Foundations of Malaysian law: the Malay sultanates, British rule, the formation of Malaysia, the sources and hierarchy of law, the reception of English common law and legal pluralism

Before the British. The great Malay sultanate of Malacca (fifteenth century) had written digests, the Hukum Kanun Melaka (the Laws of Malacca) and a maritime code, which mixed Malay custom (adat) with Islamic law. The sultanates that followed kept that mixture. In some parts of the Peninsula, notably Negeri Sembilan, a distinct custom called Adat Perpatih, with descent through the female line, shaped land holding and inheritance, while elsewhere Adat Temenggung prevailed.

British rule. The British acquired Penang (1786), Malacca and Singapore, and brought English law to these Straits Settlements by the Charters of Justice of 1807 and 1826. In the Malay states they ruled indirectly. By the Pangkor Engagement of 1874 the Sultan of Perak accepted a British Resident, whose advice had to be asked and followed on everything except Malay religion and custom, a formula that still explains why Islam and Malay custom are the Rulers’ and the states’ business today. The four Federated Malay States were joined in 1896. After the Second World War, the Malayan Union (1946) was rejected by the Malays, and the Federation of Malaya Agreement of 1948 restored the position of the Rulers.

Independence and Malaysia. The Reid Commission drafted the Constitution for an independent Federation, which became independent on 31 August 1957 (Merdeka). Sarawak, once ruled by the Brooke Rajahs, and North Borneo (now Sabah), once administered by a chartered company, became Crown colonies after the war. On 16 September 1963 (Malaysia Day) they joined the Federation, together with Singapore, under the Malaysia Agreement 1963, with special safeguards written into the Constitution (Module 3). Singapore separated on 9 August 1965. After the riots of May 1969 the Constitution was amended (1971) to put sensitive matters such as the Malay language, the special position of the Malays and natives, the Rulers and citizenship beyond public questioning. In 1988 amendments changed the judicial power and gave the Syariah courts their own sphere (Module 3 and 4).

The sources. Article 160 of the Constitution defines “law” to include written law, the common law so far as it operates in the Federation, and any custom or usage having the force of law. In practice the sources are the Federal Constitution, Acts of Parliament, state constitutions and state laws (called Enactments in Sabah and the Peninsular states and Ordinances in Sarawak), subsidiary legislation (regulations, rules and orders made under an Act), English common law and equity, judicial decisions, Islamic law for Muslims through the state enactments, and customary law where it is recognised. Article 4(1) declares that the Constitution is the supreme law, and a law passed after independence that conflicts with it is void to the extent of the inconsistency. Under Article 75, a state law that conflicts with a federal law is void to the extent of the conflict.

The reception of English law. Section 3 of the Civil Law Act 1956 tells the courts to apply the common law of England and the rules of equity as administered in England on a fixed cut-off date: 7 April 1956 in the Peninsular states, 1 December 1951 in Sabah and 12 December 1949 in Sarawak. The English law is applied only so far as the circumstances of the states and their inhabitants permit, and with the qualifications that local conditions require. Later English decisions are not binding, but they are often persuasive. The Act applies only where there is no written law: much of Malaysian contract, land, company, criminal and evidence law is statutory and has its own text. Precedent. Malaysian courts follow binding precedent: a High Court is bound by the Court of Appeal and the Federal Court, and the Federal Court may depart from its own earlier decisions only in limited cases. Appeals to the Privy Council in London ended in 1985.

Language and citation. Malay (Bahasa Malaysia) is the national language (Article 152), and Acts are made in Malay with an authorised English translation. English remains widely used in the courts and business. Cases are reported in series such as the Malayan Law Journal (MLJ) and the Current Law Journal (CLJ), cited by year, series and page.

Who is subject to what. Malaysia has one federal Constitution and one national system of civil courts, but the law that applies to a person can depend on religion and community. For Muslims, personal law (marriage, divorce, family, inheritance, and certain religious offences) is Islamic law, enacted by each state and applied by the Syariah courts. For non-Muslims, family law is statute, mainly the Law Reform (Marriage and Divorce) Act 1976. For natives of Sabah and Sarawak, native customary law applies in the native courts. For Malays, Malay customary law (including Adat Perpatih in Negeri Sembilan) governs some land and inheritance matters. In commercial matters the same law applies to everyone.

• What stays common to all. The Constitution, the fundamental liberties, the civil courts, contract, tort, property, company and criminal law apply to Muslims and non-Muslims alike, and to foreigners.
• What differs. Family and succession law, and religious offences, follow the person’s religion, and land law differs in Sabah and Sarawak (Module 3).
• Why a foreigner should care. A Muslim foreigner marrying in Malaysia, or a mixed couple, meets different procedures, and a non-Muslim meets the Law Reform Act. Both should know which law applies before they sign or marry.