LAW 245

CHAPTER 1.1
INTRODUCTION TO LAW

1
 LEARNING OUTCOME
1.Describe the MEANING and the
NEEDS FOR LAW
2.Distinguish between the different
CLASSIFICATION OF LAW

Definition of Law
Classification of Law 2
Function of Law
Types of Legal Systems
 DEFINITION OF LAW
1. General definition

2. Definition under Federal Constititution

3. Definition from different school of thought

i. Natural law school
ii. Positive law school
iii. Sociological school
3
iv. Realism
GENERAL INTERPRETATION OF LAW
Law is a set of rules that regulates interactions
that people have with each other, and which
sets standards of conduct between individuals,
and individuals and the government.
To the layman, law is understood as being a
general rule of conduct.
Oxford Dictionary defines law as ‘the body of
rules (enacted or customary) recognized by
community as binding.’
Cambridge Dictionary: “a rule, usually made by
a government, that is used to order the way in 4
which a society behaves”.
Federal Constitution
Article 160 of the Federal Constitution;
“law” includes written law, common law
in so far as it is in operation in the
Federation or any part thereof and any
custom or usage having the force of law
in the force Federation of any part
thereof.
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Definition From Different
School Of Thought

5/1/24
Natural Law School
The unwritten body of universal moral principles that underlie
the ethical and legal norms by which human conduct is
sometimes evaluated and governed.
Existence of law is set by human nature based on what is
correct (morality & ethics).
Morality, conscience and justice are significant considerations
in law.
Law must be made to conform to the commands they believe
were laid down or inspired by God, or some other deity, who
governs according to principles of compassion, truth, and
justice.
Human laws that are inconsistent with divine principles of 7
morality are invalid and should neither be enforced nor
obeyed.
 St. Thomas Aquinas,

“The rule and measure of human acts is the reason, which is the
first principle of human acts”

On this common view, since human beings are by nature

rational beings, it is morally appropriate that they should
behave in a way that conforms to their rational nature.

Thus, Aquinas derives the moral law from the nature of

human beings
Positive Law School
ž John Austin was best known for his work
developing the theory of legal positivism.
ž The three basic points of Austin's theory of law
are that:
1. the law is command issued by the
sovereign;
2. such commands are backed by threats of
sanctions; and 9
3. a sovereign is one who is habitually obeyed.
• Hart:-

ü We obey the law because of complex

social psychological processes.

ü We obey law because we accept the

legitimacy or authority of the source of
law.

ü We obey the law because we consider it

10
right and proper to do so.
 Sociological School
The relationship between law and society was
sociologically explored in the works of both Max
Weber and Emile Durkheim.
Considers law as a tool or facilitating mechanism
1. Making transactions possible between man;
2. Solving awkward problems as they arise;
3. Regulating activities and interest in the name of the
community;
4. Mechanism of social control –Talcott Parsons s11
Karl Max – views law as a tool and an important means
to shape the society.

Philip Selznick – law should be responsive to a society's

needs and had to be approached morally as well.

Its theory and thinking is concerned about how the law

actually works rather than how it ought to work or what
it is.

Its orientation towards law is functional, pragmatic and

realistic judging law.
Realist
• Law is a rule of conduct laid down by judicial organ.
Decision of judge and the statutes.
• Oliver Wendell Holmes - The life of the law has not been
logic, but it has been experience. The purpose of the law,
Holmes insisted, was the deterrence of undesirable social
consequences.
• Law is nothing more than what a particular court says it is
on a given day, and that the outcome to a legal dispute
will vary according to the political, cultural, and religious
persuasion of the presiding judge.
• Some realists, such as Jerome N. Frank, insisted that a
judge's psychological and personality characteristics also
influence the judicial decision-making process.
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• Law is never perfect thus need alteration to remain
current.
 CLASSIFICATION OF LAW

1. Public and Private Law

2. National and International Law
3. Civil and Criminal Law
4. Man-Made and God-Made Law
5. Substantive and Procedural Law 14
Public Law
&
Private Law
 Public Law:-
q Law which governs the relationship between
individuals and State.
q Involve criminal law, administrative law and
constitutional law.
q Constitutional law lays down the rights of
individuals in the State.
q Criminal law codifies the various offences
committed by individuals against the State.
q Administrative law deals with government 16
agencies and powers.
ž Private Law:-

q Laws involving relationships of rights and obligation

between individuals.
q Intended to give compensation or remedies to persons
injured, to enable property to be recovered from
wrongdoers, and to enforce obligations (contracts and
trusts).
q Covers:
q Contract - rights and obligations that arise by agreement
q Tort – negligence, defamation, trespass
q Trust - relationship between trustee and beneficiary
q Example: Breach of contract – plaintiff could claim 17
for damages.
 National Law
&
International Law
National Law
Also known as municipal or domestic law.
Apply only within one country.
Municipal law includes not only law at the national
level, but law at the state, provincial, territorial,
regional or local levels.
In a particular state or nation there is a variety of
law enacted that could ensure peace and harmony.
National law lays out rules for each citizen to follow,
i.e., rules on speed limits, against stealing, against
assault and murder, and so on.
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National law, in other words, applies to individuals.
International Law
ž International laws are regulations that have been agreed to by
various nations.
ž Most international laws put forth by the United Nations (UN)
have been signed by all countries.
ž Among the international offences recognized are piracy,
terrorism and genocide.
ž International law also provides rules to control how countries
behave when they are at war.
ž The Hague Convention establishes standards for how land wars are
conducted, the proper and ethical use of new weapons, and the
responsibilities of neutral countries.
ž The Geneva Convention lays out rules for the ethical and humane
treatment of prisoners of war, the wounded, and civilians caught in
a war zone.
ž The International Court of Justice (ICJ) at Hague has been set
up to hear cases of disputes between states or nations.
ž Example - Pulau Batu Putih: Malaysia v Singapore
 Civil Law
&
Criminal Law
ž Civil Law:
q Law relating to transactions and undertakings among
individuals.
q It deals with duties between private parties.
q Any violation of it, is a wrong between the parties, not a wrong
against the whole community.
q In a civil case, the party bringing the case (suing) is the
plaintiff. The plaintiff is a party who claims to have been
injured by the wrongful conduct of the defendant.
q The primary goal is to compensate an injured party for the
damage done to him.
q This is accomplished by awarding either a legal remedy or
equitable remedy.
q Civil cases only have to be proven on the balance of
probabilities.
q Examples: Law of Contract, Law of Torts, Family Law, Land
Law, Company Law, Commercial Law, etc.
ž Criminal Law:-

q The law of public rights and duties.

q Creates and controls wrongs committed against the whole
community.
q Criminal law violations are called crimes.
q Its aim is to punish the offenders or rehabilitate them.
q Statutes: Penal Code, Child Act 2001, Criminal Procedure Code,
Firearms Act, Criminal Dangerous Drugs Act.
q Examples: murder, assault, burglary, robbery etc.
q Sentence: fine, imprisonment, whipping, death sentence.
q Any allegation of crimes will be done by the prosecutor with
consent of the Attorney General.
q Criminal cases must be proven beyond reasonable doubt. 23
q Child offender will be placed at approved schools or rehabilitation
centers.
Man-Made Law
&
God-Made Law
Man-Made Law
ž Federal Constitution of Malaysia provides that
Parliament is the law-making body for Malaysia.
ž At state level, the legislating body is the State
Legislative Assembly (SLA).
ž Laws need to be amended to suit the ever
changing demands and needs of society.
ž Examples: Federal Constitution, Penal Code,
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Contract Act 1950, etc.
God-Made Law
ž God made law (example: Islamic law) cannot be

changed by men but it may be interpreted to

overcome the needs of the society.
ž Muslim jurists/scholars need to refer to the
primary Islamic sources before proposing any
fatwas.
ž Examples: Laws in the Al-Quran, Bible, The

Vedas and etc.

Substantive Law
&
Procedural Law
• Substantive Law:
q Substantive law and procedural law work together to ensure
that in a criminal or civil case, the appropriate laws are applied
and the proper procedures are followed to bring a case to trial.
q Substantive law consists of written statutory rules passed by
legislature that govern how people behave.
q It defines crimes and set forth punishment.
q It also defines our rights and responsibilities as citizens.
q Provide details of the rights and obligations of the individuals.
q Law that creates and controls the rights and duties of parties.
q There are elements of substantive law in both criminal and
civil law.

q Section 340 CA2016

• Procedural Law:
q A procedural law is a law that creates and controls the process
of enforcing the rights and duties under substantive law.

q Involving procedure or method of obtaining or exercising a

particular right, for example how to make a contract, or how to
file a claim via civil case.

q Provides the state with the machinery to enforce the

substantive laws on the people.

q The court needs to conform to the standards set up by

procedural law during the proceedings.

q A specific example of a procedural law is a statute of

limitations which creates a time limit for bringing a civil case
or a criminal case.
FUNCTIONS OF LAW
1. To control and determine the life of the society and to
eliminate unfairness.
• Eg: Criminal law determines the types of conduct that is
not allowed by the society such as theft, hurt, harm,
murder etc.
• Any person who does any of the above acts will be punished
and sentenced with either fine, imprisonment, whipping or
mandatory death.
2. To establish the rights and liabilities of a person.
• Eg: A husband has to maintain his wife and children. In a
divorce case the wife could seek for her share or division of
the matrimonial property.
3. To establish, control and promote order or a system of life of
a particular society. 32
• Eg: In Malaysia society, a Muslim man is allowed to
polygamies but is prohibited in UK society.
4. As a means to settle disputes.
• Eg: Breach of contract (damages, specific performance, etc).
Disputes are unavoidable in a society made of persons with
different needs, wants, values, and views. The law provides a
formal means for resolving disputes—the court system.

5. To achieve justice
• Eg: Under Federal Constitution of Malaysia, every citizen
has freedom of movement unless arrested for commission of
an offence. This law is applicable to all regardless of race,
religion or ethnic group.

6. Establishing standards
• The law is a guidepost for minimally acceptable behavior in
society. Some activities, for instance, are crimes because
society (through a legislative body) has determined that it
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will not tolerate certain behaviors that injure or damage
persons or their property.
 TYPES OF LEGAL SYSTEMS
• The term “legal system” connotes a system of laws and legal
institutions established in a country.
• In general, the legal systems of the world are classified into 4
main types:
1. Common Law Legal System

2. Civil Law Legal System

3. Socialist Legal System

4. Religious Legal Systems

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 Common Law Legal System

“Common Law” is used to describe those legal

systems whose laws are derived from the English
system.

It is practiced in U.S.A, Australia, Canada, India,

Singapore, Brunei and Malaysia etc.

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 Civil Law Legal System
“Civil Law” describes those systems which developed
out of the Romano-Germanic legal tradition of
continental Europe.

It is practiced by France, Germany, Spain, Italy,

Netherlands, Portugal etc.

Roman law is the basic source of law for the civil legal
36
law.
 Socialist Legal System

Practiced in Soviet Union and Chinese Soviet

Republic.

Society needs to be reformed.

The society is divided between the upper (ruling class)

and the lower class.

The ruling class used law as a tool of reform and 37

social change.
 Religious Legal System
• Example: Islamic Legal System.

• Is practiced by Saudi Arabia, Kuwait, Egypt and

Pakistan.

• Article 2 of the Constitution of Egypt 1980 states

as follows:
“Islam shall be the state religion, the Arabic language shall
be the official state language, and the principles of the
Islamic Shariah shall be the principle source of38
legislation.”
Primary sources of law are the Al-Quran and As-
Sunnah.
Secondary sources of law are Ijtihad, Ijma’,
Qiyas, Urf and al-Mursal al-Mursalah.
Islamic law deals with two broad aspects of
regulation:
1) Man’s duties towards God(Ibadah).
2) Laws governing human relations such as
marriage, divorce, succession etc (Muamalat).
39
MALAYSIAN LEGAL
SYSTEM (LAW 245)
-CHAPTER 1.2-

1
LEARNING OUTCOME
— Describe the development and the
application of law in the country

01-Dec-14 2
LEGAL HISTORY OF MALAYSIA
• (1) Era of Early Settlers in West

West
Malaysia
• (2) Era of Malacca Sultanate
• (3) Era of Portuguese & Dutch
Malaysia Administration
• (4) Era of British Colonization

East • (1) Sabah

• (2) Sarawak
Malaysia
01-Dec-14 3
 WEST MALAYSIA

(1) Era of Early Settlers in West Malaysia (The

Aborigional Legal system)
q It assumed that the earliest settlers in West Malaysia
were in the Middle Stone Ages (8000-2000 B.C.)
q The Negritos and the Senoi are their descendents.
q They were followed by the Proto-Malays from Yunan
who settled in the vicinity.
q Intermarriage between the Proto-Malays and the
people from Java and Sumatra evolved into Deutero-
Malays.The Malays are their decendents.

01-Dec-14 4
q The Negritoes:-
Ø Live in groups and loves to migrate. (tribal
nomadic societies)
Ø Comprised of many tribes and each of the
tribes was headed by a chief, who was
usually the eldest member of the society
Ø Chief has power over the members of the
group.
Ø He also acted as the Chief Medicine Man
where he provided cures for the sick.
Ø He also responsible to ensure that justice
was done to his subjects. When exercising
his power as a chief of the tribe, he had
absolute authority.

01-Dec-14 5
Ø Penalties consisted of fines only where;
-A member who commits an offence (such as
stealing the blow pipe or run away with
another’s wife or who kills) will be required to
make payment or he will be admonished, be
tied up, and beaten till he agrees to settle the
payment.
Ø Inter-tribal disputes (disputes among the
tribes)- the chiefs would assemble/gather to
settle the dispute. Here, they were assisted by a
few advisers who were among elders of the
tribes.

01-Dec-14 6
7
q The Senois:-
Ø This tribe was more organized and settled than
the Negritoes.
Ø The society was divided into several tribes and
each tribes was headed by Penghulu and the
post is inherited by the eldest son.
Ø If he has no son, the post will be given to the
person he elects.
Ø The powers of Penghulu covered civil and
criminal matters concerning his subjects.
Ø But he has no power in capital offences like
murder case. In murder case, death sentence
was pronounced by a tribunal.
01-Dec-14 8
Ø Theft cases- banishment from the tribe.
Ø Disputes about women cases- compensation
to the victim (money/properties).
Ø The Senois also practiced a lease of land
where the rent was paid in the form of food
supply for a specified period.
Ø Debts cases- debts would be repaid by
working for the creditor/ supplied with food.

01-Dec-14 9
01-Dec-14 IKHWAN NAGUIB BIN JUSOH - FUU 10
 THE MALACCAN EMPIRE
(2) Era of Malacca Sultanate
— Malacca was founded by a Hindu prince from the
Majapahit Empire. (author of history)
— Malacca become a famous port of call for traders
from China, India and Arabia.
— At first, the ruler and its people were followers
of the Hindu religion but they after embraced the
religion of Islam.
— The apex of administration system of Malacca is
the Sultan and he was assisted by four officials
called Bendahara, Temenggung, Laksamana &
Shahbandar.
01-Dec-14 11
 Sultan
an absolute ruler and handled all
cases of treason

Temenggong Bendahara
His power equal to Chief Chief adviser and enforcer of
Police law (Prime Minister)

Laksamana Shahbandar
Empowered to manage Managed affairs of the port
diplomatic issues and war and safety of traders
(Commander in chief)

01-Dec-14 12
01-Dec-14 IKHWAN NAGUIB BIN JUSOH - FUU 13
01-Dec-14 IKHWAN NAGUIB BIN JUSOH - FUU 14
 Two Legal Texts of Malacca
• It has 44 chapters.
Hukum Kanun • It was based on the Adat Temenggong and
Islamic law from Syafie school of law.
Melaka (Laws of • It had several sections on family law which were
translated from the Islamic Family Law.
Malacca) • Etc.

Undang-Undang • It has 25 chapters all together.

• It contained rules and regulations relating
Laut Melaka maritime matters. Eg; duties of ship’s crew, the
jurisdiction of the Admiral.
(Maritime Law of • It was also based on Adat Temenggong and
Islamic law on Syafie school.
Malacca) • Etc.

01-Dec-14 15
(3) Era of Portuguese & Dutch
Administration
3.1 Portuguese Administration
Ø The 1st Europeans who came to Malaysia. They
occupied Malacca from 1511 until 1641.
Ø The Portuguese army was headed by Alfonso de
Albuquerque. When they captured Malacca in
1511, they established a military and civil
administration.
Ø Malacca was governed by a Governor (Captain)
from the Portuguese. He had wide authority over
all people of Malacca and the foreigners.

01-Dec-14 16
01-Dec-14 17
Ø In civil matters- Governor was assisted by a
Council. The Council consisted of Ovidor (Chief
Justice), Viador (Mayor), Bishop or his deputy and
a state Secretary.
Ø In criminal matters- the Ovidor or a Magistrate
will pronounce the sentences subject to the
confirmation by the Governor. However, in
important cases, the Governor himself will
preside the Court. Further appeal will be
forwarded to the Higher Courts in Goa, India.
Ø In military matters- Governor had to consult the
Captain-General of war (Commander-in-Chief)
and the Sergeant Major.
01-Dec-14 18
Ø There were 7 Magistrates in Malacca who were
selected each year/annually among the leading citizens.
Ø There Magistrates formed a civil body to manage all
town affairs. They had civil and criminal jurisdiction
over all citizens of Malacca. If there was an appeal
against the decision given by the Magistrate, it will go
to the Ovidor.
Ø Beyond the walls of the city of Malacca, Portuguese did
not exert their influence. The Malays and other Asian
communities were left to themselves. The old system
prevailed.
Ø Head men and kapitan were appointed for each
community to maintain law and order and was under
the supervision of a Malay Bendahara, who is flanked by
the Temenggong and Shahbandar.
01-Dec-14 19
3.2 Dutch Administration
— The Dutch took Malacca over from Portuguese in
1641.
— The administration of Malacca was headed by a
Governor. The Governor was assisted by a Council
(Collector, Fiscal, Mayor, Upper Merchant and
Secretary). The police council (Politie Raad) has
executive powers and the judicial matters were left to
the Raad Van Justice.
— It was assumed that the Dutch had left the people of
Malacca to their own customs and laws. While
regarding the Dutch people, they were governed by
the Dutch laws which were based on Colonial statutes.
— The administration of both Portuguese and Dutch
were not extensive but were specifically directed onto
Malacca town.

01-Dec-14 20
01-Dec-14 21
(4) Era of British Colonisation
— British colonization era can be divided into
the following:-

(a) (b)
Straits Federated
Settlement Malay States

(c) (d)
Unfederated Federation of
Malay States Malaya

01-Dec-14 22
 (a) STRAITS SETTLEMENT
(Penang, Malacca & Singapore)
— Through the treaty with the Sultan of Kedah in
1786, Penang was taken by Francis Light for the
East India Company.
— Singapore was obtained by Stamford Raffles from
the Sultan of Johor, through the treaty of 1819.
— Malacca was obtained by the British from the
Dutch East India Company via the Anglo-Ducth
Treaty of 1824.
— The 3 settlements were amalgamated and called
the Straits Settlement in 1826.

01-Dec-14 23
Reception of English Law in the Straits
Settlement

— Penang
Ø In 1786 British occupied Penang when Captain Francis
Light obtain a cession of the island from Sultan Kedah
on the assurance of British protection in the event that
Kedah was attacked by Siam. Penang was the first
territory in Malaysia to fall into British hands.
Ø Penang was not a virgin country or was not wholly
uninhabited at the time of British occupation.
Ø Since Penang belonged to the Sultanate of Kedah, it is
presumed that Kedah laws which were based on Adat
Temenggong were applied in Penang.

01-Dec-14 24
Ø During the early period of colonial rule: legal chaos-
Francis Light did not introduce English Law. He was
merely instructed to preserve order in Penang as well
he can by imprisonment or other common punishment
for offences committed by the local people.
Ø His jurisdiction as a Superintendent did not extend to
British people. If offences had been committed by
them, they will be sent to Bengal for trial.
Ø There was no clear separation of power between the
executive authority and judiciary and no official body
of laws.
Ø To overcome the difficulties in the administration, he
appointed local headman with judicial duties to deal
small cases occurred among local people. They were
responsible for keeping Registers of Marriage, Births,
Slaves and Sales of land & houses.

01-Dec-14 25
Ø Francis Light also introduced the Magistrates
Courts which comprises 3 officials- namely
Commander, Magistrate and Assistant.
Ø Sir Benson Maxwell (a judge) described the
situation in Penang within the period 1786-1806
as follows:
◦ that for the first 20 years, no body of known rule was
recognized as the law of Penang. English law was not
regarded as the lex loci (law of the land) nor as
personal law of the English inhabitants. English law was
not in force for punishment of crime. There were no
civil or criminal law on the island. The law of nature
was the only law which governed civil and criminal
cases.

01-Dec-14 26
Ø Legal chaos prevailed in Penang until the first Charter of
Justice was granted to Penang in 1807 to introduce the
English law in so far as it was suitable to local conditions.
Ø It is clear that before the Charter was introduced, there
were courts and judges in Penang but justice administered
was not in accordance with rules of English law.
Ø In the case of KAMOO v BASSET (1808), the court held
that it was uniformly accepted that this Charter
introduced the laws of England as it existed in 1807 into
Penang.
Ø Subsequently, the case was affirmed by the Privy Council
in the case of ONG CHENG NEO v YEAP CHEAH NEO
(1872) where the court ruled that it was immaterial to
consider whether Penang was a ceded territory or a settled
colony since there was no trace of any established law
before the British acquisition. In either view, the law of
England must be taken to be the law of the land in so far
as it is applicable to the circumstances of the place and
modified in its application.
01-Dec-14 27
Ø In 1826 the 2nd Charter of Justice was introduced into
Penang together with Malacca and Singapore. The
Charter introduced the English law as it existed in
1826. By this time, Malacca and Singapore had been
united together with Penang to form the Straits
Settlements.
Ø In 1855 the 3rd Charter of Justice was granted to the
Straits Settlements. However, this Charter did not
introduce English law but only to re-organize the
existing Courts. (REG V WILLANS)
Ø In another case of FATIMAH v LOGAN (1871), a
Muslim died in Penang, leaving a will. The issue was
– what must applied to determine the validity of the
will. The court held that since the lex loci of Penang
was English law, then the validity of the will must be
determined in accordance with the English law.

01-Dec-14 28
— Malacca
Ø Malacca had been a powerful Malay kingdom until the
Portuguese and Dutch conquest of 1511 and 1641. at
the time of its transfer to the British in 1824, the law
applicable in Malacca was Malay customary law,
Muslim law, customary law of other local inhabitants
and some Dutch laws.
Ø In 1795, British took temporary possession of Malacca
from the Dutch. During this period, British did not
pay much attention to re-organize the administration.
In 1824 by virtue of the Anglo-Dutch Treaty, British
took permanent possession of Malacca.
Ø In 1826, Malacca was united together with Penang
and Singapore to form Straits Settlements. At this
time also the second Charter of Justice was granted to
all three settlements to introduce English Law as it
existed in 1826.

01-Dec-14 29
Ø The leading case of RODYK v
WILLIAMSON provides that the law
of England had been introduced by
the Charter of 1826 so as to supersede
the law of Holland. It means that the
Dutch law previously existed had
been abrogated and replaced by
English law by virtue of the 2nd
Charter of Justice.

01-Dec-14 30
Ø The position of Malay customary law in Malacca after
the 2nd Charter of Justice was granted has not been
affected where this customary law was still
applicable/recognized.
◦ This situation was clearly explained in the case of
SAHRIP v MITCHELL (1870) where the court
held that under the Malay custom of Malacca, the
Ruler was the owner of the soil. However, every
person has the right to clear and occupy forest and
waste land, subject to the payment of 1/10 of the
proceeds of the land to the Ruler. This custom was
recognized by the Portuguese and Dutch and when
the law of England was introduced by Charter, the
law did not supersede the Malay customary law.
Ø In 1855, the 3rd Charter of Justice was introduced into the
Straits Settlements including Malacca. This Charter however
was granted only for the purpose of re-organizing the existing
Courts.

