Malaysia Legal system

1. MALAYSIA LEGAL SYSTEM
UCM 60403U3
GROUP ASSIGNMENT 1
GROUP MEMBERS:
-Hariish Kumar 0318852
-Adam Tan Yen Sheng 0317750
-Pablo Idris Bin Badrul Ilahan 0321895
-Eddie Goh Poh King 0322915
-Lynette Law Yong Yi 0317761
-Yeow Jinn Sheng 0318797
COURSE: Bachelor of Science in Architecture
YEAR: Year 2 Semester 3
LECTURER: Ms. Neeta S Singh
TUTORIAL SESSION: Tuesday 6pm
Table of Contents

2. Topic(s) Page(s)
Before Western power invaded
-Perpatih Custom & Temenggung Custom
-Law practiced in other states
1,2
The Laws of Malacca
-Hukum Kanun Melaka
-Undang-undang Laut Melaka
3
After Malacca was taken over
-History
-Portugese colonial rule
-Portugese administration system
-Dutch colonial rule
-Dutch administration system
4
5
British intervention
-Straits Settlements
-Residential system
-Federated Malay States
-Unfederated Malay States
6
7
During Japanese occupation
-Special and civil courts
-Judicial Organization
8
Post-war period
-British Military Administration
-Malayan Union
-Federation of Malaya
9
Independence to formation of Malaysia
-Federal Constitution 1957
-Malaysia during 1963
-Sabah and Sarawak
10
11
Reference List
-Web
-Book
12
Before Western power invaded into Malay Peninsula

3. Perpatih and Temenggung customs
Customary law was practiced to ensure peace and harmony in their community. The
most significant laws that they obeyed was Perpatih and Temenggung customs.
Perpatih custom Temenggung custom
Practiced only in Negeri Sembilan Practiced in other states
Created by ‘Datuk Perpatih’ Created by Datuk Ketemenggungan
Brought by people from Indonesia Brought in the 15th century by the King of
Palembang to Malacca
Members of clan are relations Father’s side of family is given importance
Mother side of family is given importance Autocratic politic system,King has full
power
Democratic politic system King is leader of the goverment,religion
and the symbol of good fortune
Each clan has their own leader.Each
decisions are made by the agreement of all
the clan leader
Punishment’s purpose is to teach to others a
lesson
Punishment’s purpose is to make the
criminal realise his mistakes and not repeat
them
Sultan carries out the punishment
Marriage between clan members is
prohibited
Leader and dignitary carry out the
punishment is permitted by sultan
Can marry with anyone
1
Law practiced in other states

4. These states used Temenggung Custom as a basis for their law. Somehow, each states
have their own rules and regulations.
-Pahang Law
Written in 1596 when under the ruling of Sultan Abdul al-Gaffar Muhaiyuddin
Consists of :
1. State institution law,the power of the kings and dignitary
2. Criminal law and betrayal law
3. Adulterer law
4. Public law
-99 Perak Law
Originated from Iran.Used in Perak at the 18th century.There are 99 offences and
punishments in this laws
Consists of:
1. Conditions to hold goverment positions such as ‘sultan’,headman,preacher and judge
2. Regulation for customs when facing and appointing the king.Punishment for
criminals,law for farming,law for family such as marriage,divorce and adultering
-Kedah Law
Consists of port law such as tax,safety rules and standard measuring system for
measuring weight and length
2

5. The Laws of Malacca
The significance of Malacca to the Malaysian legal system began with the coming of
Islam to the Peninsula from about the beginning of the ninth century AD. By the
thirteenth century, trade in Southeast Asia was overtaken by Muslim traders from India.
15th century. Malacca became the centre for Islamic missionary work in the region.
Laws that were practiced in Malacca
1. Hukum Kanun Melaka
2. Undang-undang Laut Melaka
Hukum Kanun Melaka
Consists of 44 chapters, 18 of which consists of Islamic elements
Which touched upon matters such as
1. Rights and privileges of the king
2. The duties and responsibilities of the Ruler,
3. Prohibitions amongst members of society
4. Penalties for civil and criminal wrongs
5. Family law.
Undang-undang Laut Melaka
Consists of 25 chapters, formulated to determine the rules of maritime navigation and
trade which covered maritime matters such as
1. The duties and responsibilities of ships’ crew,
2. Laws pertaining to voyages and trade
3. Safety and security measures in the ship and crew assignments
4. Leasing and merchant ship passengers
5. The power of nakhoda to give punishment
3

