Lesson:No such limit in thinking.

The surface must be covered by law and logics, and of course do not across the board (religion) !

Chapter II – Sources of LawPart II – Unwritten Law

LBA1023 Malaysian Legal System I

muhammadnizamawang@alI.facultyofsyariahandlaw.islamicscienceuniversityofmalaysia

Discussion Points

•Unwritten law ▫Common law and equity▫Judicial precedents▫Islamic law ▫Custom

Common law & equity

•Is an English law.•History and Problems of Common Law

▫William I conquered England and introduce feudal court

▫The court was privately owned by landlord.▫Landlord gained profit from the fees

payable to court. Succeeded by King Norman.

▫Norman was assisted by Curia Regis

•Curia Regis ▫of multi-functions (executive, legislature

and judiciary)▫Members: who has contributed troops of

army & weapon and known as tenant-in-chief.

• William I then sent over officer to country ▫ to obtain information and to exercise admin

and judicial functions▫Henry II continued the legacy and later formed

‘General Eyre’

•Henry II divided England into county and created circuit court in each county.

•All civil and criminal trials were assisted by juries.

•Richard II abolished General Eyre and introduced circuit judges from King’s Bench.

•Edward II appointed first circuit Commission▫The best judgment on custom in a country was

selected and was used in other county later.▫Now, the whole country applied the same custom.

•The similar and repeating reference to the same custom has created ‘common law’

•The previous/ standing decision became binding precedent.

•The uniformity in common law has later on created other problems▫Writ (written decree) – ordered to do or to omit

based on the offence. If not available in the writ, the claim was not sustainable.

▫Procedure – Taking wrong writ did not entitle plaintiff for any kind of suit

▫Defences and corruption – essoins defence▫Remedy – was not satisfactory, only monetary

damages available •Equity – History

▫Dissatisfied people petitioned to Chancellor (CH)

▫CH heard appeal brought for unavailable writ and injustice decision of common law courts

▫CH exercised his conscience in making decision

•CH created and granted remedy (not available in common law) – specific performance, injunction, etc.

•Number of cases increasing – VC appointed and decision made were uncertain – equity varies with the length of Chancellor’s foot.

•Equity was uniformed and became a complete system living along with common law.

•Conflict between law and equity▫Earl of Oxford’s case (1615) – where there is

conflict between two, equity prevails.▫ Judicature Act (1873-1875) – remedy of

common law and equity were fused in one court and can be applied in single application.

•Application in Malaysia▫ Was first imported through Royal Charter of

Justice 1807▫Legislated later through s. 3 & 5 Civil Law Act

1956

Judicial Precedent/ Stare Decisis•Doctrine of Stare Decisis

▫ Judges must follow ratio decidendi already decided in previous cases.

•What is ‘ratio decidendi’?▫Literally - reasoning behind decision▫The principles are of legally relevant to material

facts (or facts at issue)▫Future court need to follow the precedent and

are bound to do so.

▫Originally, a judge-made law because almost all English law are not statutorily enacted.

▫Lately, many ratio decidendi have been replaced or supplemented by statutes (enacted as written law)

▫Reasons to follow: higher court has decided such principle as applicable law.

• Application of doctrine in Malaysia▫ It has been long accepted in PP v. Datuk Tan

Cheng Swee [1980] 2 MLJ 276 (quoted in Mirehouse v. Rennel), Per Parker B:‘Our common law system consists in the applying to new combinations of circumstances those rule of law which we derive from legal principles and judicial precedents, and for the sake of attaining uniformity, consistency and certainty, we must apply those rules, where they are not plainly unreasonable and inconvenient, to all cases which arise; and we are not at liberty to reject them….’

PRIVY COUNCIL

FEDERAL COURT

COURT OF APPEAL

HIGH COURT IN MALAYA

SESSIONS COURT

MAGISTRATE’S COURT

PENGHULU’S COURT

HIGH COURT IN BORNEO

SESSIONS COURT

MAGISTRATE’S COURT

PENGHULU’S COURT

SUPREME COURT

HIGH COURT IN MALAYA

SESSIONS COURT

MAGISTRATE’S COURT

PENGHULU’S COURT

HIGH COURT IN BORNEO

SESSIONS COURT

MAGISTRATE’S COURT

1985 - 1995

FEDERAL COURT

COURT OF APPEAL

HIGH COURT IN MALAYA

SESSIONS COURT

MAGISTRATE’S COURT

PENGHULU’S COURT

HIGH COURT IN BORNEO

SESSIONS COURT

MAGISTRATE’S COURT

Current Structure

•The of stare decisis doctrine need to devised into three different phases:▫(a) Pre-1985: Prior to abolishment of appeal

to Privy Council▫(b) 1985-1995: The creation of Supreme

Court▫(c) Post 1995: Re-creation of Federal Court▫(d) Decision of foreign jurisdiction

