MALAYSIAN LEGAL

PRINCIPLES
TOPIC 1
INTRODUCTION TO LAW & MALAYSIAN LEGAL HISTORY
-Definition of Law
Classification of Law
Functions of Law
Era of Malacca Sultanate
Islamic Influence
Reception of English Law
DEFINITION OF LAW
• Law is understood as being a general rule of conduct
• Literary meaning- law is defined as the body of enacted or
customary rules recognized by a community as binding
• Law refers to set of rules regulating conduct of society
• Law also refers to the standard of morally acceptable
behaviour of people in a society. It tells what is right and what
is wrong
• Law is a word of static which does not have a single definition.
• Sir John Salmond- defines law as the body of principles recognized
and applied by the State in the administration of justice…
• John Austin- describe law as a command set by superior being to an
inferior being and enforced by sanction (punishment). In this sense,
the superior being is the State and the inferior being is the
individuals while sanctions are punishments imposed for
wrongdoing.
• Law consist of the rules recognized and acted on by courts of
justice.
Functions of Law
1. Law in relation to Justice
•The aim of law is to attain justice.
•However, justice is an abstract idea of right and wrong, fairness
and equality. Therefore, the aim of a given law is to encourage
the doing of what is right or just in a articular set of
circumstances.
•However, in its application to a particular set of law to a
situation may not be fair. For example under section 378 of the
Penal Code, if a person is found guilty of theft the punishment is
imprisonment and/or fine. But what happened if the accused is
stealing a bottle of milk to feed her infant child who has not
eaten for 3 days?
•Therefore justice or the concept of fairness is vague and it
depends on the perception of individuals
2. Law as a function to maintain public order and stability.
•What happened if there is no law or rules regulating the people?
•It will cause riot and confusion in a society.
3.Law as a code of morality and what constitutes as accepted
behaviour.
4.Law to regulate social conducts.
Classification of Law
• Law has been classified in a variety of ways. One of the more
commonly adopted ways is to classify law into 3 broad division
namely public law, international law and private law.
• Public Law- is basically the law which governs the relationship
between individuals and the state. Public Law may be further be
divided into two categories = constitutional law and criminal law.
• Constitutional Law lays down the rights of individuals in the State. It
deals with the questions such as supremacy of Parliament and the
rights of citizen.
• Criminal law codifies the various offences committed by individuals
against the State. It aims at punishing criminals and suppressing
crime. Thus criminal law imposes on individuals the obligations not
to commit crimes. A crime is a wrong against the State for which
punishment is inflicted by the State wherein the proceedings being
brought by the Public Prosecutor.
• Private Law- concerned with matters that affect the rights and duties of
individuals amongst themselves.
• Basically, private or civil law is intended to give compensation to persons
injured, to enable property to be recovered from wrongdoers , and to
enforced obligations. Example of Private Law are Contract Law, Tort Law,
Trust, Company Law and etc.
• Contract Law are law regulating contracts. If a person breach a certain
provision of the agreement, the Court can impose and award damages as
compensation for the innocent party.
• Tort is based on an obligation imposed by law. A tort is a civil wrong. It is
the breach of a general duty which is imposed by the law. It is remediable
by a civil action for unliqiudated damages. Any person whose legal right is
infringed may sue that wrongdoer. The essential elements of tort are that
there must be an act or omission done intentionally or negligently and
there must be damages caused.
• A trust is an equitable obligation binding a person who is called a trustee
to deal with property over which he has control for the benefit of persons.
(beneficiaries)
• International Law- as that body which composed for its greater part
of the principles and rules of conduct which States feel themselves
bound to observe and consequently commonly do observe in
relations with each other.
Civil and Criminal Law
• Eg. If a motorist drives his car dangerously and injures another
road user , he may find himself being sued for damages by
victim as well as prosecuted for dangerous driving.
• The suit for damages would determine the driver’s civil
liability , the prosecution would determine his criminal liability
• Differences between Civil and Criminal Law
• 1) Civil law- to confer legal rights upon individuals
• Criminal law- to regulate socially unacceptable behaviour
• 2) Civil law- to obtain compensation from the wronged party
• Criminal Law- to punish the guilty person
• 3) Civil law- The proceedings are brought in the name of the
wronged party (Plaintiff vs Defendant)
• Criminal Law- The proceedings are initiated by the Police.
(Public Prosecutor v the accused)
MALAYSIAN LEGAL HISTORY
Legal History of West Malaysia
•The Legal system of a country is concerned with the way in which laws
are created, administered and disputes are settled relating to the affairs
of the people and the government.
•A free democratic country decides its own legal system. Today,
Malaysia is a free and independent country and the people of Malaysia
through their representatives enact their laws. Prior to independence,
Malaya as it was then called, to a large extent was under the influence
of English rule.
•Legal system do not emerge out of nothing , they posses a history and
reflect ideas and make use of institutions which have developed over
time and been moulded by cultural and political forces. The Malaysian
Legal system is a melting pot of many cultures, religion and ethnic
group transported from various regions and countries
Legal History
Historic Period
•Hindu and Buddhist Influence
Era of Malaccan Sultanate
•At the time of its founding by Parameswara around 1400, Melaka was a little
riverine village inhabited by the Orang Asli and Orang Laut (Pirates)
•Presumably, Malay Adat Law incorporating Hindu-Buddhist elements was originally
applied.
•One of the greatest achievements of the Malacca Sultanate was the formulation of
the concept of a state and its function.
•By 1500,the Melaka Sultanate had an administrative sturcture that was to be the
model for the later Malay states. At the apex was the Sultan. Still weilding absolute
power, he was, however, no longer semi divine. In Islam, he was khalifah,
•Vicegerent representive of Allah (God.) The status of the Sulatn was further
reinforced by the concept if daulat derhaka. Derhaka (treason) was considered so
odious a crime that the punishment meted out by the forces of daulat
( sovereignty) were often unusual and sometimes gruesome.
• The most important minister was the bendahara who combined the
offices of the modern prime minister , chief justice and commander in
chief of the army. Next in prominence was the temenggung who was the
chief police and chief magistrate. Following him was the laksamana , the
admiral of the fleet. There were other officials which deserve mention
which include penghulu bendahari, shahbandar and mandulika.
• Before the coming of Islam, the law applicable was Malay Adat law,
specifically Adat Temenggong. Adat Temenggong came from the same
cradle as Adat Perpatih. However, Adat Temenggong came via Palembang
and was so altered under Hindu Influence .
• The Adat Temenggong was the law of the Sultan and therefore autocratic
in nature. It was the law later adopted in all Malay States except Negeri
Sembilan. (to which adat Perpatih was brought directly from
Minangkabau by Minangkabau Settlers.)
