LAW 245

CHAPTER 3
SOURCES OF LAW

PREPARED BY:
IZYAN FARHANA ZULKARNAIN
FACULTY OF LAW
UITM SAMARAHAN II 1
 SOURCES OF LAW
Sources refers to:
• Historical sources or factors that influence the development of law,
although they are not recognised as law

• Places where the law is found

• Legal source i.e. the legal rules that make up the law

• Sources of Malaysian law refers to the legal rules that make up the law
of the country
IZYAN FARHANA ZULKARNAIN 2
 English Law

Judicial
(1)UNWRITTEN Precedent
LAW

Customary Law

(2) ISLAMIC Federal

SOURCES OF LAW Constitution

MALAYSIAN State
LAW Constitution

(3) WRITTEN Legislation

LAW

Subsidiary
Legislation
IZYAN FARHANA ZULKARNAIN 3
 (1.0) UNWRITTEN LAW
• Unwritten law is simply a portion of the Malaysian law which is not
written i.e. law which is not being enacted by the Parliament or State
Assemblies and which is not found in the written federal and state
constitutions. Unwritten law is found in cases decided by the courts,
local customs and etc.

• Unwritten law comprises of the following:

• English Law
• Customs
• Judicial Precedents

• Another important source of the Malaysian law is the Islamic law or

Shari’ah law IZYAN FARHANA ZULKARNAIN 4
 (1.1) ENGLISH LAW
• Definition:
• Both principles of English common law and equity
• Made by the superior courts of United Kingdom

• Common law: Rules of law that were made by royal judges based on the customary laws
that were commonly applied by the people

• Equity: Principles of law that were made by the Lord Chancellor of the Court of Chancery
• Is to supplement the common law
• Does not contradict the common law but aims to correct its rigidity
• Eg.:
• Equity follows the law
• Equity is equality
• He who seeks equity must come to equity
5
IZYAN FARHANA ZULKARNAIN
• English law comprises of two parts:
(a) Common Law
(b) Equity

• Not all English common law and rules of equity

forms part of Malaysian law as its application is
based on Section 3 and 5 of the Civil Law Act
1956

IZYAN FARHANA ZULKARNAIN 6

 SECTION 3 OF CIVIL LAW ACT 1956

• Section 3(1) of Civil Law Act 1956 provides that in West Malaysia, the
courts shall apply the Common Law of England and the Rules of Equity
as administered in England on 07.04.1956 (cut-off date)

• In Sabah and Sarawak, the courts shall apply the English Common Law
and Rules of Equity, together with the statutes of general application,
as administered or force in England on 01.12.1951 and Sarawak 12.12.1949
respectively

• After the cut-off date, the English law does not become law in
Malaysia. Thus, Section 3 (1) connotes a strict application of the English
law in Malaysia before the cut-off date
IZYAN FARHANA ZULKARNAIN 7
 Issue:
Whether the English statutes of general
application are applicable in West Malaysia?

There are 2 views:

(1)Prof. Bartholomew: Statutes of general application are applicable to

the west Malaysia

(2)Joseph Chia: Statutes of general application are not applicable to

West Malaysia

IZYAN FARHANA ZULKARNAIN 8

 SECTION 3 OF CIVIL LAW ACT 1956

• If we refer to the decided cases, we may find several which

seemed to support the view of Joseph Chia who said that
the English statutes are not applicable in West Malaysia
• In Mokhtar v Arumugam [1959], the Court refused to
apply the relief provided by the English law because of
Section 3 of Civil Law Act 1956
• In Ong Guan Hua v Chong [1963], it was held that the
English Gaming Acts of 1710 and 1835 had no application in
West Malaysia

IZYAN FARHANA ZULKARNAIN 9

 SECTION 3 OF CIVIL LAW ACT 1956

As a conclusion, there are two conditions in applying English law in

Malaysia (Section 3(1) of CLA 1956):

• (i) English law is applied only in the absence of Malaysian statutes on

particular subjects. Local law takes precedence over English law
because English law is only applied to fill in the lacuna in the legal
systems of Malaysia

• (ii) Not all of English law is applied. Only a part of English law that is
suitable to local circumstances of Malaysia will be applied