(a) Pre-1985: Prior to abolishment of appeal to Privy Council▫PC is the apex court, thus its decision binds all lower

courts (where the decision must be an appeal from Malaysia & other common law jurisdiction – where the law is in pari materia with Malaysia. Case: Khalid Panjang v. PP (No.2) [1964] MLJ 108: ‘…a decision of their Lordship (Privy Council decision

from India) is binding on this court and a fortiori, it is binding on every High Court in Malaysia and no judge is at liberty, whatever his private opinion may be to disregard it’.

•Would Federal Court today be bound by the Privy Council’s decision?(i) Civil cases: ▫Federal Court decisions binds all lower

courts & ▫Federal Court is bound by:

The decision of the Privy Council Its own decisions Decision of predecessor courts Courts of coordinate jurisdiction

▫Case: Central Securities (Holdings) Bhd. V. Haron Mohamed Zaid [1980] MLJ 304 – Federal Court was bound to follow its own previous decisions: ‘In the absence of exception on Young v. Bristol

Aeroplane, we are bound to follow these two (earlier Federal Court) decision. But even if believe that they have been wrongly decided and not merely per incuriam…we should follow our previous decision and leave the matter to be corrected on appeal as being the most convenient and quickest way of having the law determined.’

▫(ii) Criminal cases▫Federal Court applies the same principle as to

the Criminal Division of the English Court of Appeal

▫Federal Court: Is bound by the decision of Privy Council Is bound by decision of courts of coordinate

jurisdiction & predecessor courts Binds all inferior court decisions Is not bound by its own previous decisions Case: Adnan Khamis v. PP [1972] 1 MLJ 103

▫High Court Binds all subordinate courts, bound by

superior court decision Not bound by other High Court decision

(persuasive)

(b) 1985-1995: Creation of Supreme Court

•Supreme Court is ought to be bound by its own previous decisions, unless it was wrongly decided. In Lorraine Esmen Osman v. Attorney General [1986] 2 MLJ 288, Per Sulaiman SCJ:▫..Nor I would hold that this court is, as yet

prepared to follow House of Lords which will nowadays, given proper circumstances, depart from its own earlier decisions.

(c) Post-1995•Federal Court is reinstituted as the apex

court•Federal Court decision:

▫Binds all lower courts▫Case: Harris Solid State v. Bruno Gentil

[1996] 3 MLJ 489, 518:‘…This court is bound to follow and apply the law as stated in Rama Chandran, even it suffers from any infirmity. It is a decision of the apex court and constitutes binding precedent.’

• Case: Cooperative Central Bank v. Feyen Development Sdn Bhd. [1997] 2 MLJ 829▫Stare decisis is a ‘cornerstone of our system of

jurisprudence. Thus, it was not open to an intermediate court to disregard/ depart from a judgment of the final court of appeal (Federal Court), regardless whether it is a per incuriam decision.

• Read:▫Dato’ Han Tan Heng Chew v. Tan Kim Hor

[2006] 2 MLJ 293; ▫Metramac Corp Sdn Bhd v. Fawziah

Holdings Sdn Bhd [2006[ 4 MLJ 113;

• Read: ▫Adorna Properties Sdn Bhd v. Boonsom

Boonyanit [2001] 1 MLJ 24; ▫Malaysia National Insurance Sdn Bhd v. Lim

Tiok [1997] 2 MLJ 165▫Dalip Bhagwan Singh v. PP [1998] 1 MLJ 1▫Syarikat Kenderaan Melayu Kelantan v.