• Adat Temenggong was also the basis of the law contained in most of the
Malay legal codes or digest which were compiled from the mid-fifteenth
century onwards to facilitate the uniformity of decisions.
• There were 2 legal digest in the Malacca Sultanate:
a.Undang-Undang Melaka (Laws of Melaka) , also known as Hukum
Kanun Melaka or Risalat Hukum Melaka;
- cover wide range if constitutional , civil and criminal matters
a.Undang-Undang Laut Melaka (Maritime Laws of Malacca)
- cover largely maritime matters
• The coming of Islam saw the beginning of attempts to introduce
Syariah Law and to modify Malay Adat law to accord with Islam.
• For example, earlier version of the Undang-Undang Melaka set out
the adat law whereas later version show a mixture of adat law and
principles of the Syariah.
Portugese Administration
•After Alfonso de Albuquerdue conquest of Melaka in 1511, a military
and civil administrtaion was estaablished. Melaka was governed by a
governor or captain of the fortress.
•The Portugese authorities did not exert their influence over the Malay
. Their interest was in trade and not in political power. Beyond the city
walls, much of the former Malay administrtaion was retained.
•It is doubtful whether Portugese law was ever introduced in Melaka.
A 1641 Dutch report of Melaka mentioned ordinances issued by the
Portugese but it was unknown what the law was about.
Dutch Administration
•Like the Portuges, the Dutch were solely interested in trade
•In the case of Sahrip v Mitchell and Endain , a case concerning the
Malay custom of land tenure in Melaka, Sir Benson Maxwell CJ said
that “ the Portugese while they held Malacca and after them the
Dutch, left the Malay custom or lex non scripta in force…”
Era of British Colonalisation
The Straits Settlements
•The British period began with the occupation of Penang in 1786, followed by that
in Singapore in 1819 and the acquisition of Malacca from the Dutch in 1824.
Penang
•Penang was the 1st territory in the Malay Peninsula acquired by the British . The
question was whether Penang a cede or settled territory. The answer to this
question would determine the lex loci (the law of territory)
•According to general principle of the common law, if a newly acquired territory is
terra nullis (territory not previously owned or occupied), discovered and settled by
the British, English law to the extent it is applicable. On the other hand, if the
territory previously owned and occupied, is acquired by the British through cession
or conquest, the law previously existing continues to be in force until changed by
the British.
•Penang is generally considerd a ceded territory. But for the purpose of determining
the lex loci, the judiciary regarded Penang as a settled territory.
•The reason being is because= Francis Light reported that Penang was uninhabited
when he landed and that the early records of Penang showed that no official body
of law existed for the first 20 year British occupation, rather legal chaos reigned.
• The introduction of the Royal Charter of Justice in 1807 is the most
important event in Malaysian legal history as it marks the beginning
of the statutory introduction of English Law into the Country. The
Charter established the Court of Judicature of Prince of Wales
Island (Penang) to exercise jurisdiction in all civil , criminal and
eccelesiastiscal matters.
• It was interpreted by the court as introducing to Penang the law of
england as stood in 1807 in so far as it was suitable to local
conditions and circumstances. This interpretation was made in the
case of Kamoo v Bassett.
• Further in the case of Ong Cheng Neo v Yeap Cheap Neo (1872)
where it was ruled that it was immaterial to consider whether
Penang was a ceded or a settled colony since there was no trace of
any established law before the British acquisition. Therefore English
Law could be taken to be the governing law so far as it was
aplicable to the circumstances of the place and modified in its
application by these circumstances.
• It is now uniformly accepted that this Charter introduces the laws
of Englang in 1807. Subsequently when the Second Charter of
Justice of 1826 was granted and applied in Singapore and Malacca,
it was equally applied to Penang.
Singapore
•When the British first occupied Singapore in 1819, the island was
under the Dato Temenggung who exercised jurisdiction over them in
accordance with Malay custom.
•Stamford Raffles of the East India Company entered into a series of
agreements and treaties with the local rulers such as:
a.Preliminary Agreement with the Temenggong 1819
b.Treaty of Friendship and Alliance btwn EIC and Sultan of Johor
February 1819
c.Memorandum by Stamford Raffles 1823
d.Treaty of Friendship and Alliance btwn EIC and Sultan of Johor
February 1824
The agreement provided that in all cases regarding the ceremonies of
religion and marriages and rules of inheritance the laws and customs
of the Malays would be respected where they should not be contrary
to reason, justice and humanity. The law of the British were to be
enforced with due consideration to the habits and practice of people.
• But even so with all the agreements , the legal standing and
position is not clear until the Charter of 1826 was introduced.
• In the case of Isaac Penhas v Tan Soo Eng (1953) MLJ 73, wherein
it was held that the English Common Law was in force in Singapore
in so far as it is applicable, but that the Charter of 1826 provided
that the Court of the Colony was to exercise jurisdiction as an
Eccelesiastiscal Court in so far as the religions, manner and customs
of the inhabitants will admit…
Malacca
•The legal scene in Malacca at the time was somewhat different.
•Malacca was a powerful Malay kingdom until the Portugese and
Dutch conquest of 1511 and 1641 .
•At the time of its transfer to the British, the law applicable was Malay
Customary Law, Muslim Law and Customary Law of other non Malay
inhabitants.
•The initial uncertainties as to the extent of English law to be applied in
Malacca was resolved by the grant of the Charter of Justice in 1826. A
new court called The Court of Judicature of Prince of Wales, Singapore
and Malacca was created by this Charter and the English law to be
applied was as it stood on 27th Nov 1826 subject to local conditions.
Malay States
•Before the British intervention, adat perpateh in most areas of Negeri
Sembilan and parts of Malacca and Adat Temenggong in other parts of the
Peninsula with local variations, were present as laws.
•By 1888, British control of the Malay States of Perak, Selangor , Pahang and
Negeri Smebilan was firmly established through a series of treaties. Later
English law started to paved its way through all the Malay States.
•For example,the Penal Code of the Straits Settlement based on the Indian
Penal Code was first adopted in Perak by order in Council of 28th June 1884
and later by other states.
•Similarly the Evidence Ordinance based on the Indian Evidence Ordinance
was first adopted in Selangor by the Courts Regulation of 1893 and then by
other states.
•The Contract Act of India was originally adopted by the Selangor Courts
Regulation 1893 and subsequently by enactments in erak and Negeri
Senbilan in 1899 and in Pahang in 1900.
