Law of Malaysia
Encyclopedia
The law of Malaysia is mainly based on the common law
legal system. This was a direct result of the colonization of Malaya
, Sarawak
, and North Borneo
by Britain
between the early 19th century to 1960s. The supreme law of the land—the Constitution of Malaysia
—sets out the legal framework and rights of Malaysian citizens. Federal law
s enacted by the Parliament of Malaysia apply throughout the country. There are also state law
s enacted by the State Legislative Assemblies which applies in the particular state. The constitution of Malaysia also provides for a unique dual justice system—the secular laws (criminal and civil) and sharia
laws.
in 1957, most of the laws of United Kingdom
were imported and either made into local legislation or simply applied as case law
s. Malaysian law is also based on other jurisdictions namely Australia
and India
. The criminal law
in Malaysia—the Criminal Procedure Code—was based on the Indian criminal code. Similarly, the Contracts Act is based on the Indian model. Malaysian land law
is based on the Australian Torrens system
.
The Federal Constitution is the supreme law of the land. It provides the legal framework for the laws, legislation, courts, and other administrative aspects of the law. It also defines the government
and monarch
, and their powers, as well as the right
s of the citizens.
law, and in Malaysia it is known and spelled as syariah. The court is known as the Syariah Court
. Looking at the Malaysian legal system as a whole, sharia law plays a relatively small role in defining the laws on the country. It only applies to Muslims. With regards to civil law, the Syariah courts has jurisdiction in personal law matters, for example marriage
, inheritance
, and apostasy
. In some states there are sharia criminal laws, for example there is the Kelantan Syariah Criminal Code Enactment 1993. Their jurisdiction is however limited to imposing fines for an amount not more than RM
5000, and imprisonment to not more than 3 years. In August 2007, the then Chief Justice of Malaysia proposed to replace the current common law application in Malaysia with sharia law.
. Article 11 of the Constitution provides that "Every person has the right to profess and practice his religion". However in the case of Lina Joy
—a Malay
who converted to Christianity
—the Federal Court of Malaysia
refused to allow her to change her religion indicated in her identity card
(MyKad
). The judges held that they had no jurisdiction on the matter—that it was a matter of the Syariah Court, as indicated in Article 121(1A) of the Constitution.
Federal laws are made by legislators (members of Parliament and senators) sitting in the Parliament of Malaysia
and applies nationwide. Federal laws are known as Acts (of Parliament). State
laws are made by assemblymen sitting in the State Legislative Assembly (Dewan Undangan Negeri
) and only applies in the particular state. State laws are often referred to as enactments or ordinances. Article 75 of the Constitution states that a federal law shall prevail over any inconsistent state laws, including sharia laws.
and Sarawak
. Some federal Acts of Parliament apply differently to these states on a number of matters such as Acts related to immigration
, land and natural resource management. For example, in the Peninsular
, the National Land Code governs most of the laws relating to land. In Sabah, the main legislation is the Sabah Land Ordinance; and in Sarawak, the Sarawak Land Code
or in legislation
s. Unwritten laws are laws which are not contained in any statutes and can be found in case decisions. This is known as the common law
or case law
. In situations where there is no law governing a particular circumstance, Malaysian case law may apply. If there is no Malaysian case law, English case law can be applied. There are instances where Australian, Indian, and Singaporean cases are used as persuasive authorities.
The application of English law
or common law is specified in the statutes. Section 5 of the Criminal Procedure Code states that English law shall be applied in cases where no specific legislation has been enacted. Similarly, in the context of civil law
, Sections 3 and 5 of the Civil Law Act allows for the application of English common law, equity rules, and statutes in Malaysian civil cases where no specific laws have been made. In 2007, the then Chief Justice of Malaysia
, Ahmad Fairuz Abdul Halim
questioned to need to resort to the English common law despite Malaysia having already been independent for 50 years and proposed to replace it with Islamic law jurisprudence or sharia law. However, the Malaysian Bar Council responded by saying that the common law is part of Malaysian legal system and that there is no basis to replace it. Court appeals to the Privy Council
in England have already been abolished in 1985.
The principle of stare decisis
also applies in Malaysian law. This means that any decisions by a court higher in the hierarchy will be binding upon the lower courts.
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
legal system. This was a direct result of the colonization of Malaya
British Malaya
British Malaya loosely described a set of states on the Malay Peninsula and the Island of Singapore that were brought under British control between the 18th and the 20th centuries...
, Sarawak
Sarawak
Sarawak is one of two Malaysian states on the island of Borneo. Known as Bumi Kenyalang , Sarawak is situated on the north-west of the island. It is the largest state in Malaysia followed by Sabah, the second largest state located to the North- East.The administrative capital is Kuching, which...