Transport Workers’ Union [1995] 2 MLJ 317▫Hong Kiang Ngan v. Mahkamah Perusahaan

Malaysia [1995] 3 MLJ 369▫Kumpulan Perangsang Selangor Bhd v. Zaid

Hj Mohd Noh [1997] 1 MLJ 789▫Kesultanan Pahang v. Sathask Realty [1997]

2 MLJ 701

•Where there is two conflicting decisions of the:▫Court of Appeal – choose either one▫Federal Court – choose the latest one▫High Court - lower court may choose to

follow the most convincing decisions. Case: Datuk Tan Leng Teck v. Sarjana Sdn. Bhd. [1997] 4 MLJ 329

(d) Decision of foreign jurisdictions•Not binding upon Malaysian courts, but

may be highly persuasive (particularly those shares similar history of British colonialism)

•Read: ▫Hong Leong Equipment Sdn Bhd v.

Liew Fook Chuan [1996] 1 MLJ 481▫Rama Chandran v. The Industrial Court

of Malaysia [1997] 1 MLJ 145

Islamic Law

•Of unwritten feature because of its original form of revelation from God to Prophet

•Created by Federal Constitution▫List II, 9th Schedule – determine the application

of Islamic law and jurisdiction of Syariah Court •Art. 3(1)

▫ Islam is the religion of Federation, but other religions may be practised in peace and harmony in any parts of the Federation

•Art. 11(1)▫Every person has the right to profess,

practice and propagate his own religion•Cases:

▫Ramah v. Laton (1927) – Islamic law was once judicially noticed as law of the land

▫Che Omar Che Soh v. PP [1988] – British intervention narrowed the scope of Islam and Islamic law (historical approach)

▫Must read: Meor Atiqulrahman [2006] 4 MLJ 605

Custom

•A long way tradition existence through a long and consistent practice of certain activities.

•The practice then was accepted and binding upon society.

•Art. 160 recognizes custom as ‘law’ and has the force of law.

•Example: Rules for marriage ceremonies

•Category of custom:•West Malaysia

▫Ancient Malay Customary Law (Perpatih & Temenggung)

▫Hindu customary law▫Chinese customary law

•East Malaysia ▫Ancient Malay customary law ▫Chinese customary law ▫Native law

•Adat Temenggung▫Autocratic patriarchal law▫Owes its influence from Shafii school and partly

Hindu law ▫ Impacted on Islamic socio-political system▫Punishment aims at retribution, notably in

criminal law▫Widely mentioned in Hukum Kanun Melaka

•Adat Perpatih ▫Matrilineal in nature, notably in matrimonial law

and property, succession in title▫Punishment aims at restitution▫Widely known for its constitutional monarchy –

the clan is ruled by lembaga, buapak, anak buah, luak, undang, perut (in hierarchical order)

•Chinese customary law▫Once recognized polygamous marriage- Six

Widows’ Case (1911) 12 SSLR 120▫Customary marriage remains with the passing of

Law Reform Act 1976▫ In Sarawak, Chinese customary marriage must

be registered under Chinese Marriage Ordinance (Cap.74)

▫Phiong Khon v. Chonh Chai Fah [1970] 2 MLJ 114 – unregistered customary marriage will be void.

▫Must read: Tan Kui Lim v. Lai Sin Fah [1980] 1 MLJ 222

•Hindu Customary Law▫Adapted from Hindu law in India▫ Impact on ancient Malay customary law ▫Must read: In Re the Estate Vengadasalam

[1940] 9 MLJ Rep. 124

•Malay Adat in Sabah ▫Hybrid of Islamic law and custom▫Ariff Samat v. Abdul Samat Noor (1973) – adopted

child could inherit property of the foster parent under Malay adat albeit contrary to Islamic law

•Malay Adat in Sarawak▫Codified under the Laws of the Sarawak Malay

Court ; Muslim Wills Ordinance 1896▫Must read: ▫SM Mahadar Datu Tuanku Mohamed v. Chee

[1941] SCR 96; Abang Hj Zaini v. Abang Hj Abdulrahim [1951] SCR 3

•Native customary law in Sabah▫Caters for various tribes/natives ▫Publication of Native Affairs Bulletin; Land

Ordinance, native rice cultivation, etc.•Native customary law in Sarawak

▫Brooke codified custom into Native Customary Law Ordinance 1955

▫The Council for Customs and Traditions is vested power under Native custom (Declaration) Ordinance 1996

Note: Definition of ‘native’ – Art. 161A(6) and (7)

`

•History of Malaysian legal system ▫Prior to the introduction of

English Law▫Reception of English Law until

1956 Straits Settlements Malay States Sabah and Sarawak

▫Application of s.3 & 5 Civil Law Act 1956

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