Sources of Law
• The meaning sources has several meanings which may include
the following:-
a.Historical sources- these are factors that have influenced the
development of the law although they are not recognized as
law. These factors may include religion beliefs, local customs
an opinion of jurists
b.Legal Sources- legal rules that made up the law
c. Places where the law can be found- for example statues, law
reports and text books
Malaysian can thus be classified into written and unwritten law
• Written law is the most important source of law. It refers to that
portion of Malaysian law which includes :
a.The Federal Constitution;
b.The State Constitution;
c. Legislation;
d.Subsidiary Legislation
Unwritten law is that portion of Malaysian law which is not written ie
law which is not being enacted by the Parliament or State
Assmblies which is not found either in the Federal Constitution or
State Constitution. Unwritten law is found in cases decided by the
courts, local customs and etc. It comprises of:
a.Principle of English Law applicable to local circumstances;
b.Judicial Decisions of the Superior Courts;
c. Customs of the local inhabitants which have been accepted as law
by the Courts.
Another important source is Syariah Law
Federal Constitution
•The Constitution of a State may be defined as a collection of principles according
to which the powers of the government, the rights of the governed and the
relations between the two are adjusted.
•In other words, it may be described as a frame of political society organized
through and by law in which law has established permanent institutions with
recognized functions and definite rights.
•Malaysia is a federation of 13 states with a written constitution, which is the
supreme law of the country. Besides laying down the powers of the Federal and
State Government, the Federal constitution enshrines the basic of fundamental
rights of the individual. These rights can only be amended by a 2/3 majority of the
member of the legislature.
•It comprises of Articles which provides:
a.Name, state and territories of the Federation;
b.Religion of the Federation;
c.Supreme Law of the Federation;
d.Citizenship;
e.Fundamental liberties;
f.Elections;
g.Judiciary;
h.Special powers against subversion, emergency powers and etc
Constitutional Supremacy
•The Constitution, unlike other laws passed by the Parliament is the supreme law
of the nation.
•Article 4 (1) of the FC declares that: “the Constitution is the Supreme Law of the
Federation and any law passed after Merdeka Day which is inconsistent with this
Constitution shall to the extent of the inconsistency, be void”
•The doctrine which underlies the Federal Constitution is the doctrine of
constitutional supremacy, as opposed to parliamentary supremacy.
•The Constitution is regarded as a higher law against which the validity of all other
enacted laws is tested.
•Case in point : Dewar Undangan Negeri Kelantan & Anor v Noordin bin Salleh
(1992) 1 MLJ 697, the then Supreme Court declared a law passed by the Kelantan
State Legislative Assembly to be void under Article 4 (1) of the FC as the said law
contravened the provision of the Federal Constitution. The Court held that the
said law passed was invalid as it contravened Article 10 (1) (c) of the Federal
Constitution which guaranteed the freedom of association of all citizens.
•Similarly in the case of Mamat bin Daud v Government of Malaysia (1988) MLJ
119, the validity of a law passed by a Parliament was challenged on the grounds
that it was ultra vires the Constitution. In 1983, the Parliament added a new
section S 298A to the Penal Code, under which it become an offence to perform
any function of a religious character without due authority in that behalf.
Yang DiPertuan Agong
•The Constitution provides for a Constitutional monarchy. The Malaysian
monarch is called Yang Di Pertuan Agong who is the Supreme Head of the
Federation.
•The YDPA holds office for a period of 5 years and is elected at the
Conference of Rulers from amongst the 9 Malay Rulers of the State of Perlis,
Kedah, Perak, Selangor and etc
•Functions and duties of the YDPA are ceremonial in character. He is for
example the designated Supreme Commander of the armed forces of the
Federation.
•However, the YDPA has power to grant pardons, reprives in respects of all
offences which have been tried by court martial and all offences committed
in the Federal Territory of KL, Labuan and Putrajaya.
•YDPA is also empowered to declare a State of Emergency if he is satisfied
that the security or the economic life, or public order in the Federation or any
part thereof is threatened.
•The Rulers and the Yang Dipertuan Agong’s immunity from prosecution has
been removed and it is now provided under a new Article 33A that where the
YDPA has been charged with an offence under any law in the Special Court,
he shall cease to exercise the functions of the YDPA.
Conference of Rulers
•The Conference of Rulers (Majlis Raja Raja) is a unique feature of the Federal
Constitution by Article 38.
•It consists of 9 Rulers and the 4 YDPN.
•While it has no power to make laws or levy taxes or sanction public
expenditure, it is most influential. It provides an intimate link between the
Federal and the State Governments at the highest level.
•With the institution of constitutional monarchy under the Federal
Constitution, the functions of the Malay Rulers were extended to include
certain matters of national policy and these have been identified under
Article 38(2) of the Constitution as :
i)Electing the YDPA and Timbalan YDA
ii)Agreeing or disagreeing to the extensionof any religious acts, observances
or ceremonies to the Federation
iii)Consenting or withholding consnet to any law and making or giving advice
on any appointments which requires the consent of the Conference;
iv)Appointing members if the Special Courts
v)Granting pardons..
The Executive
•The Cabinet of Ministers (Jemaah Menteri) which is appointed by the
YDPA to advise him is the supreme policy making body in the country,
exercising the executive authority of the Federation.
The Legislature
•The legislative authority of the Federation is vested in a Parliament by
Article 44 of the Constitution which consist of the 2 houses that is the
Dewan Negara or Senate (the upper house) and the Dewan Rakyat
(the House of Representative)
•The Senate is composed of 70 members who are both elected as well
as appointed.
•40 members are appointed by the YDPA while there shall be 2 elected
members from each State, 2 members from Federal Territory all
appointed by the Yang di Pertuan Agong.
State Constitution
•Besides the FC which applies to all States in the Federation, each
States also posses its own constitution regulating the government of
the State.
•Powers are stated in the 8th Schedule of FC
Legislation
• Legislation is the law enacted by the legislature and by bodies and
persons authorized by the legislature.
• Legislation enacted by the legislature is referred to as primary
legislation that made under power delegated by the legislature is
called delegated or subsidiary or subordinate legislation.
• Legislation refers to law enacted by a body constituted for the
purpose.
• In Malaysia, laws are legislative by Parliament at federal level and
State Assembly at State Level.
• Laws that are enacted by Parliament after 1946 but before Malaysia
Independence is called Ordinance
• Laws that were enacted after 1957 is called an Act
• Parliament and the State Assembly are not supreme. They have to
enact laws subject to the provisions set out in the Federal and State
Constitution.
