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References

R. O. Winstedt, TheMalays: A Cultural History, Graham Brash, Singapore, 1981, Chapters 2-6; R. O. Winstedt, Malaya and its History, 7th edn., Hutchinson, London, 1968, Chapters 3-5. 2 Raja is the Malay nomenclature of the time; it was not until the late nineteenth or early twentieth century that the Rajas (except for the Raja of Perlis) assumed the tide of "Sultan". 3 Residents were accepted in Selangor (1887); Sungei Ujong (1887); Jelebu (1886); Rembau (1887); Pahang (1887); Negri Sembilan (1883-87, unified in 1898). The four northern states were under die sovereignty of Siam and received British Advisers or Residents only later, with the agreement of Siam in a treaty of 1890: Kelantan (1910); Terengganu (1910); Kedah (1925); Perlis (1930). See further C. N. Parkinson, British Intervention in Malaya 1876-77, University of Malaya Press, Kuala Lumpur, 1964; E. Sadka, The Proteded Malay States 1874-1895, University of Malaya Press, Kuala Lumpur, 1968; P. Loh, The Malay States 1877-1895: Political Change and Social Policy, OUP, Kuala Lumpur, 1969. 4 J. de V. Allen, A. J. Stockwell and L. R. Wright, (eds.),A Collection ofTreaties and Other DocumentsAjfecting the States ofMalavsia 1761-1963, vol. I, Oceana, New York, 1981; see, e.g. the Kelantan Treaty of 22 October 1910, Article ii, ibid., at 220.

See, further H. Mutalib, Islam in Malaysia: From Revivalism to Islamic State?, National University of Singapore Press, Singapore, 1993; A.J. Harding, Law and Government in the Constitution ofMalaysia, Kluwer Law International, The Hague, 1996. 6 [1988] 2 MLJ 12. See Sch. 9, State List, item 1. 8 [ 1988] 1 MLJ 119; [1988] LRC (Const) 46.

9 [1988] 1 MLJ 123. 10 Ibid., at 131. « Merdeka UniversityBhd v. GovernmentofMalaysia [1981] 1 MLJ 356, [1982] 2 MLJ 243. 12 Minister for Home Affain v. jamaluddin bin Othman [1989] 1 MLJ 369, 418. 13 See below. �4 Tun Mohamed Suffian, "The judiciary in the first twenty years of independence", in Tun Suffian, H. P. Lee and F. A. Trinadade, The Constitution ofMalaysia: Its Development 1957-1987, OUP, Kuala Lumpur, 1978, Chapter 11, p. 216.

15 See, further, Mehrun Siraj, "Marriage and divorce: the law applicable toMuslims in Selagor and the Federal Territory" [1988] 1 MLJ lx-jv; Ahmad Ibrahim, Islamic Law in Malaya, Malaysian Sociological Research Institute, Singapore, 1965; M. B. Hooker, Personal Laws ofMalaysia: An Introduction, OUP, Kuala Lumpur, 1976, Chapter 2. 16 Federal Constitution, Sch. 9. 17 The name varies somewhat between states. 18 Formerly the courts of the Kathi Besar (Chief Kadhi) and the Kathi.

19 See Hooker, Personal Laws ofMalaysia, at pp. 21ff., 77ff. 20 I.e. kheluat: being found in retirement and suspicious proximity to any woman, Muslim or non- Muslim, the offence being committed by a male Muslim. 23 I.e. shari`a in the Malay spelling, currently used in all legal sources in Malaysia.

22 See Constitution (Amendment) Act 1994 (Act A885). 23 I.e. the High Courts and inferior courts. �4 See D. Horowitz, "The Qur'an and the common law: Islamic law reform and the theory of legal change", AJCL, 42, 1994, pp. 233, 543; A. J. Harding, "Islam and public law in Malaysia: some reflections in the aftermath of Susie Teoh's case", in C. Mallat, (ed.), Islam and Public Law, Graham and Trotman, London, 1991, Chapter 9. Zs It is hard, none the less, to see how the states could fulfil their remit with regard to Islamic law without them, and Article 121 as amended assumes there will be Syariah Courts. z° Naturally I use the word "inferior" in its technical sense of a court or tribunal whose decisions are subject to scrutiny by the ordinary courts, as opposed to a "superior court of record". 27 Mohamed Habibullah bin Mahmood v. Faridah Dato' Talib [ 1992] 2 MLJ 793; Soon Singh v. Pertubuhan ICebajikan Islam Malaysia (PERKIM) Kedah [ 1994] 1 MLJ 690; Tan Sung Mooi v. Too Minv Kim [ 1994] 3 MLJ 117.

z8 For examples of reversal of Syariah Court decisions, see Tengku Mariam v. Commiuioner for ReligiousAffairs [1969] 1 MLJ 110; Mariam v. MohamedArif [1971] 1 MLJ 265; Nafsiah v. AbdulMajid [1969] 2 MLJ 174; Boto binte Taha v. Jaafar [1985] 2 MLJ 98. See also Ahmad Ibrahim, "The Svariah Court and its place in the judicial system", Syariah LJ, 5, 1989, p. 1. z9 Whether this should be so is of course another matter; perhaps the solution is to diversify the legal education of the judiciary, rather than dividing legal education into two parts which essentially do not address each other. See, further, Horowitz, "The Qur'an and the common law". 3o Ibid., at pp. 578-580.

3 � See, further, Mohamed Imam, "Islamic criminal law in Malaysia: federal-state jurisdiction conflict", Malaysian Current Law Journal, 1994, xxix; Ahmad Ibrahim, "Suitability of die Islamic punishments in Malaysia", IIUMLawJournal, 1993, 14. The issue of constitutionality relates not simply to the Federation's powers over the criminal law, but also to the principle of double jeopardy (Article 7(2)) and the application of the law, albeit voluntarily, to non- Muslims (Sch. 9). 32 See, further, Mohammad Hashim Kamali, Purtuhmertt in Islamic La�a: An Enguiry into the Hudud Bill of Kelantan, Institut Kajain Dasar, Kuala Lumpur, 1995, which argues against die Hudud law of Kelantan on die basis of Qur'anic jurisprudence. This book also includes die full text of die Kelantan law in English. a3 See Harding, "Islam and public law in Malaysia", pp. 204-205.

34 This clause was discussed in Halimatussaadiah v. Public Service Commission [ 1992] 1 MLJ 513, in which it was held that a PSC disciplinary order prohibiting female employees from wearing purdah which prevented identification of the employee, was constitutionally valid as it protected the secrecy of the service. For comment, see Zainur Zakaria, "Religious freedom: right to wear the Purdah" [ 1993J 3 MLJ, p. 25, who argues that an unusually broad view of "public order" was taken, for which see Re Tan Boon Liat [1976] 2 MLJ 83, 86 per Abdoolcader J. 3s Art. 149(1); Art. 150 (6A). 36 Minister for Home Affairs v. Jamaluddin bin Othman [ 1989] 1 MLJ 369, 418.

37Teoh EngHuatv. ICadhiof PasirMas,ICelantanand MajlisUgamaIslamdan Adat IstiadatMelayu,ICelantan [1986] 2 MLJ 228, [1990] 2 MLJ 306. 3s Art. 12(3). 39 For females, this is the onset of menstruation. 40 [1986] 2 MLJ 228.

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