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AGE OF MAJORITY IN MALAYSIA

By:

Harneshpal Karamjit Singh (Co-Managing Partner) [harnesh@luibhullar.com]


Bryan Lui (Co-Managing Partner) [bryanlui@luibhullar.com]



Introduction

On 30th April 1971, the Age of Majority Act 1971 (“AMA 1971”) came into force throughout Malaysia. As the title of the legislation suggests, it is a law that consolidated the age of majority of all people within Malaysia.


AMA 1971

According to the AMA 1971, the age of majority in Malaysia is eighteen (18) years old. Section 2 of the AMA 1971 covers the said age of majority and states as follows:

“Subject to section 4, the minority of all males and females shall cease and determine within Malaysia at the age of eighteen years and every such male and female attaining that age shall be of the age of majority.”


The Court of Appeal in Khairil Anuar Muda & Ors v Sulong Muda & Anor [2018] 5 CLJ 288 (“Sulong Muda”) held that the AMA 1971 settled the law relating to the age of majority and promulgated that eighteen (18) was the age of majority in Malaysia as follows:

“There was some initial controversy in the development of the law regarding the age of majority which is not relevant to the current proceedings as much of the issues raised were later settled with the coming into force of the Age of Majority Act 1971. Under s. 2 of this Act, the minority of all males and females within Malaysia ceases at the age of 18 years and "every such male or female attaining that age shall be of the age of majority".”


Similarly, the Court of Appeal in Md Hilmi Md Noor & Anor v Azman Ahmad & Ors [2016] 7 CLJ 360 also gave effect to Section 2 of the AMA 1971 by stating as follows:

“Section 2 of the Age of Majority Act 1971 clearly states that the age of majority is 18 years old.”


Accordingly, Section 11 of the Contracts Act 1950 states “every person is competent to contract who is of the age of majority according to the law to which he is subject, and who is of sound mind, and is not disqualified from contracting by any law to which he is subject.


Reading Section 11 of the Contracts Act 1950 together with Section 2 of the AMA 1971, only persons of eighteen (18) years of age and above have the legal capacity to contract.


In Sulong Muda, the Court of Appeal noted that Section 11 of the Contracts Act 1950 provides that only persons who are of the "age of majority" are competent to contract. Accordingly, the Court of Appeal held that if a contract is entered by a person who has yet to attain the age of majority then such contract is void as follows:

“So what is the effect of a contract entered into by a minor? The Privy Council, in an appeal from India, in the case of Mohori Bibee v. Dhurmodas Ghose (1903) 30 Cal 539, held that the effect of ss. 10 and 11 of the Indian Contracts Act (in pari materia with our ss. 10 and 11 of the Contracts Act 1950) is that a contract entered into by a person who has not attained majority is not voidable but void. Our Federal Court in Leha Jusoh v. Awang Johari Hashim [1977] 1 LNS 59; [1978] 1 MLJ 202 followed the said Privy Council's decision and held that the court could not enforce the agreement entered into by a minor as it was void ab initio.”


The High Court in Ng Mei Kheng v JB Securities Sdn Bhd [1998] 1 LNS 429 also gave effect to the provisions of Section 11 of the Contracts Act 1950, Section 2 of the AMA 1971, and the Privy Council decision of Mohori Bibee v. Dhurmodas Ghose [1903] 30 Cal. 539 as follows:

“Section 11 of the Contracts Act, 1950 enacts, inter alia, that only a person who is of the age of majority is competent to contract. Section 2 of the Age of Majority Act, 1971 enacts that the minority of all males and females shall cease and determine within Malaysia at the age of 18 years and that every such male and female attaining that age shall be of the age of majority. It is rather unfortunate and perhaps the draftsman should expressly stipulate in the Contracts Act, 1950 as to the effect of an agreement entered into by the parties who are not competent to contract. This is an obvious lacuna in the Contracts Act, 1950. In 1903, the Privy Council took a bold step in the case of Mohori Bibee v. Dhurmodas Ghose [1903] 30 Cal. 539, 30 IA 114 where it held that the effect of sections 10 and 11 of the Indian Contracts Act, which is in pari materia with our sections 10 and 11 of the Contracts Act, 1950, was to render all such agreements void.”