• Note List I, II and III of the Federal Constitution
• There are four types of Acts :-
a.Principal Act; which is the most common
b.Amendment Act; which makes changes to a principal act.
c. Revised Act; which result from changes (restricted to technical,
grammatical and typographical changes that do not affect the
substance of law) made by the Commissioner of Law Revision , eg
Civil Law Act
d.Consolidated Act which brings together in a simple Act two or more
Acts on specific subject matter which had been passed over a
period of time.
Legislative Process
•Article 44 of the Federal Constitution vests the legislative authority of
Malaysia in Parliament, comprising the Yang di Pertuan Agong and the
two Houses of Parliament ie the Dewan Negara (Senate) and the
Dewan Rakyat ( House Representative)
•Briefly legislation is enacted by Parliament by introducing a Bill which
is passed by both Dewan and assented to the Yang Dipertuan Agong.
•There are 3 types of bill:
a.Public Bill- Bills on general public interest such as national defence,
public order, and taxation.
b.Private Bill- Bills which deals with matter of local or private concern.
c.Hybrid Bill- Bills concerning matters of public interest which also
effect adversely the interest of some private bodies or persons.
•The legislative process whereby there are two main stages in the
process : pre parliamentary and Parliamentary.
Pre- Parliamentary Stage
•This covers ,in effect the proposal, consultation and drafting stages.
Proposal for legislation may come from various sources, for example
the election manifesto of the political party that becomes the
government, policy decision of a ministry or government department ,
recommendations of a royal commision or from pressure group.
•A long series of discussions follow within and between the real event
government authorities involved. Experts and interested outsiders
may be consulted.
•If the proposal is particularly important, their may be public
discussion in the media.
•When the outline has been worked out, the proposal is sent to the
Parliamentary Draftsperson in the Attorney General’s Chambers to be
put in the legal language and form: a Bill. After approval by the
Cabinet, the Bill is ready to be introduced in the Parliament.
Parliamentary Stage
•The Procedure is set out in Chapter 5, Part IV of the Federal
Constitution and the Standing Orders of the both Dewan.
•In each Dewan, the bill goes through 4 stages:-
a.First Reading;
b.Second Reading;
c.Committee Stage; and
d.Third Reading
First Reading- is a mere formality and may take place even if the Bill
has not been printed and circulated. That happens is that the Minister
present the Bill by having its short title read by the Clerk of the Dewan.
Second Reading
•This can occur only when the Bill is printed and circulated. It is the
most important stage.
•Here the Minister outlines the main principles of the Bill.
•A debate on the principle ( and only on the principles, not the details)
ensues.
•If the bill receives the requisite number of votes it proceeds the
Committee Stage
Committee Stage
•Most Bills are automatically refered to the Committee of the Whole
House, at the end of the Second Reading, the Dewan without the
necessity of a motion, resolves into a committee.
•Reference to a committee is to enable the details of the bill to be
discussed in a less formal manner
Third Reading
•The Bill is reviewed. A debate, if any, centres only on general
principle.
•Substantive amendments are not allowed except with the permission
of the speaker, to correct errors or oversights.
•If passed in this reading, the Bill is sent to the Dewan Negara.
•When the Bill is passed or without amendments by the Dewan Negara
it is returned to the Dewan Rakyat. Any disagreement between the
two Dewan over any amendments are resolved by the appointment of
a joint committee of both dewan under the Article 66 (3) of the
Federal Constitution.
•The Dewan Negara has no power to veto, reject, or insist of the
amendment to a bill passed by the Dewan Rakyat.
•Under Article 68 of the FC the power of the Dewan Negara is
restricted to delaying the passage of the Bill- one month if it is a
Money Bill and 12 months if it’s a non Money Bill.
Royal Assent
•When the Bill is passed by both Dewan, it is presented to the YDPA
for his assent.
•Under Article 66 (4) of FC, the YDPA shall, within 30 days after it is
presented to him, assent to the Bill by causing the Public Seal to be
affixed thereto.
•Where assent is not affected within the specific time, the Bill becomes
law as if it has been assented to.
•Once the Bill is given the Royal Assent, it becomes an Act.
Publication
•An act of Parliament cannot come into force until it is published
( subject, however to the power of Parliament to give an Act
retrospective effect)
•Publication is done in the Warta Kerajaan Malaysia
• Subsidiary Legislation on the other hand is define by the
Interpretation Act 1967 which provides that “ subsidiary legislation
as “ any proclamation, rule, regulation, order, notification or other
instrument or lawful authority and having legislative nature.
• Subsidiary legislation is very important as legislation as normally
the Parliament and the State Legislature is insufficient to provide
the laws required to govern everyday matters.
• Subsidiary legislation deals with the details about which legislature
has neither the time nor the technical knowledge to enact the laws.
• Legislature merely lays down the basic and main laws, leaving the
details to persons and bodies to whom they delegate their
legislative powers
• Subsidiary Legislation made in contravention of either the Act or
the Constitution is void.
• Eng Keock Cheng v PP (1966) 1 MLJ 18
Reasons for Subsidiary Legislation
•The Legislation has insufficient time to enact all the legislation,
detailed in every aspect required in a modern society.
•Much modern legislation is highly technical and is best left to experts
or administrators on the job who are well versed with the
technicalities involved
•The legislature is not continuously in session and its legislative
procedures are cumbersome. Delegation is necessary in situations
where laws need to be made quickly such as in emergencies , or to be
amended or repealed qucikly. For example, section 22 of the
Interpretation Act 1948 and 1967 provides that the subsidiary
legislation may at any time be amended, varied, added to , revoked, or
revived by the person or authority by which it was made..
Controls over Subsidiary Legislation
•Subsidiary Legislation is an indispensable tool of modern government
but it has raised widespread concern.
•This is because subsidiary legislation is essentially legislation made by
the executive and executive law making is inconsistent with the
seperation of power doctrine, Moreover, such law making by
administrators who are neither elected nor directly accountable to the
legislature is vulnerable to abuse for example lack of prior discussion
and consultation.
•That is why there must be some sort of control over subsidiary
legislation.
Judicial Control
•Judicial control or review is the most important of the controls. In
Malaysia the foundations of such review lie in section 23 (1) and 87 (d)
of the Interpretation Act 1948 and 1967 which in effect, lay down the
principle that any subsidiary legislation which is inconsistent with an
Act of Parliament or State Enactment shall be void to the extent of the
inconsistency.
•The Courts have control over subsidiary legislation through judicial
review.
• When in an action, a defense is raised by the accused or defendant
or a challenge is made concerning the validity of the subsidiary
legislation, the courts may declare the exercise of the delegated
power and the subsidiary legislation void under the ultra vires
doctrine on either one or two grounds: substantive or procedural
• For example in the case of Major Phang Yat Foo v Brigadier
General Dato Yahya bin Yusof (1990) 1 MLJ 252.