IZYAN FARHANA ZULKARNAIN 10

SECTION 5 OF THE CIVIL LAW ACT 1956

• Section 5 introduces the English commercial law in

the absence of local statutes

• However, since there are so many local statutes in

commercial subjects, there is no total reliance on the
English laws

• Eg.:Companies Act 1956, Partnership Act 1961,

Contract Act 1950, Insurance Act 1963 and etc.
IZYAN FARHANA ZULKARNAIN 11
• In Kon Then Soong v Tan Eng Nam [1982], it was held that the
English law of partnership was not applicable in Malaysia since there is
a local statutes applicable, that is, the Contracts (Malay States)
Ordinance

• In Leong Brothers Industries v Jerneh Insurance [1991], the Court

held that by virtue of Section 5 of the Civil Law Act 1956, the English
Marine Insurance Act 1906 is applicable

• In Shaik Sahied v Sockalingam Chettiar (1933), it was contended by

the appellant that the provision of the English Moneylenders Act were
not such legislation that should be extended by Section 5 to the colony
(Singapore). The act was meant to regulate activities of money lenders
in England and was not of a general application. As such, they were
unsuited to and could not be applied to the local scene 12
 (1.2) JUDICIAL PRECEDENTS

• One of the sources of Malaysian law

• Law is found in cases decided by the courts
• Only decisions by the Superior Courts are binding as laws and must
be followed
• In deciding a case, a judge has to adopt certain accepted practice of
‘precedent’ or rule “rule of stare decisis”. He has to follow principles
which have been in existence in previously decided cases
• Malaysia has highly developed common law method patterned on
English model, like other Commonwealth countries

IZYAN FARHANA ZULKARNAIN 13

 MEANING OF PRECEDENT

“Precedent” is defined as a judgment of court cited as authority for legal

principle embodied in its decision. A previous decision of a Superior
Court where its legal principle is followed in later case with
similar material facts

IZYAN FARHANA ZULKARNAIN 14

 JUDICIAL PRECEDENT
2 types of Precedent:

• Declaratory Precedent: A judge applies an existing rule of law without

extending it

• Original Precedent: If a judge has to decide on a case without any

precedent, his decision which is made based on justice, equity and good
conscience, will be known as original

IZYAN FARHANA ZULKARNAIN 15

 HOW DOES THE DOCTRINE OF
PRECEDENT WORK?
• It works in two ways:
(1)Vertically: Superior Courts bind all courts subordinate to it
Eg.: Magistrates Court has to follow principles in the
previous decision of High Court when there are similar
facts
(2)Horizontally: A court (usually an Appellate Court) is
bound by:
• Its own previous decisions
• Decisions of its predecessor
• Decisions of courts of co-ordinate jurisdiction
IZYAN FARHANA ZULKARNAIN 16
• In deciding which precedent is binding, the judge
has to look into:
(1)Origin of the precedent. Must from a court of
appropriate rank in the same hierarchy
(2)Contents of the precedent. Must have ratio
decidendi

• Once established, precedent will be binding on

him

IZYAN FARHANA ZULKARNAIN 17

 WHAT IS A RATIO DECIDENDI?
Ratio Decidendi:
• A legal reasoning or ground for the judicial decision which is
binding on later courts under the system of judicial precedent
• Principle of law upon which decision is based
• Binding on future cases

• Ratio decidendi is found by taking into account the material facts of the
case and decision made based on the material facts

• Eg.: Material facts of case. Refer to the case of Rylands v Fletcher

[1868]

IZYAN FARHANA ZULKARNAIN 18

 RYLANDS V FLETCHER [1868]
➢ Defendant employed a Contractor to make a reservoir. Due to the Contractor’s
negligence, the water escaped and flooded the Plaintiff’s land. Plaintiff sued the
Defendant. Defendant was held liable

➢ Facts of case are:

1. Defendant had reservoir built on his land
2. Contractor who built reservoir was negligent
3. Defendant himself was not negligent
4. Water escaped and caused damages to Plaintiff's land

