ATGB 1313 INTRODUCTION TO LAW

3.0 History of Malaysia LawUnder Oxford English dictionary, Legal defined as connected with the law. To the layman, law is understood as being a general rule of conduct. In the Oxford English Dictionary, law is defined as the body of enacted or customary rules recognized by a community as binding. Sir John Salmond defines law as the body of principles recognized and applied by the State in administration of justice. In other words, law consists of the rules recognized on by courts of justice.Malaysian legal history has been determined by events spanning a period of some six hundred years. Of these, three major periods were largely responsible for shaping the current Malaysian system. The first was the founding of the Melaka Sultanate at the beginning of the 15th century; second was the spread of Islam in the indigenous culture; and finally, and perhaps the most significant in modern Malaysia, was British colonial rule which brought with it constitutional government and the common law system.During the realm of the Sultanate, Melacca was an important trading port and the maintenance of law and order was crucial to its prosperity. The administration of justice was placed under the direct charge of the bendahara (or chief minister) who exercised both political and judicial functions. The temenggung (which is the commander of troops and police) was responsible for apprehending criminals, maintaining prisons and generally keeping the peace. The welfare of foreigners residing in the state was looked after by several Shah Bandars (habour masters and collectors of customs).Little is known of the legal system in those days but it is generally accepted that the law administered then was a combination of Islamic Law and the "AdatTemenggung" (patriarchal Malay customary law). The "AdatTemengung" was the law of the Sultan or the law ordained by the rulers and later adopted in the other regions of Peninsular Malaysia. It was the basis of the law as found in Malay legal digests compiled.