• Datin Azizah Bt Abdul Ghani v Dewan Bandaraya Kuala Lumpur
(1992) 2 MLJ 393
Legislative Control
•There are several means by which the legislature exercises control
over subsidiary legislation. The Legislature which grants the delegated
powers by an enabling statue may repeal the statute or revoke or vary
the delegated powers.
•An enabling statute may require legislation made under it to be laid
before the legislature,either for the legislature’s information or
confirmation.in malaysia,”laying provision” are not very
common.examples of a simple laying formula are to be found in
section 83(3) of the trade marks Act 1976(Act 175),which requires
subsidiary legislation made thereunder to be laid before both dewan.
Consultation Control
•In Malaysia, there is no general statutory provision making prior
consultation a formal requirement for the making of subsidiary
legislation.
•Particular enabling Acts may make prior consultation mandatory, but
these are few in number. An example is section 36(1) of the financial
procedure Act 1957(Act 61)(Revised 1972), which authorizes the Yang
di Pertuan Agong to make regulation after consulting the commodities
Trading Commission.
Publication Control
•There is also no general statutory provision requiring the publication
of subsidiary legislation in Malaysia.
•Particular enabling statues may require publication though this is not
the norm. Where an enabling statute makes publications mandatory,
non compliance renders the subsidiary legislation void.
•At the federal level, subsidiary legislation which is required to be
published is published in Malay and English in 2 parts of the Gazette:
Tambahan Perundangan A dan Tambahan Perundngan B.
•Under Section 19 (1) of the Interpretation Acts 1948 and 1967,
subsidiary legislation commence on the date prescribed, or where no
date is prescribed, the date immediately following the date of its
publications in the Gazette Supplement.
Unwritten Law- English Law/
Common Law
Origins of English Law
•English Law comes under the titles “ Common Law and
Principles of Equity” together with English Statutory Law and it
has been in practice in England right from the 11th century.
Wherever British colonizes a county, they introduced English law
for governance and administration of the affairs of the people.
•After independence, countries started enacting their own laws
but generally under the form and style of English laws taking into
account the local needs and national goals and objectives.
Development of English Law
•During the reign of King Henry II justice in England was administered
through a system of local courts. The law that was applicable consisted
mainly of local customs or the customs prevalent in respective local
counties.
•Attempts to ensure the uniformity of law throughout England
eventually gave birth to what is known as the “ Common Law”. The
Chief means by which uniformity was achieved was through the
introduction of the General Eyere or a system of circuit judges. These
circuit judges who were the representatives of the King were sent
from the Westminister to tour the local counties or brought to check
on the local administration.
•Common Law is essentially Judge made law.
Development of Equity
•The persons who were denied justice under the common law system
began to address their complaints to the King in Council. The Council
later delegated this function to the Chancellor and eventually such
complaints were directed to the Chancellor alone.
•The Chancellor unlike the common law judges decide cases in the
light of conscience and fair dealing and he was not bound by any of
the technicalities of the Common Law. He therefore began to devise
new remedies for example decreeing specific performance and
injunctions
•Thus equitable reliefs were born and Equity developed to become a
system which ran parallel with the Common Law and complemented
and supplemented it.
Amalgation of Equity and Common Law
•At one point of time both the Common law and equity came into
conflict with each other. This culminated in the Earl of Oxford’s case in
1615 where in this case, King James I , on the advice of his Attorney
General Lord bacon gave a firm decision that where Common Law and
Equity were in conflict, equity shall prevail.
•Equity and Common Law continued to be administered under 2
different courts system until it was rectified by the Judicature Act
1873-75 which brought an amalgation of English Courts
Unwritten Law- English Law
English Law as a Source of Law
Section 3 (1) Civil Law Act 1956
•English law forms part of the laws of Malaysia.
•English Law can be found in the English Common Law and rules of
Equity. However, not all of the England’s Common Law and rules of
equity form part of Malaysian Law.
•Section 3 (1) of the Civil Law Act 1956 provides that in peninsular , the
courts shall apply the common law of England and the rules of equity as
administered in England on the 7th day of April 1956. In Sabah and
Sarawak the English law in force as at 1st December 1951 and 12
December 1949 respectively.
•Case 1 : Commonwealth of Australia v Midford (Malaysia) Sdn Bhd
(1990) 1 MLJ 475
•Case 2: The Motor Emporium v V Arumugam (1933) MLJ 276
•Case 3: Leong Bee v Lim Rubber Works (1970) 2 MLJ 45
• However, the application of the law of England throughout
Malaysia is subject to 2 limitations.
a.It is applied only in the absence of local statutes on the particular
subjects. Local law will take precedence over English Law as the
later is only meant to fill in the lacuna in the legal system in
Malaysia.
b.Only that part of the English law that is suited to local
circumstances will be applied as provided in provisio Section 3 (1)
of Civil Law Act
• The extent of the application of common law of England in Malaysia
was among others was decided in the case of Syarikat Batu Sinar
Sdn Bhd v UMBC Finance Bhd (1990) 3 MLJ 468
Section 5 (1) Civil law Act 1956- Application of English Law in
Commercial matter (Merchantile Law)
•For other states besides Penang, Malacca and East Malaysia, the cut
off date is the same which is 7th April 1956.
•For Penang, Malacca and East Malaysia there is no cut off date. It
would appear therefore that statute had provided for the continuing
reception of English law in merchantile matters for Penang, Malacca
and East Malaysia.
•For example in the case of Jamil bin Harun v Yang Kamsiah (1984) 1
MLJ 217, the Federal Court has accepted and followed the principles
laid down by the House of Lords in Camden case (1980) UK case.
• Same as always with respect to English Commercial Law it is only
applied if there is no other provision in any written law in Malaysia.
• For example in the case of Tan Mooi Liang v Lim Soon Seng (1974)
2 MLJ 60 the Federal Court decided that since Part X of the Contract
Ordinace had made provision with respect to partnership,
therefore the English Law of Partnership will not apply.
• In the case of Wrigglesworth v Wilson Anthony (1964) MLJ 269, the
Court decided that English cases relating to restraint of trade were
not applicable as section 28 of the Contract Ordinance represent an
express provision on the issue and its terms were quite clear.
• But if there is a lacuna in the law in respect to a particular matter
English law would be applicable. In JM Wotherspoon v Henry
Agency House (1962) MLJ 86, it was held that as the Contract
Ordinance was silent on the matter of del credere agency and as
such by virtue of Section 5 (1) of the Civil law Act, the law of
England was applicable
Section 6 (1) Civil Law Act- Application of English Law on Immovable
Property
•Section 6 provides that nothing in Part II of the Act shall be taken to
be introduce in Malaysia….