• Judges gave decision based on 1st and 4th fact only → Material facts

• 2nd and 3rd fact → Immaterial facts

IZYAN FARHANA ZULKARNAIN 19
 EXAMPLES OF CASES ALREADY DECIDED
TO CLARIFY WHAT IS RATIO DECIDENDI
1. Donoghue v Stevenson [1932]
•A man bought a bottle of ginger beer. After drinking it, he suffered
diarrhea as a result of decomposed snail in the bottle. He sued the
manufacturer for negligence and succeeded in his action
2. Grant v Australian Knitting Mills [1936]
• A person bought clothes from a shop. After wearing them, he suffered
dermatitis and other related skin problem due to the presence of certain
chemicals in the clothes. He sued the clothes manufacturer and he
succeeded
3. Hedley Byrne v Heller [1964]
• Advice was given by a bank, causing financial loss to the person who
received the advice. He sued the bank and succeeded
IZYAN FARHANA ZULKARNAIN 20
 RATIO DECIDENDI ESTABLISHED
IN DONOGHUE’S CASE:
• “A manufacturer of products owes a duty to consumer to take
reasonable care in the manufacture of products. If the consumers is
injured as a result of negligent act of manufacturer, thus manufacturer
is liable”
• Courts applied this principle to Grant’s case and Byrne’s case
• Thus, Donoghue’s case was a precedent for the later cases. It binds later
cases through its principle or ratio decidendi, if the later cases have
similar material facts
• Ratio decidendi in Donoghue’s case was applied to the cases of
negligent manufacturer either related to drinks, clothes or advises
IZYAN FARHANA ZULKARNAIN 21
 RES JUDICATA

• Res judicata is an actual decision of the case. Court’s actual

determination of disputes between parties involved. Decision
“inter parties”
• Eg.: Court gave a judgment for the Plaintiff. Decision by the Court
has settled the dispute, thus cannot be re-opened or re-argued in
later legal proceeding
• It is not binding and no legal effect on future cases
IZYAN FARHANA ZULKARNAIN
22
 OBITER DICTUM

• Obiter dictum is a mere saying of the judge. It is a mere opinion of a judge on

the question of law not directly relevant to the case before him. It maybe a rule
of law stated through analogy or illustration, or a mere suggested rule where a
decision is not based on it. It does not form a basis of judgment. Not binding
and no legal effect on future cases
• Commissioner of Religious Affairs Terengganu v Tengku Mariam [1970]
• In this case, the Federal Court judges said that: “If they were free to decide
the matter (wakaf matter) (which is not within their jurisdiction but
within the jurisdiction of the Mufti), they would have decided that the
wakaf created was bad or not valid”
• Statement by these judges was a mere opinion and thus was treated as an
obiter dicta
IZYAN FARHANA ZULKARNAIN 23
 APPLICATION OF JUDICIAL
PRECEDENT IN MALAYSIA
• Decisions of the superior courts are precedents for the lower courts

• Types of precedents:
(1) Binding precedents: Follow the prior or past decisions of a court of
the same level or higher court
(2) Persuasive precedents: Local superior courts borrowed from other
Commonwealth countries which have similar laws with Malaysia

IZYAN FARHANA ZULKARNAIN 24

 3 GENERATIONS OF HIERARCHY OF
SUPERIOR COURT

1. BEFORE 1985
PRIVY COUNCIL

FEDERAL COURT

HIGH COURT OF MALAYA HIGH COURT OF BORNEO

2. BETWEEN 1985-1994
SUPREME COURT

HIGH COURT OF MALAYA HIGH HIGH COURT OF BORNEO

IZYAN FARHANA ZULKARNAIN 25
3. 24TH JUNE 1994 UNTIL TODAY
FEDERAL COURT

COURT OF APPEAL

HIGH COURT OF MALAYA HIGH COURT IN SABAH & SARAWAK

SESSIONS COURT SESSIONS COURT

MAGISTRATES COURT MAGISTRATES COURT

PENGHULU’S COURT

*THE HIERARCHY OF COURTS IN MALAYSIA (1994-TODAY)

IZYAN FARHANA ZULKARNAIN 26

 JUDICIAL PRECEDENT
FEDERAL COURT Decisions of Federal Court binds all lower
courts

