Lesson:

No such limit in thinking.

The surface must be covered by law and logics,
and of course do not across the board (religion) !
 Chapter II – Sources of Law
Part II – Unwritten Law

LBA1023 Malaysian Legal System I

muhammadnizamawang@alI.facultyofsyariahandlaw.islamicscienceuni
versityofmalaysia
Discussion Points

• Unwritten law
▫ Common law and equity
▫ Judicial precedents
▫ Islamic law
▫ Custom
Common law & equity
• Is an English law.
• History and Problems of Common Law
▫ William I conquered England and introduce
feudal court
▫ The court was privately owned by landlord.
▫ Landlord gained profit from the fees payable
to court. Succeeded by King Norman.
▫ Norman was assisted by Curia Regis
• Curia Regis
▫ of multi-functions (executive, legislature
and judiciary)
▫ Members: who has contributed troops of
army & weapon and known as tenant-in-
chief.
• William I then sent over officer to country
▫ to obtain information and to exercise admin
and judicial functions
▫ Henry II continued the legacy and later formed
‘General Eyre’
• Henry II divided England into county and created circuit
court in each county.
• All civil and criminal trials were assisted by juries.
• Richard II abolished General Eyre and introduced circuit
judges from King’s Bench.
• Edward II appointed first circuit Commission
▫ The best judgment on custom in a country was selected and
was used in other county later.
▫ Now, the whole country applied the same custom.
• The similar and repeating reference to the
same custom has created ‘common law’
• The previous/ standing decision became
binding precedent.
• The uniformity in common law has later on
created other problems
▫ Writ (written decree) – ordered to do or to omit
based on the offence. If not available in the
writ, the claim was not sustainable.
 ▫ Procedure – Taking wrong writ did not entitle
plaintiff for any kind of suit
▫ Defences and corruption – essoins defence
▫ Remedy – was not satisfactory, only monetary
damages available
• Equity – History
▫ Dissatisfied people petitioned to Chancellor (CH)
▫ CH heard appeal brought for unavailable writ
and injustice decision of common law courts
▫ CH exercised his conscience in making decision
• CH created and granted remedy (not available in
common law) – specific performance, injunction,
etc.
• Number of cases increasing – VC appointed and
decision made were uncertain – equity varies
with the length of Chancellor’s foot.
• Equity was uniformed and became a complete
system living along with common law.
• Conflict between law and equity
▫ Earl of Oxford’s case (1615) – where there is conflict
between two, equity prevails.
▫ Judicature Act (1873-1875) – remedy of common law
and equity were fused in one court and can be applied
in single application.
• Application in Malaysia
▫ Was first imported through Royal Charter of Justice
1807
▫ Legislated later through s. 3 & 5 Civil Law Act 1956
Judicial Precedent/ Stare
Decisis
• Doctrine of Stare Decisis
▫ Judges must follow ratio decidendi already decided in
previous cases.
• What is ‘ratio decidendi’?
▫ Literally - reasoning behind decision
▫ The principles are of legally relevant to material facts
(or facts at issue)
▫ Future court need to follow the precedent and are
bound to do so.
▫ Originally, a judge-made law because almost all
English law are not statutorily enacted.
▫ Lately, many ratio decidendi have been
replaced or supplemented by statutes (enacted
as written law)
▫ Reasons to follow: higher court has decided
such principle as applicable law.
• Application of doctrine in Malaysia
▫ It has been long accepted in PP v. Datuk Tan Cheng
Swee [1980] 2 MLJ 276 (quoted in Mirehouse v.
Rennel), Per Parker B:
‘Our common law system consists in the applying to new
combinations of circumstances those rule of law which
we derive from legal principles and judicial precedents,
and for the sake of attaining uniformity, consistency and
certainty, we must apply those rules, where they are not
plainly unreasonable and inconvenient, to all cases
which arise; and we are not at liberty to reject them….’
 PRIVY COUNCIL