6. After Malacca was taken over
History
From 1511 until 1641, Malacca was a thriving port of trade. It was occupied by the
Portuguese and was governed by a Governor, or Captain of the Fortress. Whilst the
administration of justice pertaining to Portuguese nationals came under the jurisdiction of
Portuguese judges, non-Christian Asian subjects were subject to their respective
community leaders. As a result, Portuguese law was not introduced in Malacca.
After the Portuguese, the Dutch occupied Malacca from 1641 to 1795. As there is no
evidence to the contrary, it can be assumed that the Dutch treated the subjects of Malacca
much as they did with the people of Java who were left to their own native customs and
laws. Dutch laws, based on Colonial Statutes, were applied only to Dutch nationals.
Presumably, both the Portuguese and Dutch governments were only interested in Malacca
for its commercial value.
The Portuguese Colonial Rule
Even during the early days of European colonization, there was hardly a separation
between the judiciary and executive because justice administration was under the power
of the governor. The Malacca Sultanate came to an end after the conquest of Malacca by
the Portuguese led by Alfonso de Albuquerque in the year 1511. This occupation lasted
from 1511 until 1641. During this period, a military and civil administration was
established. In the civil and criminal matters, there was Corpus de Cidade which
exercised civil and criminal jurisdiction over all Portuguese settlers. In the military
matters, the governor had to seek the advice of the captain-general of war or the
commander-in-chief. Although the Portuguese laws were applied generally and a local
native Bendahara was appointed to administer native Muslims and other foreigners under
the Portuguese juridiction, but most of the times, in cases involving local people, Muslim
law and customs were to be applied. A headman or kapitan for each community were
appointed to maintain peace and order and the Portuguese did not exert influence over the
locals living outside the city walls.
Portuguese Administration
After the Portuguese captured Malacca in 1511, a military and civil administration
was established. Malacca was governed by a governor or captain. However the
Portuguese authorities did not exert their influence over the communities, who lived
outside the city walls. Their interest was in trade and not in political power.
4

7. The Dutch Colonial Rule
In the year 1641, an alliance between the Dutch and Johore managed to force the
Portuguese to surrender the rule of Malacca to the Dutch. Under the Dutch, Malacca was
controlled as a colony of the VOC and was headed by a governor. The governor was
assisted by the council comprising the tax collector, the fiscal, the mayor, the mayor, the
upper merchant, and a secretary. The laws and regulations were issued by the government
in Holland, Batavia or Java, and by local executive. During the Dutch rule, magistrates
were appointed to try criminal cases and settle judicial disputes, while Europeans were
governed by the Dutch laws, the locals were leave to their own laws, unless these clashed
with the generally accepted principles of justice.
Dutch Administration
The Dutch defeated the Portuguese and took over Malacca in 1641. A Dutch
administration was immediately established. The Dutch administration was headed by a
governor and assisted by a council comprising of the mayor, the merchants, a secretary
and many others. However, like the Portuguese, the Dutch were only interested in trade
and never attempted to exert their political authority.
5

