4. Doctrine of imposition/reception -- Penang
Whether Penang was a ceded or a settled
territory.
Regina vWillans
Fatimah v Logan
InThe Goods of Abdullah
Ong Cheng Neo
5. Period of legal chaos
Describe the legal system
Ahpoe v Kehin
6. Imposition of English Law: Royal Charter of
Justice
Contents: law, jurisdiction, courts
Proviso
Effect on local law
7. 2nd RCJ: English law was extended to Malacca
and Singapore
Identify cases where local custom was
recognised
Identify cases where local custom was not
recognised
3rd RCJ
8. The Malay States were sovereign states
Differentiate between SS and Malay States.
SS – British colonies, Malay State – mere
protectorates, retained sovereignty.
Cases to show sovereignty of Malay States
Informal reception of English law: How?
British Residents in FMS, Advisors in UFMS
Importation of British Indian statues
English court system, English trained judges
9. The effect on the lex loci of the Malay States i.e., Islamic
law and local customs.
The following cases need to be discussed:
Mighell v Sultan of Johor (1894)
Pahang Consolidated Co. Ltd.VThe State of Pahang (1933);
Shaik Abdul Latif & Ors v Shaik Elias Bux (1915)
Ramah v Laton (1927);
Government of Perak v AR Adam (1914);
Mohamed Gunny vVadvang Kuti (1930);
Motor Emporium v Arumugam (1933);
Leornard v Nachiappa Chetty (1923); and
Haji Abdul Rahman v Mohamed Hassan (1917)
10. Formal reception
Civil Law Enactment 1937
Civil Law Extension Ordinance 1951
11. Order L-4
North Borneo Civil Law Ordinance 1938
Application of Laws Ordinance 1949
Application of Laws Ordinance 1951
12. Describe the legal fiction concocted by
English judges on Penang
Describe the legal system in Penang during
the period of legal chaos
Explain the effect of RCJ on local law
Compare between modes of reception in SS
and MS.
Compare the situation before and during
British occupation.
14. Relationship between Federal and State
The 3 lists
Types of legislation: Acts, Enactments, Ordinances
Parliamentary procedure, types of Bills
Preparliamentary
Parliamentary
Post parliamentary – Royal Assent, Gazette
Subsidiary legislation – purpose, merits, demerits
15. 1. Historical part: Status of Islam before and
during British colonisation.
2. Current position: Status of Islam in the
Constitution and in current cases.
3. Administration of Islamic law in Malaysia –
jurisdiction of Syariah Courts -- refer to
slides
16. Before the British came
Shaik Abdul Latif v Shaik Elias Bux, Ramah v Laton
During British occupation
Islamic law was recognised in some cases and was not recognised
in others.
In the Goods of Abdullah
Fatimah v Logan
Chulas v Kolson
Sahrip v Mitchell
Ainan v Syed Abu Bakar [1939] MLJ 209
PP vWhite [1940] MLJ 214
Attorney General of Ceylon v Reid [1965] 2 MLJ 34 (PC)
Martin v Umi Kelsom [1963] MLJ 1
Re Maria Hertogh [1950] MLJ 214
17. Discuss position of Islam
To what extent Islamic principles are recognised
by courts today
Islam in the Constitution
Article 3(1), Article 11, 9th Schedule (comes under
State List)
Che Omar Che Soh
Myriam v. Mohamed Ariff
Mohd Habibullah v Faridah DatoTalib
Latifah Mat Zin v Rosmawati Sharibun
18. 1. West Malaysia
Malay adat
Custom of non-Malays
Custom of the Aborigines
2. East Malaysia
Malay adat
Native custom
Chinese Custom
19. Malay adat
Adat perpatih
AdatTemenggong
Do courts recognise them?
Yes, in certain matters. Eg. Election, harta
sepencarian.
Give cases.
20. Custom of non-Malays
Do courts recognise them?
1. During British occupation
2. After Law reform (M&D) Act 1976 came into force
1. During British occupation?
Yes, in certain matters (polygamous union,
legitimacy)
SixWidows case, Re Ding Do Ca, DorothyYeeYeng
Nam
No, in others (eg charitable trust)
Ong Cheng Neo
21. 2. After Law Reform (M&D) Act?
