Malaysian Legal System Written Assignment

Course Code: LAWS 1320

Group Members Matric Number

Mohamad Najef Bin Mohd Yusof 2215253

Ahmad Khawarizmy

Aiman Azmi

Arief Rafique Bin Syah Rizal 2213911

● Section: 3

● Lecturer: Dr. Nor Hafizah Bt Mohd Badrol Afandi

● Semester: 1

1
Table of Contents

Scenario 1 2
Parties Involved 3

Legal Issues 3

Whether Tan’s marriage with Mulan under the Christian Marriage Enactment is valid

governed by the Law Reform Act 1976 3

Whether Tan’s marriage with Chung Li is valid under the LRA 1976 5

Islamic Law on Polygamy 7

Sustainable Development Goals (Peace, Justice and Strong Institutions) 7

Scenario 2 8

Parties Involved 8

Legal Issues 8

Whether the Iban community has the right to ownership of the land 9

Whether the Iban community has the right to ownership of the land 10

Whether the Iban community has the right to ownership of the land 11

Maqasid Syariah (Protection of property/al-mal) 13

Sustainable Development Goals (Reduce Inequalities) 14

2
Scenario 1

In 1975, Tan married a Chinese woman by the name of Mulan under the Christian Marriage

Enactment who bore him a daughter, Mulin. After ten years of marriage, they encountered

problems and Tan started seeing another Chinese girl, Chung Li. This secret relationship was

unknown to Mulan. In 2006, Tan’s health deteriorated and he eventually died of a heart attack.

As his wife and legitimate daughter, Mulan and Mulin inherited all of his property. Chung Li

who was left without any financial support decided to take action against Mulan and Mulin

claiming that she and her children are also entitled to shares in Tan’s property. Chung Li’s claim

is founded on cases which decided that polygamous marriage is recognised for the purpose of

succession and legitimation.

Parties Involved

● Plaintiff: Chung Li

● Defendant: Tan

Legal Issues

● Whether Tan’s marriage with Mulan under the Christian Marriage Enactment is valid

● Whether Tan’s marriage with Chung Li under the LRA 1976 is valid

3
Whether Tan’s marriage with Mulan under the Christian Marriage Enactment is valid

governed by the Law Reform Act 1976

With regards to the first issue, firstly, we must define the Law Reform (Marriage and

Divorce) Act 1976. According to the preamble of this Act, The LRA 1976 is an act to provide

for monogamous marriages and the solemnization and registration of such marriages; to

amend and consolidate the law relating to divorce; and to provide for matters incidental

thereto. Hence, this Act merely governs marriage and divorce matters among non-muslims and

muslims in certain provisions on registration of marriages. However, Muslims and the natives are

not bound to the other provisions of the Act. Moreover, the act received Royal Assent on 6

March 1976 then gazetted to the public 5 days after. Furthermore, the Act became effective on 1

March 1982.

On the other hand, according to Section 4(1) of the LRA 1976, the Act cannot affect the

validity of any marriage solemnised under any law, religion, custom or usage prior to the

date of the Act becoming effective. In addition, this provision is the exception to the general

rule in Section 5(3) of the LRA 1976 which states that every person on the appointed date cannot

marry under any laws, customs, religion and usage regardless whether the marriage is done

locally or outside Malaysia.

The case to illustrate the above provisions is the Re Ding Do Ca case. The husband

married multiple wives during his lifetime. The husband however died due to chronic disease.

The issue raised by the court in this case is whether the multiple marriages of the wives to their

late husband were valid. Hence, The Court decided that the marriages were legal, so long that

4
there was evidence the marriages were carried out validly according to Chinese custom

before 1 March 1982.

Applying the Section 4(1) of the LRA 1976 and the Re Ding Do Ca case in this scenario,

Tan’s marriage with Mulan in 1975 under the Christian Management Enactment is valid as their

marriage took place prior to the date which the LRA 1976 became effective which is 1

March 1982. Therefore, Mulain and Mulin are legally entitled to Tan’s property and Mulin is

regarded as a legitimate child of Tan and Mulan.

To conclude, the Law Reform (Marriage and Divorce) Act 1976 has no retrospective act

on previous marriages done prior to its appointed date under any law, customs, religion and

usage.

Whether Tan’s marriage with Chung Li is valid under the LRA 1976

The relevant laws that will be used in our scenario is the S.5(1) of the LRA 1976 which

mentions that every person who on the appointed date is lawfully married under any law,

religion, custom or usage to one or more spouses shall be incapable, during the continuance of

such marriage or marriages, of contracting a valid marriage under any law, religion, custom or

usage with any other person, whether the first mentioned marriage or the purported second

mentioned marriage is contracted within Malaysia or outside Malaysia.