, and North Borneo
North Borneo
North Borneo was a British protectorate under the sovereign North Borneo Chartered Company from 1882 to 1946. After the war it became a crown colony of Great Britain from 1946 to 1963, known in this time as British North Borneo. It is located on the northeastern end of the island of Borneo. It is...
by Britain
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
between the early 19th century to 1960s. The supreme law of the land—the Constitution of Malaysia
Constitution of Malaysia
The Federal Constitution of Malaysia, which came into force in 1957, is the supreme law of Malaysia. The Federation was initially called the Federation of Malaya and it adopted its present name, Malaysia, when the States of Sabah, Sarawak and Singapore joined the Federation...
—sets out the legal framework and rights of Malaysian citizens. Federal law
Federal law
Federal law is the body of law created by the federal government of a country. A federal government is formed when a group of political units, such as states or provinces join together in a federation, surrendering their individual sovereignty and many powers to the central government while...
s enacted by the Parliament of Malaysia apply throughout the country. There are also state law
State law
In the United States, state law is the law of each separate U.S. state, as passed by the state legislature and adjudicated by state courts. It exists in parallel, and sometimes in conflict with, United States federal law. These disputes are often resolved by the federal courts.-See also:*List of U.S...
s enacted by the State Legislative Assemblies which applies in the particular state. The constitution of Malaysia also provides for a unique dual justice system—the secular laws (criminal and civil) and sharia
Sharia
Sharia law, is the moral code and religious law of Islam. Sharia is derived from two primary sources of Islamic law: the precepts set forth in the Quran, and the example set by the Islamic prophet Muhammad in the Sunnah. Fiqh jurisprudence interprets and extends the application of sharia to...
laws.
History
Prior to the independenceHari Merdeka
Hari Merdeka is a national day of Malaysia commemorating the independence of the Federation of Malaya from British colonial rule in 1957, celebrated on August 31 each year. It is not to be confused with the formation of Malaysia...
in 1957, most of the laws of United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
were imported and either made into local legislation or simply applied as case law
Case law
In law, case law is the set of reported judicial decisions of selected appellate courts and other courts of first instance which make new interpretations of the law and, therefore, can be cited as precedents in a process known as stare decisis...
s. Malaysian law is also based on other jurisdictions namely Australia
Australia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
and India
India
India , officially the Republic of India , is a country in South Asia. It is the seventh-largest country by geographical area, the second-most populous country with over 1.2 billion people, and the most populous democracy in the world...
. The criminal law
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
in Malaysia—the Criminal Procedure Code—was based on the Indian criminal code. Similarly, the Contracts Act is based on the Indian model. Malaysian land law
Real property
In English Common Law, real property, real estate, realty, or immovable property is any subset of land that has been legally defined and the improvements to it made by human efforts: any buildings, machinery, wells, dams, ponds, mines, canals, roads, various property rights, and so forth...
is based on the Australian Torrens system
Torrens title
Torrens title is a system of land title where a register of land holdings maintained by the state guarantees an indefeasible title to those included in the register...
.
The Federal Constitution is the supreme law of the land. It provides the legal framework for the laws, legislation, courts, and other administrative aspects of the law. It also defines the government
Government
Government refers to the legislators, administrators, and arbitrators in the administrative bureaucracy who control a state at a given time, and to the system of government by which they are organized...
and monarch
Monarch
A monarch is the person who heads a monarchy. This is a form of government in which a state or polity is ruled or controlled by an individual who typically inherits the throne by birth and occasionally rules for life or until abdication...
, and their powers, as well as the right
Right
Rights are legal, social, or ethical principles of freedom or entitlement; that is, rights are the fundamental normative rules about what is allowed of people or owed to people, according to some legal system, social convention, or ethical theory...
s of the citizens.
Dual justice system
The dual system of law is provided in Article 121(1A) of the Constitution of Malaysia. Article 3 also provides that Islamic law is a state law matter with the exception for the Federal Territories of Malaysia. Islamic law refers to the shariaSharia
Sharia law, is the moral code and religious law of Islam. Sharia is derived from two primary sources of Islamic law: the precepts set forth in the Quran, and the example set by the Islamic prophet Muhammad in the Sunnah. Fiqh jurisprudence interprets and extends the application of sharia to...
law, and in Malaysia it is known and spelled as syariah. The court is known as the Syariah Court
Syariah Court
Syariah refers to Sharia law in Islamic religious law and deals with exclusively Islamic laws, having jurisdiction upon every Muslim in Malaysia. The dual-system of law in Malaysia is provided for in Article 121 of the Constitution of Malaysia. The Syariah Court system is one of the two separate...
