�STUDIUM GENERALE�HUKUM DI NEGERI SERUMPUN

FACULTY OF LAW

UNIVERSITAS PANCASAKTI TEGAL

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�‘GETTING TO KNOW THE LEGAL SYSTEM IN MALAYSIA’�

NIK SALIDA SUHAILA NIK SALEH

ASSOCIATE PROFESSOR & DEAN,

FACULTY OF SYARIAH AND LAW, USIM

(LL.B (IIUM), MCL (IIUM), CIFE (LONDON), CTP (LONDON), PHD. (KEELE, UK)

CONTENT

KNOWING LEGAL SYSTEM

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MALAYSIA’S GEOGRAPHY

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MALAYSIAN LEGAL SYSTEM

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CLASSIFICATION OF LAW

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SOURCES OF LAW

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PROMINENT INSTITUTION

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“LEGAL SYSTEM”

Over the millennium, the world has known many types of legal systems. The oldest were built on custom and religion. In modern times, it is believed that there are six primary categories of legal systems; civil law systems, common law systems, religious systems, customary systems and supranational systems, and mixtures of the five. The choice of one or the other is affected by history, politics, and social traditions.

KNOWING LEGAL SYSTEM

• A legal system refers to the overall legal regime of a country. It provides institutions, principles, rules and methods for regulating the relationship between law and society.
• It describes the sources from which the law springs, the procedures and methods for making law and resolving disputes. It include the way the laws are interpreted and enforced.
• It outlines the rights, responsibilities, and duties of citizens towards each other and towards the state. It also provides for the imposition of punishments.
• It provides for the classification of laws into various categories (civil law and criminal law, public law and private law, procedural law and substantive law, the law of tort and law of contract) and the differences and similarities between these categories.

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CONT…

• In civil law systems, the central source of law is an enacted Constitution and a plethora of comprehensive codes passed by legislatures or other law-giving authorities.
• This is a system in which the primary source is the authoritative decisions by judges in cases that are litigated before the courts. Court proceedings follow the adversarial system of justice, and the decisions are perpetuated by a system of binding judicial precedent.
• In these systems, the religious law is the highest law of the land and is interpreted, not by ordinary judges, but by judges of religious or ecclesiastical courts and scholars with prescribed religious qualifications. The most common religious system in the world today is the Islamic legal system of syariah. The syariah refers (i) to the Holy Qur’an (ii) the Sunnah and Hadith (the practices and sayings of the Holy Prophet) and (iii) the Islamic jurisprudence of the jurists.

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MALAYSIA’S GEOGRAPHY

• Malaysia consists of two non-contiguous regions; Peninsular Malaysia and East Malaysia.
• Peninsular Malaysia was formerly called the Federation of Malaya. It consists of 11 states plus the two federal territories of Kuala Lumpur and Putrajaya. Together they comprise only 132,090 sq kms or 39.7% of Malaysian territory but are home to 79% of the population.
• East Malaysia consists of the two Borneo states of Sabah and Sarawak, plus the federal territory of Labuan. The three regions comprise 198,847 sq kms or 60.3% of Malaysian territory but have only 21% of the population.
• The 11 states of the Malay Peninsula were under British rule till Malaya’s independence on August 31, 1957. A new and supreme Constitution drafted by the British-led Reid Commission was launched at midnight on August 31, 1957, when Malaya met its tryst with destiny.

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CONT

• In 1963, the Federation of Malaya joined the British territories of Sabah, Sarawak and Singapore to create a vastly enlarged federation with a new name “the Federation of Malaysia”. However, the Constitution of 1957 was retained but with eighty or so amendments to accommodate the special autonomy of Sabah, Sarawak and Singapore.
• In 1965, the Constitution was again amended significantly to allow Singapore to leave the Federation to become an independent, sovereign state.
• Malaysia is a multi-ethnic, multi-cultural, multi-linguistic and multi-religious society and its legal system reflects its cultural diversity and its colonial history.
• Malay language is the official language under Article 152. However, subject to some limitations, the teaching, learning and use of other languages are allowed in all educational institutions whether public or private and at all levels.

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CONT

• Islam is recognized by Article 3 of the Constitution as the official religion, but other religions may be practiced in peace and harmony.
• The religious breakdown of the population is 61.3% Muslim; 19.8% Buddhist; 9.2% Christian; 6.3% Hindu; 1.3% Confucianism, Taoism and other Chinese faiths; 1.4% other religions and 0.7% no religion.
• Ethnically, Malays constitute 55% of the population; Sabah and Sarawak indigenous people (“Bumiputeras”) constitute 14%; Chinese 23%; Indians 7% and Others 1%.