01-Dec-14 31
— Singapore
Ø Formerly known as Temasik was founded in the
13th century by a Prince from Palembang. During
those time the customary law was in force in
Singapore.
Ø Later Javanese conquest Singapore until the fall of
Majapahit. During the Javanese occupation, they
had introduced their laws which were similar to
the laws of Palembang.
Ø In 1819, Sir Stamford Raffles arrived at Singapore.
During this period, British had set up the East
India Company as a base to administer their
territories.
01-Dec-14 32
Ø Singapore was at first governed by a Resident and the
first Resident was Sir Stamford Raffles. He administered
justice with assistance of Sultan and Temenggong of Johor.
Ø Before he left Singapore, he had framed a number of
Regulations inter alia- that in all cases relating to
religious ceremonies, marriages and riles of inheritance,
the laws and customs of the Malays will be respected so
long as they are not contrary to justice and humanity. But
in all other cases, English law will be enforced with
consideration to the customs and habits of the people.
Ø In matters relating customary law which governed the
Asiatic races in Singapore, Captains and Penghulus were
appointed. However, the Europeans were immune from
any law enforced in Singapore. They were subject under
the jurisdiction of court at Calcutta.
01-Dec-14 33
Ø After Singapore was included in the Straits
Settlements in 1826, it was governed by the 2nd
Charter of Justice 1826. this Charter introduced into
Singapore the English law as it stood in 1826 with
certain modifications.
◦ The English law was modified/altered to make it
suitable to the local inhabitants.
◦ Subject in its application to the various races as are
necessary to prevent it from operating unjustly and
oppressively.
◦ Therefore, English law may be rejected if it caused
unjust oppression.

01-Dec-14 34
Ø InISAAC PENHAS v TAN SOO ENG,
the issue in this case was whether a marriage
celebrated in Singapore between a Jew and
Chinese constituted a valid marriage according
to the laws of Singapore? The court held that
the marriage was valid according the common
law of England.

01-Dec-14 35
(b) FEDERATED MALAY STATES “FMS”
(Perak, Pahang, Selangor & N9)
Ø In 1874, British intervened into the affairs of
Selangor, Negeri Sembilan (1874-87) and
Pahang (1888).
Ø In 1888, British control of the Malay states of
Perak, Pahang, Selangor and Negeri Sembilan
was firmly established through a series of
treaties.

01-Dec-14 36
Ø JWW Birch was appointed in Perak as
Resident and his death resulted in extensive
intervention of the British in the affairs of
Perak.
Ø In 1895, these 4 states were brought together
in a Federation called “FMS”. Each has an
adviser called Resident.
Ø Residential System- In various treaties entered
into between Malay rulers agreed to accept
the advice of British provided that the advice
should not apply to questions touching the
Malay religion and custom.
01-Dec-14 37
Reception of English Law in “FMS”
Ø Acting on the advice of the British residents, the
Malay sultans of “FMS” enacted a number of laws
which adopted the Indian codifications of the
principle of English law, for example Penal Code,
Evidence Ordinance, the Contract Act, the
Criminal Procedure Code.
Ø Land enactments were enacted in various states
and these introduced the Torrens system
registration of title.
Ø The effect of the Legislation was to replace the
former Malay-Muslim law by law based on the
principles of English law.

01-Dec-14 38
Ø British residents also advised the Malay rulers to set up the
court of justice. Formerly, the final appeal of cases went to
the Sultan in council but in 1896, the final appeals went to
the Judicial Commissioner, the final court for the
Federation.
Ø In 1905, a Supreme Court was created and in 1906,
provision was made for an appeal in civil actions from the
Supreme Court to Privy Council.
Ø The judges in the new courts were all trained in the British
system of law and it was natural for them to refer and
apply English law, when there is no written law to apply.
Ø The practice adopted by these judges was confirmed when
in 1937 the FMS’s Civil law Enactment providing for the
reception of English.
Ø In 1951, the law was extended to other Malay states and
1956 the Civil Law Ordinance introduced English law to
the entire Federation of Malaya.
01-Dec-14 39
 UNFEDERATED MALAY STATES
“UFMS”
Ø Kelantan, Terengganu, Kedah and Perlis were given to
the British under the Anglo-Siamese Treaty of 1909. A
British adviser was appointed in each state to advise
the ruler. English law was applied by the judges in their
decisions.
Ø The state of Johor was recognized by Britain as an
independent state in 1885 and 1914 Johor accepted a
British advisor.
Ø Unlike the Straits Settlements which was a colony, the
Malay states were theoretically independent and ruled
by their respective rulers.
Ø Their legal status as a sovereign ruler had been
accepted and recognized by the English courts.
01-Dec-14 40
Ø In the case of MIGHELL v SULTAN OF JOHORE, the court
held that the English courts have no jurisdiction over the Sultan
of Johor, who was an independent foreign sovereign, unless he
consented to submit to the jurisdiction of English courts. Also in
the case of PAHANG CONSOLIDATED CO LTD v THE STATE
OF PAHANG (1933), Privy Council uphold the principle of the
principle of immunity.
Ø In DUFF DEVELOPMENT v KELANTAN
GOVERNMENT, where a company entered into an
agreement with the government of Kelantan to develop a piece
of land. In the agreement it was provided that in the event of any
dispute, the matter will be resolved through arbitration. The
State government did not observed the decision of the
arbitrator. Action was taken against the ruler. The court held that
the action cannot be taken against the ruler because of the
principle of immunity.
Ø English law was officially introduced into the Unfederated Malay
States by virtue of the Civil Law Ordinance (extension) 1951
after the Unfederated Malay States formed part of the
Federation of Malaya
01-Dec-14 41
 FEDERATION OF MALAYA
Ø 1945- Japanese were defeated and the
administrative units were placed under British
Military Administration.
Ø Proposal of forming the Malayan Union failed
in 1946.
Ø 1948- proposal to form the Federation of
Malaya was agreed by the Malay rulers.
Ø Reid Commission was appointed to draft a
Federal Constitution for the Federation of
Malaya.
01-Dec-14 42
01-Dec-14 IKHWAN NAGUIB BIN JUSOH - FUU 43
Federation of Malaya…
Ø2 levels of government:
§ Federal Government
§ State Government
Ø Central Government consisted of a British
High Commissioner, an Executive Council and
a Legislative Council.
Ø State level- Ruler, an Executive Council and a
legislative body, the Council of State, with both
official and unofficial members.
01-Dec-14 44
Application of English Law
Ø When Malaysia was formed in 1963, there
were 3 separate statutes authorizing the
application of English law:-
(a) The Civil Law Ordinance 1956 in Peninsular
Malaysia.
(b) Application of Laws Ordinance 1951 in Sabah.
(c) Application of Laws Ordinance 1948 in Sarawak
Ø Today, it is the Civil Law Act 1956

01-Dec-14 45
 EAST MALAYSIA
(1) Sarawak
Ø Originally part of Brunei Empire.
Ø James Brooke became Rajah of Sarawak in 1841 and died in
1868.
Ø James Brooke actually administered Sarawak according to his
own laws by giving orders, notices & directions which were
not formal.
Ø Replaced by his nephew, Charles Johnson Brooke from 1868
to 1917.
Ø The 2nd Rajah (Charles Brooke) set a Council Negeri in 1865.
§ Main function- to determine the customs that ought to be enforced
as laws.
§ However, the power to pass/issue the law was still in the hands of
the Rajah.
01-Dec-14 46
Ø Criminal law- Rajah followed the Indian Penal Code and it
was formally adopted into Sarawak in 1922.
Ø There was no official publication of the enacted laws until
the 3rd Rajah (Vyner Brooke) take over as the ruler. Here,
several books were published (which contained laws issued
by Rajah Brooke), for example, Orders 1863-1913 and the
Green Book.
Ø In 1922, a serious step to follow the English laws was seen
when the Rajah published ‘The Red Book’.
ØIt contained all State Orders enacted on and after the 1st July
1927. besides that, Penal Code & Criminal Procedure Code were
also enacted based on the Indian Codes.
Ø Order L-4 (Laws of Sarawak Ordinance) 1928, the English
law became formally applicable.
ØThis order had a provision for the application of the common
law of England in Sarawak in certain circumstances.
ØIf it is modified by Ordinances and so far as it is applicable
regarding the native customs and local conditions.
01-Dec-14 47
Ø Thus, English law was to be applied as far as possible
and the native and customary laws were to be
maintained so far as they were not a disturbance to
the morality and public policy.
Ø From time to time, the English Law had developed in
Sarawak. 1949, the Order L-4 was repealed by
Application of Laws Ordinance.
ØThis Ordinance provided for the application of common
law of England in Sarawak in the absence of any local
legislation so far as the native customs and local conditions
allowed. The Ordinance has a wider provision for
applications of English law under Section 2 of that
Ordinance.
Ø This
Ordinance was later replaced by the Civil Law Act
1956 when it was extended to Sarawak in 1972.

01-Dec-14 48
(2) Sabah
Ø 1881- British North Borneo Company was set up to
take over the administration of Sabah.
ØThe Company’s duty was to abolish slavery & administer
justice besides taking into consideration the native customs
and laws, and not to interfere with the religion there. The
Company adopted Indian, the Straits Settlements & other
colonies legislations.
Ø Besides legislation, English law was introduced
through judiciary. The Courts were established
according to English Court’s System. The
Indian Penal Code, Criminal Procedure Code
& Evidence Act was applied.

01-Dec-14 49
Statutory Reception in Sabah
Ø Itwas applied firstly through the Civil Law Ordinance
1938. Later in 1951, Sabah received English law in
formal through North Borneo Application of Laws
Ordinance 1951.
Ø Section 2 of this Ordinance was similar to section 2 of
the Sarawak 1949 Ordinance.
Ø However, the North Borneo Ordinance did not have
the additional provision of Section 3 which imports
Acts of British Parliament.
Ø Then, the Civil Law Ordinance was extended to Sabah
in 1972 together with Sarawak by the Civil Law
Ordinance (Extension) 1971.

01-Dec-14 50
01-Dec-14 IKHWAN NAGUIB BIN JUSOH - FUU 51
01-Dec-14 52
01-Dec-14 53
~ THANK YOU ~

54
 LAW 245 - SOURCES OF LAW
(UNWRITTEN LAW & ISLAMIC LAW)
-CHAPTER 2.1-

01-Dec-14 1
 LEARNING OUTCOME
1.Categorise the different types of sources of
law
2.Explain the application of English law
3.Understand the significance of judicial
decisions
4. Relate the customary practices as a source
of law
5.Describe the scope of Islamic law in the
country
2
 •Sources refers to :-
1. Historical sources or factors that
influence the development of law
although they are not recognised as
law.
2. Places where the law is found
3. Legal source – i.e the legal rules that
make up the law.
•Sources of Malaysian Law refers to the legal
rules that make up the law of the country.
01-Dec-14 3
 SOURCES OF MALAYSIAN LAW
1. UNWRITTEN LAW
a) ENGLISH LAW
b) JUDICIAL PRECEDENT
c) CUSTOMARY LAW

2. ISLAMIC LAW

3. WRITTEN LAW
a) FUNDAMENTAL LIBERTIES
b) LEGISLATION
c) SUBSIDIARY LEGISLATION 4
 UNWRITTEN LAW
• Unwritten law is simply that portion of the Malaysian
law which is not written i.e. law which is not being
enacted by the Parliament or State Assemblies and
which is not found in the written Federal and State
Constitutions.
• Unwritten law is found in cases decided by the courts,
local customs, etc.
• The unwritten law comprises the following:
1. English Law
2. Judicial Precedents
3. Customs
• Another important source of the Malaysian law is the
Islamic law/Shariah Law.
01-Dec-14 5
 1. ENGLISH LAW
• Definition:
üBoth principles of
1. English Common Law and
2. Equity
• Made by the superior courts of UK.

• Common Law
üRules of law that were made by royal judges
based on customary laws that were commonly
applied by the people.
6
• Equity
üPrinciples of law that were made by the Lord
Chancellor of the Court of Chancery.
1. Is to supplement the common law.
2. Does not contradict the common law but aims
to correct its rigidity.

• Example of principle under equity are:

1. He who comes to Equity must come with clean hands
2. Equity is equality
3. Where the equities are equal, the first in time prevails

7
 • English law comprises of two parts:
(a)Common Law (b)Equity

• Not all English Common Law and Rules of

Equity forms part of Malaysian law as its
application is based on:
1. Section 3 of the Civil Law Act 1956,

2. Section 5 of the Civil Law Act 1956, and

3. Section 6 of the Civil Law Act 1956

01-Dec-14 8
 Section 3 of Civil Law Act 1956
• Section 3(1)(a) Civil Law Act 1956 provides that in West
Malaysia, the courts shall apply the Common Law of
England and the Rules of Equity as administered in England
on the 7 April 1956 (cut off date)
• In Sabah and Sarawak, the courts shall apply the English
Common law and Rules of Equity, together with statutes of
general application, as administered or force in England on
the 1 December 1951 (Sabah) and Sarawak on the 12
December 1949 respectively.
• Sabah - [Section 3(1)(b)] and Sarawak [Section 3(1)(c)]
• After the cut off date, English law does not become law in
Malaysia.
• Thus, Section 3(1) CLA 1956 connotes the strict application
of the English law in Malaysia before the cut of date.

01-Dec-14 9
 Whether English statutes of general application are
applicable in West Malaysia?

• There are 2 views:-

(1) Prof. Bartholomew: The statutes of general
application are applicable to the West
Malaysia.
(2) Joseph Chia: The statutes of general
application are not applicable to West
Malaysia.

01-Dec-14 10
 • If we refer to decided cases, we may find several
which seemed to support the view of Joseph Chia
who said that the English statutes are not
applicable in West Malaysia.
• In Mokhtar v Arumugam, the court refused to
apply damages award since it is a creature of
English statute. Therefore, by virtue of Section 3 of
Civil Law Act 1956, such award is not available.
• In Ong Guan Hua v Chong, it was held that the
English Gaming Acts of 1710 and 1835 had no
application in West Malaysia.
01-Dec-14 11
• There are TWO CONDITIONS in applying English
Law in Malaysia (Section 3(1) of CLA 1956) :-

(i) English law is applied only in the absence of

Malaysian statutes on particular subjects. Local
law takes precedence over English law
because English law is only apply to fill in the
lacuna in the legal systems of Malaysia.
(ii) Not all of English law is applied. Only that part
of English law that is suited to local
circumstances of Malaysia will be applied

12
 • In Shaik Sahied v Sockalingam Chettiar, it was
contended that by the appellant that the provision
of the English Moneylenders Act were not such
legislation that should be extended by Section 5 to
the colony (Singapore).

• The Act was meant to regulate activities of money

lenders in England and was not of general
application. As such they were unsuited to and
could not be applied to the local scene.

01-Dec-14 13
 Section 5 of the Civil Law Act 1956
•Section 5 introduces the English
Commercial Law in the absence of local
statutes.
•However, since there are so many local
statutes in commercial subjects, there is
no total reliance to the English Laws.
•Examples: Companies Act 1956,
Partnership Act 1961, Contract Act 1950,
Insurance Act 1963 and etc.
01-Dec-14 14
 •Section 5(1) CLA 1956 – West Malaysia shall
apply English Commercial Law as
administered on 7th April 1956.

•Section 5(2) CLA 1956 – Malacca, Penang,

Sabah and Sarawak, the English Commercial
Law applicable is the one in existence in
England at the time the issues arise.

01-Dec-14 15
 • In Kon Then Soong v Tan Eng Nam [1982], it was
held that English Law of Partnership was not
applicable in Malaysia since there is a local statutes
applicable, that is, the Contracts (Malay States)
Ordinance.

• In Leong Brothers Industries v Jerneh Insurance

[1991], the court held that by virtue of Section 5 of
the Civil Law Act 1956, the English Marine
Insurance Act 1906 is applicable.
01-Dec-14 16
Section 6 of the Civil Law Act 1956
• English Land Law is not applicable
anywhere in Malaysia
• Case: United Malayan Banking Corporation v
Pemungut Hasil Tanah Kota Tinggi
“The National Land Code is a complete and comprehensive code
of law governing the tenure of land in Malaysia and the incidents
of it, as well as other important matters affecting land there, and
there is no room for the importation of any rules of English Law in
that field in so far as the Code itself may expressly provide for
this.”

17
 2. JUDICIAL PRECEDENTS
• One of sources of Malaysian law where it is
founded in cases decided by the courts.
• Only decisions by Superior Courts are binding as
laws and must be followed.
• In deciding a case, one judge has to adopt certain
accepted practice of “Precedent” or rule called
“Rule of Stare Decisis”.
• A judge has to follow principles which have been in
existence in previously decided cases.
01-Dec-14 18
 Meaning of Precedent

• “Precedent” is been defined as judgment

of court cited as authority for legal
principle embodied in its decision.

• In other words, legal principle in a previous

decision of a Superior Court is followed in
later case with similar material facts.

01-Dec-14 19
 Two Types Of Precedent:

a) Declaratory Precedent
ü A judge applies an existing rule of law without
extending it.

b) Original Precedent
ü If a judge has to decide on a case without any
precedent.
ü His decision which is made based on justice, equity
and good conscience, will be known as original.
01-Dec-14 20
 How Does the Doctrine of Precedent Work?

• It works in two ways:

1) Vertically
ü The superior courts bind all courts subordinate
to it.
-Example: Magistrates Court has to follow principles in previous
decision of High Court when there are similar facts.

1) Horizontally
ü Some courts are bound by their own prior
decisions and prior decisions of a past court of
the same level.

01-Dec-14 21
 • STATUS OF PRECEDENTS:

1. Binding precedents- must follow the prior or

past decisions of a court of the same level or
higher court.
2. Persuasive precedents- local superior courts
borrowed from other Commonwealth
countries which have similar laws with
Malaysia.

01-Dec-14 22
 • In deciding which precedent is binding, judge
has to look into:
1) Origin of precedent.
ü Must from court of appropriate rank in
same hierarchy
2) Contents of precedent.
ü Must have ratio decidendi

• Once established, precedent will be binding

on him.
01-Dec-14 23
 What is Ratio Decidendi ?
•Ratio decidendi:
ü The legal reasoning or ground for the
judicial decision which is binding on later
courts under the system of judicial
precedent.
ü Principle of law upon which decision is
based.
ü Binding on future cases.

•RD is found by taking account material facts

of a case together with decision made based
on the material facts.
01-Dec-14 24
 1. Donoghue v Stevenson (1932)
• A man bought a bottle of ginger beer. After drinking it, he
suffered diarrhoea as a result of decomposed snail in the bottle.
He sued the manufacturer for negligence and succeeded in his
action.
2. Grant v Australian Knitting Mills (1935)
• A person bought clothes from a shop. After wearing them, he
suffered dermatitis and other related skin problem due to the
presence of certain chemicals in the clothes. He sued the clothes
manufacturer for negligence and he succeeded.
3. Hedley Byrne v Heller (1964)
• Advice was given by a bank causing financial loss to the person
who receive it. He sued the bank for negligence in giving advice
and he succeeded.
01-Dec-14 25
 • “A manufacturer of products owes a duty to consumer to
take reasonable care in the manufacture of products. If the
consumers is injured as a result of negligent act of
manufacturer, thus manufacturer is liable” – Ratio in the
case of Donoghue v Stevenson
• Here, the Court applied this RD to the Grant’s case &
Byrne’s case.
• Thus, DONOGHUE’s case was a precedent for the later
cases. It binds later cases through its RD if later cases have
similar material facts.
• RD in DONOGHUE applied to cases of negligent
manufacturer either of drinks, clothes or even advises.
01-Dec-14 26
 Generations of Hierarchy of Superior Court

1. Before 1985
Privy Council

Federal Court

High Court of Malaya High Court of Borneo

2. Between 1985-1994
Supreme Court

High Court of Malaya High Court of Borneo

01-Dec-14 27
 3. 24TH JUNE 1994 UNTIL TODAY

Federal Court

Court of Appeal

High Court of Malaya High Court in Sabah & Sarawak

Sessions Court Sessions Court

Magistrates Court Magistrates Court

01-Dec-14 28
 Application of Judicial Precedent in Malaysia

Judicial Precedent in Federal Court

• Whether Federal Court binds all lower courts?
ü Binds all lower courts in our hierarchy.
ü In Haris Solid State v Bruno Gentil, the Court of Appeal
was bound to follow law stated by Federal Court in
earlier case of Ramachandran even it suffers from any
infirmity.
ü It was decision of apex court and constitutes binding
precedent.

01-Dec-14 29
 • Whether Federal Court bound by its own previous decisions?
üNot bound by own decisions.
üDalip Bhagwan v PP [1998]
ü The Federal court never refused to depart from its own
decision when appeared right to do so. It should be exercised
sparingly.
ü Power to depart is indicated when its previous decision was
wrong, uncertain, unjust, outmoded or obsolete in modern
contexts.
ü If this occurs, its new decision represents the present law.
Later decision prevails.
ü The principle is that the power to depart should be exercised
sparingly.

01-Dec-14 30
 üIn Koperasi Rakyat v Harta Empat [2000], Gopal Sri
ram JCA held Federal Court may depart from its
earlier decision;-

(1) where it clearly appears that earlier decision

was contrary to a statutory provision that was
overlooked by it or;
(2) where serious error occurred in decision
causing distortion of law and need to be corrected
as soon as possible.

01-Dec-14 31
 • Whether Federal Court bound by its predecessors?
PBased on manner in which Parliament created each
successive apex court and judicial pronouncements, it is
identified that immediate predecessor of Federal Court was
1. Former Federal Court (1963-1985) and
2. Supreme Court (1985-1994)

PTheir decisions are binding and continued to be binding on

Federal Court until overruled by the present Federal Court.
PIn Anchorage Mall v Irama [2001], the High Court held
decision of Supreme Court in Alor Janggus’s case deserves
utmost respect and should be followed as faithfully as
possible. Cannot disregard it until reversed by the Federal
Court. Thus decision of Supreme Court binds.
PHowever, in Paari v Abd Majid [2000], the apex courts
should be free to depart from precedents, whether their
own or their predecessors. Otherwise the law will remain
static/obsolete.
01-Dec-14 32
 Judicial Precedent in Court of Appeal

• Whether Court of Appeal bound by decisions of the

Federal Court?

ü Bound by decisions of the Federal Court.

ü In Haris Solid State v Bruno Gentil, the Court of

Appeal was found to follow the law stated by
Federal Court in Ramachandran’s case even it
it suffers from any infirmity.

01-Dec-14 33
 • Whether the Court of Appeal is bound by its
own decisions?

ü Kumpulan Peransang Selangor v Zaid bin Haji Mohd Noh

(1997), Gopal Sri Ram J.C.A. said that, “we are bound by
our own decisions. For like reasons, the Court of Appeal
is bound by its own decision.”

PIn Kesultanan Pahang v Sathask Realty [1997], held that

Court of Appeal bound by its own decision.

PIn Kwong Yik Bank v Ansonia [1999], the court re-affirmed

the above case where the Court of Appeal bound by its own
decisions.

01-Dec-14 34
 Judicial Precedent in High Court
oArticle 121(1) of the Federal Constitution- there are 2 High
Courts of coordinate jurisdiction.
• Whether the High Courts bound by higher courts?
PThe High Court bound by Federal Court and Court of Appeal
decisions.
PIn Periasamy v PP [1996], the High Court judges are bound by all
judgments of Federal Court though they did not agree with them.
PIn Ravintharan v Kuppusamy [2005], it was held that the decisions of
Court of Appeal prevails over all decisions of High Court due to the
doctrine of judicial precedent.
PIn Marimuthu v Abdullah [2007], the decisions of Court of Appeal are
binding upon the High Court.

01-Dec-14 35
 • Whether the High Court binds the lower courts?
üDecisions of High Court of Malaya binds on all subordinate courts of
West Malaysia
üDecisions of High Court of Sabah & Sarawak binds on all subordinate
courts of East Malaysia.

• Whether the High Court binds another High Courts?

üSundralingam v Ramanathan Chettiar, held that one High Court judge
does not bind another High Court judge.

• Whether High Court of Malaya bound by decision of High Court Sabah

& Sarawak?
PNot bound.
üIn Joginder Singh v PP [1984], the High Court in Malaya not bound by
the decision of High Court in Sabah & Sarawak and vice-versa.
01-Dec-14 36
 Judicial Precedent in Subordinate Courts

• The subordinate courts bound by decision of all

superior courts.
• Decisions of subordinate courts are not binding on
any court because of their lack of capacity to
establish binding precedent.
• Therefore, the decision of Sessions Court is not
binds on Magistrate's Court.

01-Dec-14 37
 Judicial Precedent - Summary

FEDERAL COURT(FC) Decisions of Federal Court binds all

lower courts

COURT OF APPEAL COA is bound by the decision of FC.

(COA) COA’s decision is binding on all lower
courts (HC and subordinate courts).
COA is also bound by its own decision

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

courts
SUBORDINATE Bound by the decisions of the superior
COURTS (SC) courts.