Islamic LawIslamic law is derived from the interpretation of the Koran. Its primary objective is social justice, but also includes property rights, economic decision making, and types of economic freedom. Islamic law is mostly found in Pakistan, Iran, and other Islamic states.Before the arrival ofwesterncolonialists, Islamiccriminal lawhas taken place inMalaysiaandhas been thecountry'sbasic law. HukumKanunManu has a great influenceonthe Malay statesunder the rule ofthe empireandinthe neighboringstates such asof Johor,Kedah, Pahang, Perak andBrunei. These stateshave beenmakingthe HukumKanun Manu as the basis oftheirdomesticlaw.Generally, Islamiccriminal lawhas beenwidelyundertakenbeforearrival ofcolonialistsMalaya.When theBritishcameandcolonizedMalaya, theyhave donea significant changein the legislation.Provisions of theCharter of JusticeI (1807), CharterII(1826), civil lawenforcement(1837), and the laws ofthenewMalayain 1956has givenalot ofpowerto the British tochange thelawandeliminatelocalandreplace it with aBritish law. Situations thathas been implementedby the Britishgavea huge impact onIslamic law, particularly againstIslamiccriminal law.Islamic law is not a legal system, like the Korean or Indonesian legal system, but a legal tradition, like the common or civil law tradition. A legal tradition is a set of related beliefs, attitudes, and practices regarding the necessary components of a legal system, including the scope and purposes of the law, the manner in which law is created or discovered, the identity and function of legal actors, and the manner in which law is learned, implemented, developed and adapted. Like the common law and civil law traditions, Islamic law influences to vary degrees and in different ways many of the worlds domestic legal.The fundamental premises of Islamic law are God has revealed his will for human kind in the Koran and the inspired example of the NabiMohammeds.a.w. , and that undang-undangawam must obey to God's revealed will. The belief in the Koran as God's word and that law should be based on God's command gives unity to the Islamic legal tradition. Within Islamic law, there is considerable diversity of opinion over the interpretation of God's revelation and the role of human reason, custom, and other factors in the development of specific rules and institutions. The scope of Islamic law is broader than the common law or civil law. Other than core legal doctrines covering the family, mistake, procedure, and commercial transactions, Islamic law also includes detailed rules regulating religious ritual and social etiquette. References to the application or proposed application of "Islamic law" or "Syariah often refer narrowly to state enforcement of these social rather than more strictly legal doctrines.The law of inheritance is specified with greater detail in the original sources of Islamic law than most other subjects. For that reason, the doctrines developed in the early years of Islam have been more resistant to evolution and change than some other doctrinal areas.Islamic law has traditionally required that the bulk of the deceaseds estate be distributed to the deceaseds relatives according to predetermined rules. The received doctrine regarding entitlement to inherit and the size of ones share reflect the social world in which the law originated and developed on the Arabian Peninsula. But these rules, which favor male relatives and male lines of descent, are felt to be at odds with cultural practices among many Southeast Asian groups, which accord more equal treatment to male and female blood lines. Syariah LawLaw based on the al-Quran and the sunnah of Nabi Muhammad s.a.w..Although this law could not be carried out completely because they are still bound by costomary law, but there are some changes can be seen.For example, in handling criminal cases such as stealing, murdering, marital affairs, commerce and distribution of estate. Malay Melacca government have ordinary legislation and its own punishment based on the Syariah Law and Customary Law. Syariah Law is enshrined in Rules and Regulation of Malacca which is enacted by Sultan MuzzafarSyah. During the reign of Sultan AlausinSyah, this Islamic Law is practiced with firm in Malacca.Customary LawThe legal system is very important for the harmony of society. Agreedrules ofbehaviorwas laterenactedinto law. Thislawis divided intotwo, namely thewritten lawandunwrittenlaw. The unwrittenlawis also knownas acustom. Customs are important source of unwritten law . Every race has its own customs. Hindu and Chinese customary law applied to the Hindus and Chinese respectively. Besides, natives in Sabah and Sarawak have their own customary law which relates to the land and family matters. In Malaysia, there are two types of Adat which is the AdatPerpatih and AdatTemenggung. AdatPerpatihis practiced among the Malays Minangkabau in Negeri Sembilan and Naning in north Malacca. As for AdatTemenggung, it is practiced in other states in Malaya.InAdatPerpatih, consultationforms the basisfor the administrationand troubleshooting. Theseconsultationswere attendedby representativesof alltribes.InNegeri Sembilan,there are12 tribesandeachtribeis considered asalarge family. Members of eachtribewere not allowedto marry someonefromthe sametribe. Eachtribehas atraditional leaderwhich is known asthe Board.In terms ofthe selection ofthe head, the headat all levelsare appointed bytheheadofthe lower level. AnakbuahchooseBuapak, Buapakelect a Lembaga, the LembagaelectUndang,andUndangchooseYamtuanorYang DipertuanBesar.AdatPerpatihwas founded byDatukNanSebatang who isderivedfromPagarRuyung, Sumatera.It uses the matrilineal system which belongs to mother's lineage, it means it involves the inheritance of property, names or titles from mother to daughters. It also concerns with matters such as land tenure, lineage and inheritance.AdatTemenggung uses the parilineal system, which belongs to father lineage, or father lineage has more priority or to be more concerned fromthe mother lineage. Inthe division ofthe estate, the sonpriority is more thanthe daughter, whichcoincideswiththeIslamicLaw of Inheritancelaw. On the question ofmarriagewasan individualis free toget marriedwith a partnerof his choice(including cousins)provided thatthe resolutiondoes not against theIslamiclaw.AdatTemenggung was founded by DatukKetumanggungan who ruled the Palembang, Sumatra. At first, custom was influenced by the teachings of Hinduism. Then this custom adapted to by the Shafi'i school of Islamic teachings.

