By Esther Agbaje
Legal History
Before Portugal colonized Malaysia in 1511, Malaysia was an Islamic Sultanate that began in the fourteenth century under the rule of Sultan Iskander Shah.[1] Since 1511, Malaysia had been colonized by Portuguese, Dutch, British, and Japanese occupation. Britain was the main colonizer of Malaysia and Singapore from 1824. During World War II, the Japanese gained control of Malaysia in 1941. After the War in 1946, control reverted back to the British. Malaysia gained independence from Britain in August 1957.[2]
During its pre-colonial history, Malaysian law was based on customary law known as adat. Most of these laws were unwritten, but some were recorded in digests. Three well known digests include the Sungai Ujong, a Minangkabau legal digest from Perak and legal digest from Kuala Pilah.[3] Others include the digest adat perpateh, which was based on a customary matriarchal system and consists of the oral tradition of laws; the adat temmongg, which was based on a patriarchal system and has various digests such as “Undang-undang Melaka or Hukum Kanun Melaka, a digest of law compiled by a Sultan of Pahang, the Pahang digest which has been claimed to be also the law of Perak and Johore; a digest. of Kedah; the Ninety-nine laws of Perak, a digest of Selangor laws and a Johore digest. Another Malacca digest, the Undang-undang Laut contains maritime rules.”[4]
When Islam came to the Malaysian archipelago in the fourteenth and fifteenth centuries, the adat laws were similar enough to Islamic law, especially in the areas of marriage and family law that indigenous Malaysians could easily adapt to them.[5]
During colonization, Malaysian law adopted the English common law system.[6] English law predominated all legal areas, except in cases of marriage and personal status law. Those areas were left either to Islamic law or customary law depending on the person’s religion or background.[7]
Malaysia now implements a mixed system of English law, Islamic law, and customary law.[8] The Federal Law is the supreme law of the land, except in areas where Islamic law is designated as the law.
Demographics
Malaysia’s total population in 2014 was 30,073,353.[9] The population is approximately 50.1 percent Malay, 22.6 percent Chinese, 11.8 percent indigenous, 6.7 percent Indian with 0.7 percent other and 8.2 percent non-citizens.[10]
The religious makeup of the population is 61.3 percent Muslim, 19.8 percent Buddhist, 9.2 percent Christian, 6.3 percent Hindu, 1.3 percent traditional Chinese religions including Confucianism and Taoism. An additional 2.2 percent of the population is of another religion, no religion, or unspecified.[11]
School of Islamic Law
In Malaysia the predominant school of Islamic law followed is that of Shāfiʿī. There is also a significant Ḥanafī minority in Malaysia.[12]
Constitutional Status of Islam
Malaysia’s constitution holds that Islam is the official religion in the country.[13] Article 3 of the constitution states: “Islam is the religion of the Federation; but other religions may be practised in peace and harmony in any part of the Federation.”
Malaysia has a system of Sharia courts, known in Bahasa Malay as Syariah Courts. State legislatures determine the jurisdiction for Syariah courts, and state laws give jurisdiction to Syariah courts on matters listed in the Ninth Schedule of the constitution.[14]
Court Systems
Malaysia has both a secular court system and a sharīʿa (Malay: Syariah) court system. The sharīʿa courts are primarily at the state level, and operate according to the constitution’s Ninth Schedule.[15] These courts deal with personal status laws concerning marriage, divorce, and family. There are three tiers in sharīʿa courts: the subordinate court, the high court, and the appeals court.[16] Civil and criminal cases can be tried in sharīʿa courts if the violation is in an area that state legislatures have designated that the sharīʿa courts have jurisdiction.[17]