8. British intervention
British intervention
In the end of eighteenth century, British came Malaya Peninsula to get opportunity of
trades with China. Meanwhile, they wanted to expand their power to prevent French
domination of the Indian Ocean. Captain Francis Light got Penang island on hand by
acting on English East India Company through the English-Kedah Treaty of 1786.
Napoleonic Wars in Europe resulted Dutch surrendered to British in 1795. As the
consequence, British owned Malacca by exchanging for the island of Benkulen in
Sumatra, by the Anglo-Dutch Treaty of 1824. This treaty clearly drew the boundary line
of Malaysia and Indonesia until today.
Origin of Straits Settlement
The influence of British expanded to
Singapore after the reign of Stamford
Raffles. Thus, by 1824, British had their
power over Penang, Malacca and Singapore.
All these 3 states were combined as Straits
Settlement, which is one administrative
entity that much convenient for them to
control. The structure of this system was
headed by British Colonial Office.
The judicial system was introduced
when the First Charter of Justice of 1807
established the Judiciary court in Penang
island. By the Second Charter of Justice of
1826, an united Judiciary Court has been used for Straits Settlements. The establishment
was crucial in Malay Peninsula, which is much easier to administer since they using the
common law and equity as in England. Ordinance No.5 of 1868 was established from the
courts in Straits Settlements, which serves purpose to replace Courts of Judicature by
Supreme Courts of the Straits Settlements.
Supreme Court reorganized under 4 judges, which were Chief Justice, Judge of
Penang, Senior Puisne Judge and Junior Puisne Judge. In 1878, the Courts Ordinance
1878 was introduced to amend the law regarding to civil and criminal courts of Straits
Settlements, which established the following courts:
-Supreme Court of Straits Settlement
-Courts of Requests
-Courts of 2 Magistrates
-Magistrates court
-Coroners Courts
-Justice of the Peace 6

9. Residential system, Federated Malay System & Unfederated Malay System
The first state that agreed to accept British Resident is Perak, in return to get
protection from British. This system as a foundation for them to spread their control over
Malaya Peninsula, and their responsibility is to advice ‘must be asked and acted upon on
all questions other than those touching Malay religion and custom’, which imposed the
indirect rule. It extended to other states such as Selangor, Pahang, and Negeri Sembilan.
In 1895, those 4 states were combined as a whole body, which is Federated Malay
System(FMS), a centralized government system which headed by British Resident-
General. Each of the states had its own judiciary for the administration of justice.
Existing judical structure consisted Magistrates Courts, the Court of Senior Magistrates
and lastly the final court of appeal, the Sultan-in-Council. However, the decision still on
the hand of British Resident. Court of Commissioner was established in 1895, which is
the highest court in the Federation Malay States.
The other five Malay States which outside the federation were merged together under
one system, called Unfederated Malay System. For instance, Johor accepted a treaty of
protection in 1885, and British Adviser in 1914 eventually. For other states such as Perlis,
Kelantan, Kedah and Terrenganu, Siam transferred all of them to British under the
Bangkok Treaty of 1909. In the end,British took over those states by imposing treaties,
same as each FMS. British Advicer had to be ruled upon by the Rulers of Unfederated
Malay States on all matters except Malay religion and custom. Each of the states have
their own Supreme Court.

10. 7
During Japanese occupation
Malaya Law
The occupation of the Japanese happened in 1941. Much of this was known to be

11. part of the judicial system or the administration of justice in the Malay Peninsula. During
those times, there were two courts functioning at the same time (Special Courts and Civil
Courts).
The court previously mentioned (Special Court) was set up to charge civilians who
offended under the Japanese Maintenance of Public Peace, Law and Order. All these was
controlled by the Japanese Judge. Their jurisdiction was confined to civil and criminal
cases only. The pre-existing laws of the Straits Settlement, Federal Malays Straits and the
Unfederated Malay States continued in force until changed or repealed by the Japanese
Military Administration. The Civil Courts were presided by local judicial officers.
At last, in the year of 1943, the Judicial Organization Ordinance, a Supreme Court,
District and Magistrates’ Courts, Penghulu’s Court, Kathi’s Court and High Court were
established during the Japanese Occupation.
The effect on the economy was pretty much created huge economical awareness
among the Malaysian population, which helped them heighten the patriotism spirit
amongst the Malay, this tremendously helped to achieve the independence from the
Japanese and British. Malays were aspired to rule the country based on the experience in
the administrative work during Japanese rule in Malaya.
8
Post-war period
British Military Administration (BMA)
The surrender of the Japanese forces in 1945 saw the reinstatement of British