01-Dec-14 38
 Advantages of Judicial Precedent
ü Degree of certainty and predictability is maintained.
Reference to precedent may assist in forecasting what
decision will be and plan accordingly.
ü It also leads to an orderly development of the law. Only
the Judges can overrule it’s previous decisions and the
hierarchy of the courts ensures that lower courts follow
higher courts.
ü Uniformity in law - Similar cases treated alike. This is in the
interests of justice and fairness to public.
ü Time saving - It saves court time as for most situations
there is already an existing solution.
01-Dec-14 39
 Disadvantages of Judicial Precedent
ü Confusion - Hundreds of cases are reported each year, making it
hard to find the relevant precedent which should be followed.
ü There are so many cases that it is hard for judges to find
relevant cases and the reasoning may not be clear.
ü Complexity - The law is too complex with thousands of fine
distinctions.
ü Rigidity - The system is too rigid and does not allow the law to
develop enough.
ü Slow development - The law is slow to develop under the
system of judicial precedent. The law cannot be changed until a
case on a particular point of law comes before one of the higher
appellate courts.
ü Injustice - The strict rules of judicial precedent can create
injustice in individual cases.

01-Dec-14 40
 3. CUSTOMARY LAW

•Types of Customary Law

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

01-Dec-14 41
 Definition of Customary Law:-
•Article 160 of the Federal
Constitution: Customary law
includes ‘customs and usages having
the force of law.’

42
 MALAY CUSTOMARY LAW
IN WEST & EAST MALAYSIA

43
 Malay Customary Law in West Malaysia
• Definition of Malay customary law:-
Ø Customs and traditions in the Malay community which
in the course of time have obtained the character of
laws.
Ø Many writers believe or claim that Malay customs are a
mixture of Hindu law and Islamic laws.

• Wilkinson in his book “Papers on Malay subjects” claimed

that there are two legal systems in the Malay community in
West Malaysia, which are:
1. Adat Temenggung
2. Adat Perpatih

01-Dec-14 44
 Adat Temenggung
ØAdat Temenggung survives in most Malay states of the
Peninsular Malaysia except for Melaka and Negeri
Sembilan.
ØGovern: title to land, succession, marriage and divorce, or
election of the officials.
ØProprietary right over land is created by clearing land and
continuous occupation of it.
ØProperty could be inherited by both male and female.
However, portion for the male will be greater.
ØWith regards to criminal law, it was set up under the
principle of retaliation (lex talionis). The offender shall lose
the limb that was used in committing the offence, unless he
is of a higher status in the social order.
01-Dec-14 45
 ØA Malay Raja is personally sacred, the source of all honour
and the fountain of justice.

ØThe king could do whatever he deems best in his own eyes

since Sultan always has the absolute power.

ØIn Laton v Rahmah (1927), the chief Kathi of Selangor gave

evidence in the Supreme Court and stated that where a
husband and wife acquired property and when one of them
dies, such property is divided equally between the
survivors and heirs of the deceased. He admitted that this
rule is not provided in the al-Quran.

01-Dec-14 46
 Adat Perpatih
Ø It is a democratic matriarchal adat law which was
brought to the Negeri Sembilan from Minangkabau by
the Minangkabau settlers/ immigrants.
Ø It is practiced today, largely in Negeri Sembilan and
Naning of Melaka.
Ø Customary land inherited by women only.
Ø Man generally will lived on his wife’s land, cultivated
the soil and was entitled to his maintenance out of the
proceeds.
Ø If a man been killed, the wrongdoer or his family must
pay “blood money” to support the family of deceased.
01-Dec-14 47
 • If the land belongs to one clan but registered in name of
another clan, waris of former clan can redeem the land. It is
not transferable to a person who not a member of the
owner’s clan.
• In Munah v Isam, the court ordered the return of Tanah
Pesaka which had been transferred outside the clan. The
court held that ancestral property can only be inherited by
females, while sons have no right at all.
• In Sapin v Tiamat, the court held that where land is Pesaka,
the owner must be a female member of the appropriate
clan.
• Marriage within clan is prohibited since such marriage is
regarded as incest (sumbang mahram).
01-Dec-14 48
 Ø There were 3 kinds of property recognised under Adat Perpatih:-

(a) Ancestral property/ land (harta pusaka)

• This property was always held by the woman. Upon death of a
woman, the property will be inherited by the female
descendents of the deceased.
(b) Accompanied property & Acquired property (carian bujang)
• Harta Pembawa- property of husband acquired before
marriage.
• Harta Dapatan- property of wife acquired before marriage.
• In the event of death, goes back to the family
(c) Jointly acquired property (carian laki bini)
• Known as Harta Sepencarian- this property was jointly
acquired together by the husband and wife during their
marriage.

01-Dec-14 49
 Malay Customary Law in East Malaysia
• Sabah:-
ØIt is a mixture of Islamic law and ‘adat’.
ØApplicable: marriage, inheritance, division of property, betrothal
etc.
ØIn Matusin bin Simbi v Kawang bt Abdullah (1953), a couple who
resided with the Bajau community in Sabah for 40 years adopted
3 children in accordance with Bajau customs. On his death, a
dispute arose as to how his property should be administered. The
High Court had declared that the whole estate be inherited by
the widow.
ØThe Supreme Court held that since adoption of the children was
made according to Bajau laws, they were considered as
legitimate children for all purposes and were entitled to share in
the inheritance and none goes to the deceased’s sister.
01-Dec-14 50
 • Sarawak:-
ØMalay adat were codified by the Rajahs under Undang-
Undang Mahkamah Melayu Sarawak (1915) and the Muslim
Wills Ordinance 1896 (Cap 96) (Revised laws of 1958).
ØIn Sheripah Unci and Sheripah Ta’siah v Mas Poeti and Anor
(1949), a child adopted under adat was recognised as the
legitimate child of the couple though contrary to Islamic
law.
ØIn S. M. Mahadar bin Datu Tuanku Mohamed v Chee (1941),
the court upheld that according to custom that the oath of
a pregnant woman that the particular man was the father
was acceptable although contrary to English law.
01-Dec-14 51
NATIVE CUSTOMARY LAW IN
SABAH & SARAWAK

52
 Native Customary Laws of Sabah
ØSources of Native Customary Law
ØIt can be found in codes compiled by G.C. Woolley, who was in
North Borneo Civil service.
ØThey were published and reprinted in 1953 and 1962 as the Native
Affairs Buletin No. 1-7.
ØEg: Native Affairs Bulletin No. 1 (Adat Timogun), Native Affairs Bulletin
No. 2, Adat Tuaran and etc.
ØIn these Bulletins, ‘Adat’ are defined as a set of prescriptions,
breach of which involves penalties mostly in monetary terms.
ØA collection of Native Law cases has been compiled by Tan Sri Lee
Hun Hoe, a former Chief Justice of the High Court of Borneo.
ØSubjects covered are namely betrothal, inheritance, marriages,
divorce, adoption and succession.
01-Dec-14 53
 • Native Customary Law of Sabah are also found in
few legislations such as:
(a) Land Ordinance 1930, Sabah
• Customary rights to land are based on:
1. Land possessed by customary tenure
2. Land planted and regularly enjoyed by the
person as his personal property
3. Grazing land
4. Land that has been cultivated or built on within
three years
5. Burial grounds
6. Usual right of way for men and animals

01-Dec-14 54
 (b) Native Rice Cultivation Ordinance
• classified land as rice land, and ensure that the
owner grow rice at least once a year.
• Failure to do so will results in the owner being
subject to fines.
(c) Natives Estates (Administration of native and
Small Estates) Ordinance
• Cover distribution of an estate of deceased
natives irrespective of its values.
• If there is no will, the property is distributed
according to rules under the Interstate
Succession (Ordinance of 1960).

01-Dec-14 55
 Native Customary Laws of Sarawak
ØSources of Natives Customary Law
ØNative customary law has been recognised since Rajah
James Brooke time.
Ø1st codification of native law - Ondang-Ondang Lapan of 1843.
Ø1955- the Native Customary Ordinance was passed. Among
its contents are;
1. The Sea Dayak (Iban) Code of Fines 1952
2. Orang Ulu Customary Code of Fines Order
ØThere were also two compilations of adat by A.J.N Richards,
namely Dayak (Iban) Adat Law 1963 and Dayak (Bidayuh)
Adat Law 1964. Now, both have been replaced by the Adat
Iban 1993 and the Adat Bidayuh 1994

01-Dec-14 56
 Ø Adat Iban 1993 for example covers longhouse
constructions, farming, gardening, marriages, custom
relating to property, death, child adoption and
miscellaneous matter.
Ø With the codification of customary laws, there is now
certainty on various aspects of native customary law.
Ø In 1977, the Council for Customs and Traditions (Majlis
Adat Istiadat Sarawak) was established. It is vested with
responsibility to amend any customary laws and its
decision needs approval of the Majlis Mesyuarat Kerajaan
Negeri (State Supreme Council).

01-Dec-14 57
 oThe Land Code 1958 contains provisions that recognized
native customary rights to land. Land are held by natives in
the following categories:-
1. Mixed zone land
2. Native area land
3. Interior area land
oNatives customary rights may be created by:
1. Felling of virgin jungle and occupation of the cleared
land
2. Planting of land with fruit trees
3. Occupation or cultivation of land
4. Use of land for burial grounds
5. Use of land of any class for rights of ways

01-Dec-14 58
 ØCustomary rights may only be created or acquired
and may be lost through non-use or abandonment.
ØNyalongak Bunyan, the court held that the non-use
of land for a period of 20 years was considered an
abandonment.
ØNor anak Nyawai and Ors v Borneo Pulp
Plantations Sdn Bhd, Ian Chin J recognised the
existence of Iban customary right to land, based on
a ground survey and a map produced by the
community.
ØHowever, since 1994, amendments have been made
to empower Minister to extinguish native
customary rights to land, which include Land Code
Ordinance 2000 and Land Surveyors Bill 2001.
01-Dec-14 59
Hindu and Chinese
Customary Law

60
 ØThe Indians and Chinese who arrived as traders of settlers
brought along with them their customary laws.
ØIn Regina v William (1856), the court held that:
“If a Muhammedan or Hindu or Chinese marriage celebrated here
according to the religious ceremonies of the parties be valid it is not
because the Charters make it so, but because the Law of England
recognises it.”

ØChinese polygamous marriage was recognised in Choo Ang

Chee v Neo Chan Neo (Six Widows)(1911). However, later it
was decided that succession to estates was not governed
by Chinese customary law but under English law.
ØToday, the Law Reform (Marriage and Divorce) Act 1976
governs the marriage of non-Muslims.

01-Dec-14 61
 ØAccording to Chinese customary laws, the male will be
bestowed with property since the male carry on the family
name. Nowadays, property can be distributed to any
member of the family by will.
ØThe Chinese practice adoption to prevent the extinction of
a lineage. An adoption child stands in all respects as a
legitimate natural born child in the matter of succession.
ØThe development of Hindu customary law in the Malay
Peninsula can be seen as an extension and adaptation of
Hindu customary law in India.
ØTwo unique features of Hindu customary law are joint
family property and moneylending contracts in the
Chettiar community.
01-Dec-14 62
ISLAMIC LAW

63
 • With reference to Legislative Lists, Islamic Law falls
under List II (State List) Ninth Schedule of the
Federal Constitution.
• Sources of Islamic Law is divided into primary and
secondary sources.

qPrimary sources of Islamic law comprises of :

1. Al-Quran and
2. Al-Sunnah

01-Dec-14 64
I. The Holy Quran
This is the primary source for Islam and shari’a. Muslims believe the Quran to be the
words of Allah revealed to Prophet Muhammad (peace and blessings be upon him) in
their pristine(original) form.

II. Sunnah and Hadith

The word sunnah means a practice, a way or course, a rule, a mode or manner of life, a
precedent and a custom. In its technical sense it implies the doings and practices of
Muhammad (peace be upon him). Thus, the sunnah is the actual embodiment of the
Will of Allah, shown in the actions of His Messenger (peace be upon him).

In Islamic studies, hadith (or tradition) means all the sayings, deeds, decisions of
Muhammad (peace be upon him), his silent approval of the behavior of his
companions and the descriptions of his personality. In short, sunnah is what was
practiced by the Prophet (peace be upon him) and hadith is the records of what was
said by the him (peace be upon him). 65
 Secondary sources –
1. Ijmak (Consensus)
2. Ijtihad (Analogy)
3. Qiyas (Deduction)
4. Istihsan (Equity)
5. Al-mursalah wal mursaleh
(Common or public good).

01-Dec-14 66
 I. Ijma’ (consensus, expressed or tacit, on a question of law by scholars)
It is clear that Abu Bakr Siddiq, the great companion and first khalifa, used to refer to
the Quran to find answers. If ever he couldn’t find the answer there, he would refer to
hadith. Then if the answer was not there either, he would gather the companions and
by consensus (ijma’) and the matter would be decided.

II. Ijtehad (literally effort)

The name comes from a hadith, in which the Prophet (peace be upon him) asked
Mu’az, the companion, by what criteria he would administer the regions assigned to
his control. ‘The Quran,’ Mu’az replied. ‘Then what?’ asked the Prophet (peace be
upon him). ‘The sunnah.’ ‘And then what?’ ‘Then I will make a personal effort (ijtehad)
and act according to that.’ To which the Prophet (peace be upon him) agreed.

Ijtehad is applied to those questions, which are not covered by the Quran or sunnah.
That is, by established precedent (taqlid), or by direct analogy (qiyas) from known
law.

One man came to Umar and said: ‘Cut the hand of my slave as he has stolen the mirror
of my wife and it is worth sixty dirham.’ Nevertheless, Umar refused on the basis that
the crime had not been committed outside of the household. Also, one day a man
stole something from the bait-al Mal(state treasury) and Umar did not cut his hand, as
everyone has a right on the bait-al Mal.
5/1/24 67
 III. Qiyas (Operation of Analogy)

Qiyas is the principle by which the laws of the Quran and sunnah are applied to
situations, not explicitly covered, by these two sources of legislation. Take the
issues, considering the matter to the very branches of the concerned matter and
find similarities between them.’

An example is when Prophet Muhammad (peace be upon him) said, concerning

wheat and barley:

‘If you exchange wheat (or barley), then exchange wheat for wheat for the same
amount. If you take extra this is riba.’ Although this is mentioned, only specifically
for wheat and barley, it is valid (extrapolated) to all those things involving quality
and quantity.

There are actually two conditions for qiyas:

a) The matter to be decided by qiyas has no specific ordinance for it in the Quran
and hadith.
b) There must be something in common between the qiyas and what it is being
applied to.

5/1/24 68
 IV. Istihsan

Juristic preference. Refers to the principle that permits exceptions to strict and/or
literal legal reasoning in favor of the public interest (maslahah). Guides decision
making in cases where there are several potential outcomes. Allows jurists to
abandon a strong precedent for a weaker precedent in the interests of justice.

Prominent in the Hanafi school of Islamic law, but rejected by the Shafii school.
Demonstrates the potential for multiple interpretations of texts and analogies
based on context, revealed texts, necessity, and consensus (ijma).

Particularly favored in cases where following qiyas (analogical reasoning) would

lead to hardship for the believer, since the Quran and Sunnah instruct that hardship
should be avoided or alleviated. Modified version used by modern reformers as a
principle for reforming Islamic law.

5/1/24 69
 V. Al-Masalih Al-Mursalah

Masalih mursalah is the one of the principle in the Islamic jurisprudence.

Basically, the idea of masalih al-mursalah is the derivation of the hukm which is
not stated in the primary sources of Islamic law but implementing it for the
interest of the public.

Maslahah literally means benefit or interest. When qualified as Maslahah

Mursalah it refers to unrestricted public interest. Maslahah Mursalah is
synonymous with Istislah which is also called Maslahah Mutlaqah.

As regards relation among Qiyas, Istihsan and Istislah, it may be stated that Qiyas
and Istihsan are essentially based on Illah in the Nasus (hidden or obvious). Law is
expanded by Qiyas or Istihsan on the basis of Illah of Nasus. But when law cannot
be made on the basis of Nasus or through Qiyas and Istihsan, law is made on the
basis of Maslahah or public interest

5/1/24 70
 ISLAM UNDER FEDERAL CONSTITUTION OF
MALAYSIA

• Article 3 of the FC provides that:-

“Islam is the religion of the Federation; but other

religions may be practiced in peace and harmony
in any part of the Federation.”

• Cases:
1. Che Omar bin Che Soh v PP
2. Meor Atiqulrahman v Fatimah Sihi and others
3. Ramah Taat v Laton Malim Sutan 6 FMSLR (1927) 128.
4. Lina Joy v Majlis Agama Islam Wilayah Persekutuan

71
01-Dec-14 IKHWAN NAGUIB BIN JUSOH - FUU 72
 • Article 3 of the Federal Constitution merely states that
Islam is the official religion of the Federation. This does not
equate to Malaysia being an Islamic State.
• The following excerpts from historical documents clearly
support this:
1. Federation of Malaya Constitutional Commission, 1956-
1957 Report (The Reid Commission) – Paragraph 169
2. Federation of Malaya Constitutional Proposals 1957
(White Paper)
3. Report of the Commission of Enquiry, North Borneo
and Sarawak, 1962 (Cobbold Commission) – Paragraph
148(e)(ii)

5/1/24 73
 Che Omar bin Che Soh v PP
• In that case, an accused argued that since Islam is the
religion of the Federation under Article 3(1), the imposition
of the death penalty for his offence, not being a “hudud”
according to Islamic law, is contrary to Islamic injunction,
and therefore unconstitutional and void.

• Lord President Salleh Abas concluded in these terms:

“Thus, it can be seen that during the British colonial period, through their
system of indirect rule and establishment of secular institutions, Islamic
law was rendered isolated in a narrow confinement of the law of
marriage, divorce, and inheritance only.

5/1/24 74
 • The YDPA will be head of the religion of Islam for states
that does not have a Ruler and for Federal Territories of
Kuala Lumpur, Putrajaya and Labuan.

• The Ruler – Head of Religion of Islam in his state.

• The State Legislative Assemblies are empowered to make

law relating to succession, marriage, divorce, adoption,
zakat and etc. (List II 9th Schedule of FC)

• The Federal legislature – has power to make laws on

constitution, organization and procedures of the Syariah
courts, the control of propagating doctrines and beliefs
among person professing the Islamic faith.

01-Dec-14 75
 • Article 11(4) of the FC states that;
“State law and in respect of the Federal Territories of Kuala Lumpur,
Labuan and Putrajaya, federal law may control or restrict the
propagation of any religious doctrine or belief among persons
professing the religion of Islam.”
• Article 12(3) states;
“No person shall be required to receive instruction in or to take part
in any ceremony or act worship of a religion other than his own.”
• Article 12(4) provides;
“The religion of a person under the age of eighteen years shall be
decided by his parent or guardian.”
1. Teoh Eng Huat v Kadhi of Pasir Mas, Kelantan &
Anor [1990] 2 CLJ 11
2. Subashini Rajasingam v. Saravanan Thangathoray &
Other Appeal (supra)
3. Shamala Sathiyaseelan v Dr. Jeyaganesh C. Mogarajah
01-Dec-14 76
01-Dec-14 IKHWAN NAGUIB BIN JUSOH - FUU 77
78
Teoh Eng Huat v Kadhi of Pasir Mas, Kelantan &
Anor [1990] 2 CLJ 11
• On the issue of whether a person below 18 years
had legal capacity to choose her own religion in
exercise of her constitutional right.
• The Supreme Court held that the law applicable
to infant is the civil law and hence, the right of
religious practice of the infant shall be
exercised by the guardian on her behalf until she
becomes major.
ADMINISTRATION OF ISLAMIC LAW
Majlis Agama Islam
• Responsible for all matters regarding Islamic
religion except Islamic law and administration of
justice.
• Advise Ruler/YDPA on all matters regarding Islam.
• Day to day operations run by Department of
Religious Affairs.
• Acquire/dispose property, administer baitulamal,
collect zakat, trustee of mosques, set up Islamic
schools etc.
Mufti

• Appointed by Ruler/YDPA on advice of Minister in

PM’s Department responsible for Islamic Affairs.
• Make/publish in Gazzette fatwa on any
unsettled/controversial questions of or concerning
Islamic law.
• Upon publication, fatwa binding on all Muslims in
the State/territory concerned.
Others:
• Islamic Legal Consultative Committee
• Prosecution and Religious Enforcement
• Baitulmal
• Mosques
• Religious Teaching Advisory Committee
• Pusat Zakat
• Registrar of Muallaf
• SYARIAH COURTS

82
 SYARIAH COURT IN MALAYSIA.

• According to Article 121(1A) of the Federal

Constitution, exclusive jurisdiction has been given to
the Syariah Court in the administration of Islamic laws.

• Syariah court have jurisdiction only over Muslims. As

State Courts, they have jurisdiction within the
respective state boundaries only.

• Mohamed Habibullah v Faridah bt Dato Talib [1992] 2

MLJ 793
- Article 121(1A) is a provision to prevent conflicting
jurisdiction between the civil courts and the Syariah
courts.
01-Dec-14 83
5/1/24 84
 ØCase: Soon Singh a/l Bikar Singh v Pertubuhan
Kebajikan Islam Malaysia (PERKIM) Kedah & Anor
(1999) 1 MLJ 489;
• Plaintiff filed an application in High Court of KL
and it has been objected by Jabatan Agama
Islam Kedah.
• High Court- upheld (agree) the objection and
dismiss the application.
• Appeal went into Federal Court stage –
dismissed the appeal.

01-Dec-14 85
 • It is obvious that the intention of Parliament by
Article 121(1A) is to take away the jurisdiction of
the High Courts in respect of any matter within
the jurisdiction of the Syariah Court.

1. Dalip Kaur v. Pegawai Polis Daerah Bukit

Mertajam & Anor. [1992] 1 MLJ
2. Teoh Eng Huat v Kadhi of Pasir Mas, Kelantan
& Anor
3. Genga Devi a/p Chelliah v Santhanam a/l
Damodaram
5/1/24 86
WHEN DO SYARIAH LAWS APPLY TO MUSLIMS

ü Syariah laws in Malaysia apply in the following areas :

(i) Family laws in respect of marriage, divorce, custody and

guardianship, maintenance of children, matrimonial
properties, and alimony.

(ii) Laws of succession: Probate and administration relating

to distribution, as well as trust deed.

(iii) With regard to criminal laws the jurisdiction of the

Syariah laws are limited and confined to offences in respect
of polygamous marriage, close proximity, indecent dressing
and behavior, violation of the ‘pillars of Islam’ –not fasting
during Ramadan, not attending Friday prayers,desertion by
either spouse and apostasy
87
 Syariah Court is lead by Chief Syarie Judge
and has been divided in three levels, each with
their own jurisdiction:

1. The Syariah Court of Appeal

1. The Syariah High Court

1. The Syariah Subordinate Court

5/1/24 88
The Syariah Court of Appeal
• Have jurisdiction to hear and determine any appeals for any
decision that has been made by The Syariah High Court in
execution of original jurisdiction.
• Can set aside/annul any conviction or lessen any sentence.
• Have monitoring power and checking on The Syariah High
Court and, if found needed for justice importance, either their
own need or on any party or people who has importance, at
any level in any matter or proceeding, either mal or criminal, in
Syariah High Court, called and examined any record about it
and can make orders as required for justice.
• Cases heard by a panel of 3 person (appointed by YDPA). Chief
Syarie Judge is the chairman of this panel.

• Decision made is final.