COURT OF APPEAL COA is bound by the decision of Federal

(COA) Court
COA’s decision is binding on all lower courts
COA is also bound by its own decision

HIGH COURT (HC) HC decision is binding on all subordinate

courts
SUBORDINATE Subordinate Court is bound by the decisions
COURTS (SC) of the superior courts
MUHAMMAD FIKRI BIN
27 11/9/2020
OTHMAN-FUU
 JUDICIAL PRECEDENT IN FEDERAL COURT

• Established on 16th September 1963 under the Malaysia Act 1963

• Whether the Federal Court binds all lower courts?

✓ Binds all lower courts in our hierarchy
✓ In Harris v Bruno [1996], the Court of Appeal was bound to follow the
law stated by Federal Court in the earlier Case of Ramachandran, even
it suffers from any infirmity. It was the decision of apex court and
constitutes binding precedent

IZYAN FARHANA ZULKARNAIN 28

• Whether the Federal Court is bound by its own previous
decisions?
✓Not bound by own decisions
✓In Dalip Bhagwan v PP [1998], the Federal Court never refused to
depart from its own decision when appeared right to do so. But, it should
be exercised sparingly. Power to depart is indicated when its previous
decision was wrong, uncertain, unjust, outmoded or obsolete in modern
contexts. If this occurs, its new decision represents the present law. Later,
the decision prevails
✓A practice statement issued by the House of Lord in 1966 is not binding
on the Federal Court, it had in practice, been followed by the Federal
Court. A principle is that the power to depart should be exercised
sparingly

IZYAN FARHANA ZULKARNAIN 29

✓In Koperasi Rakyat v Harta Empat [2000], Gopal Sri Ram JCA
held that as a matter of policy, the Federal Court cannot reverse its
recent decision. It must maintain the certainty in law for the sake of
society. But, the Federal Court may still depart from its earlier
decision:
(1) Where it clearly appears that the earlier decision was contrary to a
statutory provision that was overlooked by it or;
(2) Where a serious error occurred in a decision causing distortion of
law and need to be corrected as soon as possible

IZYAN FARHANA ZULKARNAIN 30

• Whether the Federal Court is bound by its predecessors?

No definite test to determine predecessors courts of federal court. But,

based on a manner in which the Parliament created each successive apex
court and judicial pronouncements, it is identified that immediate
predecessor of Federal Court was Supreme Court (1985-1994) and former
Federal Court (1963-1985)

Their decisions are binding and continued to be binding on Federal Court

until overruled by the present Federal Court

In Anchorage Mall v Irama [2001], the High Court held a decision of
Supreme Court in Alor Janggus’s Case which deserves utmost respect
and should be followed as faithfully as possible. Cannot disregard it until
reversed by the Federal Court. Thus, the decision of Supreme Court binds

However, in Paari v Abd Majid [2000], the apex courts should be free to
depart from precedents, whether their own or their predecessors.
Otherwise, the law will remain static or obsolete 31
 JUDICIAL PRECEDENT IN COURT OF APPEAL

• Whether the Court of Appeal is bound by the decisions of the

Court above it i.e the Federal Court?
✓ Bound by the decisions of the Federal Court
• Whether the Court of Appeal is bound by its own decisions?
✓ In Kumpulan Perangsang Selangor v Zaid bin Haji Mohd Noh
[1997], Gopal Sri Ram J.C.A. Said that: “We are bound by our own
decisions, for like reasons, the Court of Appeal is bound by its own
decision”
✓ In Haris Solid State v Bruno Gentil [1996], the Court of Appeal
was found to follow the law stated by the Federal Court in Rama
Chandran’s case even it suffers from any infirmity

IZYAN FARHANA ZULKARNAIN 32

• Whether the Court of Appeal is bound by its own precedents?