•Therefore Section 6 applies specifically to immovable property and it
prevents the application of any part of the Law of England relating to
immovable property.
•The rationale for this is perhaps to be found in the case of United
Malayan Banking Corp v Pemungut Hasil Tanah Kota Tinggi (1984) 2
MLJ 87 which states that “ The National Land Code is a complete and
comprehensive code of law governing the tenure of land in Malaysia”
•Furthermore, English law in this matter is different because Malaysian
law esp on land matters applies the Torrens System.
•However, note the case of Woo Yok Wan v Loo Pek Chee (1975) 1
MLJ 156
Unwritten Law-Judicial
Decision
• Malaysian law can also be found in the judicial decision of the High Court,
Court of Appeal and the Federal Court.
• Decisions of these courts were made and still are being made
systematically by the use o what is called the doctrine of binding decision.
• Judges do not decide case arbitrarily. They follow certain accepted
principles commonly known as precedents. Precedents are basically
decision made by judges previously in similar situations.
• If a judge applies an existing rule of law without extending it, his decision
may be called a declaratory precedent, whereas if the case before him is
without precedent then the decision made by him may be called an
original precedent.
• The system of binding judicial precedent called stare decisis in English Law
is practiced in Malaysia
• (Doctrine of Binding Precedent is to be read together with Hierachy of
Precedents)
Stare Decisis
•This is a doctrine according to which previous judicial decision must be
followed ie to abide by decided cases. The policy of court is to adhere to
precedents and not disturb points of law already settled by earlier decision.
•In order that an earlier decision may be binding on a court it must have been
given by a court superior jurisdiction and the very legal issue under
consideration must have been an issue in the earlier decision.
•In Public Prosecutor v Dato Tan Cheng Wee & Anor (1980) 2 MLJ 276, the
court stress on the doctrine of stare decisis stated that “ it is however
necessary to reaffirm the doctrine of stare decisis which the Federal Court
accept unreservedly and which it expects the High Court and other inferior
courts in a common law system such as ours, to follow similarly”
•In Cooper v Southern Portland Cement Ltd (1972) 46 ALJR 302, “ the court
of appeal was bound by the actual decision of a case of the Privy Council and
by the principles by which that decision is essentially supported..”
Application of the Doctrine of Binding Judicial Precedent
• A hierarchy of precedents is a necessary part of the doctrine of
binding judicial precedent and in fact the doctrine is premised on the
hierarchial structure of the courts.
•The general rule regulating the hierarchy of precedents is based on
the principle that the decisions of higher courts bind lower courts and
some courts are even bound by their own decisions.
1. Hierarchy of Precedents in Malaysia before 1985
• Prior to 1985, decisions of the Privy Council being the apex court
in the hierarchial structure of courts in Malaysia would bind all
courts lower in the hierarchy. The Privy Council nonetheless is not
bound by its decision.
• The Federal Court’s position in civil cases would be closely
analogous to that of the Court of Appeal. Thus decisions of the
Federal Court would bind all inferior courts and the Federal Court
would be bound by its own decisions as well as the decisions of its
predecessor courts and courts of coordinate jurisdiction.
• In the case of Central Securities (Holdings) Bhd v Haron bin
Mohamad Zaidi (1980) 1 MLJ 304, the Federal Court held that it
was bound to follow its own previous. The Court stated:; “ in the
abscene if any of the exceptions stated in Young v Bristol
Aeroplane , we are bound to follow these two earlier Federal
Court decisions. But even if we believe that they have been
wrongly decided and not merely per incuriam.. “
1.Hierarchy of Precedents in Malaysia from 1985-1995
• The abolishments of appeals to the Privy Council and the creation
of the Supreme Court in 1985 gave rise to several problems relating
to the operation of the doctrine of binding precedent. It was
unclear precisely what position the Supreme Court occupied
• In Lorraine Esme Osman v Attorney General (1986) 2 MLJ 288, the
Supreme Court was of the opinion that it ought to be bound by its
own previous decisions, unless it was shown that such decisions
was wrongly decided.
• However, in Government of Malaysia v Lim Kit Siang (1988) 2 MLJ
12, by a majority, the Supreme Court decided that its earlier
decision of the issue of locus standi was not a definitive or
conclusive one and that there was nothing in the earlier oral
judgment which inhibited the court from considering the issue of
locus standi again. However Supreme Court Judge Seah dissented
to that consensus.
3. Hierarchy of Precedents in Malaysia from 1995
•The Federal Court has been instituted as the highest court in Malaysia.
•Decision of the Federal Court would now be binding upon all courts lower in
the hierarchy.
•The case of Harris Solid State Sdn Bhd v Bruno Gentil (1996) 3 MLJ 489, a
counsel tried to argue before the Court of Appeal that the view expressed by
the majority of the Federal Court in the case of Rama Chandran v The
Industrial Court of Malaysia was wrong and ought not to be followed. The
Court of Appeal expressed its disagreement to the counsel and clearly stated
that “ this court is bound to follow and apply the law as stated by the
majority in Rama Chandran even if it suffers from any infirmity. It is a decision
of the Apex Court and constitutes binding precedent.
•The doctrine of binding precedent was again reiterated in the case of
Cooperative Central Bank Ltd v Feyen Development Sdn Bhd (1997) 2 MLJ
829. In this case the Federal Court expressed that the principle of stare
decisis is a cornerstone of our system of jurisprudence. As such it was not
open to an intermediate court , such as Court of Appeal to disregard a
judgement of the final court of appeal that of the Federal Court on the
ground that it was given per incuriam.
• The newly created Court of Appeal now occupies the same position as the
English Court of Appeal. Are they bound by their own earlier decision?
• In the case of Dalip Bhagwan Singh v PP (1998) 1 MLJ 1, the Federal Court
reexamined the exceptions in Young v Bristol Aeroplane and laced those
exception within the Malaysian context in the following manner:
a. A decision of the Court of Appeal given per incuriam need not be followed
b. When faced with a conflict in respect of its own previous decisions, the
Court of Appeal may choose which decisions to follow irrespective of the
dates of those decisions; and
c. The court of appeal ought not to follow its own previous decision if such
decision are expressly or by necessary implication, overruled by the
Federal Court, or if they cannot stand with a decision of the Federal Court.
• Further, the Federal Court clarified that courts in the tiers below the Court
of Appeal could not rely on the per incuriam exception applied by the
Court of Appeal for iteself. However should there be conflicting decisions
of the Court of Appeal, a lower court may choose which one to follow
irrespective of the dates of those conflicting decision.