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MALAYSIAN LEGAL SYSTEM

• The Malaysian legal system consists primarily of secular Codes drafted by legislative authorities. However, there are Syariah laws for Muslims in 24 or so personal law matters enumerated in the Constitution.
• In addition, the customs of the Malays and the people of Sabah and Sarawak are part of our law. At one time, the Chinese and Hindu customs were recognized in family law relations. However, due to the passage of the Law Reform (Marriage and Divorce) Act 1976, family law for non-Muslims has now been codified.
• There is legal pluralism in that there are different systems of law and different systems of courts which operate within their assigned spheres. We have a hierarchy of civil courts, a different hierarchy of Syariah courts, and another hierarchy of native courts in Sabah and Sarawak.

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CONT

• The Federal Constitution is supreme throughout the land. It is declared in Article 4(1) that this Constitution is the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void.
• The supremacy of our Constitution is supported by judicial review. The Constitution in Articles 4(1), 4(3), 4(4), 128(1), and 128(2) is explicit about the power of the superior courts to examine the constitutionality of all executive and legislative actions.
• As in many other countries, Malaysian courts are reluctant to employ the instrument of unconstitutionality to dissect state actions. Nevertheless, a fair amount of case laws has developed on constitutional challenges in the area of federal-state division of powers; unlawful interference with fundamental rights; violation of constitutional amendment procedures; abuse of emergency powers; and the Attorney-General’s exclusive power under Article 145 to commence prosecutions.

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CONT

• Article 3(1) declares Islam to be the religion of the Federation. However, there are protections for believers of all other faiths as follows; Article 3(1) states that all other religions may be practiced in peace and harmony.
• Non-Muslims cannot be subjected to Islam because their freedom of religion is guaranteed by Article 11.
• There is explicit provision in Schedule 9 List II Para 1 that Syariah courts have jurisdiction only over persons professing the religion of Islam.
• Muslims are, however, compulsorily subjected to the Syariah and to the jurisdiction of the Syariah courts. The Syariah law that is applicable in Malaysia is largely of the Shafie school of Islam with influences of the Malay adat. The formulation of Islamic Law Enactments is largely left in the hands of the State Assemblies, each of which enacts laws for its territory. The three federal territories of Kuala Lumpur, Putrajaya and Labuan have a separate Act applicable to them.

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CONT

• Malaysia has a federal system of government but with a heavy central bias. However, the East Malaysian regions of Sabah and Sarawak enjoy some executive, legislative, judicial and financial autonomy not available to the 11 Peninsular states.
• We have a constitutional monarchy at both the federal and state levels. The unique aspects are that (i) we have not one but nine Rulers – one at the federal level and nine hereditary Sultans/Rajas at the state levels while four states without hereditary rulers have State Governors, and (ii) the federal monarchy is elected and rotational. The King is elected by his nine brother Rulers for a period of five years. 
• Malaysia emulated the British, Westminster style of parliamentary government at both federal and state levels.
• Nationality is not equated with ethnicity but with citizenship and exclusive allegiance. Double citizenship is not allowed.

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CLASSIFICATION OF LAWS

• Almost all branches of law have developed in Malaysia. There are statutory codes on court procedure and evidence; cyber laws; human rights; children’s protection; protection for women; personal and family laws; labour relations and workers’ rights; commercial relations, contract, environmental protection; intellectual property; official secrets; whistle blowers’ protection; and; laws to regulate education. Laws on international trade and commerce are gaining foothold.  
• Legal rules are of many types. They may be classifiable in several classes which are not watertight. Such classification has distinct consequences not all of which are desirable. Such classifications are; criminal laws and civil laws, law of tort and law of contract, substantive laws and procedural laws, common law and equity, public law and private law, constitutional law and ordinary law and international law and domestic law.

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SOURCES OF LAWS

• In Malaysia, Article 160(2) of the Federal Constitution supplies an authoritative definition of law. It states that “law” includes written law, the common law in so far as it is in operation in the Federation or any part thereof, and any custom or usage having the force of law in the Federation or any part thereof.
• From the above definition, it is clear that at least three categories of rules qualify as law in this country:

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• Written sources

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• Unwritten sources
• Legal sources
• Non-legal sources��

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PROMINENT INSTITUTIONS

• Civil Courts
• Syariah Courts
• Native Courts
• Tribunals
• Alternative Dispute Resolution
• Human Rights Commission
• Law Reform
• Elected Legislatures
• Independent Legal Profession
• Legal Education and Legal Literacy

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THANK YOU