. Looking at the Malaysian legal system as a whole, sharia law plays a relatively small role in defining the laws on the country. It only applies to Muslims. With regards to civil law, the Syariah courts has jurisdiction in personal law matters, for example marriage
Marriage
Marriage is a social union or legal contract between people that creates kinship. It is an institution in which interpersonal relationships, usually intimate and sexual, are acknowledged in a variety of ways, depending on the culture or subculture in which it is found...
, inheritance
Inheritance
Inheritance is the practice of passing on property, titles, debts, rights and obligations upon the death of an individual. It has long played an important role in human societies...
, and apostasy
Apostasy
Apostasy , 'a defection or revolt', from ἀπό, apo, 'away, apart', στάσις, stasis, 'stand, 'standing') is the formal disaffiliation from or abandonment or renunciation of a religion by a person. One who commits apostasy is known as an apostate. These terms have a pejorative implication in everyday...
. In some states there are sharia criminal laws, for example there is the Kelantan Syariah Criminal Code Enactment 1993. Their jurisdiction is however limited to imposing fines for an amount not more than RM
Malaysian ringgit
The Malaysian ringgit is the currency of Malaysia. It is divided into 100 sen...
5000, and imprisonment to not more than 3 years. In August 2007, the then Chief Justice of Malaysia proposed to replace the current common law application in Malaysia with sharia law.
Complications
Complications have arisen with regard to the dual justice system, for example with regard to freedom of religionFreedom of religion
Freedom of religion is a principle that supports the freedom of an individual or community, in public or private, to manifest religion or belief in teaching, practice, worship, and observance; the concept is generally recognized also to include the freedom to change religion or not to follow any...
. Article 11 of the Constitution provides that "Every person has the right to profess and practice his religion". However in the case of Lina Joy
Lina Joy
Lina Joy is a Malay convert from Islam to Christianity. Born Azlina Jailani in 1964 in Malaysia to Muslim parents of Javanese descent, she converted at age 26. In 1998, she was baptized, and applied to have her conversion legally recognized by the Malaysian courts...
—a Malay
Malaysian Malay
In Malaysia, the Malay population is defined by Article 160 of the Malaysian Constitution as someone born to a Malaysian citizen who professes to be a Muslim, habitually speaks the Malay language, adheres to Malay customs and is domiciled in Malaysia or Singapore...
who converted to Christianity
Christianity
Christianity is a monotheistic religion based on the life and teachings of Jesus as presented in canonical gospels and other New Testament writings...
—the Federal Court of Malaysia
Federal Court of Malaysia
The Federal Court of Malaysia is the highest court and the final appellate court in Malaysia. It is housed in the Palace of Justice in Putrajaya...
refused to allow her to change her religion indicated in her identity card
Identity document
An identity document is any document which may be used to verify aspects of a person's personal identity. If issued in the form of a small, mostly standard-sized card, it is usually called an identity card...
(MyKad
MyKad
MyKad is the compulsory identity document for Malaysian citizens aged 12 and above. Introduced by the National Registration Department of Malaysia on 5 September 2001 as one of four MSC Malaysia flagship applications and a replacement for the High Quality Identity Card , Malaysia became the first...
). The judges held that they had no jurisdiction on the matter—that it was a matter of the Syariah Court, as indicated in Article 121(1A) of the Constitution.
Federal law and state law
Parliament of Malaysia
The Parliament of Malaysia is the national legislature of Malaysia, based on the Westminster system. The bicameral parliament consists of the House of Representatives and the Senate. The King as the Head of State is the third component of Parliament....
and applies nationwide. Federal laws are known as Acts (of Parliament). State
States of Malaysia
Malaysia is a federation which consists of thirteen states and three federal territories . Eleven states and two federal territories are located on the Malay Peninsula while the remaining two states and one federal territory are on the island of Borneo.-The states and federal territories:Malaysia...
laws are made by assemblymen sitting in the State Legislative Assembly (Dewan Undangan Negeri
Dewan Undangan Negeri
A state legislative assembly is the legislature of each of the 13 Malaysian states. Members of a state legislative assembly comprises elected representatives from single-member constituencies during state elections through the first-past-the-post system....
) and only applies in the particular state. State laws are often referred to as enactments or ordinances. Article 75 of the Constitution states that a federal law shall prevail over any inconsistent state laws, including sharia laws.
Sabah and Sarawak
After the formation of Malaysia in 1963, the Federal Constitution was amended to include special provisions applicable to the states of SabahSabah
Sabah is one of 13 member states of Malaysia. It is located on the northern portion of the island of Borneo. It is the second largest state in the country after Sarawak, which it borders on its southwest. It also shares a border with the province of East Kalimantan of Indonesia in the south...
and Sarawak
Sarawak
Sarawak is one of two Malaysian states on the island of Borneo. Known as Bumi Kenyalang , Sarawak is situated on the north-west of the island. It is the largest state in Malaysia followed by Sabah, the second largest state located to the North- East.The administrative capital is Kuching, which...