Although persons who have yet to attain the age of majority do not have the legal capacity to contract, the Contracts (Amendment) Act 1976 removed such requirement in relation to scholarship agreements.


Section 4(a) of the Contracts (Amendment) Act 1976 states as follows:

Notwithstanding anything to the contrary contained in the principal Act, no scholarship agreement shall be invalidated on the ground that the scholar entering into such agreement is not of the age of majority.


Section 2 of the Contracts (Amendment) Act 1976 defines a scholarship agreement as follows:

"scholarship agreement" means any contract or agreement between an appropriate authority and any person (hereinafter in this Act referred to as a "scholar") with respect to, any scholarship, award, bursary, loan, sponsorship or appointment to a course of study, the provision of leave with or without pay, or any other facility, whether granted directly by the appropriate authority, or by any other person or body, or by any government outside Malaysia, for the purpose of education or learning of any description”.


In relation to an agent (a person employed to do any act for another or to represent another in dealings with third persons) and principal (a person who employs such agent) under the Contracts Act 1950, only a person who is of the age of majority may employ an agent and no person who has yet to attain the age of majority can become an agent in accordance with Sections 136 and 137 of the Contracts Act 1950. Accordingly, both an agent and the principal must be of eighteen (18) years and above.


Section 4 of the Wills Act 1959 states that no will made by any person under the age of majority shall be valid. Naturally, any will made by a person who is below the age of eighteen (18) years is invalid and has no legal purport.


However, Section 2 of the AMA 1971 is qualified by Section 4 of the AMA 1971 and states as follows:

“Nothing in this Act shall affect-

(a) the capacity of any person to act in the following matters, namely, marriage, divorce, dower and adoption;

(b) the religion and religious rites and usages of any class of persons within Malaysia;

(c) any provision in any other written law contained fixing the age of majority for the purposes of that written law.”


In relation to the capacity to marry under Section 4(a) of the AMA 1971, Section 10 of the Law Reform (Marriage and Divorce) Act 1976 (“LRA 1976”) states as follows:

“Any marriage purported to be solemnised in Malaysia shall be void if at the date of the marriage either party is under the age of eighteen years unless, for a female who has completed her sixteenth year, the solemnisation of such marriage was authorised by a licence granted by the Chief Minister under subsection 21(2).”


The High Court in Hooi Seong (The Beneficiary Of Hooi Teck Weng, Deceased) v Ooi Pay Yeong (The Legal Representative Of The Estate Of Ooi Kok Teong, Deceased) [1995] 4 CLJ 229 held that Section 10 of the LRA 1976 implies that a male who is under 18 years of age and a female between 16 and 18 years old could be married by a license granted by the Chief Minister under Section 21(2) of the LRA 1976.


In relation to religion and religious rites and usages under Section 4(b) of the AMA 1971, Sections 20 and 43 of the Syariah Criminal Offences (Selangor) Enactment 1995 states as follows:

“Section 20

Any male person, being baligh, who fails to perform the Friday prayers in a mosque within his kariah for three consecutive weeks without uzur syarie or without reasonable cause shall be guilty of an offence and shall be liable on conviction to a fine not exceeding one thousand ringgit or to imprisonment for a term not exceeding six months or to both.


Section 43

Nothing is an offence which is done by a child who has not attained the age of baligh.”


Section 2 of the the Syariah Criminal Offences (Selangor) Enactment 1995 defines baligh as follows:

"baligh" means having attained the age of majority according to Islamic Law”.