Advantages and Disadvantages of
Judicial Binding Precedent
Advantages
•It is more flexible when compared to statute law enacted by
Parliament as law once enacted can only be amended or
repealed and legislative proceedings are often cumbersome and
time consuming. A judge can escape the effect of a binding
precedent by distinguishing the facts before him.
•Case law is richer in legal detail than statute law.
Disadvantages
•As the number of cases decided can only increase, students,
teachers, judges and lawyers are compelled to engage in greater
research and reading and there is a tendency to overlook some
authority.
•It is difficult to distinguish between ratio decidendi and obiter
dicta.
Unwritten Law- Customs
• Customs of the local inhabitants in Malaysia are also source of
law.
• Customary law derived from customs and traditions observed
by Malays and other races over the centuries.
• The Application of customary laws in Malaysia has been
accomodated in the legal system since pre-colonial times
although actual formalization of their status occurred after
British colonization.
• Generally, customs relating to family law and inheritance are
given legal force by the Courts in Malaysia.
• In Peninsular Malaysia, there are 2 main varieties of Malay
Customary law= Adat Perpatih and Adat Temenggong.
Adat Perpatih & Adat
Temenggong
• Adat Perpatih is a distinct tradition practised among the
Malays in present day in Negeri Sembilan and Naning in
Malacca. This democratic matriachal adat law come from
Minangkabau and was brought by the Minangkabau settlers.
• Mamak-buapak-lembaga-undang-Yangdipertuan
besar/Yamtuan
• Adat Perpateh has an entirely different system to handle
criminal matters.In the malay society, the family was
responsible for its members. Therefore when a crime was
committed, the accused would be tried by his own family. At
the end of the trial, if the family came to the conclusion that
the accused was incorrigible, there would be no other
alternative but to kill, banish , mutiliate or enslave him.
• Adat Temenggong came from the same source as the Adat Perpatih
but its character is under the Hindu influence.
• By contrast, the Adat Temenggong, government lay in the hands of
the rulers assisted by Bendahara, Temenggung and several other
menteris’ and mandulika.
• Adat Temenggong is said to be a mixture of adat, hindhuism and
Islamic law as can be seen in the Digest of Malacca, Pahang, Kedah ,
Perak and Johor.
• Criminal law in Adat Temenggong was characterised by the
principle of retialiation.
Chinese Customary Law
• The Chinese customary law was brought into Malaysia by the
Chinese traders some of whom did not return to China but settled in
Malaya.
• Even though the population of the Chinese increased, their
customary law did not have much influence over the adats, the
main reason being the difference in religion. The other reason was
that the Chinese customs were varied as the dialects they spoke.
• Chinese customary law was not fully recognized, it was to a certain
extent recognized only on family matters.
• In the case of Re Choo Ling Choon (decd) (1908) 12 SSLR 120
popularly known as the Six Widow’s case, regarding Chinese
customary law, the Court held that Chinese marriages under
customary law were polygamous.
• The principle that Chinese customs were applicable to all Chinese by
virtue of race, was well accepted. In a divorce petition Dorothy Yee
Yeng Nam v Lee Fok Kooi (1956) 22 MLJ 257.
Hindu Customary Law
• Hindu Customary Law is the only foreign element which had
influence over the Malay customary law and to a certain
extent it was adopted.
• Hindu Law has its sources from the Dharmasutras (law books
in prose), the Dharmasatras (law book in verse). Though it is
ancient, the Hindu law contains a systematic legal system.
• Among all the branches of Hindu law only the constitution and
criminal laws had greater effect and influence over the legal
system of the medieval Malay states.
• Even today the laws of India and Malaysia on constitutional
and criminal laws are similar in many ways and it is for these
reasons the judicial precedents from India are still considered
by the Malaysian Courts.
Sources of Malaysian Law-
Syariah Law
• Islam is not merely a religion to Muslims, but also the Syaria’
meaning the “Way of Life” . It embraces the whole life,
encompassing a legal , social and moral order.
• The sources of Islamic Law are :-
a) The Al Quran
b)The Sunnah , traditions of the Prophet
c) Ijtihad- qiyas
d)Ijma
• Islamic law was the law of the land before the coming of the British,
In Shaikh Abdul Latif v Shaik Elias Bux (1915) 1 FMSLR 204, the
Court held that “ …the only law at that time applicable to Malaya
was Mohammedan Law modified by local customs”
• The Court of Appeal of the Federated Malay States held in Ramah v
Laton (1927) 6 FMSLR 128 that Muslim Law is not foreign law but
local law and the law of the land.
Constitutional Position of the
Syariah Law in Malaysia
• In 1957, a constitutional commission submitted that Islam be the
religion of the nation but without affecting the rights of non
Muslims to profess, practise an propogate their religions.
• Article 3 of the Federal Constitution as follows – Islam is the religion
of the Federation, but other religions may be practised in peace and
harmony..
• Further, according to the Federal Constitution, the power to
administer Syariah Law is primarily that of the States comprising the
Federation, the 9th Schedule, List II of the Federal Constitution, set
out in Clause 1.
• As such, the jurisdiction given to the States and the Syariah Courts is
limited. In the field of criminal law, it has jurisdiction only over
persons professing the religion of Islam and it has only such
jurisdiction in respect of offences as conferred by Federal Laws.
Jurisdiction of the High Court
and Syariah Court under the
Constitution
• The Federal Constitution (Amendment ) Act 1988 is an important
amendment that has been made in the Federal Constitution. The
amendment adds , among others, a new clause 1A to Article 121 of
the Federal Constitution, which in effect provides that the High
Court and courts subordinate to it shall have no jurisdiction in any
matter within the jurisdiction of the Syariah Court.
• The said Article 121 (1A) reads as follows:- “ the courts referred to in
Clause 1 shall have no jurisdiction in respect of any matter within
the jurisdiction of Syariah Courts”
• In Mohamed Habibullah bin Mahmood v Faridah bt Dato Talib
(1992) 2 MLJ 793, it was held that the effect of Article 121(1A) of
the Federal Constitution is to take away the jurisdiction of the High
Court in respect of any matter within the jurisdiction of the Syariah
Court.
• However, the Syariah Courts have no jurisdiction where one of the
parties involved is a non Muslim in which case, the matter be
brought before the civil court.
• In the case of Shaik Zolkaffily bin Shaik Natar v Majlis Agama Islam
Pulau Pinang (1997) 3 MLJ 281, where Judge Jeffrey Tan stated that
Article 121 (1A) has taken away the jurisdiction of the High Court in
respect of matters falling within the jurisdiction of the Syariah
Court was also articulate in the case of Tan Sung Mooi v Too Miew
Kim ..Therefore, when there is a challenge to the jurisdiction of the
High Court, the key is not whether the High Court has jurisdiction
but whether jurisdiction of the matter at hand is within the Syariah
Court.