Next, there are two other supporting acts for S.5(1) of the LRA 1976 which is S.6(1) and

S.7(1) of the LRA 1976. In the S.6(1) of the LRA 1976, it mentioned that Every marriage

contracted in contravention of section 5 shall be void and in S.7(1) of the LRA 1976 it mentioned

5
that any person lawfully married under any law, religion, custom or usage who during the

continuance of such marriage purports to contract a marriage under any law, religion, custom or

usage in contravention of section 5 shall be deemed to commit the offence of marrying again

during the life-time of husband or wife, as the case may be, within the meaning of section 494 of

the Penal Code [Act 574].

The punishment of going against these acts is mentioned in the S.494 Penal Code Act

574. The acts made it clear as whoever, having a husband or wife living, married in any case in

which such marriage is void by reason of its taking place during the life of such husband or wife

and whether such marriage has taken place within Malaysia or outside Malaysia, shall be

punished with imprisonment for a term which may extend to seven years, and shall also be

liable to fine.

We will be referring to the decided case of the “6 widows case” which occurred before

the LRA 1976 takes place in Malaysia. A Chinese man died in Penang. Before his death, he had

many wives that he married under Chinese customary law. The widows had a claim for

succession of the deceased property and the legitimacy of the children. There were a few

legal issues that arose from the case about the legitimacy of the childrens, whether widows are

entitled to the property of the deceased under polygamous marriage and whether the court

recognise polygamous marriage for the purpose of inheritance and succession. It was held

by the court that all the widows were entitled to the share under the statute of distribution, the

children of the primary & secondary were legitimate and lastly the court held that the courts

recognize Chinese polygamous marriage for the purpose of succession and legitimation.

6
 Applying the relevant laws to this scenario, Chung Li married Tan in 1985 after the

appointed date of the LRA 1976. This fact is enough to constitute that their marriage is void

as per mentioned in the LRA 1976 one cannot enter into polygamous marriage after the

appointed that of the LRA and after it has taken place. Chung Li also married Tan while Tan is

still marrying Mulan who is his first wife. Being the second wife is not a problem if she had

contracted the marriage before the date of the LRA. The case would be different if Chung Li

married Tan as the first wife after the divorce of Mulan. Having Mulan as the first wife, Tan is

incapable to marry Chung Li under Chinese customary laws when he is lawfully married

to Mulan as the date of marriage was after the LRA 1976 has taken place and it was

forbidden.

To conclude, Tan’s marriage with Chung Li is void under the S.6(1) of the LRA

1976. It was mentioned that all marriages under LRA 1976 by non muslims are allowed to be

monogamous only in the S.5 (1) of the LRA 1976. Therefore, Chung Li and her children with

Tan are not entitled to his property as the marriage itself was void and Chung Li’s children

with Tan are not legitimate. The courts will not recognize that Chinese polygamous marriage for

the purpose of succession and legitimation under LRA 1976. In Malaysia today, polygamy

among Non-Muslims is generally no longer legally accepted after LRA 1976 came into

effect in 1982.

Islamic Law on Polygamy

Islamic Law on polygamy has its own view regarding the issue of polygamy marriage.

Islam does allow polygamy, having more than one wife at the same time, but it does not

encourage it. In fact, Islam is the only religion that limited this ancient and widespread

7
practice. Previous teachings permitted unlimited and unrestricted polygamy. Islam limits the

number of wives allowed to four, and also discourages the practice.

Sustainable Development Goals (Peace, Justice and Strong Institutions)

The sustainable development goals that can be related to this scenario is SDG number 16

which is peace, justice and strong institutions. This can be said so because the LRA promotes

peace in our society as there are clear rules about inheritance of property and marriage among

Malaysians. In fact, the LRA also helps to create a better peace in life as we are more focused

on our family members and also helps to create strong family institutions as the bonding

between family members will increase because the number of our family members is not too

many. If the number of our family members are too many, it can be said that we might not know

them too well and have weak bonding even between family members.

Scenario 2
Mandi and Landak were two friends who lived in the rural areas of Bintulu in Sarawak. They

lived harmoniously with the rest of the Iban community in two longhouses. To their dismay one

day, they found that a timber company had trespassed and damaged their ancestral land. Mandi

and Landak were furious and wished to take action against the perpetrators. However, they were

told that they did not have any cause of action as they did not hold documentary title to the land.

The title to the land was in fact held by Zero Plantation Sdn Bhd which had hired contractors to

clear the land for commercial timber development.