The secular court system is also a three-tiered system. Cases move from a subordinate magistrate court, then to the High Court, which acts as a court of appeals. The High Court’s jurisdiction is defined by Article 121 in the constitution. It pertains to almost all matters of civil and criminal cases. From there, cases can move to a Court of Appeals. Malaysia also has a Supreme Court that shares jurisdiction with the High Court as determined by Article 128 (1) and (2) in the Constitution.[18] In addition to reviewing cases that have been heard by the High Court, the Supreme Court has exclusive jurisdiction for determining the validity of laws from Parliament or state legislatures. It also has exclusive jurisdiction over disputes between states and between the Federation and states.[19]
Law Reporting System
Selected court cases are printed in three major law reports: the Malayan Law Journal (MLJ – 1932 to present), Current Law Journal (CLJ – 1982 to present) and All Malaysia Reports (AMR – 1992 to present).[20] Some judgments are also available on the court websites such as the ones cited below.[21]
High Court Judgments: <http://www.malaysianbar.org.my/index.php?option=com_docman&task=cat_view&gid=364&Itemid=332>
Malaysia State Courts
Sabah Law Courts: <http://www.highcourt.sabah.sarawak.gov.my/apps/highcourt/sabah/modules/highcourt_cap/components/publishing/index.php>
Sarawak Law Courts:
<http://www.highcourt.sabah.sarawak.gov.my/apps/highcourt/sabah/modules/highcourt_cap/components/publishing/index.php>
Syariah Court of Federal Territories:
<http://www.esyariah.gov.my/>
Islamic Law and Malaysia’s Constitution
From the Malaysian Attorney General’s Chambers –
(Bahasa Malaysia) http://www.agc.gov.my/images/Personalisation/Buss/pdf/Perlembagaan%20Persekutuan%20%28BM%20teks%29.pdf
(English) http://www.agc.gov.my/images/Personalisation/Buss/pdf/Federal%20Consti%20%28BI%20text%29.pdf
Malaysia Constitution from Constitute Project – https://www.constituteproject.org/constitution/Malaysia_2007?lang=en
Relevant Constitutional Clauses
- Religion of the Federation
- Islam is the religion of the Federation; but other religions may be practised in peace and harmony in any part of the Federation.
- In every State other than States not having a Ruler the position of the Ruler as the Head of the religion of Islam in his State in the manner and to the extent acknowledged and declared by the Constitution of that State, and, subject to that Constitution, all rights, privileges, prerogatives and powers enjoyed by him as Head of that religion, are unaffected and unimpaired; but in any acts, observances of ceremonies with respect to which the Conference of Rulers has agreed that they should extend to the Federation as a whole each of the other Rulers shall in his capacity of Head of the religion of Islam authorise the Yang di-Pertuan Agong to represent him.
- The Constitution of the States of Malacca, Penang, Sabah and Sarawak shall each make provision for conferring on the Yang di-Pertuan Agong the position of Head of the religion of Islam in that State.
- Nothing in this Article derogates from any other provision of this Constitution.
- Notwithstanding anything in this Constitution the Yang di-Pertuan Agong shall be the Head of the religion of Islam in the Federal Territories of Kuala Lumpur, Labuan and Putrajaya; and for this purpose Parliament may by law make provisions for regulating Islamic religious affairs and for constituting a Council to advise the Yang di-Pertuan Agong in matters relating to the religion of Islam.
Criminal Law
The First List of the Ninth Schedule in the constitution allows for the federal legislature to make laws concerning criminal offenses.[22]
List 1. Federal List
- Internal security, including-
- Police; criminal investigation; registration of criminals; public order;
- Prisons, reformatories; remand homes; places of detention; probation of offenders; juvenile offenders;
- Preventive detention; restriction of residence;
- Intelligence services; and
- National registration.
