Conduct a research on the articles / journal that required for you read. Using the information researched, you are required to support your answer with the relevant Articles from Federal Constitution 1957 and relevant cases. Each case, student need to briefly give the decision. You are required to provide an executive report from the below. Discuss the application of common law in Malaysia accordingly to the Malaysian Legal System, and it's essential as part of the sources of Malaysian law.

Page 1 Malayan Law Joumal Articles/2009/Volume 3/THE MALAYSIAN LEGAL SYSTEM: THE ROOTS, THE INFLUENCE AND THE FUTURE [2009] 3 MLJ xcii Malayan Law Journal Articles 2009 THE MALAYSIAN LEGAL SYSTEM: THE ROOTS, THE INFLUENCE AND THE FUTURE Shamrahayu A Aziz Assistant Professor Ahmad Ibrahim Kulliyyah of Laws, International Islamic University Malaysia [Some of the ideas in this article can be found in my chapter entitled 'The Development of Shariah Legal System' in Syed Arabi Aidid, Malaysia at 2007, pp 231-239) 50: Achievements and Aspirations, Kuala Lumpur. Thomson, INTRODUCTION The Malaysian legal system shares a substantial heritage with the common law and has England as its prototype. Some essential flavours from other Commonwealth jurisdictions, such as India are also embodied in the system. However, upon a closer examination one finds that it is not entirely English or foreign in orientation, as some local and autochthonous values are found in the system. This was further strengthened after independence by subsequent developments to the law and legal system. It may be said that the Malaysian legal system contains plural legal systems, which are formed from a mixture of the Syariah law, customs and British law. This article seeks to discuss the roots of the legal system followed by a discussion on the British influence on the legal system. The discussion includes the earlier legal system, that is the system that was prevalent before the coming of the British and the system introduced and applicable during the British administration. Following that the discussion is focused on the system that was established within the independent constitution. The development of the legal system after independence is later discussed and this is followed by the recent developments in the system. Included in the discussion are my observations and estimation on the future of the Malaysian legal system. Before a discussion of the focal issues the article begins with, a pithy discussion on the relationship between law and order. This discussion is necessary to appreciate the necessity for a legal system that is suitable and adaptable to the needs and demands of society. 3 MLJ xcil at xcili LAW AND SOCIAL ORDER Law has certain functions in society. Apart from ensuring order it satisfies social wants -- expresses the values and convictions of a given society. As a consequence, law is an indispensable mechanism for the creation and maintenance of peace and stability in society. In order to be effective the law has to be representative; it should not be something that is imposed on society. It should not bring in values that are alien or unacceptable to society. Apart from that, the law is subject to changes, especially when society changes - social changes are inevitable, and they are a feature of the modern states. Indeed, laws are changed to meet the new needs and requirements of society and law is a response to social 'demands' -Page 2 laws are shaped by the society in which they are applied. This is undoubtedly the Malaysian experience = its laws and legal system have undergone substantial changes throughout the fifty years of independence. The change had to happen to accommodate the changes and needs of the Malaysian community. BRIEF HISTORY OF THE MALAYSIAN LEGAL SYSTEM Since the early 14th century, there were early Malay Sultanates in the area of current Malaysia. The most well-known was the Malacca Sultanate. The British set foot in the area during the late 18th century to the early 19th century. Prior to the British, the Portuguese and Dutch were here. The country was occupied by Japan from 1942 to 1945. When the Japanese lost in the second World War, the British came back to Malaya and formed the Federation of Malaya 1948, which became independent in August 1957. Malaysia was formed in 1963 when the former British colonies of Singapore and the East Malaysian states of Sabah and Sarawak on the northern coast of Borneo joined the Federation. Singapore was asked to leave Malaysia in 1965. The modem Malaysia is a federation of a number of independent states which comprise of at least four major groups; the Straits Settlements (Malacca and Penang), the Federated Malay States (Selangor, Perak, Pahang and Negeri Sembilan), the Unfederated Malay States (Johore, Kelantan, Kedah, Terengganu and Perlis) and the Bomeo States (Sabah and Sarawak). There are three Federal Territories, namely Kuala Lumpur, Labuan and Putrajaya. These 3 MLJ xcil at xciv distinct compositions of Malaysia, have a legal history which is somewhat different from each other.