5/1/24 89
The Syariah High Court
• In its criminal jurisdiction, try any offence committed by a Muslim under
the Islamic Law (according to State Enactment) or any other written law
which prescribes offences against the precepts of the religion of Islam.;
and

• Have mal jurisdiction within The State, “The Syariah High Court” can
hear and decide all action and proceeding if all parties in actions or
proceedings are muslims and actions or proceedings are related with;·

1. Betrothal,
2. Marriage, ruju’, divorce, annulment of marriage (fasakh),
3. Nusyuz,or judicial separation (faraq)
4. Guardianship or custody (hadhanah)
5. Wakaf or nazr; division and inheritance of testate or intestate
property;
6. Other matters as provided by the law

90
The Syariah Subordinate Court
The Syariah Subordinate Court were divided according to each
district:
Functions:
• The Syariah Subordinate Court has jurisdiction within The
State at districts that are fixed and must be within it
criminals jurisdiction, for offences committed by Muslim
under Islamic Law (according to state Enactments) or any
other written law which stipulates offence for Islamic
Religion;
• The Syariah Subordinate Court has jurisdiction, within The
State at districts that are fixed and must be in its Mal
jurisdiction, can hear and decide all actions and
proceedings where The Syariah High Court has been given
power to hear and decide, (not including hadhanah claim
5/1/24
or harta sepencarian) 91
 LAW245
MALAYSIAN LEGAL
SYSTEM
-CHAPTER 2.2-

1 5/1/24
LEARNING OUTCOME

1. Comprehend the basics of the Federal

Constitution

2. Explain the roles and the application of

legislation and subsidiary legislation

2 5/1/24
 WRITTEN SOURCES

(1) Federal Constitution & State

Constitution
(2) Legislation
(3) Subsidiary Legislation

3 5/1/24
 (1)
FEDERAL
CONSTITUTION
&
STATE
CONSTITUTION
4 5/1/24
 FEDERAL CONSTITUTION &
STATE CONSTITUTION
(a) Federal Constitution
Ø The Federal Constitution is the supreme law of
the land by virtue of Article 4 of the Federal
Constitution.

Ø Article 4 states that any laws passed after

Merdeka Day which is inconsistent with this
Constitution shall to the extent of
inconsistency, be VOID.

5 5/1/24
IKHWAN NAGUIB BIN JUSOH - FUU 6 5/1/24
 Federal Constitution
Ø The Federal Constitution enshrines the basic or the
fundamental rights of the individual. These rights
written in the Constitution can only be changed by a
two-thirds majority (67%) of the total number of
members of the legislature.
Ø This is in contrast to normal laws which can be
amended by a simple majority.
Ø Supreme law of the federation; it is the fundamental
law of the land, a kind of ‘higher law’ which is used
as a yardstick with which to measure the validity of
all other laws.

7 5/1/24
 State Constitution
Ø There are also Constitutions of the States
comprising the Federation, which forms part of
written law in Malaysia.
Ø The State Constitution contains provisions
which are enumerated in the 9th Schedule of
the Federal Constitution.
Ø Some of these provisions include matters
concerning the Ruler, the Executive Council,
the Legislature, etc.

8 5/1/24
 THE CONCEPT OF SUPREMACY
ò The supremacy of the Federal Constitution is set out
in:
1. Articles 4(1) of Federal Constitution
2. Article 162(6) of Federal Constitution, and
3. Section 73 of the Malaysia Act 1963.
ò Article 4 states that;
Ø This 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.

ò Article 4(1) refers only to laws made after Merdeka

Day.
9 5/1/24
ò Laws made before Merdeka Day are dealt
with in Article 162.

ò Article 162(6) – pre-Merdeka laws shall be

applied by a court or tribunal with such
modifications as may be necessary to make
them accord with the Federal Constitution.

10 5/1/24
Article 162(6) FC

11 5/1/24
ò Therefore, under Article 4(1)

ò any post-Merdeka law

ò which is inconsistent with the FC

ò shall be declared void

ò to the extent of the inconsistency

12 5/1/24
ò Article 162(6) – any pre-Merdeka law

ò which is inconsistent with the FC

ò shall be continued

ò with the necessary modifications

ò to render it consistent with the FC

13 5/1/24
ò Section 73 of the Malaysia Act 1963 covers the pre-
Malaysia laws in force on 16 September 1963 in a state
which joins Malaysia on that date.
ò The section saves from automatic repeal all pre-Malaysia
laws enacted by the state legislature, including those whose
subject matter became a federal matter on that date.
ò Such laws shall continue to apply only within the state
concerned.
ò Supremacy of the Constitution is maintained by giving to
the courts the right to review Legislative and Executive
acts.
ò When a Legislative or Executive violates the constitutions,
the court may declare it ultra vires and void.

14 5/1/24
ò Legislation may be invalidated on one of the following
grounds;

1. It relates to matter concerning which the relevant

legislature has no power to make law;
2. It has not been enacted in accordance with the
procedure prescribed in the Constitution; or
3. It is inconsistent with any provision of the
Constitution; or

4. In the case of state law, it is inconsistent with Federal

Law.
ò Constitutional supremacy purports to apply in Malaysia.

15 5/1/24
FUNDAMENTAL LIBERTIES

16 5/1/24
IKHWAN NAGUIB BIN JUSOH - FUU 17 5/1/24
IKHWAN NAGUIB BIN JUSOH - FUU 18 5/1/24
19 5/1/24
ò Article 5(1) provides;

“No person shall be deprived of his life or personal liberty save

accordance to law.”

ò Article 5(3) provides;

“Where a person is arrested he shall be informed as soon as

may be of the grounds of his arrest and shall be allowed to
consult and be defended by a legal practitioner of his choice.”

20 5/1/24
ò Aminah v Superintendent of Prison, Pengkalan
Chepa, Kelantan (1968) 1 MLJ 92

ò When a person arrested he must informed as soon as

may be of the grounds of his arrest and shall be
allowed to consult and be defended by a legal
practitioner of his choice.

–Art 5(3) FC

21 5/1/24
 Ooi Ah Phua v Officer-in-charge, Criminal
Investigation, Kedah/Perlis (1975) 2 MLJ 198
ò Appellant applied for habeas corpus and alleged that the right
to consult and be defended by counsel commenced
immediately after arrested.
ò High Court dismissed the application.Federal Court also
dismissed the appeal.
ò Held: the right of an arrested person to consult his lawyer
begins from the moment of arrest but cannot be exercised
immediately.
ò A balance has to struck between the right of the arrested
person and the duty of the police to protect the public from
the wrongdoers.
–Art 5(3) FC
22 5/1/24
Cases for Article 5:

ò Saul Hamid v Public Prosecutor (1987) 2 MLJ 736.

ò Mohamed bin Abdullah v Public Prosecutor (1980) 2

MLJ 201

ò Shaaban and Ors v Chong Fook Kam (1969) 2 MLJ

219

23 5/1/24
b

24 5/1/24
 Article 6
ò Generally prohibits slavery and forced labour.

ò All forms of forced labour are prohibited but

Parliament may by law provide for compulsory
service for national purposes.

ò Doing work incidental to serving a sentence of

imprisonment is not forced labour.

25 5/1/24
26 5/1/24
ò Article 7 provides protection against
1. retrospective criminal law, and
2. repeated trials
ò No person shall be punished for an act or omission
which was not punishable by law when it was done or
made and – Article 7(1)
ò No person shall suffer greater punishment for an
offence than was prescribed by law at the time it was
committed – Article 7(1)
ò Cases for Article 7:
ò Loh Kooi Choon v Government of Malaysia (1977) 2 MLJ
187
ò Public Prosecutor v Mohd Ismail (1984) 2 MLJ 219.
27 5/1/24
28 5/1/24
29 5/1/24
ò Article 8(1) provides all person are equal before
the law and entitled to the equal protection of the
law.
ò No discrimination against citizens on ground
of religion, race, descent, place of birth or
gender, etc.

ò Article 9 provides that no citizen shall be

banished or exclude from the Federation.
Ø Except for security of the Federation or any part
thereof, public order, public health or the punishment
of offenders.
30 5/1/24
Article 10

ò (1) Subject to Clauses (2), (3) and (4) -

ò (a) every citizen has the right to freedom of speech and expression;
ò (b) all citizens have the right to assemble peaceably and without arms;
ò (c) all citizens have the right to form associations.

ò (2) Parliament may by law impose -

ò (a) on the rights conferred by paragraph (a) of Clause (1),such restrictions as it deems necessary or expedient in the
interest of the security of the Federation or any part thereof, friendly relations with other countries, public order or
morality and restrictions designed to protect the privileges of Parliament or of any Legislative Assembly or to provide
against contempt of court, defamation, or incitement to any offence;

ò (b) on the right conferred by paragraph (b) of Clause (1), such restrictions as it deems necessary or expedient in the
interest of the security of the Federation or any part thereof, or public order;

ò (c) on the right conferred by paragraph (c) of Clause (1), such restrictions as it deems necessary or expedient in the
interest of the security of the Federation or any part thereof, public order or morality.

ò (3) Restrictions on the right to form associations conferred by paragraph (c) of Clause (1) may
also be imposed by any law relating to labour or education.

ò (4) In imposing restrictions in the interest of the security of the Federation or any part thereof or
public order under Clause (2) (a), Parliament may pass law prohibiting the questioning of any
matter, right, status, position, privilege, sovereignty or prerogative established or protected by
the provisions of Part III, article 152, 153 or 181 otherwise than in relation to the implementation
thereof as may be specified in such law. 31 5/1/24
Article 11
ò (1) Every person has the right to profess and practice his religion and,
subject to Clause (4), to propagate it.
ò (2) No person shall be compelled to pay any tax the proceeds of which are
specially allocated in whole or in part for the purposes of a religion other
than his own.

ò (3) Every religious group has the right -

ò (a) to manage its own religious affairs;
ò (b) to establish and maintain institutions for religious or charitable purposes;
and
ò (c) to acquire and own property and hold and administer it in accordance
with law.
ò (4) State law and in respect of the Federal Territories of Kuala Lumpur
and Labuan, federal law may control or restrict the propagation of any
religious doctrine or belief among persons professing the religion of
Islam.
ò (5) This Article does not authorize any act contrary to any general law
relating to public order, public health
32
or morality. 5/1/24
ò Article 10 provides for freedom of
speech, assembly and association.

ò Article 11 covers freedom of religion.

ò Freedom of religion does not authorise
acts contrary to any general law relating
to public order, health or morality.

33 5/1/24
Cases on Article 11
ò Teoh Eng Huat v Kadhi, Pasir Mas & Anor (1990) 2 MLJ
300
ò Held: A non-Muslim parent or guardian has the right to
decide the choice of various issues affecting an infant's life
until he or she reaches the age of majority (18 years).
ò Lina Joy v Majlis Agama Islam Wilayah & Anor (2004) 2
MLJ 119
ò Held: Freedom of religion under Article 11(1) is subject to
Article 11(4) and 11(5) because issue of apostasy or change
of religion is directly connected with the rights and
obligations of the person as a Muslim and this is falls under
the jurisdiction of Syariah Court.
ò Daud bin Mamat v Majlis Agama Islam (2001) 2 MLJ 390
ò Held : …fall under the jurisdiction of the Syariah Court.
34 5/1/24
Article 12
ò (1) Without prejudice to the generality of Article 8, there shall be no
discrimination against any citizen on the grounds only of religion, race, descent or
place of birth -

ò (a) in the administration of any educational institution maintained by a public authority,

and, in particular, the admission of pupils or students or the payment of fees; or
ò (b) in providing out of the funds of a public authority financial aid for the maintenance
or education of pupils or students in any educational institution (whether or not
maintained by a public authority and whether within or outside the Federation).
ò (2) Every religious group has the right to establish and maintain institutions for the
education of children in its own religion, and there shall be no discrimination on
the ground only of religion in any law relating to such institutions or in the
administration of any such law; but it shall be lawful for the Federation or a State
to establish or maintain or assist in establishing or maintaining Islamic institutions
or provide or assist in providing instruction in the religion of Islam and incur such
expenditure as may be necessary for the purpose.

ò (3) No person shall be required to receive instruction in or take part in any

ceremony or act of worship of a religion other than his own.

ò (4) For the purposes of Clause (3) the religion of a person under the age of
eighteen years shall be decided by his parent or guardian.

35 5/1/24
ò Article 12(1) – rights in respect of education.
Ø There shall be no discrimination against any
citizen on the grounds of religion, race or place
of birth.
ò Article 12(2) – every religious group has the right
to establish and maintain institutions for the
education of children in its own religion.
ò Article 12(3) – no person shall be required to
received instruction in or to take part in any
ceremony or act of worship of a religion other
than his own.

36 5/1/24
ò Article 12(4) – religion of a person under the age of
18 years shall be decided by his/her parents or
guardian.

Cases on Article 12:

ò Shamala Sathiayaseelan v Dr Jeyaganesh C.
Mogarajah & Anor (2004) 2 MLJ 648.
ò Chang Ah Mee v Jbtn Hal Ehwal Agama Islam,
Majlis Agama Islam, Sabah and Ors (2003) 5 MLJ
106

37 5/1/24
38 5/1/24
ò Article 13- RIGHTS TO PROPERTY.

ò No person shall be deprived of property

save in accordance with law.

Cases on Article 13
ò Pengarah Tanah dan Galian, Wilayah v Sri
Lempah Enterprise Sdn Bhd (1979)
ò Ng Kim Moi & Ors v Pentadbir Tanah Daerah,
Seremban, Negeri Sembilan (2004)
39 5/1/24
 Fundamental Liberties
-NOT ABSOLUTE-
ò Art 6(2) of the FC prohibits all forms of
‘ forced labour’ especially involving
working force.
ò Art 6(2): Parliament may by law provide for
compulsory service for national purposes
(including compulsory military service & a
Rukun Tetangga scheme).

40 5/1/24
 Art 7(1) Federal Constitution

ò For the interest of a fair criminal process,

this Article provides 2 safeguards:
ò a. A law creating a new penal offence cannot
have effect back in time.

ò b. If the penalty for a criminal offence is

enhanced, the law increasing the penalty
cannot be applied retrospectively.

41 5/1/24
 Article 7: Protection Against Backdated
Criminal Laws

ò Permissible exceptions:
1. The word ‘ punishment ’ refers to criminal
sanctions & not civil penalties: Loh Kooi Choon
[1977]
2. Amendments to the FC are of civil nature & can be
legislated retrospectively & some have been
backdated to Merdeka Day.
3. Penal laws of a purely procedural nature can be
backdated. The court upheld a retrospective
amendment that converted a trial by jury to trial by
judge alone: Lim Sing Hiaw [1965]
 Article 7: Protection Against Backdated
Criminal Laws
ò Permissible exceptions:

4. Reducing the scope of judicial review of a

preventive detention order by retrospective
legislation does not violate Art 7(1): Musa [1970].
5. Criminal laws decreasing the penalty for an
offence/ abolishing an offence can be backdated.
Prohibited grounds under Art 8(2)
ò The article forbids discrimination on account
solely of religion, race, sex, descent or place
of birth except for other additional grounds.
ò An example, Rukun Tetangga law for public safety
exempts women from night patrols.
ò Private sector. In Beatrice [2005], private sector is not
bound by the constitutional rules for equal treatment
where she was terminated because she became pregnant
& did not resign as was required by the collective
agreement.
44 5/1/24
 Article 9:Freedom of Movement &
Protection Against Banishment
ò Article 9(2) states that every citizen has the
right to move freely throughout the
federation.

ò In Loh Wai Kong [1979], denial on right to

leave the country was permissible.
ò PTPTN loan defaulters.

45 5/1/24
46 5/1/24
 Fundamental Liberties
-NOT ABSOLUTE-
ò Sedition Act 1984 (Article 10)
ò Internal Security Act 1960
ò Peaceful Assembly Act 2011 (Article 10)
ò Emergency (Public Order and Prevention of Crime)
Ordinance 1969
ò Printing Presses and Publications Act 1984
ò Universities and University Colleges Act 1971

47 5/1/24
 Sedition Act 1984
ò How it restrict/limit right under Article 10?
ò The Sedition Act in Malaysia is a law
prohibiting discourse deemed as seditious.
ò The act criminalises speech with "seditious
tendency", including that which would bring
into hatred or contempt, or
ò Excite disaffection against the government or
produce feelings of ill-will and hostility between
different races.

48 5/1/24
Peaceful Assembly Act 2011
ò How it restrict/limit right under Article 10?
ò The PAA replace Section 27 of the Police Act.
ò Police permits for mass assemblies will no
longer be required.‪
ò Instead, organisers must notify the officer in
charge of the police district (OCPD) within 10
days before the gathering date.‪
ò The OCPD will respond to the notification
within five days, outlining the restrictions and
conditions imposed.
49 5/1/24
 RULE OF LAW
ò Basically rule of law refers to the fact that no one
is above the law.
ò Bracton- “The King himself ought not to be subject to
man but subject to God and the law, because the law
makes him King.”
ò In Entick v. Carrington, the term rule of law was
used to show that the executive cannot act
arbitrarily.

50 5/1/24
ò In 1885, Dicey- proposes that rule of law connotes 3
basic concepts:
1. Absence of arbitrary powers.
2. Equality of law.
3. The rights of an individual must be determined by
law i.e. judicial decisions. The constitution is
judge-made.
ò In 1945 – concept of rule of law was applied in
enhancement of human rights.
ò 1948, 1950 & 1959 – applied in UNDHR, European
Convention of Human Rights & International
Commission of Jurist respectively.

51 5/1/24
ò Rule of law – has been applied to ensure
justice.

ò This concept is not just to guarantee

fundamental liberties but to control the acts
of the government so that it will responsible
to its acts.

52 5/1/24
 SEPARATION OF POWERS
ò The doctrine which originated from
“Montesquieu”.
ò Montesquieu- the powers of governments are 3 kinds;
1. Legislative
2. Executive
3. Judicial
ò Each power should be exercised by a separate body or
organ with no overlapping or co-ordination.
ò A complete separation of powers is not practice in
Malaysia.
53 5/1/24
ò Federal Legislative powers are vested in
Parliament.

ò The Federal Executive powers are vested in

the YDPA, the PM and Cabinet.

ò Federal Judicial power is vested in the

superior courts.

54 5/1/24
 GOVERNMENT
OF MALAYSIA

EXECUTIVE
LEGISLATIVE JUDICIARY
(YDPA, PM &
(Parliament) (Courts)
Cabinet)

55 5/1/24
 (2) LEGISLATIVE (PARLIAMENT)
ò Article 44 of the FC - legislative authority of the
Federation shall be vested in a Parliament.
ò Function – to enact/pass laws/regulations.

YDPA
Dewan Negara
PARLIAMENT
(Senate)
House of
Parliament Dewan Rakyat
(House of
Representative)
56 5/1/24
 YANG DIPERTUAN AGONG(YDPA)
ART 32-37
Ø Supreme Head of the Federation who is elected by
the Conference of Rulers.
Ø Elected by the Conference of Rulers every 5 years.
Ø May resign at any time by writing to the
Conference of Rulers.
Ø If YDPA is charged with offence under Special
Court, he will cease to exercise the function of
YDPA.
Ø Timbalan YDPA is elected by the Conference of
Rulers and exercise the function and have privileges
of the YDPA during vacancy and if YDPA unable
to exercise his function!
57 5/1/24
IKHWAN NAGUIB BIN JUSOH - FUU 58 5/1/24
Ø Any action by or against the YDPA or Ruler of a State in
his personal capacity shall be brought in a Special Court
under Part XV of the Federal Constitution.
Ø Shall not absent from the Federation more than 15 days
except on State visit to another country.
Ø Supreme Commander of the Armed Forces of the
Federation.
Ø Has power to grant pardons, reprieves and respites for
all offences tried by court-martial and all offences
committed in the Federal Territories of Kuala Lumpur
and Labuan.

59 5/1/24
CONFERENCE OF RULERS – ART 38

Ø Consists of Their Royal Highness of Rulers

and the YDP Negeri of States not having a
Ruler.
Ø Functions: Elect the YDPA and Timbalan
YDPA.
Ø Appoint member of the Special Court.
Ø Agree or disagree to the extension of any
religious acts, observances or ceremonies to the
Federation.
Ø Deliberate on questions of national policy and
other matter that it thinks fit.
60 5/1/24
IKHWAN NAGUIB BIN JUSOH - FUU 61 5/1/24
HOUSE OF REPRESENTATIVES
ØHouse of Representatives consists of 222 elected
members.
ØMembers of House of Representatives must be of
the age not less than 21 years old.
ØPass the proposed law via 3 readings (present,
debate & vote).
ØOnce the bill is passed, the bill will be sent to
Dewan Negara.
Article 46 of FC

62 5/1/24
 HOUSE OF SENATE
Ø Senate consists of elected and appointed:

• 2 members elected from each state,

• 2 members for the Federal Territory of KL,

• 1 member from Federal Territory of Labuan,

• and 1 member from Federal Territory of Putrajaya

appointed by YDPA and 40 members appointed by
YDPA.

63
- Article 45 of FC
Ø The terms of office of Senators – 3 years and
shall not affected by a dissolution of
Parliament.

Ø A member of the Senate shall not hold office

for more than 2 terms either continuously or
otherwise.

Ø Parliament may increase or decrease the

number of member of Senate.

Ø Member of Senate must not be of the age not

less than 30 years old.
64 5/1/24
ò Through delegation of powers, the Minister or
Executive can involve in making laws.
ò In Malaysia, the Executive are also members of
Parliament and they exercised both legislative and
executive functions.

ò Bills passed by both Houses will be presented to the

YDPA for his assent within 30 days.
ò No law however shall come into force until it has been
published/gazetted.
ò Parliament may delegate its legislative power to
Ministers or other authorities to make subsidiary
legislation.
65 5/1/24
 EXECUTIVE AND CABINET
ART 39 – ART 43C
ò Article 39 – The executive authority of the Federation
shall be vested in the YDPA and exercisable by him or the
Cabinet or any Minister authorised by the Cabinet, but
Parliament may by law confer executive functions on other
person.

ò YDPA in exercising his power shall act in accordance with

the advice of the Cabinet or of a Minister acting under the
general authority of the Cabinet.

66 5/1/24
ò Functions of the Executive – to govern the country
according to law, including the framing
administrative policies regarding all matters of
government e.g. public health, internal security,
housing, education, the welfare of citizens,
supervision of defence, order and justice and
finance.
ò Collectively responsible to Parliament during
Parliamentary sessions, they can be called upon by
the opposition to answer the questions regarding
any form of administration or abuse of powers by
any of the ministers.

67 5/1/24
Ø Executive – vested in the YDPA and exercisable by
him or Cabinet or any Minister authorised by the
Cabinet.
Ø YDPA shall act in accordance with the advice of the
Cabinet or a Minister acting under the General
authority of the Cabinet.
Ø Discretion of YDPA;
1. Appointment of the Prime Minister
2. Withhold consent to a request to dissolve
Parliament
3. Request a meeting of Conference of Rulers

68 5/1/24
IKHWAN NAGUIB BIN JUSOH - FUU 69 5/1/24
70 5/1/24
ØYDPA shall appoint the Cabinet of Ministers to
advice him.
ØOn advice of PM, YDPA shall appoint other
Ministers from among members of either House of
Parliament.
ØCabinet is responsible to Parliament if the PM ceases
to command the confidence of the majority of the
members of the House of Representatives.
ØAppointment of any Minister may be revoked by the
YDPA on the advice of PM.
71 5/1/24
 JUDICIARY
ò Article 122 – Chief Justice of the Federal Court,
the President of Court of Appeal and the Chief
Judges of the High Courts shall be appointed by the
YDPA, acting on advice of the PM after consulting
the Conference of Rulers.

ò Judge generally independent.

ò Judge will make his judicial decision based on the

evidence produced in courts by the counsel of both
parties.
72 5/1/24
ò The judge will abide by the rules of procedure and
must give grounds for their decisions.
ò The judge cannot be sued for making a wrong
decision.
ò The unsatisfied party can always appeal to the court
above.
ò Generally the grounds of appeal by unsatisfied
parties are:
1. Error of law;
2. Appeal against the sentence passed.

73 5/1/24
ò The court may punish for contempt of court.
ò 2 types of contempt of court:
1. Civil contempt
2. Criminal contempt
ò Civil contempt – acts of disobedience of courts'
order or judgments.
ò Criminal contempt – contempt done in front of
judge in the vicinity of the court.
ò Eg – arguing with the judge, using foul language in
court.
74 5/1/24
 LEGISLATION
ò Legislation refers to law enacted by a body constituted
for this purpose.
ò In Malaysia, laws are legislated by the Parliament at the
Federal level and by various State Legislative Assemblies
at the state level.
ò Laws that are enacted by the Parliament after 1946 but
before Malaysia’s Independence in 1957 are called
Ordinance.
ò Those made after 1957 are called Acts.
ò On the other hand, laws made by the State Legislative
Assemblies (except Sarawak) are called Enactments. The
laws in Sarawak are called Ordinances.
75 5/1/24
ò Parliament and State legislature are not supreme.
ò They have to enact law subject to the provisions set
out in the Federal and State Constitutions.
ò Parliament – enact law as enumerated in List I of the
9th Schedule. Eg – matters pertaining to internal
security, external affairs, civil and criminal law,
finance, trade, commerce and industry, education.
ò State – List II of the 9th Schedule. Eg – matters
pertaining to land, local government, Syariah law.
ò Matters not enumerated in any of the lists are within
the authority of the State.
ò Concurrent list (List III) – scholarship, drainage,
national park. 76 5/1/24
 PARLIAMENT STATES LEGISLATIVE
ASSEMBLIES
Enacts law at Federal level Enacts law at State level
Within limits prescribed by Within limits prescribed by
Federal Constitution State Constitution
Law enacted before 31.08.1957 Law enacted by State
are called Ordinance Assemblies are called
Enactment except Sarawak laws
are called Ordinance
Law enacted after 31.08.1957
are called Acts
Parliament can enact laws in State Legislative Assembly can
matters listed in List I of the enact law in matters listed in
Nine Schedule 77 List II of the Nine Schedule
5/1/24
 LEGISLATIVE PROCESS
(How Bill Become Law)

ò There are few steps to be taken before a Bill could

become a law and enforceable

ò There are 3 types of Bill

1. Public Bill
2. Private Bill
3. Hydbrid Bill
78 5/1/24
 Public Bill
ò Include Bills on matters of general public interest.
ò National defense, public order and taxation
ò Bills concerning money must be initiated by the
Government.