Correspondingly, the Federal Court in Meor Atiqulrahman Ishak & Ors v Fatimah Sihi & Ors [2006] 4 CLJ 1 held as follows:

According to Shari'ah (and/or fiqh), the obligation to perform even a mandatory ("wajib") practice like the five daily prayers, is only mandatory on Muslims who have attained the age of majority ("baligh"), usually taken to be 15 years of age for boys.


In relation to any provision in any other written law contained fixing the age of majority for the purposes of that written law under Section 4(c) of the AMA 1971, Section 2(2)(a) of the Guardianship of Infants Act 1961 states as follows:

For the purpose of this Act-

(i) every person professing the religion of Islam shall be deemed to have attained his majority when he shall have completed his age of eighteen years and not before; and

(ii) every other person shall be deemed to have attained his majority when he shall have completed his age of twenty-one years and not before.


Section 2(1) of the Guardianship of Infants Act 1961 defines a person who has not attained his majority as an infant.


Accordingly, a non-Muslim who is below the age of twenty-one (21) years is an infant and such infant’s support, health and education shall be the responsibility of his guardian under Section 3 of the Guardianship of Infants Act 1961.


Furthermore, the High Court in Baheerathy Arumugam v V Gunaselan V Visvanathan [2013] 1 CLJ 954 held that under Section 5 of the Guardianship of Infants Act 1961, a mother and a father have equal rights to the custody and upbringing of the infant, ie, a child who has not attained his majority.


This would mean that a father and a mother have equal rights to the custody and upbringing of any non-Muslim person under the age of twenty-one (21) years, ie, an infant under the Guardianship of Infants Act 1961.


Other Legal Ages

However, the age of majority must not be confused with other legal ages such as the age of criminal responsibility, the age of consent, voting age, legal age of candidacy to the House of Representatives, legal working age, legal drinking age, legal driving age and legal smoking age.


Briefly the respective legal ages are as follows:


The age of criminal responsibility is ten (10) years pursuant to Section 82 of the Penal Code.


The age of consent is sixteen (16) years pursuant to Section 375 of the Penal Code.


The voting age and the legal age of candidacy to the Houses of Representatives is twenty-one (21) years pursuant to Articles 47(b) and 119(1) of the Federal Constitution. [The Constitution (Amendment) Act 2019 was gazetted on 10.09.2019 lowering the voting age and the legal age of candidacy to the Houses of Representatives to eighteen (18) years. However, the Constitution (Amendment) Act 2019 has yet to come into operation].


The legal working age varies pursuant to Section 2 of the Children and Young Persons (Employment) Act 1966. Appropriately, Section 2(2A) of the Children and Young Persons (Employment) Act 1966 states the age of admission to light work (employment involving light work suitable to his capacity in any undertaking carried on by his family) shall not be less than thirteen (13) years.


The legal drinking age is twenty-one (21) years pursuant to Regulation 361(4) of the Food Regulations 1985.


The legal driving age is sixteen (16) years for motorcycles pursuant to Section 39(1) of the Road Transport Act 1987; seventeen (17) for motor vehicle pursuant to Section 39(2) of the Road Transport Act 1987; and twenty-one (21) for tractor heavy, tractor light, mobile machinery heavy, mobile machinery light, motor car heavy or public service vehicle on a road pursuant to Section 39(3) of the Road Transport Act 1987.


The legal smoking age is eighteen (18) years pursuant to Regulations 2, 8 and 13 of the Control of Tobacco Product Regulations 2004.


Concluding Remarks

The age of majority for persons in Malaysia is eighteen (18) years except for matters involving the capacity of any person to act in the following matters, namely, marriage, divorce, dower and adoption; the religion and religious rites and usages of any class of persons within Malaysia; any provision in any other written law contained fixing the age of majority for the purposes of that written law.


Notwithstanding that, the age of majority is different from other legal ages like the age of criminal responsibility, the age of consent, voting age, legal age of candidacy to the House of Representatives, legal working age, legal drinking age, legal driving age and legal smoking age.


Image by Sang Hyun Cho from Pixabay

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