12. Colonial rule in the Malay Peninsula once again. From September 1945 to April 1946,
the Peninsula was placed under the British Military Administration (BMA) and the
District Courts (BMA). The administration of justice during this period was in the hands
of British Military Officers. The British Military Administration was a transitional phase
prior to the introduction of civilian rule. Towards this end, the British Military Courts
played a crucial role in converting chaos, which was prevalent during the Japanese
Occupation to orderly government.
The Malayan Union
The BMA was a brief interlude and was replaced by the British Malayan Union in
1946. The establishment of the Malayan Union which comprised the Federated Malay
States, Unfederated Malay States and the Straits Settlements witnessed the unification
the three separate judicial systems mentioned. Under section 85 of the Malayan Union
Order in Council 1946, the Malayan Union Ordinance 3/46 was enacted whereby a
Supreme Court ( a Court of Record) was established, comprising the High Court having
jurisdiction throughout the Malay Peninsula with power to exercise original and
appellate civil and criminal jurisdiction 26. The Ordinance also dealt with the
establishment, constitution and powers of subordinate civil and criminal courts. The
subordinate courts consisted of the District Courts and the Magistrates’ Courts. Authority
was vested in the Governor of the Malayan Union to constitute by order in each State and
Settlement as many courts as he thought fit and to assign local limits of jurisdiction.
Where he deemed necessary, the Governor had the power to extend the jurisdiction
beyond the boundary of such State or Settlement.
Federation of Malaya
The Malayan Union proved unpopular and amidst intense Malay opposition and was
superseded by the Federation of Malaya on 1st
February 1948. Under the Federation of
Malaya Agreement 1948, each State and Settlement was to retain its own individuality
but all were to be united under a strong central government. The demise of the Malayan
Union saw the restructuring of the courts particularly at the subordinate level. The Courts
Ordinance 1948 established a new structure of subordinate courts comprising the
Sessions Court, Magistrates’ Courts and Penghulu’s Courts. With respect to the superior
courts, the Federation of Malaya Agreement continued the pre-existing structure, for
example the Malayan Union Supreme Court which consisted of the Court of Appeal and
a High Court under a Chief Justice and the existing Chief Justice and judges were to be
the first Chief Justice and Judges of the Supreme Court of the Federation of Malaya.
9
The Period from independence to formation of Malaysia
Federal Constitution 1957
While preparatory negotiations leading to independence were being held, landmark

13. changes relating to cessation of English Law took place. One consequence of British
intervention was the reception of English Law and the rules of equity to local
circumstances. Several statutes provided the authority for the reception of the law of
England into this country. By virtue of the Civil Law Ordinance 1956 (later revised in
1972) in West Malaysia or any part thereof, it was provided that the courts apply the
common law of England and rules of equity as administered in England on the 7th April
1956. In Sabah, the effective date of change was 1st December 1951 and in Sarawak,
12th December 1949. In the application of the English commercial law, there is some
difference arising from historical reasons between the former nine Malay States, on the
one hand, and Penang, Malacca, Sabah and Sarawak, on the other. On 31st August 1957,
the Federation of Malaya became an independent and sovereign nation.
Malaysia during 1963
The subsequent developments came about in 1963 when Malaysia was formed on
16th September 1963 with Sabah, Sarawak and Singapore as the three new component
States of the Federation of Malaysia. Consequent upon the formation of Malaysia, the
Constitution was amended to effect the restructuring of the legislative, judicial, executive
and administrative powers to reflect the new Federation formed. On 9th August 1965,
Singapore broke away from Malaysia leaving therefore certain consequential
amendments were again made to the Constitution of Malaysia to accommodate the
changes to the administrative system brought about by the separation of Singapore from
the Federation. Of principle importance was the separation of the judicial systems
between the two nations.
10
Sabah and Sarawak
The Dayaks of Borneo are descendants of the proto-Malays, who had migrated from
South China across the Malay Peninsula some time between 2500 and 1500 BC. The
other descendants of this emigrant group are the Bataks of Sumatra and Negritoes or

