1 Ahmad Ibrahim & Ahilemah Joned, The Malaysian Legal System (1995) Dewan Bahasa dan Pustaka, p 10.Google Scholar

2 ibid.Google Scholar

3 Hall, DGE, A History of South-East Asia, 4^th. Edn., MacMillan Asian Histories Series, chapter 1; Andaya & Andaya, A History of Malaysia, (1982) MacMillan Asian Histories Series, p.17.Google Scholar

4 Abdul Rahman b Haji Mohammad, Dasar-Dasar Adat Perpateh (1964) Pustaka Aman K Lumpur.Google Scholar

5 Temah v Haji Zakaria (1929) 7/1 JMBRAS 125; Re Haji Munap deceased (1929) 7/1 JMBRAS 127; Saepah v Abdul Wahab [1956] 3 MC 60; Jasin v Tiawan [1941] MLJ 247; Robert @ Kamarulzaman v Ummi Kalthom [1966] 1 MLJ 163 (HC): “Harta sepencarian is a matter of Malay adat and is applicable only to the case of a divorced spouse who claims against the other spouse during his or her lifetime. This rule of law is local law which the court must take judicial notice of and it is the duty of the court to propound it.”Google Scholar

6 The effect of this Enactment on custom is explained in the case of Re Haji Mansur bin Duseh, deceased [1940] MLJ 110 (HC): “The effect of the Customary Tenure Enactment … is to replace in whole or in part the unwritten law of custom by the written law of the Enactment. As regards land, in respect of which mukim registers have not been endorsed, it is open to the collector to hold an inquiry under section 4 of the Enactment and to decide whether or not land is occupied subject to the custom.” If land is customary land, it cannot be transferred, charged, transmitted or otherwise dealt with except in accordance with the custom.Google Scholar

7 The case of Dato Kamat v Sapian [1938] MLJ 111, decided that where customary land was held under the Malacca Land Customary Rights Ordinance, no lien or equitable charge could be created by deposit of the extract from the mukim register. The customary land-holder could only charge his interest in the land in the manner provided by sections 21 to 29 of the Ordinance.Google Scholar

8 Some examples of case law include Injing v Tuah & Anor [1971] 1 MLJ 115; Abang v Saripah [1970] 1 MLJ 164; Nyalang v Superintendent of Lands & Surveys, 2^nd Division Simanggang [1967] 23 MLJ 250; Galau & Ors v Penghulu Imang & Ors [1967] 1 MLJ 192. These cases relate to temuda rights, which are rights created by felling old jungle and cultivating the land.Google Scholar

9 Ibrahim, Ahmad& Joned, Ahilemah, op cit, p 14.Google Scholar

10 ibid.Google Scholar

11 Ibrahim, Ahmad& Joned, Ahilemah, op cit, p 15.Google Scholar

12 (1858) 3 Ky 16.Google Scholar

13 Ibrahim, Ahmad& Joned, Ahilemah, p 17.Google Scholar

14 “Penang being, at the time when it became a British possession, without inhabitants to claim the right of being governed by any existing laws, and without tribunals to enforce any, it would be difficult to assert that the law of Quedah continued to be the territorial law after its cession … When an inhabited or conquered country is ceded, the new sovereign impliedly undertakes to administer the existing laws among its new subjects, until he changes them, but it does not follow that when the country is a desert, he is to be presumed to undertake that he will enforce the laws of the former sovereign when settlers shall afterwards arrive.” – per Recorder Maxwell in Reg v Willans, at p 20.Google Scholar

15 Selvaratnam, Mercy& Labib, Hulwana Mohd., “Basic Information for Legal Research in Malaysia”, in Doing Legal Research In Asian Countries, Institute of Developing Economies (IDE) Asian Law Series No 23, IDE Japan, March 2003.Google Scholar

16 ibid.Google Scholar

17 The Treaty of Pangkor, 1873.Google Scholar

18 Selvaratnam, Mercy& Labib, Hulwana Mohd, op cit.Google Scholar

19 ibid.Google Scholar

20 There are examples of the application of Chinese customary law – Six Widows case [1908] 12 SSLR 120, which recognized polygamy amongst the Chinese; Cheang Thye Pin v Tan Ah Loy [1920] AC 369 (PC); the application of Hindu law relating to joint Hindu families and joint Hindu family property – The Estate of TMRM Vengadasalam Chettiar deceased, [1940] MLJ 155.Google Scholar

21 For example, in cases of charitable trusts, English judges have applied the rule against perpetuities to invalidate gifts by Chinese for purposes of sinchew or ancestor worship – Choa Choon Neoh v Spottiswoode (1869) 1 Ky 216; Re Yap Kwan Seng [1924] 4 FMSLR 313.Google Scholar