. Some federal Acts of Parliament apply differently to these states on a number of matters such as Acts related to immigration
Immigration
Immigration is the act of foreigners passing or coming into a country for the purpose of permanent residence...
, land and natural resource management. For example, in the Peninsular
Peninsular Malaysia
Peninsular Malaysia , also known as West Malaysia , is the part of Malaysia which lies on the Malay Peninsula. Its area is . It shares a land border with Thailand in the north. To the south is the island of Singapore. Across the Strait of Malacca to the west lies the island of Sumatra...
, the National Land Code governs most of the laws relating to land. In Sabah, the main legislation is the Sabah Land Ordinance; and in Sarawak, the Sarawak Land Code
Common law
The laws of Malaysia can be divided into two types of laws—written law and unwritten law. Written laws are laws which have been enacted in the constitutionConstitution
A constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed. These rules together make up, i.e. constitute, what the entity is...
or in legislation
Legislation
Legislation is law which has been promulgated by a legislature or other governing body, or the process of making it...
s. Unwritten laws are laws which are not contained in any statutes and can be found in case decisions. This is known as the common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
or case law
Case law
In law, case law is the set of reported judicial decisions of selected appellate courts and other courts of first instance which make new interpretations of the law and, therefore, can be cited as precedents in a process known as stare decisis...
. In situations where there is no law governing a particular circumstance, Malaysian case law may apply. If there is no Malaysian case law, English case law can be applied. There are instances where Australian, Indian, and Singaporean cases are used as persuasive authorities.
English law
English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...
or common law is specified in the statutes. Section 5 of the Criminal Procedure Code states that English law shall be applied in cases where no specific legislation has been enacted. Similarly, in the context of civil law
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
, Sections 3 and 5 of the Civil Law Act allows for the application of English common law, equity rules, and statutes in Malaysian civil cases where no specific laws have been made. In 2007, the then Chief Justice of Malaysia
Chief Justice of Malaysia
The Chief Justice of Malaysia , also known as the Chief Justice of the Federal Court, is the office and title of the head of the Malaysian judiciary system. The title has been in use since 1994, and prior to this it was known as the Lord President of the Federal Court. The Chief Justice is the head...
, Ahmad Fairuz Abdul Halim
Ahmad Fairuz Abdul Halim
Tun Ahmad Fairuz bin Sheikh Abdul Halim is the former Chief Justice of the Federal Court of Malaysia. A controversial figure, he held that position from 2003 to 2007. In August 2007, he courted controversy by suggesting the abolishment of English Common Law to be replaced by Islamic Syariah Law....
questioned to need to resort to the English common law despite Malaysia having already been independent for 50 years and proposed to replace it with Islamic law jurisprudence or sharia law. However, the Malaysian Bar Council responded by saying that the common law is part of Malaysian legal system and that there is no basis to replace it. Court appeals to the Privy Council
Privy council
A privy council is a body that advises the head of state of a nation, typically, but not always, in the context of a monarchic government. The word "privy" means "private" or "secret"; thus, a privy council was originally a committee of the monarch's closest advisors to give confidential advice on...
in England have already been abolished in 1985.
The principle of stare decisis
Stare decisis
Stare decisis is a legal principle by which judges are obliged to respect the precedents established by prior decisions...
also applies in Malaysian law. This means that any decisions by a court higher in the hierarchy will be binding upon the lower courts.
See also
- Courts of MalaysiaCourts of MalaysiaThe Judiciary of Malaysia is largely centralized despite Malaysia's federal constitution, heavily influenced by the British Common Law and to a lesser extent Islamic law, and is mostly independent from political interference.-History:...
- Law enforcement in Malaysia
- Full text of the Constitution of Malaysia from Wikisource
External links
- Malaysian Legal and Tax Information Centre (MLTIC) - A Free Access to Law initiative.
- Malaysian Banking and Financial Services Law updates
- Malaysian Corporate Law updates
- Malaysian Criminal Law updates
- Malaysian Dispute Resolution Law updates
- Malaysian IP Law updates
- Malaysian Employment Law updates
- Malaysian Real Estate and Construction Law updates
- Malaysian Transport Law updates
- Malaysian Tax Law updates
- Malaysia Law Portal
- Malaysian Laws on the Internet from WWLegal.com – contains a list of Malaysian legal resources on the Internet (published 3 February 2006)
- ASEAN Law Association, Malaysia front page
- Laws of Malaysia: compilation of reprinted statutes from the Attorney General’s website