ò Bill also can be introduce using Private Member’s Bills.

79 5/1/24
Private Bill
ò Bills which deal with matters of local or private.

Hydbrid Bill
ò Bill concerning matters of public interest which may affect
adversely, or otherwise, the interest of some private bodies
or persons.

80 5/1/24
LEGISLATIVE PROCESS IN MALAYSIA
FIRST READING SECOND READING A COMMITTEE OF
When a Bill is first 1 The Bill must be printed out HOUSE
introduced in one of the two and circulated. Members Considers the Bill in
houses, only the title is debate the Bill.
detail and may amend
actually read by the clerk of
the Dewan. The Bill will have to be any part of it.
voted upon to proceed to the
After the Bill is passed at this committee stage. The Committee then
stage, the text is printed and submits a report on the
distributed. 2 Bill to the House. If the
report is approved, the
Bill goes on to a third
OTHER HOUSES
When a Bill has been
reading in the House.
ROYAL ASSENT passed by one House, it is 3
When the Bill has passed both sent to the other house,
Houses in accordance with Art. where it follows a similar THIRD READING
68 FC, it is sent to the YDPA for pattern. The Bill is review again.
the Royal Assent. Debate takes place and
If the second house amendments may be put to
YDPA shall within 30 days amends the Bill, the Bill a note.
must be returned to the
assent the Bill. 5 first house for its
The House then either
The Bill then becomes a law approval. passes or defeats the Bill by
upon publication. 81
4 voting. 81
 Publication
vArticle 66(5) of the FC:
v A Bill become law on being assented to by the
YDPA.

vNo law shall come into force until it has been

published.
vPublication is done in the Warta Kerajaan
(Federal Gazette).

82 5/1/24
 Legislation as a source of law

v It is published and easy form of reference.

v Amendments done by the specific legislative
body.
v Legislation as a source of law has become more
important than case-law or precedents.
v Increasingly used as a means of repealing,
amending, enacting or codifying the law.

83 5/1/24
 (3)
SUBSIDIARY
LEGISLATION

84 5/1/24
ò Interpretation Act 1948 and 1967:

Subsidiary Legislation means any

proclamation, rule, regulation, order,
notification or other instrument made under
any Act, Ordinance, Enactment or other
lawful authority and having legislative effect.

85 5/1/24
ò Legislature merely lays down the basic and main
laws, leaving the details to persons or bodies to
whom they delegate their legislative power.
ò Such persons or bodies include the YDPA,
Ministers and local authorities.
ò Subsidiary legislation made in contravention of
either a Parent Act or the Constitution is void.
ò Exception: Article 150 FC on proclamation of
emergency.

86 5/1/24
Eng Keock Cheng v Public Prosecutor [1966] 1 MLJ 18

òFederal Court held that subsidiary legislation

may still be valid, notwithstanding that it is
inconsistent with the Constitution.

òSubject to certain exceptions set out in Article

150 FC, Parliament has, during an emergency,
power to legislate on any subject and to any
effect, even if inconsistencies with Article of the
Constitution are involved.

87 5/1/24
88 5/1/24
ò S 601 of the Employment Act 1955:

ò “The Minister may, by regulation…provide

for the entitlement of employees to, and
for the payment by the employer of - (a)
termination benefits; (b) lay-off benefit; (c)
retirement benefits”

ò The minister made the regulation known as

the Employment (termination and Lay-Off
Benefits) Regulation 1980.
IKHWAN NAGUIB BIN JUSOH - FUU 89 5/1/24
 Reasons for Subsidiary Legislation
ò The legislature had to delegate its law-making power:
1. Legislative has insufficient time to enact all the details in
every aspects as required in a modern society.
2. Subsidiary Legislation is very important as legislation by the
Parliament and the State Legislatures may be insufficient to
provide the laws required to govern everyday matters.
3. Subsidiary legislation deals with the details about which
legislature has neither the time nor the technical knowledge
to enact laws.

90 5/1/24
4. Best to left to the expertise or administrators who are well versed
with the technicalities involved.
5. To overcome unforeseen contingencies or emergency situation.

6. Advantage in term of its flexibility in circumstances which demand

flexibility, e.g. currency control, import duties and etc.

7. The legislature is not continuously in session and its legislative

procedures are cumbersome.
8. Delegation is necessary in situations where laws need to made
quickly.
ò Emergencies
ò Need to be amended and repealed quickly

91 5/1/24
 92

1. Unlike legislation through legislature, SL is drafted in

government chambers by anonymous civil servants and
promulgated suddenly without much publicity or public
notice.
2. No one may come to know about it until it is notified
and there may be no public discussion, no press
comments and no public opinion expressed on it.
3. This creates danger that , without restraints,
government may tend to misuse its power.
CONTROLS OVER SUBSIDIARY
LEGISLATION
CONTROL OVER SL
Judicial Legislative
Control Control
(Procedural)
Substantive
Laying
provision
Procedural

Simple

Other Control
Negative
(Procedural)
Affirmative

Consultation Publication

93 5/1/24
 94

• Procedural Ultra Vires • Extended Ultra Vires

• Mandatory • Retrospective
• Directory • Ouster Clauses
• Financial Levy
• Substantive Ultra Vires • Unreasonableness
• SL uv Fed Constitution
• SL uv Parent Act
• Parent Act UV Fed Constitution
 Judicial Control
a. Subtantive

i. Major Phang Yat Foo v Brigadier General Dato’ Yahya Bin

Yusof & Anor (1990)
• Rule 63(3) of Armed Forces (Court Matial) Rules
1976 contrary to
• Section 119 of the Armed Forces Act 1972

b. Procedural
i. Datin Azizah bte Abdul Ghani v Dewan Bandaraya Kuala
Lumpur (1992)
• Rule 5 of the Planning (Development) Rules of 1970
• Section 22 of the Federal Territory (Planning) Act
1982
• Developing order was 95
quashed due to no notice of
5/1/24
application for planning permission.
 Legislative Control
LAYING PROVISION

a. Simple laying formula

i. Section 83(3) of the Trade Marks Act 1976
• Which requires SL made thereunder to be laid
before both Dewan.

ii. Section 58(4) Trade Unions Act 1959

• Which requires SL to be laid before Dewan
Rakyat only.

96 5/1/24
b. Negative resolution procedure

i. Section 19(3) Control of Imported Publication Act

1958
• SL is effective unless the legislature passes a
resolution annulling it.

c. Affirmative resolution procedure

i. Section 15(1) Sales Tax Act 1972
• SL ceases to have effect unless, within the prescribed
period, the legislature passes a resolution affirming
it.
97 5/1/24
 Other Control
a. Consultation

i. Section 36(1) Financial Procedure Act 1957

• YDPA to make regulations after consulting the
Commodities Trading Commission.

a. Publication

• No general statutory provision.

• Enabling statutes may require publication mandatory
and non-compliance would render the subsidiary
legislation void.

98 5/1/24
CONSTITUTIONAL
AMENDMENTS
■ Amendments are something that are difficult to avoid
especially if a constitution is more of a working
document than a brief statement of basic rules and
ideals

■ But whatever the case a balance must be struck

between those competing considerations.

■ On the one hand a constitution is the basic law,

containing fundamental rules about state running and so
various safeguards which cannot be taken away so
easily.
■ The philosophy behind the amendments
procedure in Malaysia has been laid down
by the Reid Commission - namely that the
methods
– ‘should not be too difficult as to produce
frustration nor too easy as to weaken
seriously the safeguards of the Constitution’
 METHODS OF AMENDING
THE MALAYSIAN CONSTITUTION
■ There are four different ways of amending the Federal
Constitution as laid down in Articles 159 and 161E

1. Amendment by way of simple majority at both the

Senate and the House of Representative
2. Requires the support of two-thirds majority of the
members of both houses
3. Requires the 2/3 majority and the consent of the
Conference of Rulers
4. The fourth method of amendment stipulates a 2/3
majority and the consent of either the Yang diPertua
Negeri of Sabah or Sarawak.
■ Another way of amending the
Constitution is through Article 150
which gives the executive power to
declare emergency.

■ Thus, effectively, there are actually five

different ways of amending the
Constitution.
 1- Amendment By Way Of Simple
Majority At Both The Senate And The
House Of Representative

■ Article 159(4) These are amendments with regards

to:
– a) amendments to part III of the second
schedule (containing supplementary provisions
relating to citizenship); to the sixth schedule
(containing forms of oath and affirmation); and
to the seventh schedule (dealing with the
election and retirement of senators);
– b) Any amendment incidental to or
consequential on the exercise of any power
to make law conferred on Parliament by
any provision of the constitution other than
Articles 74 and 76
– bb) Subject to Article 161E (admission of
Sabah & Sarawak) any amendment made
for or in connection with the admission of
any state to the Federation or its
association with the states of the
Federation, or any modification of the
constitution made as to its application to a
state so previously admitted or associated
– c) Any amendment consequential on an
amendment made under paragraph (a)
2- Requires The Support Of Two-
thirds Majority Of The Members
Of Both Houses
■ Amendments not included in the above
categories nor in the next, require only the
approval of a two-thirds majority in each House
of Parliament, and do not require for their
validity the consent of the Conference of Rulers
nor the concurrence of any of the Sabah and
Sarawak’s Yang di-Pertua Negeri.
 3- Requires The 2/3 Majority
And The Consent Of The
Conference Of Rulers
■ Article 159(5) A law making an amendment to
Clause (4) of Article 10, any law passed
thereunder, the provisions of Part III, Article 38,
63(4), 70,71, 72(4), 152 or 153 or to this
Clause shall not be passed without the consent
of the Conference of Rulers.
 4- Requires The 2/3 Majority And
The Consent Of Either The Yang Di-
pertua Negeri Of Sabah Or Sarawak
■ These amendments of special interest to Sabah
and Sarawak enumerated in clause (2) of Article
161E require not only the approval of a two-thirds
majority in each House of Parliament but also the
concurrence of the Yang di-Pertua Negeri of Sabah
and Sarawak.
■ They are amendments to the constitution that affect
the

– right of persons born before Malaysia Day,

– the constitution and jurisdiction of the High Court

in Sabah and Sarawak,

– the matters with respect to which the legislature

of the state may or Parliament may make laws,
and

– religion in the state and the use of any language

and the special treatment of natives of the states.
 LAW245
MALAYSIAN LEGAL
SYSTEM
-CHAPTER 3-
5/1/24 1
 LEARNING OUTCOME
Students shall be able to:
1. Differentiate between the different types of
courts
2. Explain the constitution, composition
and jurisdiction of the courts
3. Describe the courts with special
jurisdiction

5/1/24 2
THE JUDICIAL SYSTEM

1. SUPERIOR COURTS

2. SUBORDINATE/INFERIOR COURTS

3. COURTS OF SPECIAL JURISDICTION

5/1/24 3
 HIREARCHY OF COURTS
FEDERAL
COURT

SUPERIOR COURT OF
APPEAL SPECIAL COURT
COURTS

HIGH COURT HIGH COURT

SYARIAH (WEST MALAYSIA) (SABAH &
COURT SARAWAK)

SESSIONS SESSIONS
COURT COURTS

SUBORDINATE
COURTS
MAGISTRATES MAGISTRATES
MAGISTRATES MAGISTRATES
COURT FOR COURT FOR
COURT COURT
CHILDREN CHILDREN

5/1/24 4
COURT SYSTEM
ØCourts are divided into two categories:
(i) Superior Courts:
1. Federal Court
2. Court of Appeal
3. High Court
(ii) Subordinate Courts:
1. Sessions Court
2. Magistrates Court
i. First Class
ii. Second Class

5/1/24 5
FEDERAL COURT
CONSTITUTION
Ø Established under Article 121(2) FC.
Ø Article 122(1) FC- the Chief Justice of the Federal Court is
head of the Malaysian Judiciary.
Ø Composition of the Federal Court
1. Chief Justice (President of the Court)
2. President of the Court of Appeal
3. Chief Judge of High Court Malaya
4. Chief Judge of High Court Sabah & Sarawak
5. 11 Federal Court judges
Article 122(1) FC

Ø Proceeding in Federal Court shall be heard and disposed by

3 judges or such greater number of judges as the Chief
Justice may require.
5/1/24 6
5/1/24 7
5/1/24 8
 JURISDICTION:
ü Jurisdiction meant the power of the court
or judge to hear and decide a case or make a
particular order.
üFC has 4 types of jurisdiction:
1. Original

2. Appellate

3. Revisionary

4. Advisory

5/1/24 9
Original Jurisdiction
o Power to hear a case for the first time.
o Same original jurisdiction as the High Court.
o Exclusive original jurisdiction [Article 128(1)]:
a. Fed Court may hear any question whether a law made
by Parliament or by the Legislature of a State is invalid
on the ground that it makes provision with respect to a
matter with respect to which Parliament or, as the case
may be, the legislature of the State has no power to
make laws, and
b. May also hear disputes on any other question between
states or between the Federation and any State.

5/1/24 10
5/1/24 IKHWAN NAGUIB BIN JUSOH 11
 qAppellate Jurisdiction
It has jurisdiction in both criminal and civil matters.

o Article 128(3)
o Appeal lie from question of fact, or a question of law or
on a question mixed fact and law.
o Appeal against acquittal, court may issue warrant
directing the accused to be arrested or brought before it
and to remand him to prison, pending the disposal of
the appeal, or admit to bail.
o On hearing of the appeal- court may confirm, reverse
or vary the decision of the COA or may order re-trial or
may remit the matter to the HC.
o Court also may if it thinks that different sentence should
have been passed, quash the sentence passed, confirm
or varied by the COA and pass such other sentence
5/1/24
warranted in law. 12
 Revisionary Jurisdiction

o To determine any question arise before

another Court as to the effect of any
provision under the Federal
Constitution.
o The trial court can stay its proceeding and
forward the matters to the Federal Court.
o Federal Court shall decide, will remits the
case to the trial court to be disposed of in
accordance with that decision.

5/1/24 13
Advisory Jurisdiction
— Article 130 FC
— To give opinion on any question referred to
it by the Yang Di Pertuan Agong pertaining
to any provision of the Federal Constitution
which has arisen or appears likely.
— Pronounce its opinion in the form of
declaratory judgement.
— GOM v Government of the State of Kelantan [1968] 1
MLJ 129

5/1/24 14
5/1/24 15
COURT OF APPEAL (COA)
CONSTITUTION

Ø Established by Article 121(1B).

Ø Article 122A- President of the COA is the head of the
court.
Ø Appointed by the YDPA after consulting Conference of
Rulers.

Composition of the Court

Ø The court has a President + 32 other judges(or more).
Ø Every proceeding shall be heard and disposed by 3 judges
or any greater number of Judges as the President may
determine (but must be of uneven numbers).
Ø Decisions are made by majority.
5/1/24 16
5/1/24 17
5/1/24 18
Jurisdiction:
Appellate Jurisdiction

o Has appellate jurisdiction over criminal and civil

cases.
o It has no original jurisdiction.
o Appeal must be within 14 days after judgment
given.

5/1/24 19
 ØCivil Appeal Cases:
o Has jurisdiction to hear and determine civil
appeals for cases where the amount or value of
the subject matter of the claim is more than
RM 250,000.
o If the amount is less than RM250,000 the
parties must get the permission from the
Court of Appeal.
o COA may
1. Order a new trial or

2. Reverse or vary the decision of HC

5/1/24 20
 ØCriminal Appeal Cases
o Hear and determine any criminal appeal against
any decision made by the HC.
o May also consider appeals from decision of HC
in exercise of its revisionary jurisdiction relating
to criminal matters decided by the Magistrates
Court but it will be confined only to question of
law.
o COA has power to:
1. Dismiss appeal
2. Confirm reverse or vary decision of trial court
3. Order a re-trail
4. Other order may seem just
5/1/24 21
HIGH COURT (HC)
CONSTITUTION
Ø Established under Article 121(1) of the Federal Constitution.
Ø There are 2 High Courts of co-ordinate jurisdiction in Malaysia:
(i) High Court of West Malaysia
(ii) High Court of Sabah and Sarawak

Ø Each of the two High Courts is headed by a Chief Judge.

Ø Composition (Article 122AA)

o Chief Judges
o 60 judges in High Court Malaya
o 13 judges in High Court Sabah and Sarawak

5/1/24 22
5/1/24 23
5/1/24 24
 ØA person qualified for appointment as a judge of
the HC must be a citizen and 10 years preceding
his appointment, he has been an advocate of the
courts or a member of the judicial and legal service
of the Federation or legal service of State or both.

ØJurisdiction:
1. Original jurisdiction;
2. Appellate jurisdiction

5/1/24 25
 JURISDICTION
Original jurisdiction – has both criminal and civil
powers.

Civil
o It generally hear actions where the claim exceeds
RM1 million, other than actions involving motor
vehicle accidents, landlord and tenant disputes
and distress
o Specific jurisdiction on:
ü Divorce and matrimonial
ü Admiralty matters
ü Bankruptcy and companies
ü Appointment and control of guardians of infants
ü Granting, altering or revoking probates of wills and letters
of administration
5/1/24 26
Distress
— Distress is a remedy that a landlord can pursue
without having to go to court to recover unpaid rent.
— The process of distress allows a landlord to hire a civil
enforcement agency to seize property on the rented
premises that belong to the tenant in order to
recover the money owed as rent.
— The property can then be sold and the proceeds
used to reimburse the rent.

5/1/24 27
Criminal
— The number of criminal cases tried by the High Court
is small as compared to that tried by subordinate
courts.
— This is because HC hear on offences punishable with
death and a few other very serious offences.
— Has jurisdiction over people and offences committed
within its territory.
— HC in Malaya tries only offences – Peninsula.
— HC in Sabah & Sarawak - only cases in East Malaysia.
— Exception: HC may also have jurisdiction over citizens
and permanent residents, where offences committed
outside Malaysia (extraterritorial jurisdiction).

5/1/24 28
 Appellate jurisdiction –
o High Court hears criminal and civil appeals from the
Magistrate and Sessions courts.

Civil
o No civil appeal to HC if value of subject matter is less than
RM10,000 except on question of law.
o Monetary limit not apply to proceeding concerning
maintenance of wives or children.

Criminal
o No criminal appeal to HC concerning any offence
punishable with fine only not exceeding RM25.
o Pleaded guilty and convicted – cannot appeal.

5/1/24 29
 SESSIONS COURT
CONSTITUTION & COMPOSITION

ØSection 59 Subordinate Court Act 1948 – Each

Sessions Court is presided over by a Sessions Court
judge sitting alone.

ØSection 60 states that no person shall be

appointed to be a Sessions Court Judge unless he is
a member of the Judicial and Legal Service of the
Federation.
5/1/24 30
5/1/24 31
 Jurisdiction of Sessions Court

ØHas authority to try both civil and criminal

cases.

ØIt has the following jurisdiction:

1. Original

2. Supervisory

5/1/24 32
 Original Jurisdiction
Civil
Ø In civil matters, it has jurisdiction to try all actions and suits
where the amount in dispute or value of the subject matter does
not exceed RM1,000,000 -S65(1)(b)
Ø However, SC have unlimited jurisdiction on;
1. Motor vehicle accidents
2. Landlord and tenant and distress
-S 65(1)(a)

Ø Adjudicate in any action for the recovery of immovable property

regardless of its value

5/1/24 33
Civil jurisdiction of Sessions Courts
—Civil jurisdiction of Sessions Courts
65. (1) Subject to the limitations contained in this Act, a
Sessions
Court shall have—
(a) unlimited jurisdiction to try all actions and suits of
a civil nature in respect of motor vehicle accidents,
landlord and tenant and distress;
(b) jurisdiction to try all other actions and suits of a civil
nature where the amount in dispute or the value of the
subject matter does not exceed one million ringgit;
and
(c) without prejudice to the generality of paragraph (b),
jurisdiction to try all actions and suits of a civil nature for
the specific performance or rescission of contracts or for
cancellation or rectification of instruments, within the
jurisdiction of the Sessions Court.

5/1/24 34
 Criminal
ØSection 63 – Sessions Court have criminal
jurisdiction to try all offences other than
offences punishable with death.
ØSection 64 – Sessions Court may pass any
sentence allowed by law other than the sentence
of death.
ØIts criminal jurisdiction extends to all offences
other than offences punishable with death.

5/1/24 35
5/1/24 36
Supervisory Jurisdiction
— Section 54 SCA 1948

— Vested with a limited supervisory role over the

Magistrates’ Court.
— May call for and examine the record of any civil
proceedings before the MC to satisfy himself as to the
correctness, legality or propriety of any decision.
— If found that the decision of MC is illegal or improper,
or proceedings are irregular, SC must forward the
record to the HC.
5/1/24 37
5/1/24 38
Magistrates’ Courts
CONSTITUTION
Ø Section 76 SCA 1948 - there are two (2) types of
classes of magistrate:
1. First Class, and
2. Second Class

Ø No one can be appointed as a Magistrate unless he is a

member of the Judicial and Legal Service of the
Federation.
Ø Second Class Magistrate cannot adjudicate a matter
which is not within of the jurisdiction conferred upon
him or her.

5/1/24 39
Jurisdiction
Ø MC have general jurisdiction to try civil and criminal
case.
Ø May issue summons, writs, warrants or other process,
and make any interlocutory or interim orders.
Ø MC also have specific jurisdiction which depend on
status of the Magistrate.
Ø First Class Magistrate
Ø Second Class Magistrate

5/1/24 40
First Class Magistrate
ØJurisdiction:

1. Original

5/1/24 41
Original Jurisdiction
— May be over a civil and criminal action.

Civil
— Section 90 SCA 1948: try all actions where the amount
in dispute or value of the subject matter does not
exceed RM100,000.
— If both parties agree in writing, may exercise
jurisdiction in actions involving an amount or value
exceeding RM100,000. (Section 93(1) SCA 1948)

5/1/24 42
5/1/24 43
Criminal
Ø First Class Magistrate shall have jurisdiction to try all
criminal offences:
Ø for which the maximum term of imprisonment provided by

law does not exceed 10 years imprisonment or

Ø which are punishable with fine only.

- Section 85 SCA 1948

5/1/24 44
5/1/24 45
 ØIt may pass any sentence allowed by law not
exceeding:

(a) Five years’ imprisonment;

(b)Fine of ten thousand ringgit (RM10,000.00);
(c) Whipping up to twelve (12) strokes; or
(d) Any sentence combining any of the sentences
aforesaid

-Section 87(1) SCA 1948

5/1/24 46
5/1/24 47
Second Class Magistrate
Ø Has only ORIGINAL JURISDICTION

Civil
Ø Magistrate may try original actions of civil nature where plaintiff seek
to recover debt or liquidated demand on money from defendant not
exceeding RM10,000 – Section 92 SCA 1948

Criminal
Ø Magistrate may try criminal offences where the maximum punishment
does not exceed 12 months’ imprisonment or with fine only.
- Section 88 SCA 1948

Ø It may pass any sentence allowed by law— (Section 89 SCA 1948)

a) Not exceeding six months’ imprisonment;
b) A fine of not more than one thousand ringgit; or
c) Any sentence combining either of the sentences aforesaid
48
5/1/24 49
5/1/24 50
5/1/24 51
 COURTS OF
SPECIAL JURISDICTION
Ø Syariah Courts
Ø Special Court for Rulers
Ø Court For Children
Ø Martial Courts
Ø Industrial Court
Ø Native Courts

5/1/24 52
SYARIAH COURT
Ø Established a three-tier Syariah courts in every state.

