses of Parliament. At the
primary Reading stage, solely the long title are read. This can be a formality once the Bill is
introduced to the House. The foremost vital stage is during the Second Reading. The contents of
the Bill are debated at length and mentioned by all members of the House. Subsequently the Bill
goes through a Committee Stage. The committees are ordinarily the Committee of the entire
House as opposition special chosen committees. Special technical details of the Bill is also
mentioned at this stage. Finally, the Bill is came back to the House for its Third Reading. once
more this can be a formality.

Under the Article 66(4) of the Federal Constitution, the Yang Di-Pertuan Agong should
assent to the Bill by inflicting the general Public Seal to be attached. This should be done among
30 days from the date a Bill is being conferred to him. The nation Constitution provides that a
Bill can become law at the expiration of the 30 days amount laid out in the likes of manner as if
he had assented to it, ought to the Yang di-Pertuan Agong, for no matter reason, fails to convey
his assent to the Bill among the desired time.

A Bill assented by the Yang di-Pertuan Agong shall become Law. However, no laws shall
acquire force till it's been gazetted or revealed underneath the Article 66(5) of the Federal
Constitution. (C2)