- Civil and criminal law and procedure and the administration of justice, including-
- Constitution and organization of all courts other than Syariah Courts;
- Jurisdiction and powers of all such courts;
- Remuneration and other privileges of the judges and officers presiding over such courts;
- Persons entitled to practise before such courts;
- Subject to paragraph (ii), the following:
- Contract; partnership, agency and other special contracts; master and servant; inns and inn-keepers; actionable wrongs; property and its transfer and hypothecation, except land; bona vacantia; equity and trusts; marriage, divorce and legitimacy; married women’s property and status; interpretation of federal law; negotiable instruments; statutory declarations; arbitration; mercantile law; registration of businesses and business names; age of majority; infants and minors; adoption; succession, testate and intestate; probate and letters of administration; bankruptcy and insolvency; oaths and affirmations; limitation; reciprocal enforcement of judgments and orders; the law of evidence;
- the matters mentioned in paragraph (i) do not include Islamic personal law relating to marriage, divorce, guardianship, maintenance, adoption, legitimacy, family law, gifts or succession, testate and intestate;
Family Law
Family law is primarily a state law matter and is legislated by the state according the Second List of the Ninth Schedule. The Federal legislature can also legislate family law, but it defers to the states concerning issues under Islamic law.[23]
List 2. State List
- Except with respect to the Federal Territories of Kuala Lumpur, Labuan and Putrajaya, Islamic law and personal and family law of persons professing the religion of Islam, including the Islamic law relating to succession, testate and intestate, betrothal, marriage, divorce, dower, maintenance, adoption, legitimacy, guardianship, gifts, partitions and non-charitable trusts; Wakafs and the definition and regulation of charitable and religious trusts, the appointment of trustees and the incorporation of persons in respect of Islamic religious and charitable endowments, institutions, trusts, charities and charitable institutions operating wholly within the State; Malay customs; Zakat, Fitrah and Baitulmal or similar Islamic religious revenue; mosques or any Islamic public places of worship, creation and punishment of offences by persons professing the religion of Islam against precepts of that religion, except in regard to matters included in the Federal List; the constitution, organisation and procedure of Syariah courts, which shall have jurisdiction only over persons professing the religion of Islam and in respect only of any of the matters included in this paragraph, but shall not have jurisdiction in respect of offences except in so far as conferred by federal law, the control of propagating doctrines and beliefs among persons professing the religion of Islam; the determination of matters of Islamic law and doctrine and Malay custom.
Commercial Law
Property, commercial, and financial law is legislated at the federal and state level. The following constitutional clause governs property.[24]
- Rights to property
- No person shall be deprived of property save in accordance with law.
- No law shall provide for the compulsory acquisition or use of property without adequate compensation.
Part II of the Constitution enumerates Fundamental Liberties.[25] These are the Liberty of a Person; Prohibition of Slavery and Forced Labor; Protection from Retrospective Criminal Laws; Equality; Freedom of Movement; Freedom of Speech, Assembly, and Association; Freedom of Religion; Right to an Education; and Right to Property.
Notable Legislation & Cases
Notable Legislation
Family Law
Family law will normally be left to the states to determine whether family law matters should be governed by Islamic law. There is a federal statute pertaining to Islamic Family law in addition to varied laws in different Malaysian states.
Islamic Family Law (Federal Territories) Act 1984
<http://www.agc.gov.my/Akta/Vol.%207/Act%20303.pdf>
Criminal Law
Criminal law is determined at the state level as stated in List II of the Ninth Schedule in the Constitution. The Syariah Courts (Criminal Jurisdiction) Act of 1965 codified criminal law in Malaysia.
<http://www.agc.gov.my/Akta/Vol.%208/Act%20355.pdf>
Different states have their own criminal law offenses pertaining to Islamic law. One prominent one is Kelantan Syariah Criminal Code Enactment 1993 for the state of Kelantan.
<http://www.jstor.org/stable/pdf/20840160.pdf?acceptTC=true>
Commercial Law
The Islamic Financial Services Act of 2013 replaced a number of laws pertaining to Islamic finance and banking, one of which is the Islamic Banking Act of 1983.[26] <http://www.bnm.gov.my/documents/act/en_ifsa.pdf>
Notable cases
The following cases are examples of Islamic financial dispute resolution cases in Malaysia. The first reported case is Tinta Press v. Bank Islam Malaysia Berhad [1986] 1 MLJ 474. Other examples include: Bank Islam v. Adnan Omar [1994] 3 CLJ 735; and Dato Hj Nik Mahmud bin Daud v. Bank Islam Malaysia Bhd [1996] 4 MLJ 295 (High Court); [1998] 3 MLJ 396 (Supreme Court) and Bank Kerjasama Rakyat Malaysia Bhd v. Emcee Corporation [2003]1CLJ 625.[27]
The government’s Department on Insolvency keeps data on the occurrence of bankruptcy and offers resources for citizens on their website. The Bank Negara Malaysia (Malaysia’s Central Bank) is also studying the bankruptcy trend and how it affects households and the financial stability of families.[28]
Notable fatwās
Fatwas in Malaysia are issued by the Islamic Legal Consultative Committee (National Fatwa Council).[29] The Malaysian government releases fatwas on the e-Fatwa website.