Syariah Appeal
Court

Syariah High
Court

Syariah
Subordinate
Court

5/1/24 53
Syariah Appeal Court
CONSTITUTION
q Presided over by the Chief Syariah Judge who is
appointed by the YDPA on the advice of the Minister after
consulting the Majlis Agama Islam Wilayah
Persekutuan*.
q A person qualifies to be appointed as Chief Syariah Judge
if that person is:
o A Malaysian citizen; and
o For a period of not less than 10 years preceding such
appointment, has been a Judge of the Syariah High
Court or a kadi or
o a registrar or a Syariah Prosecutor of a state or
o is a person learned in Islamic law.

5/1/24 54
 q Every case in the Syariah Appeal Court is heard by the Chief
Syariah Judge (as Chairman) and 2 judges selected by him.
q The 2 judges are selected from a standing panel of 7 judges.
q Such a panel is appointed for a term of 3 years by the YDPA on
the advice of the Minister after consultation with the Majlis
Agama Islam Wilayah Persekutuan.
q The Chief Syariah Judge may appoint any judge of the Syariah
High Court to be a member of the Syariah Appeal Court for any
proceedings if he considers it desirable to do so.
q The Chief Syariah Judge presides over every case. In the event,
he is unable to act, he appoints the most senior of the Judges of
the Syariah Appeal Court to act on his behalf.

5/1/24 55
Jurisdiction
The Syariah Appeal Court has:
(i) Appellate;
(ii) Revisionary & Supervisory

5/1/24 56
Appellate
Ø Hear any appeal against a decision of the Syariah High
Court made in the exercise of its original jurisdiction.
Ø Hear and determine any question of law of public
interest which has arisen in the course of an appeal
against a decision of a Syariah Subordinate Court to
the Syariah High Court
Ø The hearing and determination of such a question by the
Syariah Court of Appeal is subject to leave being granted
by the court.

5/1/24 57
Revisionary & Supervisory
Ø Call for examine, at any stage of any proceedings
(civil or criminal) in the Syariah High Court,
Ø the records of such proceedings, and
Ø give such directions as justice may require.
Ø Syariah Appeal Court may do so either of its own
motion or at the instance of any party.
Ø In such a case, the proceedings in the Syariah High
Court shall be stayed pending further order of the
Syariah Appeal Court.

5/1/24 58
Syariah High Court:
CONSTITUTION
v Presided over by a Syariah High Court judge.
v Appointed by the YDPA on the advice of the Minister
after consultation with the Majlis Agama Islam Wilayah
Persekutuan.
v Syariah High Court Judge also must be
— has, for a period of not less than ten years preceding his
appointment, been a Judge of a Syariah Subordinate Court or a
Kathi or a Registrar or a Syariah Prosecutor of a State or
sometimes one and sometimes another
— he is a person learned in Islamic Law.
(Similar to the qualification for appointment of the
Syariah Chief Judge)

5/1/24 59
Jurisdiction
The Syariah High Court has:

1. Original;
2. Appellate;
3. Revisionary & Supervisory

5/1/24 60
Original Jurisdiction
Civil
o Hear all matter listed in Section 46(2)(b) of the Administration
of Islamic Law (Federal Territories) Act 1993 [AIL Act 1993]
i. Wakaf
ii. Personal and family law.
iii. Other matters concerning which jurisdiction is conferred by any
written law.
Criminal
o Offences committed by Muslims which are punishable under:
(a) The Syariah Criminal Offences (Federal Territories) Act
1997;
(b) Enactment of Islamic Family Law (Federal Territories) Act
1984;
(c) Any other written law prescribing offences against the
precepts of Islam.
5/1/24 61
5/1/24 62
Appellate Jurisdiction
ü Hear appeals against any decision of a Syariah
Subordinate Court.

Civil
§ Hear an appeal by an aggrieved person:-
1. Where the amount claimed is not less than RM1,000;
2. Concerns personal status; or
3. Concerns maintenance of dependants.
ü No appeal against decision made by consent
ü May confirm, reverse, or vary the decision of the trial court
(Syariah Subordinate Court) or
ü make any other order which the trial court ought to have made.
ü It may also order a retrial.

5/1/24 63
 Criminal
§ Hear an appeal by the prosecution or the
accused against an acquittal, conviction, or
sentence.
§ Syariah High Court has the power to:
a. Dismiss the appeal,

b. convict and sentence the accused,

c. order the trial court to make further

inquiry,
d. alter the sentence,

e. reverse any order of the trial court, or

f. order a retrial.

5/1/24 64
 Revisionary & Supervisory
ü Section 51 of AIL 1993 states that;
§ The Syariah High Court may either of its own
motion or at the instance of any interested party, at
any stage in any proceedings in any Syariah
Subordinate Court,
a. call for and examine any records thereof and
b. give such directions as justice may require.

§ When the Syariah High Court exercises its power

under this provision, all proceedings in the trial
court shall be stayed pending further order of the
Syariah High Court.

5/1/24 65
Syariah Subordinate Court
Constitution
Ø Syariah Subordinate Courts judge are appointed by
YDPA on the recommendation of the Chief Syariah
Judge, appoint from amongst members of the general
public service of the Federation – Section 44(1) AIL 1993

Jurisdiction
Ø Syariah Subordinate Court only has original jurisdiction

5/1/24 66
Original Jurisdiction
Civil jurisdiction
ØCovers all such proceeding as the Syariah
High Court is authorized to hear, but it is
limited to proceeding in which:
1. Amount or value of the subject matter in
dispute does not exceed RM50,000, or
2. The monetary value of the subject matter
cannot be estimated

5/1/24 67
Criminal jurisdiction
q Has jurisdiction over offences committed by a
Muslim under

1. the Syariah Criminal Offences (Federal

Territories) Act 1997); or

1. any other written law prescribing offences

against the precepts of Islam for which the
maximum punishment does not exceed
RM2000 or imprisonment for a term of ONE
(1) year, or both
5/1/24 68
SPECIAL COURT FOR RULERS
Constitution
— Article 182 of the FC, Special Court shall consist of
— the Chief Justice of the Federal Court (Chairman) who shall be the
Chairman,
— the Chief Judges of the High Courts, and
— two other persons who hold or have held office as judge of the
Federal Court or a High Court appointed by the Conference of
Rulers.
Ø These members are appointed by the Conference of Rulers.
Ø Decision is decided by majority of its members
Ø Decision is final and conclusive and cannot be challenge in any court
on any ground

5/1/24 69
Jurisdiction
Ø Has only original jurisdiction try all offences committed
in the Federation by the YDPA or the Rulers in their
personal capacity.
Ø To initiate a suit against the Rulers, permission must be
granted by the Attorney General.
Ø Only citizens of Malaysia have the right to institute such
proceeding
Ø If YDPA or Ruler charged with an offence under any law, he
will cease to exercise his functions
Ø Where if he is convicted and sentenced to imprisonment
for more than 1 day, he will cease to be the Ruler of that
state unless he receives a free pardon from the Conference
of Rulers
5/1/24 70
COURTS FOR CHILDREN
Constitution
Ø Court for Children (CFC) were established by the Child
Act 2001, replacing the Juvenile Courts
Ø Set up with aim of protecting the interest of children, and
to take the children away from the adult criminal justice
system and to protect them from publicity
Ø Child : under 18 years and in relation to criminal
proceedings, has attained the age of criminal responsibility
Section 82 of Penal Code (10 years)
Ø Composition of the Court
§ Consists of a Magistrates and assisted by 2 advisers to be
appointed by the Minister from a panel of persons resident in
the state.
§ One of the panel must be a woman.

5/1/24 71
Jurisdiction
Ø To try all offences except offences punishable with death (tried in
the ordinary courts).
Ø Criminal Procedure Code shall apply to the court as if the Courts
for Children were Magistrate Court.
Ø Court cannot try a child who has attained 18 years of age.
Ø CFC may impose several orders :-
(a) the detention of a child in a place of detention, probation,
hostel, approved school such as the Henry Gurney School
(b) whipping with not more than ten strokes of a light cane
(male offender only)
(c) any term of imprisoment which could be awarded by a
Session Court if the offender is 14 years and above
Ø Public Prosecutor, any child or his parent or guardian, aggrieved
by any finding or order of CFC may appeal to High Court
72
 Ø Probation Hostels
§ Meant for children about 10 years of age.
§ Ministry may make rules and regulations concerning the
management and inspection of probation hostels.

Ø Henry Gurney Schools

§ Established under Section 73 Child Act 2001.
§ The school for children above 14 years.

5/1/24 73
MARTIAL COURT
ØEstablished under the Armed Forces Act 1972
ØSection 2 of the Armed Forces Act 1972-
“Armed forces” includes the regular forces of
Malaysia and other forces which maybe
declared by the YDPA from time to time to be
armed forces.
Ø“Regular forces”- includes the Malaysia Army,
the Royal Malaysian Navy and the Royal
Malaysian Air Force.

5/1/24 74
Constitution
§ Section 105- the court-martial shall consists of the President
and not less than 2 other officers
§ Section 105(2)- officers forming the court shall belong to the
same service as the accused.
§ Section 105(3)- officer shall not be appointed unless he is
subject to service law and has been officer for 2 years.
§ Section 105(4)- if it consists of 5 officers or more, the
President shall be an officer of or above the rank of
lieutenant-colonel or its equivalent.
§ Section 105(5)- if it consists of less than 5 officers, the
President shall be appointed by officer convening the court-
martial and shall not be under the rank of major or its
equivalent.

5/1/24 75
Jurisdiction
Ø Amongst the offences in respect of military services are:-
(a) aiding the enemy;
(b) misconduct by other person in operations against
enemy;
(c) communication with the enemy;
(d) offences against morale;

Ø Punishments can be awarded:-

(a) death;
(b) imprisonment for a term not exceeding 14 years;
(c) dismissal from His Majesty's service;
(d) forfeiture of seniority of rank; etc.
5/1/24 76
INDUSTRIAL COURT
Constitution
ØIndustrial Court is set up under the Industrial
Relations Act 1967.
ØComposition (Section 21 IRA 1967):-
Industrial Court which shall consist of-
(a) a President who shall be appointed by the Yang di-
Pertuan Agong; and
(b) a panel of persons representing employers and a
panel of persons representing workmen who shall be
appointed by the Minister.

5/1/24 77
 Ø The President and Chairman must be legally qualified with
at least seven years’ standing in professional practice.
Ø The members of the employees' panel and employers'
panel are appointed by the Honourable Minister of Human
Resources.

Ø Raja Azlan Shah (former Chief Justice) described the

function of the Industrial Court in these terms:-
“It exercises a quasi-judicial function. It gives a full reasoned
judgement in the nature of an award. Its functions comprise an
investigation of the facts, an analysis of the facts, findings of
facts, and lastly, the application of the law to those findings.”

5/1/24 78
Jurisdiction
Ø On matters relating to trade dispute and dismissal of
workman
Ø Trade dispute is “any dispute between an employer and his
workmen, which is connected with the employment or non
employment or the terms of employment or the conditions
of work of any such workmen” - Sec 2 IRA 1967
Ø A party to the dispute before the court may represent
himself or be represented at the proceeding by any official
of trade unions or a union employers
Ø The decision handed down by the court referred to as an
award which is final and conclusive
5/1/24 79
NATIVE COURTS
Introduction
Ø Established in Sabah and Sarawak and each governed
by state legislation
Ø No jurisdiction over a matter within the jurisdiction of
civil or Syariah Courts
Ø Have jurisdiction in criminal offences in so far as
conferred by federal law
Ø Not a subordinate court over which High Court may
exercise supervisory power.

5/1/24 80
Native Courts in Sabah
§ Established under Sabah Native Courts Enactment 1992
[SNCE 1992]
§ The hierarchy consists of :
1. Native Court of Appeal (Mahkamah Rayuan Anak
Negeri) consists of a High Court judge, and 2 other
members, either District Chiefs or Native Chiefs
2. District Native Court (Mahkamah Pegawai Daerah)
presided by District Officer
3. Native Court (Mahkamah Anak Negeri) consisting of
the Native Chief or Headman appointed by State
Secretary

5/1/24 81
 Ø Hieararchy

Native Court of Appeal High Court judge + 2 other

(Mahkamah Rayuan members (District Chiefs or
Anak Negeri) Native Chiefs)

District Officers Court

District Officer + 2 other
(Mahkamah Pegawai members (District Chiefs or
Daerah) Native Chiefs)

Native Court
(Mahkamah Anak Negri
Native Chiefs or Headmen

5/1/24 82
SARAWAK
§ Establish under Sarawak Native Courts Ordinance 1992
[SNCO 1992]
§ The courts consists of, in descending order:
1. Native Court of Appeal
2. Resident’s Native Court
3. District Native Court
4. Chief’s Superior Court
5. Chief’s Court
6. Headman’s Court

5/1/24 83
 — Native Court of Appeal is appellate courts, which
may consists 3, 5 or 7 members including the President
(High Court judge).
— This court has the same power as the High Court. Also
has revisionary jurisdiction

— Resident’s Native Court is also an appellate court and

consists of a Resident assisted by not less than two,
and not more than four assessors.
— Has original and revisionary jurisdiction as well
5/1/24 84
 The courts below are collectively referred as Native
Courts, having an original jurisdiction

a) District Native Court consisting of First Class

Magistrate + 2 assessors

b) Chief’s Superior Court comprises a Temenggung or

Pemanca + 2 assessors

c) Chief’s Court (Mahkamah bagi Pegawai atau Ketua

Anak Negeri) consisting of a Penghulu + 2 assessors

d) Headman’s Court (Mahkamah Penghulu)

consisting of the Headman + 2 assessors

5/1/24 85
 Ø Hieararchy
3, 5 or 7 members including the
Native Court of Appeal President

Consists of a Resident together

Resident Native Court with not less than two, and not
more than four assessors.

District Native Court First Class Magistrate

+ 2 assessors

§Temenggung or Pemanca
Chief’s Superior court
+ 2 assessors

Chief’s Court §Penghulu + 2 assessors

Headman’s Court Headman + 2 assessors

5/1/24 86
5/1/24 1
•The word “tort” originates from
the Latin word, tortus which
means “twisted” or “wrung”.
•Thus, a “tort” simply means
“wrong”.

A tort may consist of

either a wrongful act or
omission, which is not
authorised by the law.

5/1/24 2
•Even though a “tort” is a “wrong”,
this does not mean that all
“wrongs” come within the purview
of the law of torts.
•Not all wrongful acts or
omissions are legal wrongs.
•E.g: If B were drowning and he
called out to A for help, and A
failed to come to B’s rescue, A
would not have committed any
tort towards B. A’s behaviour
would be a moral wrong, but it is
not a tort, that is, a legal wrong.

5/1/24 3
•Legal wrongs fall into 2 main categories, and
they may either be civil or criminal in nature.
•The law of torts is only one branch of the civil
law.
•Winfield and Jolowicz in the Law of Tort (1994)
states;
“tortious liberty” arises from breach of a duty
primarily fixed by law; this duty towards
persons generally and its breach is
redressible by an action for unliquidated
damages.

5/1/24 4
(a) a wrongful An act of tort
(b) causing
act due to consists of:- injury
breach of duty

(c) remedied
by
unliquidated
damages.

5/1/24 5
 Trespass to
Person

Nuisance
Law of
Negligence
Torts

Defamation

5/1/24 6
Students shall be able to:
ž Describe the actions of trespass
ž Apply the defences available for the
tortious actions

5/1/24 7
ž Direct invasion of a protected interest was
actionable under trespass.
ž The highwayman, the kidnapper, the burglar
and thief could be sued by the writ of trespass.
ž In sanctioning these wrongdoers, the law was
protecting the citizen’s interest in bodily
safety, security from attack, liberty of
movement and possession of property.

5/1/24 8
ž In Letang v Cooper [1964] 2 All ER 929, it
was held that in the tort of trespass there
must exist intention at the time the
defendant does his act. If the defendant was
careless in acting as he did, the cause of
action would lie in negligence and not in
trespass. Therefore an important element in
establishing trespass is that the defendant
must be proven to have acted intentionally.

5/1/24 9
Trespass to Person Defences

Assault Self Defence

Battery Consent

False Legal
Imprisonment Authority

5/1/24 10
ž Trespass to person involves direct
interference with a person’s body or liberty.

3 Types of
Assault Trespass to Battery
Person

False
Imprisonment

5/1/24 11
ž Defined as an intentional and direct act of the
defendant which causes the plaintiff reasonable
apprehension of the immediate infliction of a
force onto his person.

ž The tort of assault is concerned with the

protection of person’s mental well-being against
the unlawful act of another.

5/1/24 12
ØElements of assault:-

1) intention of the defendant to

do harm onto the plaintiff

2) effect on the plaintiff’s

mind

3) capability of the defendant

to carry out the threat

4) bodily movement of the

defendant.
5/1/24 13
ž The defendant must have the intention to do
his act.
ž In Tuberville v Savage (1669) 86 E.R. 684,
the defendant lay his hand upon his sword
and told the plaintiff “if it were not assize-
time, I would not take those words from you”.
ž The court held that these words negatived the
element of intention on the defendant’s part
to injure the plaintiff and therefore assault
was not established.
5/1/24 14
ž The plaintiff must feel reasonable
apprehension that a force will be inflicted
upon him.
ž Reasonable apprehension is measured
through an objective test, that is,
› Would a reasonable man, faced with the same
situation that the plaintiff was in, feel
apprehensive that a force would be committed
upon him?

5/1/24 15
ž Only when the answer is ‘yes’ will this
element be fulfilled.

ž Force means some form of violent contact

that would put a reasonable man to be in
reasonable fear of attack.

ž In Rv St George [1840] 9 C & P 626, it was

held that pointing an unloaded gun at a
person constituted as assault.

5/1/24 16
ž The requirement is measured through the
eyes of the reasonable plaintiff.
ž The test is objective: would a reasonable man,
who is in the plaintiff’s position, feel
reasonable fear that there is a threat of
immediate force upon himself? In other
words,
› Would the reasonable man believe that the
defendant will realise his threat?
ž This requirement will be fulfilled when the
answer is “yes”.
5/1/24 17
ž In Stephen v Myers [1830] 4 C & P 349, the
defendant threatened to hit the plaintiff and
he advanced with clenched fist upon the
plaintiff.
ž He was stopped by a third party just before he
could reach the plaintiff.
ž The court held that assault was established as
there was capability to carry out his threat, if
he was not stopped by the third party a mere
few seconds before he hit the plaintiff.
5/1/24 18
ž Even though assault involves no contact it is often
said that some bodily movement is necessary.
ž Bodily movement means a positive act in the
circumstances, indicating that the defendant will
carry out his threat.
ž So bodily movement per se would not be
adequate, the movement must be such that it
correspond with the probable infliction of
unwanted force onto the plaintiff.
ž There must be bodily movement to indicate
the threat would be carried out.
5/1/24 19
ž Innes v Wylie [1884] 1 C & K 257
› A policeman, acting under an instruction, prevented
a plaintiff from entering a room. The court was on
the opinion that if the policeman was entirely
passive and simply obstructed the entrance of the
plaintiff, it would be no assault.

› In this case, it was held that there was no assault on

the plaintiff as there was no positive act of
obstruction from the policeman

5/1/24 20
ž Passive inaction or mere words are
insufficient.

ž The plaintiff must apprehend imminent

(very soon) physical contact.

ž Words add colour to an act and words

however can also nullify an assault.

5/1/24 21
Defined as the intentional and direct application of
force to another person without the person’s consent.
Battery is committed by intentionally bringing about
a harmful or offensive contact with the person of
another.

Purpose of the action is to afford protection to the

individual not only against bodily harm but also
against any interference with his person which is
offensive to a reasonable sense of honour and dignity.

5/1/24 22
(a) the intention of the defendant
to apply force

(b) the act was under the

defendant’s control

(c) contact or application of force

occurs

(d) without plaintiff’s consent

5/1/24 23
ž Touching a person without consent has
traditionally been regarded as sufficient
battery even though without actual
physical harm.

5/1/24 24
ž The defendant must have applied the force
with intention.

ž Case: Scott v Shepherd [1773] 2 Wm Bl 892

– Here, a lighted squib was thrown by the defendant into
an open market area. A picked it up and threw it upon
B, who then picked it up and threw it away. The squib
hit the plaintiff whereupon it burst into flames.

– Court held: the defendant was liable for the tort of

trespass to person although his initial gesture did not
directly affect the plaintiff. According to the court A and
B reacted for their own safety, and so they did not have
the required ‘intention’ to commit the act.
5/1/24 25
ž The defendant’s act must be done voluntarily.
ž Case: Gibbons v Pepper [1695] 2 Salk 637
– The defendant was riding a horse when someone hit the
horse from behind, causing the horse to bolt. The horse
collided with the plaintiff, and in an action against the
defendant, the court found the defendant not liable as
the incident of the horse bolting and colliding with the
plaintiff was outside his control.

5/1/24 26
ž In battery there must be intentional touching or hostile
contact.
ž There will be no battery if there is no contact or
application of force on the plaintiff’s body or clothing.
ž Generally any physical contact with the body of the
plaintiff or his clothing would be sufficient to constitute
‘force’ but it has been held that throwing water on the
plaintiff might not necessarily be battery. This case has
been interpreted to mean that contact with things
attached to the person will only amount to a battery if
there is a transmission of force to the body of the plaintiff.

5/1/24 27
ž A police officer held a woman with the
intention of temporarily detaining her.

ž Held: Contact was hostile as the police officer

did not have authority to detain her.

5/1/24 28
ž One cannot touch another person without his
consent or without lawful justification.

ž However, there are touching where it is

presumed implied consent exists, such as
tapping a person’s shoulder in order to get his
attention, or touching that occurs while
queuing to go on a bus.
5/1/24 29
ž Case: Tiong Pik Hiong v Wong Siew Gieu
[1964] MLJ 181
– The defendant was found liable in battery for scratching
the plaintiff’s face and hitting the latter, due to her
jealousy of the plaintiff’s friendship with her husband.

ž Case: Nash v Sheen [1953] CLY 3726

– The plaintiff went to a hairdressing salon where the
defendant used a tone-rinse without first obtaining the
plaintiff’s consent. The plaintiff unfortunately
developed some skin complications due to an adverse
reaction to the tone-rinse.
– Court held: the consent given by the plaintiff did not
include the tone-rinse and its consequences. Battery
was established.

5/1/24 30
ž In Termes de la Lay, false imprisonment is
defined as the restriction of a person’s freedom of
movement.
ž The person so restrained is ‘imprisoned’ so long
as he cannot move to another place in accordance
with his wishes.

5/1/24 31
(a) intention of the defendant

(b) the restrain must be a direct

consequences of the defendant’s
act

(c) the restrain must be complete

5/1/24 32
ž There need be no actual imprisonment.
ž It is enough if the person is deprived of his
liberty however short. He may be unlawfully
arrest, or is unlawfully prevented from leaving
the place in which he is.
ž The defendant must have committed the
restraint intentionally.
ž The defendant must intend to do an act which
directly results in the confinement of the
plaintiff.
5/1/24 33
ž It was held that false imprisonment
cannot be established through
negligence. Intention of the doer is a
prerequisite.

5/1/24 34
Aitkeen v Bedwell (1827) Mood & M 68
ž Only the person who directly causes the
confinement may be successfully sued for false
imprisonment.
Ansell v Thomas (1974) Crim LR 31, CA
ž He may be liable either because he himself
confined or imprisoned the plaintiff of that he
had instigated another person to confine or
imprison the plaintiff.
5/1/24 35
ž There is no false imprisonment if a reasonable
escape route is available to the plaintiff.
ž The available means of escape must be
reasonable without the risk of injury or
serious inconvenience.
ž A person locked by the defendant in a room
from which the only possibility of escape is by
dangerous climbing down a drain-pipe, is
considered to be falsely imprisoned.

5/1/24 36
ž Case: Wright v Wilson [1699] 1 Ld Raym 739
– No false imprisonment arose when the plaintiff
could have escaped from his confinement,
although it meant he would have trespassed on
another’s land in order to regain his liberty.

› Case: Bird v Jones (1845) 7 QB 742

– The defendant stopped the plaintiff and
directed him to take another route in order to
proceed to the other side of the bridge. The
plaintiff refused and remained there for half an
hour.
– Held: No false imprisonment as the restrain was
not complete
5/1/24 37
ž The plaintiff does not need to know that he
has been restrained in order to succeed in
his action.