FEDERAL COURT

COURT OF APPEAL

HIGH COURT IN MALAYA HIGH COURT IN BORNEO

SESSIONS COURT SESSIONS COURT

MAGISTRATE’S COURT MAGISTRATE’S COURT

PENGHULU’S COURT PENGHULU’S COURT

 SUPREME COURT
1985 - 1995

HIGH COURT IN MALAYA HIGH COURT IN BORNEO

SESSIONS COURT SESSIONS COURT

MAGISTRATE’S COURT MAGISTRATE’S COURT

PENGHULU’S COURT
 Current
Structure
FEDERAL COURT

COURT OF APPEAL

HIGH COURT IN MALAYA HIGH COURT IN BORNEO

SESSIONS COURT SESSIONS COURT

MAGISTRATE’S COURT MAGISTRATE’S COURT

PENGHULU’S COURT
• The of stare decisis doctrine need to
devised into three different phases:
▫ (a) Pre-1985: Prior to abolishment of appeal
to Privy Council
▫ (b) 1985-1995: The creation of Supreme
Court
▫ (c) Post 1995: Re-creation of Federal Court
▫ (d) Decision of foreign jurisdiction
(a) Pre-1985: Prior to abolishment of appeal to
Privy Council
▫ PC is the apex court, thus its decision binds all lower courts
(where the decision must be an appeal from Malaysia &
other common law jurisdiction – where the law is in pari
materia with Malaysia. Case: Khalid Panjang v. PP
(No.2) [1964] MLJ 108:
 ‘…a decision of their Lordship (Privy Council decision from
India) is binding on this court and a fortiori, it is binding on
every High Court in Malaysia and no judge is at liberty,
whatever his private opinion may be to disregard it’.
• Would Federal Court today be bound by
the Privy Council’s decision?
(i) Civil cases:
▫ Federal Court decisions binds all lower
courts &
▫ Federal Court is bound by:
 The decision of the Privy Council
Its own decisions
Decision of predecessor courts
Courts of coordinate jurisdiction
▫ Case: Central Securities (Holdings) Bhd. V.
Haron Mohamed Zaid [1980] MLJ 304 –
Federal Court was bound to follow its own
previous decisions:
 ‘In the absence of exception on Young v.
Bristol Aeroplane, we are bound to follow these
two (earlier Federal Court) decision. But even if
believe that they have been wrongly decided and
not merely per incuriam…we should follow our
previous decision and leave the matter to be
corrected on appeal as being the most convenient
and quickest way of having the law determined.’
▫ (ii) Criminal cases
▫ Federal Court applies the same principle as to the
Criminal Division of the English Court of Appeal
▫ Federal Court:
 Is bound by the decision of Privy Council
Is bound by decision of courts of coordinate
jurisdiction & predecessor courts
Binds all inferior court decisions
Is not bound by its own previous decisions
Case: Adnan Khamis v. PP [1972] 1 MLJ 103
▫ High Court
Binds all subordinate courts, bound by
superior court decision
Not bound by other High Court decision
(persuasive)
(b) 1985-1995: Creation of Supreme Court
• Supreme Court is ought to be bound by its own previous
decisions, unless it was wrongly decided. In Lorraine
Esmen Osman v. Attorney General [1986] 2 MLJ
288, Per Sulaiman SCJ:
▫ ..Nor I would hold that this court is, as yet prepared to
follow House of Lords which will nowadays, given proper
circumstances, depart from its own earlier decisions.
(c) Post-1995
• Federal Court is reinstituted as the apex court
• Federal Court decision:
▫ Binds all lower courts
▫ Case: Harris Solid State v. Bruno Gentil [1996]
3 MLJ 489, 518:
‘…This court is bound to follow and apply the law
as stated in Rama Chandran, even it suffers
from any infirmity. It is a decision of the apex
court and constitutes binding precedent.’
• Case: Cooperative Central Bank v. Feyen
Development Sdn Bhd. [1997] 2 MLJ 829
▫ Stare decisis is a ‘cornerstone of our system of
jurisprudence. Thus, it was not open to an
intermediate court to disregard/ depart from a
judgment of the final court of appeal (Federal Court),
regardless whether it is a per incuriam decision.
• Read:
▫ Dato’ Han Tan Heng Chew v. Tan Kim Hor
[2006] 2 MLJ 293;
▫ Metramac Corp Sdn Bhd v. Fawziah Holdings
Sdn Bhd [2006[ 4 MLJ 113;
• Read:
▫ Adorna Properties Sdn Bhd v. Boonsom
Boonyanit [2001] 1 MLJ 24;
▫ Malaysia National Insurance Sdn Bhd v. Lim
Tiok [1997] 2 MLJ 165
▫ Dalip Bhagwan Singh v. PP [1998] 1 MLJ 1
▫ Syarikat Kenderaan Melayu Kelantan v.
Transport Workers’ Union [1995] 2 MLJ 317
▫ Hong Kiang Ngan v. Mahkamah Perusahaan