✓Court of Appeal is bound by its previous decisions

✓In Kesultanan Pahang v Sathask Realty [1997], it was held that the
Court of Appeal is bound by its own decision

✓In Kwong Yik Bank v Ansonia [1999], the Court re-affirmed the above
case where the Court of Appeal is bound by its own decisions

IZYAN FARHANA ZULKARNAIN 33

JUDICIAL PRECEDENT IN HIGH COURT

• Article 121 (1) of the Federal Constitution: 2 High Courts of co-ordinate

jurisdiction
• Whether the High Courts are bound by the higher courts?
✓High court is bound by the Federal Court and the Court of Appeal
decisions
✓In Periasamy v PP [1996], the High Court judges are bound by all
judgments of the Federal Court though they did not agree with them
✓In Ravintharan v Kuppusamy [2005], the decisions of Court of Appeal
prevails over all decisions of the High Court due to the doctrine of
judicial precedent
✓In Marimuthu v Abdullah [2007], the decisions of Court of Appeal are
binding upon the High Court

IZYAN FARHANA ZULKARNAIN 34

• Whether the High Court binds the lower courts?
✓Decisions of the High Court in Malaya binds on all subordinate courts of
West Malaysia, while the decisions of the High Court in Sabah and
Sarawak binds on all subordinate courts of East Malaysia

• Whether the High Court is bound by the decision of another

High Court of co-ordinate jurisdiction?
✓Not bound
✓In Joginder Singh v PP [1984], the High Court in Malaya not bound by
the High Court in Sabah and Sarawak and vice-versa

IZYAN FARHANA ZULKARNAIN 35

JUDICIAL PRECEDENT IN SUBORDINATE COURTS

• Subordinate courts are bound by the decision of all superior courts

• Decisions of the subordinate courts are not binding on any court because of their
lack of capacity to establish a binding precedent

• Eg.: Decision of the Session Court is not binding on the Magistrates Court

IZYAN FARHANA ZULKARNAIN 36

ADVANTAGES OF JUDICIAL PRECEDENT

• Degree of certainty predictability maintained. Reference to precedent may

assist in forecasting what decision will be and plan accordingly

• It also leads to an orderly development of the law. Only the judges can
overrule it’s previous decisions and the hierarchy of the courts ensures that
lower courts follow the higher courts

• Uniformity in law. Similar cases treated alike. It is for the interests of justice
and fairness to public

• Time saving. It saves the court’s time as for most situations there is already
an existing solution

IZYAN FARHANA ZULKARNAIN 37

 DISADVANTAGES OF JUDICIAL PRECEDENT

• So many cases which make it hard for the judges to find relevant cases and
the reasoning may not be clear
• Rigidity: Judicial precedent system is too rigid and does not allow the law to
develop enough
• Injustice: A strict rules of judicial precedent can create injustice in individual
cases
• Slow development: It is highlighted that the law is slow to develop under the
system of judicial precedent. It cannot be changed until a case on a
particular point of law comes before one of the higher appellate courts
• Confusion: Hundreds of cases are reported each year, making it hard to find
the relevant precedent which should be followed
• Complexity: Law is too complex with thousands of fine distinctions

IZYAN FARHANA ZULKARNAIN 38

 (1.3) CUSTOMARY LAW

• Definition of Customary Law:

• Article 160 of the Federal Constitution: It includes “… any custom and
usage having the force of law”

• Types of Customary Law

(1) Malay Customary Law in:
➢West Malaysia
➢East Malaysia
(2) Native Customary Law in:
➢Sabah
➢Sarawak
(3) Hindu and Chinese Customary Law

IZYAN FARHANA ZULKARNAIN

39
 (a) MALAY CUSTOMARY LAW IN WEST MALAYSIA

• Definition of Malay Customary Law:

➢ Customs and traditions in the Malay community which in the course of
time have obtained the character of laws

• Consists of 3 Elements:
➢ Ancient Customary Law: Adat Perpatih and Adat Temenggung
➢ Hindu Law
➢ Islamic Law