e-Fatwa (Malay Bahasa)
1995 – Fatwā Against Smoking. Some states also embraced the idea that smoking is haram, but in 1997 the National Fatwa Council said it would not enforce this fatwa since it would lead to uneven enforcement unless every state embraced it.[30]
2008 – Fatwā Against Yoga. The National Fatwa Council said that doing yoga and the chants could erode one’s Muslim faith.[31]
2014/2015 – The National Fatwa Council released a number of fatwās that seemed concerned with the influence of Western culture on Malaysian Muslims.[32]
International Treaties and Conventions
Malaysia is not a party to many of the international laws and treaties concerning human rights. According to the Ministry of Foreign Affairs, “Malaysia takes a holistic approach to human rights.”[33] If there are international laws that Malaysia agrees with in principle, Malaysia may develop its own law similar to the international law, but without the components Malaysia thinks do not provide a good fit for Malaysia.
Notwithstanding its traditional stance, since 2009, Malaysia has been in the process of considering ratification to a number of treaties. These include the International Covenant on Civil and Political Rights (ICCPR), the UN Convention Against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment (UNCAT), the Convention on the Elimination of All Forms of Racial Discrimination (CERD), and the International Covenant on Economic Social and Cultural Rights (ICESCR), the Rome Statute of the International Criminal Court, the 1951 Refugee Convention, and the International Convention on Protection of Migrant Workers and their Families.[34]
Other Conventions
- Convention of the Rights of the Child (CRC) – Malaysia ratified this convention. They also passed their own law, the Child Act of 2001, to comply with the CRC.[35]
- Convention on the Elimination of Discrimination Against Women (CEDAW) – Article 8 of the Constitution was amended to match CEDAW. Malaysia’s remaining reservations with CEDAW concern the implications and possible conflict with Islamic law.[36]
- Universal Declaration of Human Rights (UDHR) – Malaysia is not a party to this treaty, but it subscribes to the general principles through its laws and constitution.
Further Reading
Datuk Ahmad Abrahim. The Legal System of Malaysia. 9 Mod. Legal Sys. Cyclopedia 9.200.1
The World Factbook. CIA. Malaysia. <https://www.cia.gov/library/publications/the-world-factbook/geos/my.html>
Malaysia Legal Systems <http://aannaim.law.emory.edu/ifl/index2.html>
Alice M. Nah. Recognizing Indigenous Identity in Postcolonial Malaysian Law. 164(2) Bijdragen tot de Taal-, Landen Volkenkunde. 212, 216 (2008)
Shaikh Mohamed Noordin and Shanthi Supramaniam. UPDATE: An Overview of Malaysian Legal System and Research. <http://www.nyulawglobal.org/globalex/Malaysia1.htm#JudicialAuthority>
Islamic Financial Services Act. INCEIF. < http://www.inceif.org/islamic-finance/islamic-financial-services-act-2013/>
An Investigation on Household Debt in Malaysia. INCEIF. <http://www.inceif.org/research-bulletin/investigation-household-debt-malaysia/> March 2014.
Umar A Oseni and Abu Umar Faruq Ahmad, Dispute Resolution in Islamic Finance: A Case Analysis of Malaysia, 8th International Conference on Islamic Economics and Finance Available at <http://conference.qfis.edu.qa/app/media/273>
Notes:
[1] Datuk Ahmad Abrahim, The Legal System of Malaysia, 9 Mod. Legal Sys. Cyclopedia 9.200.7.
[2] Datuk Ahmad Abrahim. The Legal System of Malaysia. 9 Mod. Legal Sys. Cyclopedia 9.200.1.
[3] Datuk Ahmad Abrahim. The Legal System of Malaysia. 9 Mod. Legal Sys. Cyclopedia 9.200.21.
[4] Id.
[5] Datuk Ahmad Abrahim. The Legal System of Malaysia. 9 Mod. Legal Sys. Cyclopedia 9.200.29.