5/1/24 38
(i) Self-defence
› It is lawful for a person to use a reasonable degree of
force for the protection of himself or any person
against any unlawful use of force.
› The relationship of the parties to be protected may be
relevant to the reasonableness of force used e.g. to
protect his wife and children against terrorist.

› In Chaplain of Gray’s Inn’s (1400) YB 2 Hen. IV, fo.

8, pl. 40, held that person on whom an assault is
threatened or committed is not bound to adopt an
attitude of passive defence. One should not wait to be
punched by the attacker.

5/1/24 39
ž Person may act in order to defend his
children, wife or husband, and other members
of his family.
ž The use of force must be reasonable and
proportionate in the circumstances
ž Salmond & Heuston, 21st Edition at p 128:
› Person may defend a stranger against any violence
that is prohibited by law. Perhaps one is justified in
using greater force in defence of another whom one
is close to (relative or not) as compared to the
amount of force used to defend a stranger.
5/1/24 40
› Consent must be genuine, not obtained by force or
threat.
› Case: Freeman v Home Office (No2) (1984) QB
524 at 557
– If the plaintiff clearly consents, then the defence of
consent applies.
– The existence of duress or threats would therefore
vitiate (destroy) consent.
– The consent must be given only after the plaintiff has
been fully informed of all the relevant risks.
5/1/24 41
› Case: Hegarty v Shine (1878) 14 Cox CC 145

– The trial judges was of the view that “as a general rule,
when the person consented to the act, there was no
assault; but if the consent was by fraud of the party
committed the act, the fraud vitiated the consent,
and the act became in view of the law an assault.

5/1/24 42
› Those who participated in sport consent to
reasonable conduct within the rules of the
game.

› However, actions for assault and battery have

succeeded when the game has involved
considerable hostility and deliberate punches.

› In Pallante v Stadiums (No 1) (1976) VR 331,

it was held that the boxers agree to violent
bodily typical of the sport, but not to deliberate
foul play.

5/1/24 43
› For purposes of enforcement of criminal law,
police and private citizens have the right to make
arrests and thereby interfere with the rights of
others.
› It is preferable to obtain a warrant of arrest, but at
time there is a need for speedier action of
prevention.
› The powers to arrest and restraint by legal
authorities is provided under Article 5 of the FC.
› Power of arrest by private citizen and penghulu are
provided in the Criminal Procedure Code.

5/1/24 44
ž The police can arrest on grounds of
“reasonable suspicion” even though no offence
had in fact been committed.
ž Suspicion can take into account matters which
could not be given in evidence at all. For
example, previous convictions or for mere
interrogation.
ž Case: Mohmood v Government of Malaysia
and Anor (1974) 1 MLJ 103
– Held: in effecting an arrest arising from reasonable
suspicions the police may first shots at a suspect if
the latter tries to escape from the scene of crime.

5/1/24 45
1 May 2024 1
1. Explain the essentials of negligence

2. Apply the defences available for the tortious

actions

ikhwannaguib@sarawak.uitm.edu.my 1 May 2024 2

ž The tort of negligence is the most significant and
central tort, arguably the tort which defines the
law of torts.
ž The word “negligence” may give rise to 2
meanings:
ž Negligence as a tort, which comprises certain
elements that need to be proved before liability
may be established and damages imposed on the
tortfeasor (wrongdoer).

1 May 2024 3
ž The tort of negligence requires proof of
specific elements before the tort is
established, despite carelessness on the part of
defendant, and injury or damage sustained by
the plaintiff.
ž In Lochgelly Iron and Coal Co v McMullan
[1934] AC 1, Lord Wright defined negligence
as:
– Negligence means more than heedless or
careless conduct
– it properly connotes the complex concept of
duty, breach and damage thereby suffered
by the person to whom the duty was owing.
1 May 2024 4
ž Elements to be fulfilled:-

Breached
ELEMENTS Of Duty
Duty of OF Of Care
Care NEGLIGENCE

Damage/
Injury
Suffered

1 May 2024 5
ž Duty = obligation recognised by law.
ž The breach of the duty and the resulting
damage may give rise to liability in negligence.
ž The breach of a moral or social duty generally
does not give rise to liability in negligence.

1 May 2024 6
ž Eg- A customer at a supermarket notice
banana skin on the floor of the
supermarket but he choose to walk past it,
and B, who is in a hurry slips on the banana
skin and injures himself.

žA does not owe a legal duty to warn B or to

dispose of the banana skin. A only has a
social or moral duty, which is not
enforceable by the law. There is generally
no duty to rescue a stranger from danger.
1 May 2024 7
ž However, the proprietor(owner) of the
supermarket would not be in the same
position as A, for he is in a position where
he ought to know that leaving an object on
the floor of the supermarket could well
cause injury to a customer.

ž Must arise from some “relation” or some

“proximity” between the parties. Eg-
manufacturer and consumers,

1 May 2024 8
ž The primary test or principle used in
determining the existence of a duty of care
is the well-known ‘neighbour principle’.

ž This principle was laid down in the

landmark case of Donoghue v Stevenson
[1932] AC 562

1 May 2024 9
ž The defendant, a ginger-beer manufacturer, had sold ginger-
beer to a retailer.

ž The ginger-beer bottles were opaque(not transparent).

ž A bought a bottle and entertained her friend, the plaintiff who

drank the ginger-beer.

ž It was alleged that when A refilled the glass, along with the
ginger-beer came the decomposed remains of a snail.

ž The plaintiff suffered shock and was severely ill as a

consequence.

1 May 2024 10
ž The plaintiff sued the manufacturer, and claimed
that the manufacturer had a duty in the course of his
business, to prevent snails from entering into his
ginger-beer bottles and further that he had a duty to
ensure that all empty bottles were carefully inspected
before they were filled with ginger-beer.

ž The issue in this case was whether the defendant

owed such a duty to the plaintiff.

ž House of Lords held that the test to determine the

existence or otherwise, of such duty, was whether the
plaintiff was the neighbour of the defendant.

1 May 2024 11
ž The neighbour principle was formulated by
Lord Atkin as follows:
– The rule that you are to love your neighbour becomes in
law, you must not injure your neighbour; and the
lawyer’s question ‘who is my neighbour’ receives a
restricted reply.
– You must take reasonable care to avoid acts or omissions
which you can reasonably foresee would be likely to
injure your neighbour.
– Who then, in law is my neighbour? The answer
seems to be persons who are so closely and directly
affected by my act

1 May 2024 12
ž NPT:
Would a reasonable man, who is in same
circumstances as defendant, foresee(predict)
that his conduct will adversely affect the
plaintiff.
› YES: plaintiff is a neighbour and defendant owes a
duty of care

› NO: not a neighbour

1 May 2024 13
ž Applying this neighbour principle, the court held
the defendant liable .

ž The manufacturer owed duty of care to their

consumers/ purchasers who suffered personal
injury from the goods based on the neighbour
principle.

1 May 2024 14
1) The damage is reasonably foreseeable, and
2) There is close and direct relationship of
proximity between the plaintiff and the
defendant, and
3) The circumstances as a whole must be such that
it is just and reasonable for the imposition of a
duty of care

1 May 2024 15
 For a defendant to be liable to negligence, the defendant
must not only owe a duty of care to act reasonably to the
plaintiff, but must also breach that duty.

Eg- restaurant owes a duty to its customers not

to serve spoilt or unhealthy food because it is
foreseeable that the customer would fall ill if he
consume the spoilt/unhealthy food. Hence, if the
restaurant serves that kind of foods then the
restaurant breaches its duty.
16
1 May 2024
Blyth v Birmingham Waterworks Co (1856) 11
Ex 781

ž It was stated that breach of duty is

1. the omission(don’t do) to do something
which a reasonable man would do, or

1. doing something which a reasonable man

would not do.

ž A breach of duty is determinable through the

reasonable man test
ž The standard of care required is not of the
defendant’s himself, but of this ‘reasonable
man’.
1 May 2024 17
Nettleship v Weston [1971] 2 QB 691
ž Defendant (learner-driver) was not liable for
the injury she caused to the plaintiff as she
had tried to control the car to the best of her
ability.
ž On appeal, Court of Appeal held that the
standard of care required of a learner-
driver was the same as other experience
drivers.
ž The defendant’s lack of experience was
irrelevant and as the way in which she drove
fell below the required standard of care.
ž She was liable as she has breach her duty
1 May 2024 18
› Would a reasonable man have acted as
the defendant has done, should the
reasonable man is faced with the same
circumstance?

– NO – defendant has breached his duty of

care

– YES – defendant has not breached his duty

of care
1 May 2024 19
ž In order to win a lawsuit, the plaintiff must
prove that he has suffered damage/injury as a
result of the defendant’s breach of duty.
What is
damage/
injury?

The injury could be It could also be a

bodily harm, such as a damage to property
broken arm or head (eg-car) or emotional
injury. or monetary loss.

1 May 2024 20
What are the Defences usually raised in a
suit of negligence?

(a) Volenti non (b) Contributory

fit injuria negligence

(c) Mechanical (d) Exclusion

defect clause

1 May 2024 21
ž Latin maxim that means that the plaintiff has
voluntarily assumed the risk of injury
generally.
ž If the plaintiff has an agreement with the
defendant that the latter will not liable if he is
negligent.
ž This agreement will allow the defendant to raise
the defence of volenti non fit injuria successfully.

1 May 2024 22
ž The plaintiff is in position where he has a choice
and full knowledge of the circumstances, so that
he may make reasonable choice.
ž He must not be subject to any restrictions,
coercion or duress so as to make his choice forced
and unreasonable.
ž Plaintiff’s consent must be given freely and
voluntarily
1 May 2024 23
ž The plaintiff agreed to give the defendant driving
lessons and was subsequently injured when the
defendant hit a lamp-post.
ž The defence of volenti non fit injuria was rejected
as there was no agreement to assume the risk
of injury.

1 May 2024 24
ž The elements of contributory negligence are:

1) the plaintiff is required to act reasonably to

avoid damage to himself

2) the plaintiff ‘breached’ this duty by behaving

unreasonably

3) the act of the plaintiff must be the cause of

his injury.

1 May 2024 25
› The plaintiff disobeyed this employers
instructions by riding on the back of a
traxcavator.
› Another vehicle hit the back of the traxcavator
and the plaintiff was injured. The court held
the plaintiff contributory negligent.

1 May 2024 26
ž This defence is related to the issue of inspection
and maintenance of the vehicle based on the record
of service and that the vehicle is free from defect.
ž Defendant to prove the cause of the accident and
that the result of the cause is inevitable
(unavoidable)

1 May 2024 27
 Che Jah bt Mohamed Ariff v C.C. Scott
(1952) 18 MLJ 69
› The plaintiff was a passenger in the defendant’s car
that crashed into a stationary(still) car, she suffered
injuries as a result of the accident.
› The defendant gave evidence that ten days prior to the
accident he had sent the car for service with particular
attention to the brakes. One day before the accident he
had gone to test the brakes and the brakes was found
to be in order.
› The court held the defect in the brakes was latent
(not visible) and as the defendant had employed skilled
labour, no negligence could be attributed to him.
1 May 2024 28
ž An exclusion clause is which is construed
to be clear and unambiguous may
effectively deny what would otherwise be a
good claim in negligence.
ž Can liability for negligence be excluded by
giving notice of it to the plaintiff?

1 May 2024 29
Chin Hooi Nan v Comprehensive Auto Restoration Service
Sdn Bhd (1995) 2 MLJ 10

› The plaintiff paid some money to the defendant’s to have his car waxed and
polished. The car was damaged while one of the defendant’s employees drove it
down to the basement of the building. On the back of the receipt issued to the
plaintiff were the words:

– “The company is not liable for any loss or damage

whatsoever of or to the vehicle, its accessories or
contents. Vehicle and goods are left at owner’s risk.”

› The court held that the exemption clause did not exclude the defendants
from the burden of proving that the damage to the car was not due to
their negligence and misconduct. They must show that they had
exercise due diligence and care in the handling of the car, and since the
defendant had failed to do this, they were held liable to compensate the
plaintiff for costs of repair, of hiring another car during the repair
period and of engaging an independent adjuster.

1 May 2024 30
5/1/24 1
1. Discuss elements of defamation
2. Apply the defences available for the
tortious actions

5/1/24 2
ž Introduction
ž Types ofDefamation
ž Elements
ž Defences

5/1/24 3
ž A tort of defamation-
› is a type of legal action brought against a
person who is accused of making, usually
false, claims about another person or
organization which are considered
potentially damaging to the reputation of
the person or organization.

5/1/24 4
ž Defamation arises when there is publication
which has a tendency to lower the person’s
reputation or to cause him to be shunned or
avoided by reasonable person in society, and
thereby adversely affecting his reputation.
ž The interest that is protected by this tort is a
person’s good name and reputation.
ž Mere feelings of hurt however, are insufficient for
the award of damages under the tort of
defamation.

5/1/24 5
ž Words spoken in jest and understood by
those who hear them to be so is not
defamatory as the words should not affect
the plaintiff’s reputation.
ž The circumstances and context in which
the words appear are important
considerations.

5/1/24 6
ž The law of defamation in Malaysia is
primarily based on the English common
law principles except insofar as it has been
modified by the Malaysian Defamation
Act 1957.
ž The Malaysian Defamation Act 1957 is in
pari materia with the English Defamation
Act 1952.
5/1/24 7
LIBEL SLANDER

DEFAMATION

5/1/24 8
(1)LIBEL
ž Defamation in a permanent form and is
visible to the eye, such as in written form,
pictures, statutes or effigies.
ž Section 3 of Defamation Act 1957 states that
broadcastings of words by means of radio
communication shall be treated as publication
in a permanent form and constitutes libel.
ž Libel is actionable per se
› plaintiff need not to prove any damage.

5/1/24 9
ž This is because the law presumes that when a
person’s reputation is assailed, some damage
must result.
ž A bank commits the tort of defamation if it
wrongfully prints the words ‘Account Closed’
on a cheque that it is in fact bound to honour.

ž Example of
effigiesà

5/1/24 10
ž Defamation in a temporary form
i.e. spoken words or gesture.
ž Slander is not actionable per se.
› The plaintiff needs to prove actual or special
damage in order to succeed in his action.
ž Actual damage refers to financial loss or any
loss that may be measured in monetary terms.
ž For example, loss of business or employment
or the chance to attend a social function that
may be measured in monetary terms.
5/1/24 11
ž The actual loss must be proved.

ž The damage must also be the natural

and reasonably foreseeable result of
the defendant’s words.

ž The damage must further be a direct

result of the defendant’s words.

5/1/24 12
ž Exceptions to the requirement of actual damage in cases of
slander as follows:
Slander to women

Slander to a person’s professional or business

reputation

Imputation of a crime

Imputation of a contagious disease

Slander to Title
5/1/24 13
Section 4 provides that publication of words which impute
unchastity or adultery to any woman or girl requires no proof
of actual damage.

Luk Kai Lam v Sim Ai Leng

The respondent called the appellant a prostitute and
alleged that she charge RM50 to entertain men at any
one time. These allegations were made in the presence
of a third party.

Held: slander was established since the words impugned

the appellant’s chastity and special damage need not be
proved.
5/1/24 14
(b) Slander to a person’s professional or business reputation

Section 5 provides that where words are calculated to

disparage the plaintiff in any office, profession, calling, trade
or business, at the time of publication, it shall not be
necessary for the plaintiff to prove special damage.

Chua Jui Meng v Hoo Kok Wing [2000] 6 CLJ 390

An allegation of dishonesty and corrupt practices (such as
receiving money in return of favours) against a Deputy
Minister would therefore fall under s 5, either on the basis
that the office is an office of profit, or on the basis that the
defamatory words intimated(suggest) that the Deputy
minister had acted without integrity.
5/1/24 15
Slander is actionable per se if words indicate
the plaintiff is involved in a crime which attracts
corporal punishment that includes the
death penalty, whipping and imprisonment.

The idea is that the punishment ought to be of

type where the plaintiff can be made to suffer
physically. Imputation of an offence punishable by
fine merely, is not sufficient (traffic offence).
– The rationale of this of this rule is that reasonable
persons are likely to shun and avoid someone who is
‘a convicted person’ and whose punishment is
‘serious’.
5/1/24 16
 C Sivarathan v Abdullah bin
Dato’ HJ. Abdul Rahman
the plaintiff was called a cheat,
dishonest and liar. The court held
since these crimes does not involved
corporal punishments, he needs to
prove special damage. Since this is not
prove, the action failed.

5/1/24 17
(d) Imputation of a Contagious Disease

A defamation statement which relates to

imputation of contagious or infection disease is
actionable per se. (such as venereal disease)

(e) Slander to Title

Section 6 (1) (b) provides action for slander of title,

goods or other malicious falsehood. The plaintiff
need not prove special damage if the words were
made calculated to cause pecuniary damage in
respect of the trade, business, profession, office or
calling.

5/1/24 18
To prove defamation, the plaintiff must
establish the elements of Defamation,
namely :-

(ii) The words

(i) The words are refer to the
defamatory; and plaintiff; and

(iii) The words have

been published
5/1/24 19
The words have a tendency to lower the
estimation of the plaintiff in the minds of right-
thinking members of society generally, so that
the plaintiff is exposed to hatred, avoided,
shunned or ridiculed.

The question for the court is whether the words

are capable of conveying a defamatory meaning
concerning the plaintiff.

5/1/24 20
In other word, the court will look
to the tendency of response by a
reasonable man to the words.

If the words are mere word of

abuse, uttered in anger in the
heat of the moment, the words
will not be defamatory.

5/1/24 21
ž Words may be defamatory in one of three ways:-

(a) natural and

ordinary meaning
(b) innuendo

(c) juxtaposition

5/1/24 22
The words by themselves as understood by ordinary
men of ordinary intelligence to have a tendency to
make them shun or avoid the plaintiff.

In Lewis v Daily Telegraph, a newspaper printed the

news that a fraud squad was investigating the
plaintiff’s company. The court held the statement was
not defamatory as it was not capable to have a meaning
that the plaintiff carried out his business fraudulently.

5/1/24 23
ž Words are defamatory of the Plaintiff due
to inferences or implications arising from
them

ž May arise from combination of statements

and pictures

5/1/24 24
¡ The newspapers published a statement accusing Syed Husin Ali
as wanting to arouse the hatred of the Malaysian people against
the government and the British.

¡ University lecturer was spreading the subversive ideas in order

to poison the thoughts of the Malay.

¡ The issue whether these words are defamatory of the plaintiff,

and it was held that throughout the inference or implication,
the words conveyed the meaning of that the plaintiff was
dishonest disloyal to the government and subversive element
and ungrateful.

¡ Pt. was awarded with damages for the defamatory statements.

5/1/24 25
 This involves the employment of
visual effects such as effigy or
placing the Plaintiff’s photograph in
a pile of wanted criminals.

In Monsoon v Tussauds, the P was

accused of committing a crime in
Scotland, but it was never proved, and he
was released. The D erected a statue of
the P and placed it with other criminals.
The P sued the D. the court held the
liable for defamation. D’s intention is
irrelevant.
5/1/24 26
¡ The plaintiff must prove the defendant’s words
are referring to him.
¡ The test is whether the words are such in
reasonably in the circumstances would lead
persons acquainted with the plaintiff to
believe that he was the person refer to.
¡ Only the person defamed can bring an action
in defamation.
¡ A person’s reputation dies with him, so a next-
of-kin cannot institute proceedings on behalf
of the deceased.
5/1/24 27
In Atip Bin Ali v. Josephine Doris Nunis & Anor the defendant
sued Datuk Rahim Thamby Chik for breach of a promise to marry.
The defendant then did not pursue her claim after filling the writ.
The plaintiff, Secretary of UMNO, Alai Melaka, claimed that other
parties and Wanita UMNO avoided them for supporting an
adulterer. The court held UMNO was not defamed but Datuk Rahim
Thamby Chik and only he can take up a defamation suit against the
defendant.

In Hulton & Co v Jones, the defendant wrote a fiction

concerning Artemis Jones in Peckham. There was in fact a real
Artemis Jones, a lawyer on that town. His friend thought the
story was about him. The court held defamation was established.

5/1/24 28
ž Communicated at least one person other than
the plaintiff.
ž In practice the statement is always in the form
of words, but it can take any form which
conveys meaning, for example a picture,
cartoon or a statue.
ž à Publication means dissemination of the
defamatory words or materials to a third party,
other than then plaintiff.

5/1/24 29
ž The plaintiff was a psychologist working on voluntary
basis at a Help Centre in Kg.Bercham, Perak. The
defendant wrote 2 letters indicating that the plaintiff
has committed breach of trust amounting to
RM70,000.

ž Copies of these letters were sent to directors of

the centre, the Director of Welfare Services of
Perak and the Registrar of Society.

ž Court held sending copies of the said letter to other

parties constituted publication. Words spoken in
public can amount to publication.
5/1/24 30
¡ To establish publication of the words the
following factors needs to be considered :
i. The language used is understood by the 3rd
party
ii. The plaintiff must be able to specify what
exactly was said or written by the defendant.
iii. The plaintiff must be able to prove the
identities of persons to whom the
defamatory words are published.
iv. If the words are repeated or copied, a new
defamation arises. Generally, the first person
who produces the defamatory material is
liable for subsequent publication
5/1/24 31
1. Consent
2. Justification
3. Fair Comment
4. Unintentional defamation

5/1/24 32
ž The plaintiff who gives his consent for
publication to be made, be it express or
implied cannot hold the defendant liable.
ž Cookson v Harewood, the defendant
published a true statement of the plaintiff not
being allowed to ride the horses at his club.
ž Held: Plaintiff could not claim from the
defendant as the statement was true and the
permission was obtained to publish the
statement.
5/1/24 33
ž The defence of justification or truth, is an
absolute defence. Once the defamatory
statement is proven to be true the law will not
protect the plaintiff.
ž Dr Jenni Ibrahim v S Pakianathan, the
defendant was required to prove the truth of
his allegation and it was not sufficient for him
to state that he believed the allegation to be
true

5/1/24 34
ž The defendant must show:
1. The words must be in the form of comment and
not a statement of fact; and
2. The comment must be based on true facts; and
3. The comment is fair and not malicious; and
4. The comment concerns an issue of public
interest

5/1/24 35
The publisher can show that;
1. He did not intent to publish them of and
concerning the plaintiff; and
2. He did not know of circumstances in which
the words might be understood to be
referring to the plaintiff; and
3. He had exercised all reasonable care in
relation to the publication

5/1/24 36
 LAW245
CHAPTER 4.4
NUISANCE

5/1/24 1
 LEARNING OUTCOME
1. Describe the legal concept of nuisance

2. Apply the defences available for the

tortious actions

5/1/24 2
 INTRODUCTION
• Branch of law of tort that concern with
protection of private right in the enjoyment
of land.
• Nuisance actions generally related to
obstruction of the highway, pollution by oil
or noxious fumes, interference with leisure
activities, offensive smells from premises
use for keeping animals or noise from
industrial installations.

5/1/24 3
 (a) Public nuisance (b) Private nuisance
– crime as well as a - tort(civil) only
tort(civil)

Nuisance

5/1/24 4
 PUBLIC NUISANCE

Consists of any interference of public rights

such as obstruction of the public highway or
selling of contaminated food.

Nuisance would only be created if, a person

knowing of its existence, allows it to continue
for an unreasonable time or in unreasonable
circumstances.

5/1/24 5
• Attorney General v PYA Quarries Ltd (1957) 2 QB 169
• Public nuisance arises when an act materially affects the
reasonable comfort and convenience of life of a part of
the society or a class of persons.
• Held: dust and vibration caused by the operation of the
quarry amounts to a public nuisance.

• Lim Kar Bee v Abdul Latif bin Ismail (1978) 1 MLJ 109
• Long steel pipers with sharp edges was left by the side
of a highway for one or two years.
• Held: it is unreasonable and dangerous and creates a
danger to users of the highway.

5/1/24 6
• Majlis Perbadanan Pulau Pinang v Boey Siew
Than & 7 Ors. (1979) 2 MLJ 127

• Held: a nuisance is a public nuisance if, it

materially affects the reasonable comfort and
convenience of a class of the subjects of the
state, even if no special damage has been
caused.

5/1/24 7
Pacific Engineering v Haji Ahmad Rice Mill

• Held: public nuisance could only be

instituted with prior consent of the
AG(Attorney General) in the
absence of special damage.
• A public nuisance however may be
instituted without consent of the
AG, if the plaintiff has suffered
special damaged.