• Malay Customary Law in West Malaysia

➢ Adat Temenggung
➢ Adat Perpatih
40
IZYAN FARHANA ZULKARNAIN
 ADAT TEMENGGUNG
• The terms Adat Temenggung has been loosely interpreted as “the laws of
Minister for war and police”. It is also known as Adat Laut
• Today, Adat Temenggung survives in most Malay states of the Peninsular
Malaysia other than Negeri Melaka and Negeri Sembilan
• Proprietary right over land is created by clearing the land and continuous
occupation of it
• Property inherited by both male and female, but portion of male more than
female
• Property inherited by man based upon the strength or energy needed to work
on the land and the female might inherit the house and its fillings
• With regards to criminal law, it was set up under the principle of retaliation:
Offender shall lose the limb that was used in committing the offence, unless he
is of a higher status in the social order
41
IZYAN FARHANA ZULKARNAIN
✓It is evident that only certain rules regarding inheritance particularly on joint earned
property or harta sepencarian are still governed by the Rule of Adat

✓Harta Sepencarian:
*It is property jointly acquired by both husband and wife during marriage

*A divorced wife is entitled to a share of all property acquired during the marriage

*If she assisted to cultivate the land, she is entitled to half of the property

*If not, she is entitled to one-third of the property

➢In Laton v Rahmah (1927), the Chief Kathi of Selangor gave evidence in the Supreme
Court and stated that where a husband and wife acquired a property and when one of
them dies, such property is divided equally between the survivors and heirs of the
deceased. He admitted that this rule is not provided in the al-Quran

IZYAN FARHANA ZULKARNAIN 42

 ADAT PERPATIH
• It is a democratic matriarchal adat law which was brought to Negeri Sembilan from
Minangkabau by the Minangkabau settlers or immigrants
• It is practiced today, largely in Negeri Sembilan and Naning of Melaka
• Customary land inherited by women only
• Man generally will live on his wife’s land, cultivate the soil and entitle to his
maintenance out of the proceeds
• Owner of the ancestral land is required to endorse “Customary Law” on the title of
ancestral land and such endorsement would restrict the transferability of ancestral
property and to ensure every member of the clan has land
• If the land belongs to one clan but registered in the name of another clan, waris of the
former clan can redeem the land. It is not transferable to a person who is not a member
of the owner’s clan

43
IZYAN FARHANA ZULKARNAIN
• In Munah v Isam [1936], the Court ordered the return of tanah pusaka which had
been transferred outside of the clan. The court held that the ancestral property can
only be inherited by females in equal shares, while sons have no right at all

• In Sapin v Tiamat, the court held that where land is pusaka, the owner must be a
female member of the appropriate clan

IZYAN FARHANA ZULKARNAIN 44

➢ There were 3 kinds of property recognised under Adat Perpatih:
(a) Ancestral property or land (harta pusaka)
• This property was always held by the woman. Upon death of a woman, the
property will be inherited by the female descendents of the deceased
• In land matters, female is vested with customary property comprises of
kampung land, sawah and house
(b) Accompanied property and acquired property (carian bujang)
• Harta Pembawa: Property of husband acquired before marriage
• Harta Dapatan: Property of wife acquired before marriage
• Upon Death: Such property will go to the nearest female descendents of the
deceased
• Upon Divorce: Property will be taken back by its respective owner
(c) Jointly acquired property (carian laki bini)
• Its is known as harta sepencarian: This property was jointly acquired together
by the husband and wife during their marriage
• On Divorce: The property would be divided equally
• Upon Death: The property will be held by the surviving spouse
45
IZYAN FARHANA ZULKARNAIN
 MALAY CUSTOMARY LAW IN EAST MALAYSIA

Sabah:
• It is a mixture of Islamic law and Malay adat

• In Matusin Bin Simbi v Kawang Binti Abdullah (1953), since adoption of the
children was made according to Bajau laws, they were considered as legitimate
children for all purposes and were entitled to share in the inheritance and none
goes to the deceased’s sister

• In Serujie Bin Zin & Hanipah Bin Zin v Sanah Binti Haji Amin [1953], the
Court recognised the Malay customary law of harta sepencarian where upon
divorce, the husband and wife entitled to a share in the jointly acquired
property
46
IZYAN FARHANA ZULKARNAIN
Sarawak:

• Malay adat were codified by the Rajahs under Undang-undang Mahkamah

Melayu Sarawak (1915) and the Muslim Wills Ordinance 1896 (Cap 96) (Revised
Laws of 1958)

