Unwritten Law in Malaysia
Unwritten laws are laws that are not enacted and not found in any constitution. It comprises of English law (Common Law and Equity), judicial decisions and customs. Common-Law is a major part of many States, especially Commonwealth countries. It is mainly made up of non –statutory laws, which are the precedents derived from judgments given on real cases by judges. Law of Equity resolves disputes between persons by referring top principles of fairness, equality and justness. In these cases,nothing was done against the law by the parties to dispute, but their rights are in conflict.
Thus, it is different from law,both the Statutory Law enacted by Parliament and State Legislatives and Common Law which consists of precedents and opinions given on real cases by judges. In situations where there is no law governing a particular circumstance, Malaysian case law may apply. If there is no Malaysian case law, English case law can be applied. There are instances where Australian, Indian,and Singaporean cases are used as persuasive authorities. Section 3(1)(a) Civil Law Act 1956 states that courts in Peninsular Malaysia should apply Common Law and the Law of Equity as administered in England on 7th April1956.
Section 3(1)(b) and Section 3(1)(c) of Civil Law Act 1956 states that courts in Sabah and Sarawak should apply common law and law of equity together with the statutes of general application as administered in England on 1st December 1951 and 12th December 1949 accordingly. But it is not stated that the Common Law and Law of Equity in Malaysia should remain unmodified and follow the same law as administered in England. Common law and law of equity in Malaysia should be developed and amended according to the local needs. In addition, these two laws should also take into account of changes in these laws in England.
However, the Malaysian government can set their own scope for the amended or repealed Common Law and Law of Equity in Malaysia. In the case, Commonwealth of Australia v. Midford (Malaysia) Sdn. Bhd. , it was held that the doctrine of sovereign or crown immunity which was developed in English Common Law after 1956 should apply in Malaysia. It was said that any developments in English Common Law after 1956 should apply in Malaysia. In the case, Smith Kline & French Laboratories Ltd. v. Salim (Malaysia) Sdn. Bhd. ,It was held that the courts have the authority to put aside any Common Law or Law of Equity which cannot be applied in Malaysia.
In the case,Jamil bin Harun v. Yang Kamsiah & Another,It was decided that courts have the authority to decide whether to follow English Law (common law and law of equity) or Federal law, considering the circumstances and the scope the written law permits to do so. In the case,Karpal Singh v. Public Prosecutor,It was held that the criminal offences in Malaysia were provided by Criminal Procedure Code of Malaysia and therefore, there is no allowance for English law to apply. There are certain boundaries as to the application of Common Law and Law of Equity in Malaysia.
Common law can apply in the absence of local legislation. Local law is regarded highly that the English law. The English law is only meant to fill in the lacuna, in which the local legislation is not present. Only the relevant part which is suited to the local needs and circumstances applies. Malaysia is made up of different races, each possessing their own customs, different from English law. The entire importation of English law means that the sovereignty of loca. The case law related to the boundaries of applicationis, Syarikat Batu Sinar Sdn.
Bhd. v. UMBC Finance Bhd. In this case, problem of double financing occurred when first purchaser’s (UMBC Finance Bhd. ) indorsement of ownership claim was not included in the registration cardof vehicle. UMBC tried to repossess the vehicle. The plaintiff sued UMBC, claiming that defendants were notentitled to the vehicle. It was held that the English law requires the indorsement of ownership claim in registration card, but the law in Peninsular Malaysia does not really require the indorsement to be attached with the registration card of vehicle.
The law regarding the indorsement of ownership claims in Malaysia which applies to the local circumstances has to be distinguished from the English law race is affected. Two components of English law are English commercial law and English land law. English Commercial Law is provided by section 5(1)and section 5(2) of Civil Law Act 1956. The principles of English commercial law apply in Peninsular Malaysia except Penang and Malacca in the absence of local legislations– Section 5(1).
This includes laws regarding partnership,banking, principals and agents, life and insurance and soon. There is no entire dependence on English commercial law as only certain principles apply and many local statutes have been inserted to the English Commercial Law. English Commercial Law applies in Penang,Malacca, Sabah and Sarawak as the law administered in these states will be the same as law administered in England, in the like case at corresponding period – Section 5(2). These states are still dependant on the English Commercial Law. In the case,Koon Thean Soong v.
Tan Eng Nam,it was held that the English law of partnership was inapplicable as there is a local statute governing the partnership in Malaysia, which is Contract(Malay State) Ordinance. As for the English Land Law, none of the English Land Law concerning the tenure, conveyance,assurance of or succession to any estate, right or interest there in applies in Malaysia. In Malaysia,National Land Code is the law that governs the land matters and there is no any allowance for English land law, unless the National land code applies it for the judicial comity.
The case related is United Malayan Banking Coperation Bhd &Another v. Pemungut Hasil Tanah, Kota Tinggi. In this case, Johor State Authority transferred land to a proprietor with certain conditions and annual rent as consideration. The rent and penaltieson arrear payments were not settled. Johor State Authority served anotice to forfeiture the land as the right of consequence of the offence. The appellant, Johor State Authority and the proprietor,appealed and they were granted relief against forfeiture. Collector of Land revenue appealed to federal court and the appellants appealed to Privy Council.