5/1/24 8
 PRIVATE NUISANCE

Defined as an unlawful interference with a

person’s use, comfort, enjoyment and interest over his land.
In an action for private nuisance, the plaintiff must prove
interference with the enjoyment of his land.

The plaintiff must have an interest in land to entitle him to sue

for private nuisance.
Persons with an interest in land are the landowner, tenants and
licenses.
Third parties related to land maybe servants or employees and
independent contractors.
5/1/24 9
 Elements of
Private Nuisance

(i) Substantial (ii) Continuous

interference interference

5/1/24 10
 (i) Substantial Interference
• In determining what constitute “substantial”
interference the plaintiff must prove that the
interference is unreasonable.
• The court will generally consider the following
factors to determine “substantial” or
“unreasonable” interference.
(a) Damage and locality
(b) Benefits of the defendant’s activities
(c) Extraordinary sensitivity of the plaintiff
(d) Malice

5/1/24 11
(a) Damage and locality
Actual damage to the plaintiff’s property will constitute
unreasonable and substantial interference.
St Helen Smelting Co. v Tipping (1895) 11 HL 642
• The plaintiff owned a rubber estate which was situated in an
industrial area. The smoke and fumes from the defendant’s
Copper-melting factory, caused considerable damage to
the plaintiff’s trees. The plaintiff’s sued for private
nuisance.
• Lord Westbury distinguished between ‘sensible injury to
the value of property’ or ‘material injury’ (physical damage),
and injury in terms of personal discomfort (non-physical
damage). For the latter type of damage, His Lordship
stated that the level of interference must be balanced
with surrounding circumstances, and the nature of the
locality must be taken into account.

5/1/24 12
• For instance, a person cannot expect the air in an
industrial area to be as fresh and clean as the air in
the mountains
• If however, the interference causes physical
damage to the property, then the locality or
surrounding circumstances is irrelevant.
• An occupier of land must be protected from
physical damage no matter where he is.
• Location is therefore an important factor
when the interference is merely to the use,
comfort and enjoyment of land as opposed to
physical damage to property

5/1/24 13
• Syarikat Perniagaan Selangor Sdn Bhd v
Fahro Rozi Mohdi & Ors [1981] 2 MLJ 16
• Held: people who lived in the urban area must be
prepared to accept a lot of noise from their neighbour
and he himself may make noise; but no one however, has
the right to create excessive noise. Similarly, a person is
not required to tolerate an excessive level of noise which
is unreasonable and is a nuisance.

5/1/24 14
(b) Benefit of the Defendant’s Activities
• If the object of the defendant’s conduct
benefits the society generally, it is more
likely that the conduct will not be deemed
unreasonable.
• Nevertheless, the defendant’s activity which
benefits the public will still constitute
actionable nuisance if the activity causes
damage to property or substantial
interference to the plaintiff’s enjoyment of
his land.
5/1/24 15
• Perbadanan Pengurusan Taman Bukit Jambul
v Kerajaan Malaysia [2000] 1 AMR 228
• The defendant renovated some units in a flat managed by
the plaintiff in order to set up a government clinic. The
plaintiff argued that the renovation was not only
conducted without their approval, but that it caused pipe
and drain blockages. Further, the renovated units
intruded into the common five-foot pathway, thereby
causing interference.
• The court denied the plaintiff claim. An inconvenience
does not necessarily give rise to an actionable
nuisance. The purpose of the renovation provided
substantial public benefit. On the facts, the defendant
had provided a new five-foot way and so no nuisance was
created in this aspects.
5/1/24 16
(c) Extraordinary Sensitivity on the part
of the Plaintiff
• The law of nuisance is not sympathetic to a
plaintiff who is extra sensitive, whether the
sensitivity is related to the plaintiff himself
or to his property.
• If the only reason why a plaintiff complains
of dust is because he has an unusually
sensitive skin, his claim will probably fail.

5/1/24 17
• McKinnon Industries Ltd v Walker (1951) 3
DLR 577

• The defendant’s factory emitted noxious fumes

which damaged the plaintiff’s commercially
grown and delicate orchids.

• The court found the defendant liable as the

fumes would have damaged flowers of
ordinary sensitivity.

5/1/24 18
(d) Malice
• The existence of malice may cause the defendant’s act
to be unreasonable.
• This is not a certainty in all cases and the facts of each
case have to be considered.

• Christie v Davey [1893] 1 Ch 316

• The plaintiff was a music teacher who conducted music
classes at her house. Her neighbour, the defendant, did not
like the sounds from the musical instruments and in turn
shouted, banged on the adjoining walls, and clashed pots
and pans whilst the plaintiff was conducting her classes.
• The court found that the defendant was malicious in his
actions and an injunction was granted to the plaintiff.

5/1/24 19
 (ii) Continuous Interference
• The interference must occur often or be
continuous.
• A temporary interference has been held to be a
nuisance.
MBf Property Services Sdn Bhd v Madihill
Development Sdn Bhd (No. 2) [1998] 4 CLJ 136

• In cases of temporary interference, the courts are

likely to be reluctant to grant an injunction
except in extreme cases, for instance, where
damages will not be an adequate remedy.

5/1/24 20
(a) Interference must be Continuous
• The interference must be something that is continuous
or occurs very often, as generally a continuous activity
will constitute substantial interference.
• This requirement is not conclusive but it is certainly a
factor in deciding whether the interference is
substantial or otherwise.

• Delaware Mansions Ltd v Westminster City Council

– it was held where the roots of a tree belonging to the
defendant had spread to the neighbouring property and
caused structural cracking to that property, such interference
amounted to continuing nuisance until the completion of
remedial works.

5/1/24 21
(b) Temporary Interference and Isolated
Incident

A temporary interference or an isolated

incident may constitute nuisance.

The general principle is that the more serious

the interference, the more likely the court will
regard it as unreasonable.

5/1/24 22
 DEFENCES
• Among the defences that could be raised
are:
1. necessity,
2. consent,
3. contributory negligence,
4. act of god,
5. act of stranger and inevitable accident and
6. statutory authority.

5/1/24 23
 STATUTORY AUTHORITY
Allen v Gulf Oil Refining Ltd (1981)
• The defence of statutory authority was allowed despite the
oil refinery causing great inconvenience and annoyance to
local residents who complained of unpleasant odours,
noxious fumes, vibrations, heavy traffic and noise in their
previously quite rural setting.
• The court considers once Parliament has authorized a
certain thing to be done in a certain place, there can be
no action for nuisance caused by the making or doing of
the thing if nuisance is the inevitably result.

5/1/24 24
 LEARNING OUTCOME
At the end of this lesson, students
shall be able to:
1. Define the meaning and essential
features of land
2. Explain types and use of land
3. Differentiate between fixture and
chattels
 Land Law
1. Governing statutes
2. Historical background
3. Definition of Land
4. Fixture and chattel
5. Torrens system in Malaysia
6. Classification of land use
7. Types of title
8. Registration and indefeasibility of Title
 Governing Statutes
s The land laws in Malaysia are governed by:

a. National Land Code 1965 – Peninsular Malaysia

b. National Land Code (Penang and Malacca Titles)

Act 1963 – Penang and Malacca

c. Sarawak Land Code – Sarawak

d. Sabah Land Code – Sabah
 Historical background
The Straits Settlement
s Penang – Ong Cheng Neo:uninhabited therefore applied
common law & equity.
s Malacca – Self-rule under Malacca Muslims Sultans later on by
Portuguese & Dutch. English took over consisting of Islamic law
& Muslim custom (Malay Customary Tenure & Dutch Grants in
the urban areas).
s Sahrip v Mitchell & Anor
s “It is well-known that by the old Malay law/custom of Malacca,
while the Sovereign was the owner of the soil, every man had
nevertheless the right to clear & occupy all forest & waste land
subject to the payment to the Sovereign of 1/10 of the produce
of the land so taken”.
s Characteristics of the Malay Customary Tenure
a) Not of absolute ownership but of a lesser extent “proprietary rights” right of
ownership not to the soil but to the usufruct/right to utilise soil

b) Method of acquisition is by opening up & cultivating virgin jungle land or waste

land (tanah mati into tanah hidup)

c) Maintaining the land under continuous cultivation & obliged to pay 1/10 to the
Rulers as tax.

d) Land neglected without any reasonable cause, forfeited by the Ruler

e) If wishes to sell land, price base on “pulang belanja”.

f) Wishes to borrow money on the security of land, “jual janji” & if fail to settle the
loan on stipulated date become “jual putus”.

s All the above characteristic reflects the Islamic principle of ownership of property.

s However in Malacca the Malay Customary Tenure abolished end 19th century.

s 1861 law was passed where land shall be deemed to be “vested in the Crown”
The Federated Malay States

s Independent states under sovereign Muslim

rulers practising Mohammedan Law & in certain parts such as
Negeri Sembilan special local custom law h/e replace by Torrens
system by the British.

s 1st Jan 1928 – The Federated Malay States Land Code 1926

The Unfederated Malay States

s British influence came later since Kedah, Perlis, Kelantan

and Terengganu under the influence of Siamese King. 1909 Anglo
Siamese Treaty - British Adviser appointed to look after British
interest. Johor was the last state to receive the adviser.
 Definition of land
s Latin maxim: Quic quid plantatur solo solo cedit
s (Whatever is affixed to the soil, belongs to the soil)
s The legal principle means that something that is or
becomes affixed to the land becomes part of the
land.
s Therefore title to fixture is a part of and passes
with title to the land and consequently whosoever
owns that piece of land will also own the things
attached.
s Section 5 of National Land Code , land includes

a) the surface of the earth and all substances forming part

of that surface;

b) the earth below the surface and all substances therein;

c) all vegetation and other natural products, whether or not

requiring the periodical application of labour to their
production, and whether on or below the surface;

d) all things attached to the earth or permanently fastened

to any thing attached to the earth, whether on or below
the surface; and
e) land covered by water
 Fixture v Chattel
s Fixture – what is attached to land becomes part of the land and
immovable
s Chattel – removable
s Holland v Hodgson (1872) LR 7 CP 328 – whatever attaches to the
land is fixtures and immovable. It form part of the land.
s Chattel on the other hand is movable. Not form part of the land
s National Land Code does not define fixture and chattel, thus we
applying English law of fixtures.
s The English law on fixture laid down two tests in determining
whether an item is a fixture or a chattel, namely:
a) Degree of annexation
b) Purpose of annexation
 a. Degree of Annexation
s Must look at:

i. To what extent is an item affixed or attached to the land. It

may be strongly or slightly attached or it may be resting by
its own weight to the land.

s Example: Machinery which is affixed with nuts and bolts to the

floor is fixture. In contrast with picture which is ailed to the
wall is chattel.

ii. To what extent an injury will be caused to the item upon its
removal.

s Example: to remove a built-in-cabinet will cause damage to the

item upon its removal and thus we can consider it to be fixture.
 b. Purpose of Annexation
s Look at the purpose or intention of a person who
annexed or attached the item to the land.

s Whether it is for the enhancement of the value of the

land or for better use of the item as a chattel itself.

s If the purpose of annexation of the item is for the

enhancement of the value of the land, then that item
ceased(no longer) to be a chattel.

s It will be a fixture and thus form part of the land such as

statutes or rock garden arranged in a garden.
s However, if the items are tacked and nailed to the
wall for the purpose of the better enjoyment of the
chattels themselves and not for a better
improvement in the value of the land, the items
remain a chattel.

s In other words, the item may remain a chattel

when the annexation is necessary for the proper
use of the item and implies nothing about its
relation to the land.
s Goh Chong Hin v The Consolidated Malay
Rubber Estates Ltd [1923] 5 FMSLR 86
s Whether machinery attached to the factory
is included in the charge when the chargee
gained possession of the land.
s Held that prima facie machinery affixed to
the earth by bolts and nuts became fixture
and formed part of the land
s Socfin Ltd. v. Chairman Klang Town
Council [1964] 1 MLJ 325
s The Town Council in determining the annual
value of Socfin’s Holding for rating, took
into account the bulk storage tanks
standing thereon.
s It was held the that the storage tanks were
annexed to the land has enhanced the
value of the holdings on which they stood.
s They formed part of it and accordingly
rateable.
 Exceptions to the law of
fixtures
s The general rule is that all items or things attached to the
land are fixtures and therefore form part of the land.

s However, the are certain circumstances that even though

the items are attached and affixed to the land, they can be
considered as chattels and therefore removable.
s This circumstances are considered as EXCEPTIONS to the
law of fixtures, namely:
a) Tenant’s fixtures
b) Chargee relationship
c) Proved custom
 a) TENANT’S FIXTURES
i. Tenant’s Trade Fixture.
s Where the tenant who for purpose of carrying out his business,
brings in his items and attaches them to the rented place.
s Example, Ali rents a restaurant and he installed ovens in the
restaurant. Thus, ovens are chattel.
ii. Tenant’s ornamental or domestic fixture.
s A tenant brought in antique door to his rented place and upon
expiry of the tenancy, he can remove the antique door.
iii. Tenant’s agricultural fixture
s Tenant brought agricultural fixture onto the rented land for the
agricultural purpose. The agricultural fixture become chattel
whereby may be removed at the end of tenancy period.
s For example, chicken coop.
s But, the above fixtures which are brought in to the rented
place of the tenant are subject to the following conditions:

1. There is a landlord and tenant relationship.

2. The fixtures must be removed prior to the expiry of the

tenancy period failing which those fixtures will be
property of the landlord.

3. Only the tenant’s trade fixture, ornamental and domestic

fixtures and agricultural fixture can be removed from the
rented place and not others; and

4. There is no substantial damage or injury caused to the

landlord’s premise during the removal of the tenant’s
fixtures.
 b) CHARGEE RELATIONSHIP
s Where the owner of the land charged his land to bank as a
security for a loan and at the meantime, the owner entered into
hire-purchase with another bank for the item attached to his
land.

s Here, owner is called as chargor and

s Banks are called chargees.

s In the event the owner defaulted in his monthly payment, the

banks may enforce its right over the land together all things
attached to the land.

s Since there are two banks involved, both bank must provide
disclaimer letter in order to protect its interest as a chargee.
s For example, Ali charged his land to Maybank as security for a
housing land. There is a bungalow house erected on the land.

s Ali later decided to purchase air conditioner units to be installed

and attached to the house. The air-conditioner units were
purchased on a hire purchase with CIMB Bank. When Ali fails to
pay the monthly instalment to Maybank, Maybank may enforce
its right i.e. order for sale Ali’s land included all things attached to
the land.

s Therefore, it is important for CIMB Bank gets consent or

disclaimer letter from Maybank over the air conditioner units
before installing it to the land in order to protect its interest over
the units.

s In such a case, all fixtures whether attached before or after the

date of the charge (Maybank), once disclaimed by Maybank will
not form part of the land and therefore falls under the exception
to the general rule.
 c) PROVED CUSTOM
s If the item is fall under proved custom as being removable even
though attached to the land, then the item is a chattel.

s Before any item is considered as falls under proved custom which

entitles it to be removed, the following factors has to be fulfilled:

a) The custom is well accepted and practiced by the people of

that particular place that such an item is commonly remove
from one place to another;

b) There is an intention of the proprietor of the house that upon

its removal, the same will be rebuilt at some other place.

s Kiah Bte Hanapiah v Som Bte Hanapiah [1953] 1 MLJ 82

s Whether the house was a fixture and formed part of the realty? Court
held that as part of the custom, the house is not part of the land and
custom prevailed over English land law
 Basic Concept under law of
land
s Ownership – signifies a title to a subject matter,
movable or immovable

s In respect of land, ownership denotes the right to the

exclusive but not absolute enjoyment thereof

s Possession – denotes something lesser than ownership,

example: a lesse of a lease of the land may enjoy
possession but not the ownership

s Title to land- as evidenced by a document such as the

IDT or RDT
s Interest to land – something less than
proprietorship or ownership in land, example: a
person taking a lease or a charge upon the land
assume interest on the land but the title still
remains with the lessor/owner or chargor

s The owner of the land can still sell or dispose the

land although still leased or charged out.
Torrens System in Malaysia
s Originated Australia however modified according to
local needs. Differ from the system in England
whereby interest in land is only recognise through
registration by the authority.
s Torrens System- registration is everything
s Indefeasibility of titles
s Twin principles; mirror – the register book mirrors
the particulars in the owner’s title; curtain – as the
register book is everything, no need to look beyond
it for information of the title
 CLASSIFICATION OF LAND
s Section 51 NLC 1965, land classified as
1. Land above the shore-line, and
2. Foreshore and seabed
s Land above shore-line comprised of
a) Town land
b) Village land and
c) Country land.
CATEGORIES OF LAND USE
s Section 52 (1) National Land Code 1965

s Alienated land may be use for

1. agriculture,
2. building and
3. industry

s Upon alienation, the State Authority will

underlines the usage/purpose of the alienated
land in the terms of alienation
 TYPES OF TITLE
1. Qualified Title – QT issued upon approved
alienation.
s Section 77 NLC 1965 – provisional title in advance of
survey

2. Final Title – FT issued after the land is surveyed

and the boundary marks are conducted.
3. Registry Title – for town land, country land
exceeding 4 hectare or any part of the foreshore
or seabed
4. Land Office Title- country land alienated not
exceeding 4 hectare
5. Register Document of Title (RDT)- land
titles prepared and place at the Registry
office

6. Issue Document of Title (IDT) – the issue

document given to the owner for safe
keeping and for the purpose of any land
dealing
 Restriction of Dealing
s Certain imposition of terms on the titles to
land upon alienation that prohibits any form
of dealing.

s Restriction commences from date of

alienation as in Section 105 NLC 1965 and not
from the date that the land is approved for
alienation to the proprietor/owners
 Land Dealings
s Types of dealings in NLC;

s 1. Transfers – under S.214, the whole piece; the

whole piece of undivided share; any lease; any
charge and any tenancy exempt from registration;
may be transferred
s 2. Lease – lease or sublease shall exceed 3 years, if
not shall be regarded as tenancy

Margaret Chua v Ho Swee Kiew [1961] 27 MLJ

173 – although lease not registered i.e void as a
lease, there was a binding contract.
s 3. Tenancy – simply, letting of the land for period
not exceeding 3 years and not registrable

s 4. Charges – a security transaction to secure the

repayment of debt or any other sum
Chargor entitle to create subsequent charges on the
land and such charges shall be registered, failure to
do so, it will result in the creation of an equitable
charge
 5. Easements
s Right granted by owner of a servient land to the
owner of a dominant land for the latter’s
enjoyment

s Consent of the owner of the servient land required,

Section 284 NLC 1965 – by an express grant
s Tam Kam Chong v Stephen Leong Kon Sang [1980] 1
MLJ 36 – certain characteristics must be present;
s (a) there must be a dominant and a servient land
s (b) the owners of the dominant/servient land is different
person

s (c) the right granted benefit the dominant land; and

s (d) the right capable of forming the subject matter of a grant
 6. Liens
s A security that acts as an equitable charge by
way of depositing the IDT or lease of the
land to the lender for loan and lodgment of
caveat by lender as lien-holder
s May be created upon land, lease or sub-lease
s However, lien is not registrable
s Lien-holder’s caveat may be dislodged upon
satisfaction of the caveat purpose
 REGISTRATION AND INDEFEASIBILITY
OF TITLE
s Upon an instrument and upon the making of a
memorial of the dealing on the RDT under the
hand and seal of the land authority
s Upon registration, Section 340(1) NLC 1965 sets in
and confers the indefeasibility of title i.e, that
the owner’s title or interest in the land shall not
be challenged, questioned or impeached by
adverse claim
s Ong Chat Pang v Valiappa Chettiar [1971] 1 MLJ
224 – in the absence of any vitiating factors, a
title, once registered, is indefeasible
 EXCEPTIONS:
Indefeasibility of Title
s Section 340(2) NLC 1965 of the National Land
Code sets out the circumstances where a title
or interest will be rendered defeasible wherein
a registered title or interest in the land may be
set aside or defeated by anybody who claims to
fall under Section 340(2) NLC 1965, namely:
a) Fraud or misrepresentation – has been
committed by a person or body or the agent
of the person or body which caused the
registration to take effect.
Hajah Aishah v Yah Binti Taib
(1949) 15 MLJ 128
s An illiterate woman was induced to sign an
instrument of transfer when she was told that she
was merely signing an instrument of charge to
secure a debt owing from her.

s The property was subsequently transferred to one

Haji Musa who then transferred it to the defendant,
who was also privy to the fraud.

s The court held that the defendant’s title must be set

aside.
 Datuk Jagindar Singh & Ors v Tara
Rajaratnam (1983) 2 MLJ 127

s Misrepresentation within the context

of Section340(2) would mean
‘fraudulent misrepresentation’ and is a
species of fraud.
Teknik Cekap Sdn Bhd v Villa Genting
Development Sdn Bhd [2000] 6 MLJ 513

s The court held that a fraud may be

established if the object of the transaction is
to cheat one who knows his existing right or
where by a deliberate and dishonest act, a
person loses his existing right.
b) Where registration was obtained by

forgery or by means of an insufficient or

void instrument.

c) The title and interest to the land was

unlawfully acquired.
 Chew Lip Seng v Perwira Habib
Bank (M) Bhd (1999) 1 AMR 789
s The plaintiff was granted a declaration that
the charge of the property to the defendant
bank was not executed by him and that the
signature on the charge document was a
forgery.
s The High Court also ordered for the charge
to be cancelled and the title deed of the
property returned to the plaintiff.
Puran Singh v Kehar Singh & Anor (1939)
MLJ Rep. 71
s Court of Appeal unanimously held that an
instrument of transfer executed by an attorney,
acting in pursuance of an invalid power of attorney,
is an insufficient instrument.

Tan Hee Juan v Teh Book Keat (1934) MLJ 96

s It was held that instrument of dealing effected in

favour of or by minors is void.
Wong Kim Poh v Saamah Hj Kasim [1987] 1
MLJ 400

s The Supreme Court decided that an

instrument of transfer which was registered
by the Registrar while a caveat was still in
force was in contravention of a prohibition
imposed by a caveat and the registration
was held to be defeasible.
 EFFECT OF PURCHASED
HAVING DEFEASIBLE TITLE
s Section 340(3) NLC 1965 – any person or body
holding defeasible title or interest specified in
Section 340(2) NLC 1965 is liable to be set aside

a) In the hand of immediate registered proprietor;

and

b) In the hand of any subsequent purchaser

 EXCEPTION TO THE
EXCEPTION:
s However, the proviso to Section 340(3)
NLC 1965 states that defeasible of title
shall not affect any title or interest
acquired by any purchaser in good faith
and for valuable consideration, or by any
person or body claiming through such a
purchaser.
 Boonson Boonyanit v Adorna Properties
Sdn Bhd [2001] 2 CLJ 133
s In this case, the Respondent(Boonson) was the
registered proprietor of a piece of land which had
been sold and transferred to the Appellant(Adorna).
s The Respondent claimed that the vendor had forged
her signature, sold and transferred the land to the
Appellant.
s The High Court dismissed the Respondent’s claim.
The decision of the High Court was reversed by the
Court of Appeal and the Appellant appealed to
Federal Court.
 Boonson Boonyanit v Adorna
Properties Sdn Bhd [2001] 2 CLJ 133
s The Federal Court decided that the
transferee(Adorna) was a bona fide
purchaser for value who had no notice of the
forgery done by the transferor.

s Therefore the title was held to be

INDEFEASIBLE.
 Tan Ying Hong v Tan Sian San & Ors
[2010] 2 CLJ 269
s Although subsection (3) of Section 340 NLC 1965 made
reference to subsection (2), subsection (3) was restricted
to subsequent transfers or interests in the land.
s It did not apply to an immediate transferee of any title or
interest in land.

s As Adorna Properties did not fall under the category of

subsequent acquirers, it should not have been allowed to
take advantage of the proviso to subsection (3) to avoid
its title from being impeached.
 Tan Ying Hong v Tan Sian San & Ors
[2010] 2 CLJ 269

s The Court further held that the Respondent

could not avail itself of the proviso to
subsection (3) of Section 340 NLC 1965 as it
was the immediate holder of those charges.
 Explanation:
A is the registered proprietor of the land.
s B forges A’s signature and transfers the land to
himself. B later sells and transfers the land to C. C,
who has no knowledge of the forgery, will obtain
an indefeasible title.
s Or if B forges A’s signature and transfers the land
from A to C and C later transfers the land to D.
Therefore, D and not C, who has no knowledge of
the forgery, will obtain an indefeasible title.