• In Sheripah Unci and Sheripah Ta’siah v Mas Poeti and Anor (1949), a child
adopted under adat was recognised as the legitimate child of the couple,
though contrary to Islamic law

• In S. M. Mahadar Bin Datu Tuanku Mohamed v Chee (1941), the Court

upheld that according to the Custom, an oath of a pregnant woman that a
particular man was the father, was acceptable although contrary to English law

IZYAN FARHANA ZULKARNAIN 47

 (b) HINDU AND CHINESE CUSTOMARY LAW

• Indians and Chinese who arrived as traders of settlers brought along with
them their customary laws
• British administrators had to deal with customary law related to inheritance
• In Regina v William (1856), the court held that:
“If a Muhammedan or Hindu or Chinese marriage celebrated here according
to the religious ceremonies of the parties be valid, it is not because the
Charters make it so, but because the Law of England recognises it”
• Chinese polygamous marriage was recognised in Choo Ang Chee v Neo
Chan Neo (6 Widows)(1911)
• However, later it was decided that succession to estates was not governed by
Chinese customary law but under English law
• Today, the Law Reform (Marriage and Divorce) Act 1976 governs the marriage
of non-muslims
IZYAN FARHANA ZULKARNAIN 48
 (c) NATIVE CUSTOMARY LAWS OF SABAH

Sources of Native Customary Law

• It can be found in the Codes compiled by G.C. Woolley, who was in North
Borneo Civil Service

• They were published and reprinted in 1953 and 1962 as the Native Affairs
Bulletin No. 1-7

• Eg.: Native Affairs Bulletin No. 1, Adat Timogun, Native Affairs Bulletin No.
2, Adat Tuaran and etc.

• In these Bulletins, “adat” are defined as a set of prescriptions, breach of

which involves penalties mostly in monetary terms. Subjects covered are
namely inheritance, marriages, divorce and compensation
IZYAN FARHANA ZULKARNAIN 49
Native customary law of Sabah are also found in few legislations such as:

(a) Land Ordinance 1930, Sabah

• Customary rights to land are based on land possessed by customary tenure, grazing land,
burial grounds and etc.
• Case: Naung Felix Sitom v P.P (1999) where Richard Malanjun J held: “A person having
customary tenure should be accorded the same status as one in possession of a title deed”

(b) Native Rice Cultivation Ordinance

• Classified land as a rice land, and ensure that the owner grow rice at least once a year
• Failure to do so will result in the owner being subject to fines

(c) Natives Estates (Administartion of Native and Small Estates) Ordinance

• It covers the distribution of an estate of deceased natives irrespective of its values

• If there is no will, the property is distributed according to interesting rules under the
Interstate Succession (Ordinance of 1960) (No. 1 of 1960)
50
 NATIVE CUSTOMARY LAWS OF SARAWAK

Sources of Natives Customary Law

• Native customary law has been recognised since Rajah James Brooke’s time
• 1st Codification: Undang-Undang Lapan of 1843
• 1955: Native Customary Ordinance [Cap. 51] was passed
• There were two compilations of Adat by A.J.N Richards, namely Dayak (Iban)
Adat Law 1963 and Dayak (Bidayuh) Adat Law 1964. These are now replaced
by the Adat Iban 1993 and the Adat Bidayuh 1994
• With the codification of customary laws, there is now certainty on various
aspects of native customary law
• Customary laws are subject to the concept of binding precedents

51
IZYAN FARHANA ZULKARNAIN
• In 1977, the Council for Customs and Traditions (Majlis Adat Istiadat
Sarawak) was established
• It is vested with responsibility to amend any customary laws and its decision
needs approval of the Majlis Mesyuarat Kerajaan Negeri (State Supreme
Council)
• If after consultations with the Headmen and Chiefs of the community
concerned, the custom is no longer to be practiced or is obsolete, the Code
may amended
• Once amended, the Code shall be conclusive as to the customs of the native
race of which its compilation and correctness cannot be questioned in any
court whatsoever
• If the customs is inconsistent with any written law, the latter shall prevail