Parties Involved

● Plaintiff: Mandi, Landak & Ors

8
 ● Defendant: Zero Plantation Sdn Bhd

Legal Issues

● Whether the Iban community has the right to ownership of the land

● Whether the Iban community were deprived of proprietary rights protected by the Federal

Constitution

● Whether the Iban community was entitled to be compensated by the Zero Plantation Sdn

Bhd

Whether the Iban community has the right to ownership of the land

Before answering the first legal issue, we first need to examine whether the Iban

community was considered natives or not. If we refer to article 161A(6)(a), a native in Sarawak

refers to a person who is a citizen and either belongs to one of the races specified in Clause

(7) as indigenous to the State or is of mixed blood derived exclusively from those races. Hence,

the Iban community can be referred to as natives in this case. Moving to the first issue, we

choose to refer to Article 13 of the Federal Constitution of Malaysia. Article 13(1) says that ‘No

person shall be deprived of property save in accordance with law.’ while article 13(2) says

‘No law shall provide for the compulsory acquisition or use of property without adequate

compensation.’ This shows that the natives have no right to ownership of the land as they only

have rights to work and live on the land thus cannot be deprived of their property.

Based on the case Sagong bin Tasi & Ors v Kerajaan Negeri Selangor & Ors [2002] 2

MLJ, it was decided that the plaintiffs have the right to live and work on the land and cannot be

9
deprived of property. They were entitled to compensation when the state government took over

the land under the Land Acquisition Act 1960.

Applying the above case in this scenario, the Iban community has no rights to

ownership over their ancestral land. However, they have rights to live and work on the land.

The Iban community was entitled to be compensated after the Zero Plantation had hired

contractors to clear the land for commercial timber development. The amount of the

compensation needs to be decided based on the Land Acquisition Act 1960.

In conclusion, the Iban community was not entitled to own the land but they have rights

to live and work on the land.

Whether the Iban community has the right to ownership of the land

The second legal issue arises is whether the Iban community were deprived of proprietary

rights protected by the Federal Constitution. To answer this question, we need to refer back to the

case of Adong bin Kuwau & Ors v Kerajaan Negeri Johor & Ors [1997] 1 MLJ , in that

case, the plaintiffs from aboriginal group of people claimed that the defendant had alienated their

lands in constructing Sungai Linggiu Dam. The plaintiffs claimed that the lands deprived by the

defendants were their traditional and ancestral land. The plaintiff then takes legal action upon the

defendants. In this case, one of the legal issues arose was whether the property or lands of the

plaintiff were deprived of property rights protected by Article 13 of the Federal

Constitution. In deciding this issue, Mokhtar Sidin JCA stated that when a person is deprived of

any proprietary right under an executive exercise pursuant to the power provided by the statutes,

that person needs to be compensated.

10
 Besides, referring to the decision of Judge Hashim Yeop Sani in the case of S

Kulasingam & Anor v Commissioner of Lands, Federal Territory & Ors [1982] 1 MLJ 204.

The judge gave his opinion of Article 13 of the FC by stating that no one shall be deprived of

his property merely on the orders of the executive but may be deprived of his property only in

accordance with law. By agreeing with his opinion, Judge Mokhtar decided that the plaintiffs

have established their proprietary rights over Linggiu valley and the defendants have deprived

them of their lands. On the other hand, the defendants also failed to show that they had the right

to deprive the plaintiffs’ property. Therefore, according to Article 13(2), the plaintiffs were

entitled to be compensated by the defendants because of unlawful deprivation.

If we apply the same rule in this case, we might find that the Zero Plantation Sdn Bhd

had deprived the ancestral lands of the Iban community. It is on the burden of proof of the Zero

Plantation to prove whether they have rights to deprive that land. However, it was stated in the

same case of Adong bin Kuwau & Ors v Kerajaan Negeri Johor & Ors [1997] 1 MLJ that even

though in general titles denotes a document, the ‘native title’ does not denote any documents but

only a right to acquire the land. It has been proven that the title of the land owned by Zero

Plantation was invalid as the main title of the land was owned by the Iban community even

though they did not have any documentary title to the land. Therefore, the deprivation of the

land by the Zero Plantation is unlawful as according to the article 13(1).

To answer back the second legal issue, yes, the Iban community has been deprived of

proprietary rights protected by the Federal Constitution and that deprivation by the Zero

Plantation Sdn Bhd was unlawful.