~ It has to be admitted that when the British set foot into the area in the late 18th century a legal order was already in place. As such it was obviously a mistake for the English judges to assert that there was no law or legal system applicable in the states. The first landmark of the Malaysian legal system can be traced back to the early Malay Sultanates, especially the Malacca Sultanate. When the Malacca Kingdom was at the height of its power, Islam had a major influence. Islamic law and local custom were adopted in the legal system and administered accordingly. Two sets of Malacca law, the Canon Law of Malacca (Hukum Kanun Melaka) and the Maritime Law of Malacca ( Undang-undang Laut Melaka) contained principles of Islamic law relating to civil, criminal and even commercial matters. These laws of Malacca had a great impact on the development of laws in other Malay states. Many other code of laws, such as the Undang-Undang Johor, Undang-Undang Pahang, Undang-Undang 99 Perak were modelled on the Hukum Kanun Melaka. Islamic law became the root of the law and the legal system of the country. Two important decisions by the courts declared that Islamic law is not a foreign law.The court must take judicial notice of this position and the court must have recourse to appropriate sources on Islamic law. It was also a fact that, the country had a court system prior to the British intervention. There was only one system of court in the country, that was the Kadhi's Court or the Shariah courts. The then applicable law was Islamic law. The Malay Rulers, assisted by a Mufti (jurisconsult), sat as a judge in the court, whereby the Ruler was the highest court of appeal. 3 MLJ xcii at xcv COLONIAL INFLUENCE IN THE LEGAL SYSTEM As mentioned above, there were at least four colonial powers in the country before it finally achieved independence. Despite that, British influence on the legal system is the most evident. English law had the greatest influence on the local system. In the Straits Settlement, the influence was done through the introduction of the Charters of Justice. As stated in the Charter, English law was not to be applied if it caused hardship or injustice to the inhabitants; in that case the inhabitants were allowed to apply their personal laws as the English law sometimes came into sharp conflict with the morals and values of the local populace.' This condition may be considered clear proof that the local inhabitants of Malaya had their own laws and legal system prior to British intervention though these laws were probably not in any systematic form. Indeed, the local laws had been strongly embedded in the locality before the intervention and English law was not to be applied except when the local situation allowed it. It has been argued that the application of English law was not in fact, introduced by the Charters as generally understood." It is argued that there was no clear provisions in the Charter that requested for the importation of English law.' Despite that the Penang courts formed an implication that thePage 3 Charters had introduced English law into the locality. 10In the Malay States, the British managed to influence the local legal system through a number of treaties with the Malay Sultans and also through some formal introduction of English law. Under the 3 MLJ xcil at xcvi treaties, the Sultans agreed to receive British Advisers (in all the Unfederated Malay States) or Residents (in all the Federated Malay States) and the Sultans were to follow the advice of the Advisers or Residents in all matters, except on matters relating to Islam and Malay custom. Despite the influential effect of the treaties on the state administration, the position of Islam and Malay custom remained invulnerable. This is an indication, and in fact an attestation to the fact that Islam and the Malay custom had a special place in the local system and that they were left unaffected by the British. Formal importation of the common law of England and the rules of equity into the local system was made through a legislation called the Civil Law Ordinance. Just one year before Malaya achieved its independence, the British introduced the final version of the Civil Law Ordinance, which was first introduced in the Straits Settlements in 1878. The Civil Law Ordinance 1956 remains until today and it was revised in 1972, renamed as the Civil law Act 1956 Act 67. It is a general understanding that the Civil Law Ordinance was meant to impose on the judges the obligation to bring in the common law of England and the rules of equity into the local cases. Despite the general purpose of the Act, it expressly states that the common law and the rules of equity 'shall be applied in so far as the circumstances of the States of Malaysia and their respective local inhabitants permit and subject to such qualifications as local circumstances render necessary'.11This qualification is similar to that imposed by the British in treaties with the Malay Rulers, indicating British reservation to the application of its laws and values into the local system. However, the application of this proviso was very much dependant on the courts' attitude. In similar breath, Terrell Ag CJ pointed out that English law had long been introduced in the country, "