Written lawwasaregulationorlegalina societysuch as HukumKanun Melaka, undang-undanglaut, and so on.Beforethe advent of Islam, the Malaysholdonlegislationthatestablishedin theHindu-Buddhist traditions whichadapted tolocal customs. Legalaspectsin theHindutraditions whichadhered to the HukumKanun Manuwhich clearlydifferentiate the types ofpunishment based ononeclass. The arrival of Islamhas changedthissituation. Islamiclawsbegan tobe the basis ofthe lawenforced.Alocalscholar, Professor AhmadIbrahim, has saidthattheMalay statesexisted beforethe influence ofthe British government, the basic laworstate lawisIslamiclawandMalaycustom.The presence of Islamhas expanded itswritten lawas shownthroughundang-undangLaut, HukumKanun Melaka, undang-undang Pahang,undang-undang Kedah,undang-undang Perakandundang-undang Johor. Alltheselegislation scripturebecome changertojourneyruleandgovernment administration.HukumKanun Melakadefines the responsibilityof the king and official dignities, taboos amongmembers of the community, punishmentofcriminal offenses, familylaw, religiousissues, andthe types ofpunishment forcertain offenses.Due to theMalay governmentbeingveryactivelyinvolvedinmaritimeactivitiesandtrade, thus, there arespecial rulesrelatedas shownin theundang-undangLautandundang-undangPelabuhanin the stateof Kedah. In fact,the effectsof the Islamic power are displayedthroughthe clausesinthelaw. Laws ofMalacca, explainsthat a captain ofa shipactsas a priest.This written law makes people lifes be more arranged because all their actions, responsibility, and punishment of offenses established. However, in practice, the law is is not included king or sultan from any action. This represents the king or sultan's position as the highest authority in the government.

Undang-Undang Pahangwas enactedduring the reign ofSultan AbdulGhalfurMuhyuddinwho ruledbetweentahun1592-1614.Undang-Undang Kedahhas fourparts, namelyportlaw, militarylaw, dated 1667, Rules and regulation Dato'Star Law, and the Lawin 1784.Undang-Undang Perakalsoknownas Law 99which brough byan ArabnamedSayyidHusainal-Furadzon17thmanners.Undang-Undang Johor dated1789 andis based on theLaw of the Maritimeandthe Rules and Regulations of Malacca Law.

HukumKanun MelakaHukumKanun Melakahas been implementedsince the days ofthe Malacca Sultanate. Malaccarulerswere giventhe title ofKhalifatulMukmininmeaningfaithfulbelieversleaders. KhalifatulMukminwordalsorecordedon the currencycoinsinthe Malacca Sultanate, Johor, Pahang, Kedah,Terengganu, Kelantan. In addition,the title ofZillulahfil'Alammeans shadowof God inthis world is alsousedbythe rulersof Malacca.One of the Islamic law which contain in HukumKanun Melaka is Criminal Law. Criminal Law is categorised in 3 parts. Qisaslawstated thatanyone whotakesother people's livesis punishable bydeath.Muslims whokillnon-believers are not considered as qisas. Anyone who hurts othermemberswill also bepunished by the samewayaccordingly. This actis similar toSurah al-Maidahverse45.HukumDiatClause17 in HukumKanun Melakastates thatif someone killsintentionally, they willbe only be fined by Diat if they are forgiven by their heir.This is similar withthe Shafiee sect.Hudud lawsare related tooffensessuch as adultery,Qazaf, Stealing, drinking alcoholandapostasy.For example,those who commitadulterywillbe stonedto deathforthose who aremarriedandflogged100 timesforthose whoare not married.This is similarto surahanNurverse2and theHadith. For those who commitQazaf will beflogged 80lashes. Drinking alcohol is punishable by 40 strokes. In HukumTa'zir, those who did mistake and did not charged by hudud and qisas such as stealing not enough nisab will be imposed tazir. For examples, they will be asked to return the stolen goods or hangedin the village as a lesson for the villagers.The first Criminal Law is Muamalah Law. It isrelated to thesale and purchase,interest, rent, borrowing and lendingare set outin clause30of the HukumKanun Melaka, family Law. It isrelated to themarriage, divorce, distinction ofsaints and others. Inthiscaseeverything isalmost the samewithIslamiclaw. The third Criminal Law is Evidenceand Events Law. Thisisrelatedto the conditions ofthe Sultansuch asmustbeMuslim, just and fair, merciful, generous, and so on. Herealsoexpressedjudgeprohibited from acceptinggifts.Diat means that punishment in the form of fines or compensation of property. The penalty imposed on the murderer who killed accidentally. There are 44 clauses in HukumKanun Melaka and this law has 46 copies referred to by various names. The Undang-UndangLaut has 24 clauses.

PREPARED BY: WONG TSU YII (13WTD05312)Page 13