14. Senoi in Peninsular Malaysia. After this group came the deutro Malays, to be followed
much later by the Chinese from around the fifteenth century.
Historical evidence indicates that by the sixteenth century, the Borneo territories
were under the sovereignty of the Sultan of Brunei, who entrusted the administration of
the outlying regions to his ministers. As in most cases in a feudal society, as the central
authority weakened, the ministers became increasingly independent until it became a
major problem for the ruling Sultans in the nineteenth century.
The modern history of Sabah and Sarawak does not fit neatly into the pattern of
Peninsular Malaysia and Singapore. There are two significant differences. First, they
were the objects of a form of private colonial rule and secondly, indigenous people
remain in majority, largely due to relatively moderate flow of immigrants.
An account of the legal system and the administration of justice in Malaysia would
be incomplete without any reference being made to the position in East Malaysia28.
North Borneo (now Sabah) and Sarawak became British protected States as early as 1888
by virtue of an agreement made between the local rulers and the British North Borneo
(Chartered) Company. Like their counterparts in the Malay Peninsula, the Company was
to administer justice with due regard to native customs and laws and not to interfere with
the religion of the inhabitants. With respect to the administration of justice, North Borneo
was divided into sessional and magisterial divisions. The former was executively
administered by the British Residents, and the latter by District Officers. The Chief Court
comprised the Governor, the Judicial Commissioner and other judges temporarily
appointed by the Governor.
As for Sarawak, its momentous legal history began with the proclamation of James
Brooke as the first Rajah and Governor of Sarawak. His main task was to establish law
and order in the territory. The first sets of written laws published in Malay were
introduced in 1843. Subsequent developments of laws were primarily derived from laws
in force in the Malay States, Singapore and India.
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Reference List
Web

15. 1. The Development of Judicial System in Malaysia | Law Teacher. (n.d.). Retrieved June
06, 2016, from http://www.lawteacher.net/free-law-essays/constitutional-law/the-
development-of-judicial-system-in-malaysia-law-essay.php
2. The Japanese Occupation of Malaya. (n.d.). Retrieved June 07, 2016, from
https://books.google.com.my/books?id=bePxcx7BFLEC
3. Malaysia, State and Civil Society in Transition. (n.d.). Retrieved June 07, 2016, from
https://books.google.com.my/books?id=YofWYcrE3_oC
4. Asean Law (2010). Retrieved from http://www.aseanlawassociation.org/
5. Residential system. Retrieved from http://www.malaysiatrack.com/2012/06/negeri-
sembilan.html
6. UMS. Retrieved from http://royaltipetroleum.blogspot.my/2012/12/pentadbiran-negeri-
negeri-melayu-tidak.html
7. Court of requests responsibilities. Retrieved from
http://global.britannica.com/topic/Court-of-Requests
8. Residential system in Perak. Retrieved from
http://www.slideshare.net/silah1512/residential-system-in-perak-a-case-study
9. Hukum kanun Melaka. Retrieved from
http://www.academia.edu/9701393/Introduction_to_Hukum_Kanun_Melaka
10. Federal constitution Malaysia. Retrieved from
http://www.agc.gov.my/agcportal/uploads/files/Publications/FC/Federal%20Consti
%20(BI%20text).pdf
Book
1. Hamzah, W. A. (2003). An introduction to the Malaysian Legal System.
2. Aun, W. M. (1990). The Malaysian Legal System (2nd ed.).
3. Syed Ahmad, S. S. (2007). Malaysian Legal system (2nd ed.).
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