• On the subject of Muslim marriages, the Appellant a Malay in
Mansor bin Mat Tahir v Kadi Daerah Pendang, Kedah (1988) 1 MLJ
106, married a Pattani lady from Thailand according to Muslim
rites. On his return to Malaysia with his Pattani wife, the local Kadi
did not recognize their marriage and refused to register it. The
appellant then filed a writ of mandamus in the High Court to order
the Kadi to register the marriage.In dismissing the appellant;s
application, the High Court declared that it had no jurisdiction
because both the parties were Muslims and the matter involved
personal laws of Muslims.
• Soon Singh a/ l Bikar Singh v Pertubuhan Kebajikan Islam (1999) 2 AMR
1211, Soon Singh was a Sikh who embraced Islam. Subsequently he
reverted to his original faith and applied to High Court for a declaration
that he was no longer a Muslim. The JAIS objected to the jurisdiction of
the High Court on the ground that apostasy crimes under the jurisdiction
of Syariah Courts. The High Court upheld the objection and was affirmed
by the Federal Court and stating that the Syariah Court has the jurisdiction
although not expressly provided .
• In the case of Majlis Ugama Islam Pulau Pinang v Shaik Zolkaffily bin
Shaik Natar (2003) 3 MLJ 705, this case concerns the application to the
High Court for a declaration concerning a piece of land , the subject
matter of a will. The High Court and COA held that the civil court had
jurisdiction on the basis of the express jurisdiction approach and the
remedy prayed for approach ie the declaration sought could not be
granted by the Syariah Court. But the Federal Court reversed the decision
and rules that if a plaintiff is deprived of a remedy , it is not the function of
the civil court to legislate and confer jurisdiction upon iteself
• In the case of Lina Joy v Majils Agama Islam Wilayah Persekutuan
(2007) 4 MLJ 585, the Federal Court stated that since apostasy
relates to Islamic Law, and by virtue of Art 121(1A) , the civil court
has no jurisdiction.
• But what happened if a party to a suit is a non muslim??
• Further what happened if both offences can be trial by the Civil Courts
and also the Syariah Court:
• Although it seems that with the amendment to Art 121 FC, the jurisdiction
of the Syariah Court is quite settled, nevertheless there are some
problems
• In actual fact, the phrase within the jurisdiction of the Syariah Courts is
ambiguous.
• In the case of Sukma Darmawan Sasmitaat v Ketua Pengarah Penjara
(1999)2 MLJ 241, the Federal Court held in relation to criminal
jurisdiction, that the phrase within the jurisdiction of the Syariah Courts
must be read as ‘within the exclusive jurisdiction of the Syariah Courts”. It
is only if an offence falls under the exclusive jurisdiction of the Syariah
Courts that the jurisdiction of the civil courts is ousted. Otherwise, the
prosecuting authorities have the discretion to proceed either under the
relevant civil legislation or Islamic Law provided the offender is not
prosecuted and punished twice
• Also note the case of Kaliammal a/p Sinnasamay lwn Pengarah Jabatan
Agama Islan (2006) 1 AMR 498
• Subashini a/p Rajasingam v Saravanan a/l Thangathory (2008) 1 AMR
561
Syariah Courts
• Except for the Syariah Courts in the Federal Territories,
Labuan and Putrajaya, the other Syariah Courts are State
Courts established under the various State laws which also
provides for the constitution, jurisdiction and procedure.
• According to the provision of the Administration of Islamic
Law (Federal Territories) Act 1993, the Syariah Courts are
constituted at 3 levels , the Syariah Subordinate Court, Syariah
High Court and the Syariah Appeal Court.
• The Yang Di Pertuan Agong may on the advice of the Minister , after
consultation with the Majlis, appoint a Chief Syariah Judge and this
Chief Syariah Judge shall be the Chairman for the proceedings of
the Syariah Appeal Court and in the event that he is unable to act
the Chief Syariah Judge shall select the most senior of the Judges .
Jurisdiction of Syariah Court.
•A Syariah High Court shall have jurisdiction throughout the Federal
Territories and shall be presided over by a Syariah Jude. A Syariah High
Court shall:-
a.In its criminal jurisdiction, try an offence committed by a Muslim and
punishable under the Enactment or the Islamic Family Law or under
any written law prescribing offences against precepts of religion of
Islam…
b.In its civil jurisdiction, hear and determine all actions and
proceedings in which all the parties profess the Muslim religion and
which relate to bethrothal, marriage, divorce, nullity of marriage
(fasakh), Nushuz, or judicial seperation (faraq), Any disposition of
property arising in marriage, maintenance of dependents,
guardianship, wakaf, inheritance, and other matters in respect of
jurisdiction is conferred by any written law.
•A syariah Court has supervisory and revisionary jurisdiction
• A Syariah Subordinate Court shall have jurisdiction throughout the
Federal Territories and shall be presided over by a Judge of the
Syariah Subordianate Court. The Syariah Subordinate Court shall :-
a.In its criminal jurisdiction try any offence committed by a Muslim
under the Enactment or any written law prescribing offences
against precepts of the religion of Islam for which the maximum
punishment provided by the Enactment or such written law does
not exceed RM2000 or imprisonment for a term of one year or both
and may impose any punishment provided therefor.
b.In its civil jurisdiction, hear and determine all such actions is
authorized to hear and determine in which the amount or value of
the subject matter in dispute does not exceed RM50,000
• An appeal shall lie to the Syariah High Court from any decision of a
Syariah Subordinate Court :
a.In its criminal jurisdiction, by the prosecution or by a person
convicted, and such appeal may be against an acquittal, conviction
or sentence or any of them
b.In its civil jurisdiction:-
i. By any person aggrieved by the decision, if the amount claimed is
not less than RM1k;
ii. In all cases involving any decision as to personal statues, by any
person aggrieved by the decision
iii.In all cases relating to maintenance of dependents
• The Syariah Appeal Court has jurisdiction to hear and determine
any appeal against any decision made by the Syariah High Court in
the exercise of its original jurisdiction.
• The Syariah Appeal Court shall have supervisory and revisionary
jurisdiction over the Syariah High Court. It may , if it appears
desirable in the interest of justice, either on its own motion or at
the instance of any party or person interested, at any stage or any
matter or proceedings be it civil or criminal call an examine any
record thereof and may give such directions as justice so require.
• Under circumstances, proceedings in the Syariah High Court or
proceedings in any matter shall be stayed.