It was held that English land law concerning the relief against forfeiture is inapplicable in Malaysia. Relief against forfeiture means that order for forfeiture is cancelled and it was provided by Malaysian National Land Code. Judicial decisions are based on the ‘doctrine of binding precedent’. Precedents are the decisions made by judges previously in similar circumstances. There are two types of precedents. Mandatory precedent is applied when the decisions of superior court are binding on lower courts or the superior courts are bound by their own decisions previously.
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However, the decisions of lower courts are not binding over superior courts. The lower courts must refer to the mandatory precedents of superior courts. However, judge of superior court will distinguish a case before him and the cases laying down the precedents and can decide not to follow the mandatory precedent if he thinks that the mandatory precedent is not related to the case before him. From this, an original precedent is formed. Persuasive precedent is a precedent which is useful or relevant to a case. It is not mandatory for the judges to apply persuasive precedent.
Persuasive precedent may be binding on lower courts if judges of superior court choose to apply persuasive precedent. Customs are another important source of unwritten law. Customs are inherited from one generation to another generation. Every race hasits own customs. Chinese and Hindus customs are governed by Chinese and Hindu Customary Law. Natives in Sabah and Sarawak have their own customary law which relates to the land and family matters. ‘Adat’ applies to malays. There are two types of Adat; Adat Perpatih and Adat Temenggung. Adat Perpatih applies in Negeri Sembilan and Naning in Malacca.
The unique characteristic of Adat Perpatih is matrilineal form of organization. It concerns with matters such as land tenure, lineage, inheritance and election of members of lembaga and YDP. Matrilineal is a system in which one belongs to mother’s lineage;it generally involves the inheritance of property,names or titles from mother to daughters. Adat Temenggung applies in other states. It is based on the characteristic of patrilineal form of organization. Patrilineal is a system in which one belongs to father’s lineage; it generally involves the inheritance of property,names or titles from father to sons.
After the establishment of Law Reform(Marriage and Divorce) Act 1976, the family law has been given enforcement on matters of marriage, divorce and inheritance. As a result,the Chinese and Hindu Customary Laws have lost its effect as an important source of unwritten law in Malaysia. Islamic law, which is only applicable to Muslims, isenacted under the Federal Constitution. The statelegislatures have the power and are permitted to make Islamic laws pertaining to persons professing the Islamreligion. Such laws are administered by separate courtsystem, Syariah Courts.
State legislature also has the jurisdiction over the constitution, organization and procedures of Syariah Courts. Now, Islamic laws are increasingly applied in banking and land laws other than applied to family matters and estate matters. The YDPA is the head of Islam in his home state,Penang, Malacca, Sabah, Sarawak and Federal Territories. The head of Islam of other States is Sultan. Sections 3 and 5 of the Civil Law Act allows for the application of English common law, equity rules, and statutes in Malaysian civil cases where no specific laws have been made.
In 2007, the then Chief Justice of Malaysia,Tan Sri Ahmad Fairuz Abdul Halim questioned to need toresort to the English common law despite Malaysia having already been independent for 50 years and proposed to replace it with Islamic law jurisprudence orsharia law. The Federal Court of Malaysia is the highest judicial authority and the final court of appeal in Malaysia. The country,although federally constituted, has a single-structured judicial system consisting of two parts – the superior courts and the subordinate courts.
The subordinate courts are the Magistrate Courts and the Sessions Courts whilst the superior courts are the two High Courts of co-ordinate jurisdiction and status,one for Peninsular Malaysia and the other for the States of Sabah and Sarawak, the Court of Appeal and the Federal Court. The Federal Court, earlier known as the Supreme Court and renamed the Federal Court vide Act A885 effective from June 24, 1994, stands at the apex of this pyramid. Before January 1, 1985, the Federal Court was the highest court in the country but its decisions were further appealable to the Privy Council in London.
However on January 1, 1978, Privy Council appeals in criminal and constitutional matters were abolished and on January 1,1985, all other appeals i. e. civil appeals except those filed before that date were abolished. The setting up of the Courtof Appeal on June 24, 1994 after the Federal Constitution was amended vide Act A885 provides litigants one more opportunity to appeal. Alternatively it can be said that the right of appeal to the Privy Council is restored, albeit in the form of the Federal Court. Malaysia is a constitutional monarchy, nominally headed by the Yang di-Pertuan Agong (“paramountruler”), customarily referred to as the king.
Kings are elected for 5-year terms from among the nine sultans ofthe peninsular Malaysian states. The king also is the leader of the Islamic faith in Malaysia. Executive power is vested in the cabinet led by the Prime Minister; the Malaysian constitution stipulates that the prime minister must be a member of the lower house of parliament who, in the opinion of the Yang di-Pertuan Agong,commands a majority in parliament. The cabinet is chosen from among members of both houses of parliament and is responsible to that body.