[6] Datuk Ahmad Abrahim. The Legal System of Malaysia. 9 Mod. Legal Sys. Cyclopedia 9.200.43.
[7] Id.
[8] The World Factbook. CIA. Malaysia. https://www.cia.gov/library/publications/the-world-factbook/geos/my.html.
[9] Id.
[10] Id.
[11] Id.
[12] Malaysia Legal Systems, http://aannaim.law.emory.edu/ifl/index2.html.
[13] Const. of Malaysia, Article 3.1.
[14] Alice M. Nah. Recognizing Indigenous Identity in Postcolonial Malaysian Law. 164(2) Bijdragen tot de Taal-, Land- en Volkenkunde. 212, 216 (2008).
[15] Malaysia Legal Systems, http://aannaim.law.emory.edu/ifl/index2.html.
[16] Malaysia Legal Systems, http://aannaim.law.emory.edu/ifl/index2.html.
[17] Datuk Ahmad Abrahim. The Legal System of Malaysia. 9 Mod. Legal Sys. Cyclopedia 9.200.34.
[18] Malaysia Constitution 128.1 and 128.2, https://www.constituteproject.org/constitution/Malaysia_2007?lang=en.
[19] Datuk Ahmad Abrahim, The Legal System of Malaysia. 9 Mod. Legal Sys. Cyclopedia 9.200.91.
[20] Shaikh Mohamed Noordin and Shanthi Supramaniam. Update: An Overview of Malaysian Legal System and Research. http://www.nyulawglobal.org/globalex/Malaysia1.htm#JudicialAuthority.
[21] Id.
[22] Malaysia Constitution Ninth Schedule List 1 https://www.constituteproject.org/constitution/Malaysia_2007?lang=en.
[23] Malaysia Constitution Ninth Schedule List 2 https://www.constituteproject.org/constitution/Malaysia_2007?lang=en.
[24] Malaysia Constitution Article 13 https://www.constituteproject.org/constitution/Malaysia_2007?lang=en.
[25] Malaysia Constitution Part II Articles 5-13 https://www.constituteproject.org/constitution/Malaysia_2007?lang=en.
[26] Islamic Financial Services Act. INCEIF. http://www.inceif.org/islamic-finance/islamic-financial-services-act-2013/.
[27] Umar A Oseni and Abu Umar Raruq Ahamd, Dispute Resolution in Islamic Finance: A Case Analysis of Malaysia, 8th International Conference on Islamic Economics and Finance (December 2011), available at http://conference.qfis.edu.qa/app/media/273.
[28] An Investigation on Household Debt in Malaysia. INCEIF. <http://www.inceif.org/research-bulletin/investigation-household-debt-malaysia/> March 2014.
[29] Malaysia Administration of Islamic Law (Federal Territories) (Act 505/1993) Section 34 http://www.agc.gov.my/Akta/Vol.%2011/Act%20505.pdf.
[30] Hua-Hie Yong, Stephen L. Hamann, Ron Borland, Geoffrey T. Fong, Maizurah Omar, Adult smokers’ perception of the role of religion and religious leadership on smoking and association with quitting: A comparison between Thai Buddhists and Malaysian Muslims 69 Social Science and Medicine 1025, 1026 (2009).
[31] Mazwin Nik Anis, Fatwa Council deems ancient form of exercise from India ‘haram’ for Muslims, The Star (November 23, 2008) http://www.thestar.com.my/story/?file=%2f2008%2f11%2f23%2fnation%2f2626876&sec=nation.
[32] Patrick Winn, Yoga, Petting Puppies, Halloween: Banned By Malaysia’s Muslim Clerics, NPR (January 5, 2015),
[33] Ministry of Foreign Affairs. Malaysia. http://www.kln.gov.my/web/guest/md-human_right.
[34] Amnesty International. FMT News. 30 October 2013 http://www.freemalaysiatoday.com/category/opinion/2013/10/30/civil-and-political-rights-lagging-behind/.
[35] Child Rights in Malaysia. UNICEF. http://www.unicef.org/malaysia/childrights_malaysia-overview.html.
[36] Declarations, Reservations, and Objections to CEDAW. UN. http://www.un.org/womenwatch/daw/cedaw/reservations-country.htm.