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Native Customary Land Tenure
• Land Code 1958 (Cap 81) (Revised Laws of Sarawak 1958) contains provisions
that recognized the native customary rights to land. Land are held by natives:
✓Mixed zone land
✓Native area land
✓Interior area land
• Section 5 (2): “Natives customary rights” may be created by:
✓Felling of virgin jungle and occupation of the cleared land
✓Planting of land with fruit trees
✓Occupation or cultivation of land
✓Use of land for burial grounds

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• Section 6 of Land Code 1958: “the Minister may declare any area of
State land to be a native communal reserve for the use of any
community, to regulate by customary law of that community”

Case: Keteng Bin Hj Li v Tua Lampong Suhaili (1951) SCR 9, Sigby, J.:

✓ “In Sarawak, a person can be said to own land only if there is land
office title subsisting in respect of that land. If there is no such title,
the land is crown land; the occupier is at best a mere licensee and he
has no legal interest which he can either charge or transfer”

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• Customary rights may only be created or acquired and may be lost
through non-use or abandonment

• In Nyalongak Bunyan v The Suprintendent of Lands and Survey,

2nd Division Simanggang (1967), the Court held that the non-use of
land for a period of 20 years was considered as an abandonment

• Amendments have been made to empower the Minister to extinguish

native customary rights to land. For example, the Land Code
(Amendment) Ordinance 2000. A Land Surveyors Bill 2001 proposed
to make “Community Mapping” by natives on customary land illegal

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 ISLAMIC LAW

• 9th Schedule of the Federal Constitution, with reference to legislative

lists, Islamic law falls under List II: State List

• State legislative assembly can make laws for the state for the federal
territories parliament: Legislative Authority

• Sources of Islamic law:

✓Primary sources: al-Quran and al-sunnah
✓Secondary sources: Ijma’ (consensus), Ijtihad (analogy), Qiyas
(deduction), Istihsan (equity) and almursalah wal Mursaleh (common
or public good)

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 FEDERAL CONSTITUTION

• Article 3 of the Federal Constitution provides that:

✓“Islam is the religion of the federation; but other religions may be
practised in peace and harmony in any part of the federation”

• YDPA will be the head of the religion of Islam for States that does not have
a Ruler, and for Federal Territories of Kuala Lumpur, Putrajaya and Labuan

• Ruler: Head of religion of Islam in his state

• Federal legislature: Has power to make laws on constitution, organization

and procedures of the Syariah courts
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IZYAN FARHANA ZULKARNAIN
 FEDERAL CONSTITUTION

• Article 11 (4) of the Federal Constitution states that:

“State law and in respect of the federal territories of Kuala Lumpur,
Labuan and Putrajaya, federal law may control or restrict the
propagation of any religious doctrine or belief among persons
professing the religion of Islam”

• Article 12 (3) states:

“No person shall be required to receive instruction in or to take part
in any ceremony or act worship of a religion other than his own”

• Article 12 (4) provides:

“The religion of a person under the age of eighteen years shall be
decided by his parent or guardian”
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 ADMINISTRATION OF ISLAMIC LAW

• Administration of Islamic Law:

➢Majlis Agama Islam
➢Mufti
➢Islamic Legal Consultative Committee
➢Prosecution and Religious Enforcement
➢Baitulmal and Mosque
➢Religious Teaching Advisory Committee
➢Pusat Zakat Selangor
➢Registrar of Mualaf
➢Syariah Courts

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 SYARIAH COURTS

Syariah Courts:
• Section 37: Syariah Subordinate Courts, Syariah High Court and Syariah
Appeal Court ~ to administer Islamic law in Selangor

• Chief Syarie Judge, Syariah Appeal Court Judge and Syariah High Court Judge
shall be appointed by the Sultan on advice of the Majlis

• Case: Soon Singh a/l Bikar Singh v Pertubuhan Kebajikan Islam

Malaysia (PERKIM) Kedah & Anor [1999] 1 Mlj 489:
• Filed application in high court of KL and objected by Jabatan Agama Islam
Kedah
• High court: Upheld the objection and dismiss the application
• Federal court: Dismissed the appeal 60
THANK YOU

IZYAN FARHANA ZULKARNAIN 61