11
Whether the Iban community has the right to ownership of the land

After determining that the Zero Plantation had deprived the Iban community’s land, the

next issue that should be answered is whether the Iban community was entitled to be

compensated by the Zero Plantation Sdn Bhd. First and foremost, we must refer again to the case

of Adong bin Kuwau & Ors v Kerajaan Negeri Johor & Ors [1997] 1 MLJ. In this case,

Judge Mokhtar Sidin explained that the Article 13 of the Federal Constitution superseded

statutory and common law as all deprivation of property shall be compensated and any law

made for the compulsory acquisition of property without compensation shall be rendered void. It

was stated that under statutory law, there is no provision for compensation. Because of that, the

National Land Code 1965 should be read along with the article 13(2) of the Federal Constitution.

Besides, in the case of Mabo & others v State of Queensland, the Federal Government of

Australia enacted ‘The Native Title Act’ in order to provide compensation to the aborigines for

lands taken away from them.

Other than that, we also can refer to the case of Sagong bin Tasi & Ors v Kerajaan

Negeri Selangor & Ors. In this case, the plaintiffs were given written notices to vacate the land

they were occupying within 14 days. Failing to vacate will cause enforcement to be taken

towards them. The plaintiffs were not happy with the compensation provided by the defendants.

After approximately a month, the plaintiffs were evicted from their land by police operation with

support from FRU. The fruit trees, the crops on the land, the houses, the Balai Raya and the Balai

Adat of the Temuan community were destroyed and demolished. One of the issues that arose was

about the compensation provided by the defendants to the plaintiffs. In deciding this issue, Judge

Mohd Noor Ahmad held that the compensation paid to the plaintiffs was insufficient and not

12
adequate within the meaning of article 13(2) of the FC. Thus, the plaintiffs must be compensated

under Land Acquisition Act 1960.

Therefore, if we refer to all legal authorities provided, it is clear that there was

deprivation by the Zero Plantation towards the Iban community’s lands. As mentioned before in

article 13(2), all types of deprivation of land must be followed with adequate compensation. The

section 11 of Aboriginal People Act 1954 guaranteed adequate compensation for land, bearing

rubber or fruit trees of aboriginal people that are alienated. Plus, the compensation must be made

for the trees but not for the land.

In conclusion, it is compulsory for the Zero Plantation Sdn Bhd to provide adequate

compensation to the Iban community after they clear the land for commercial timber

development.

Maqasid Syariah (Protection of property/al-mal)

Islam has ordered that no one should transgress and acquire the property of others

without legitimate reasons and without contract. As mentioned in Surah Al-Baqarah verse

188, “and eat up not one another’s property unjustly (in any illegal way e.g. stealing, robbing,

deceiving, etc), nor give bribery to the rulers (judge before presenting your cases) that you may

knowingly eat up a part of the property of others family. This verse explained how it is forbidden

to take another person's property by any means, including stealing, robbing, or even paying

bribes.

13
 Islam considers it unlawful, for instance, for land to be taken without the owner's or the

locals' agreement like in the second issue. There are also warnings in the Quran of severe

punishment on the Day of Judgement against those who acquire the properties of others

unlawfully. Surah Al-Nisa:10 (Verily, those who unjustly eat up the property of orphans, they eat

up only a fire into their bellies, and they will be burnt in the blazing Fire!). Surah Al-Nisa:161

(And their taking of riba (usury) though they were forbidden from taking it and their devouring

of men's substance wrongfully (bribery, etc.). And We have prepared for the disbelievers among

them a painful torment.)

There are some ways of acquiring the property of others illegitimately and among there

are taking usury (riba’), cheating in transactions, breaking the trust related to property, stealing

the property of others and any similar means.Property rights are not the only things that need to

be preserved; also included are wealth, other people's rights, and betraying other people's trust

and faith. Islam are a universal religion where it covers anything under the sun.

Sustainable Development Goals (Reduce Inequalities)

Everyone must be treated equally in the eyes of the law including the natives

Because native people have inhabited the land from generation to generation, their rights should

be protected.The local government should be able to protect their rights without violating the

rights of other individuals.

For example in this second question, the rights of the native which is Mandi and Landak

where their rights had been challenged by a timber company that trespassed their ancestral land

14
with intention to develop the land. This behaviour of Zero Plantation plainly violates their

property rights, and no equality has been upheld because of various racial and ethnic groups. Due

to this, native peoples should be respected and safeguarded, and everything linked to their rights

should be recognised by everyone, especially those in positions of power. This involves their

rights to land and property even though they did not have any contractual of the land

The rights of the natives should be protected because they have the “native rights” on the

land. As we reflect on the case of Mabo & others v. State of Queensland, in which the Australian

Federal Government passed "The Native Title Act" to compensate the aborigines for lands taken

from them. Despite the fact that Malaysia is a multiracial nation with a variety of customs and

cultures, we must treat everyone equally and without discrimination.

15