Relevance of custom of non-Malays were
substantially reduced.
Discuss the Act.
Purpose, application, all the important
provisions e.g. registration, no retrospective
effect, polygamous marriage not
recognised,divorce.
22. Custom of the Aborigines
Most relevant in matters involving customary land
of the aborigines
Governed by the Aboriginal Peoples Act 1954 which
enables aborigines to dwell in land areas designated
for their exclusive use.
Referred to as “aboriginal areas” (section 6) or
“aboriginal reserves” (section 7).
Adong bin Kuwau & Ord v Kerajaan Negeri Johor
SagongTasi v Kerajaan Negeri Selangor
23. Malay custom
A mixture of Malay adat and Islamic law.
In Sarawak, it is codified in the Undang-
Undang Mahkamah Melayu (Laws of the
Malay Courts)
Comes under the administration of the
Islamic Council of Sarawak and theSyariah
Courts
25. Non-native custom (Chinese custom)
Not recognised unless it is found in
legislation.
Chan Bee Neo v Ee Siok Choo
26. The applicability of English law in Malaysia in light of S 3 CLA 1956.
-very general question.You are required to discuss everything.
The contents of S 3:
Where there is no written law, apply English law.
West Malaysia – common law & equity; the cutoff date
East Malaysia – common law , equity & statutes of general application
; the cutoff dates.
The proviso
Effect: English law at the cutoff date is binding.
Any development after the cutoff date is not binding, merely
persuasive
But we have the proviso
Only apply to civil cases.
Common law which is no longer good law is not binding.
Don’t forget cases!
27. More specific questions:
Discuss the significance of the cut-off dates.
With reference to the Nepline case, discuss
the steps to be taken in determining whether
to apply English law to local cases.
Question on Malaysian common law.
28. Discuss the scope and the application of section 5 of the
Civil Law Act 1956. Support your answer with reference to
relevant authorities. – also a general question.
Contents of S5:
West Malaysia except Malacca and Penang – cutoff date
Malacca Penang Sabah Sarawak – cutoff date?
‘merchantile law generally’ ? -- Nagurdas Purshotumdas,
Shaik Sahied v Sockalingam Chettiar
Proviso: subject to local statutes
Other cases: on the application of the Sale of Goods Act
30. Why is there a hierarchy of courts?
1. An integral part of the appeal system.Without a hierarchy there
could be no appeal. A court hierarchy distinguishes between
higher and lower courts. If an incorrect principle has been
applied in a lower court, a party to the case should be able to
have the dispute reconsidered by a higher court.
2. An integral part of the doctrine of precedent. Some courts are
more authoritative than others. A hierarchy ensures that courts
are reasonably clear as to which precedent is binding on them.
3. Specialisation the judicial process.The judicial workload is
distributed among the various courts by limiting the jurisdiction
of each court.
31. Magistrates court
First class magistrate – Civil & criminal jur
Second class magistrate – Civil & criminal jur
Sessions court
Civil & criminal jurisdiction
32. Two High Courts, meaning of “local
jurisdiction”
“Specific jurisdiction” – matrimonial &
divorce, admiralty, bankruptcy, companies,
guardianship, probates, letters of
administration.
“Original jurisdiction”
“Appellate jurisdiction”
“Revisionary jurisdiction and supervisory
jurisdiction”
33. CJA Section 35. (1)
In addition to the powers conferred on the High Court by
this or any other written law, the High Court shall have
general supervisory and revisionary jurisdiction over all
subordinate courts, and may in particular, but without
prejudice to the generality of the foregoing provision, if it
appears desirable in the interests of justice, either of its
own motion or at the instance of any party or person
interested, at any stage in any matter or proceeding,
whether civil or criminal, in any subordinate court, call for
the record thereof, and may remove the same into the
High Court or may give to the subordinate court such
directions as to the further conduct of the same as
justice may require.
38. Who is the AG?
Who is the PP?
Qualifications for Advocate & Solicitor
Exclusive right to appear and plead in all the
courts of justice; name on the Roll, practising
certificate.
Qualifications for Peguam Syarie
LegalAid, qualification – the MeansTest.