Malaysia [1995] 3 MLJ 369
▫ Kumpulan Perangsang Selangor Bhd v. Zaid
Hj Mohd Noh [1997] 1 MLJ 789
▫ Kesultanan Pahang v. Sathask Realty [1997]
2 MLJ 701
• Where there is two conflicting decisions of
the:
▫ Court of Appeal – choose either one
▫ Federal Court – choose the latest one
▫ High Court - lower court may choose to
follow the most convincing decisions. Case:
Datuk Tan Leng Teck v. Sarjana Sdn.
Bhd. [1997] 4 MLJ 329
(d) Decision of foreign jurisdictions
• Not binding upon Malaysian courts, but may
be highly persuasive (particularly those
shares similar history of British colonialism)
• Read:
▫ Hong Leong Equipment Sdn Bhd v. Liew
Fook Chuan [1996] 1 MLJ 481
▫ Rama Chandran v. The Industrial Court
of Malaysia [1997] 1 MLJ 145
Islamic Law
• Of unwritten feature because of its original
form of revelation from God to Prophet
• Created by Federal Constitution
▫ List II, 9th Schedule – determine the application
of Islamic law and jurisdiction of Syariah Court
• Art. 3(1)
▫ Islam is the religion of Federation, but other
religions may be practised in peace and
harmony in any parts of the Federation
• Art. 11(1)
▫ Every person has the right to profess, practice
and propagate his own religion
• Cases:
▫ Ramah v. Laton (1927) – Islamic law was once
judicially noticed as law of the land
▫ Che Omar Che Soh v. PP [1988] – British
intervention narrowed the scope of Islam and
Islamic law (historical approach)
▫ Must read: Meor Atiqulrahman [2006] 4 MLJ 605
Custom
• A long way tradition existence through a
long and consistent practice of certain
activities.
• The practice then was accepted and
binding upon society.
• Art. 160 recognizes custom as ‘law’ and
has the force of law.
• Example: Rules for marriage ceremonies
• Category of custom:
• West Malaysia
▫ Ancient Malay Customary Law (Perpatih &
Temenggung)
▫ Hindu customary law
▫ Chinese customary law
• East Malaysia
▫ Ancient Malay customary law
▫ Chinese customary law
▫ Native law
• Adat Temenggung
▫ Autocratic patriarchal law
▫ Owes its influence from Shafii school and partly
Hindu law
▫ Impacted on Islamic socio-political system
▫ Punishment aims at retribution, notably in
criminal law
▫ Widely mentioned in Hukum Kanun Melaka
• Adat Perpatih
▫ Matrilineal in nature, notably in matrimonial law
and property, succession in title
▫ Punishment aims at restitution
▫ Widely known for its constitutional monarchy –
the clan is ruled by lembaga, buapak, anak
buah, luak, undang, perut (in hierarchical order)
• Chinese customary law
▫ Once recognized polygamous marriage- Six Widows’
Case (1911) 12 SSLR 120
▫ Customary marriage remains with the passing of Law
Reform Act 1976
▫ In Sarawak, Chinese customary marriage must be
registered under Chinese Marriage Ordinance (Cap.74)
▫ Phiong Khon v. Chonh Chai Fah [1970] 2 MLJ 114 –
unregistered customary marriage will be void.
▫ Must read: Tan Kui Lim v. Lai Sin Fah [1980] 1 MLJ 222
• Hindu Customary Law
▫ Adapted from Hindu law in India
▫ Impact on ancient Malay customary law
▫ Must read: In Re the Estate Vengadasalam
[1940] 9 MLJ Rep. 124
• Malay Adat in Sabah
▫ Hybrid of Islamic law and custom
▫ Ariff Samat v. Abdul Samat Noor (1973) – adopted child
could inherit property of the foster parent under Malay
adat albeit contrary to Islamic law
• Malay Adat in Sarawak
▫ Codified under the Laws of the Sarawak Malay Court ;
Muslim Wills Ordinance 1896
▫ Must read:
▫ SM Mahadar Datu Tuanku Mohamed v. Chee [1941] SCR
96; Abang Hj Zaini v. Abang Hj Abdulrahim [1951] SCR 3
• Native customary law in Sabah
▫ Caters for various tribes/natives
▫ Publication of Native Affairs Bulletin; Land
Ordinance, native rice cultivation, etc.
• Native customary law in Sarawak
▫ Brooke codified custom into Native Customary
Law Ordinance 1955
▫ The Council for Customs and Traditions is
vested power under Native custom
(Declaration) Ordinance 1996
Note: Definition of ‘native’ – Art. 161A(6) and (7)
` Read for next lecture

• History of Malaysian legal

system
▫ Prior to the introduction of
English Law
▫ Reception of English Law until
1956
 Straits Settlements
Malay States
Sabah and Sarawak
▫ Application of s.3 & 5 Civil Law
Act 1956