22 Chong Sz Wun v Andiappa Chetty (1908) 1 FMSLR 8; The Motor Emporium v Arumugam [1933] MLJ 276.Google Scholar

23 Currently, The Civil Law Act 1956, sections 3(1) and 5. English common law and the rules of equity apply “so far as other provision has been made or may hereafter be made by any written law in force in Malaysia”, and further “so far only as the circumstances of the States of Malaysia and their respective inhabitants permit and subject to such qualifications as local circumstances render necessary.” – s. 3(1)Google Scholar

24 Civil Law Act 1956, section 6. With respect to immovable property, the National Land Code 1965 applies. This Code is based on the Australian Torrens system of registration of title. In United Malayan Banking Corp.Bhd. v Pemungut Hasil Tanah Kota Tinggi, [1984] 2 MLJ 87, the Privy Council noted: “The National Land Code is a complete and comprehensive code of law governing the tenure of land in malaysia and the incidents of it as well as other important matters affecting land there, and there is no room for the importation of any rule of English law in that field except in so far as the Code itself may expressly provide for this.” – Lord Keith of Kinkel, at p. 91.Google Scholar

25 B Surinder Singh Kanda v The Government of the Federation of Malaya [1962] MLJ 169.Google Scholar

26 Federal List includes external affairs, defense, internal security, civil and criminal law and procedure and the administration of justice, citizenship, finance, trade commerce and industry, shipping, communications and transport, education, medicine and health, labor and social security.Google Scholar

27 State List, includes Islamic law and personal and family law of persons professing the religion of Islam; the constitution organization and procedure of Sharī'ah courts, which shall have jurisdiction only over persons professing the religion of Islam and in respect only of matters in this paragraph; land including land tenure agriculture and forests, local government. Concurrent List, includes, social welfare, scholarships, protection of wild animals and birds, town and country planning, public health, drainage and irrigation, culture and sports, and housing.Google Scholar

28 The appeal is not a direct appeal to the Privy Council but an appeal to the Yang diPertuan Agong.Google Scholar

29 Co-operative Control Bank Ltd v Feyen Development Sdn Bhd [1997] 2 MLJ 829.Google Scholar

30 Dalip Bhagwan Singh v PP [1998] 1 MLJ 1; Koperasi Rakyat v Harta Empat [2000] 2 AMR 2311.Google Scholar

31 Arulpragasan v PP [1977] 1 MLJ 1; Syarikat Kenderaan Melayu Kelantan v Transport Workers’ Union [1995] 2 MLJ 317; Majlis Perbandaran Pulau Pinang v Syarikat Bekerja sama-sama Serbaguna Sungai Glugor [1999] 3 CLJ 73.Google Scholar

32 Sweet and Maxwell also publish the All Malaysia Commercial Reports. Both CLJ and Lexis-Nexis also publish reports from the Syariah courts – the Syariah Report or Laporan Syariah and the Shariah Law Report respectively.Google Scholar

33 For Sabah and Sarawak, the Act also allows for the application of “statutes of general application”, as administered or in force in England on the 1^st day of December 1951 (for Sabah), and the 12^th day of December 1949 (for Sarawak).Google Scholar

34 [2001] 3 CLJ 98.Google Scholar

35 [2006] 3 MLJ 389.Google Scholar

36 Mohamed, Abdul HamidFCJ, at p 423.Google Scholar

37 [1985] 1 MLJ 157.Google Scholar

38 [1995] 3 MLJ 130.Google Scholar

39 [1996] 4 MLJ 421.Google Scholar

40 Federal Constitution, Article 4(1)Google Scholar

41 Federal Constitution, Article 3(1)Google Scholar

42 [1988] 2 MLJ 55.Google Scholar

43 Article 74, Ninth Schedule.Google Scholar

44 Ninth Schedule: “‥the creation and punishment of offences by persons professing the religion of Islam against precepts of that religion, except in regard to matters included in the Federal List.” For example, the Syariah Criminal Offences (Federal Territories) Act 1997 provides for offences such as wrongful worship, false doctrine, disrespect for Ramadhan, non-payment of zakat/fitrah, religious teaching without tauliah, close proximity or khalwat.Google Scholar

45 Ninth Schedule – Sharī'ah courts shall have jurisdiction only over persons professing the religion of Islam and in respect only of any of the matters included in this paragraph, but shall not have jurisdiction in respect of offences except in so far as conferred by federal law.Google Scholar

46 Sukma Dharmawan v Ketua Pengarah Penjara [1999] 1 MLJ 266 (CA); [1999] 2 MLJ 241 (FC); Latifah Mat Zin v Rosmawati Sharibun & Anor. [2007] 5 CLJ 253: “Clause (1A) of Article 121 was not introduced for the purpose of ousting the jurisdiction of the civil courts. The question to be asked [in cases where State makes law which infringes on matters within the Federal List] is: are such laws constitutional in the first place? And the constitutionality of such laws are a matter for the Federal Court to decide – Article 128.” – Abdul Hamid Mohamed FCJ, at p. 279.Google Scholar