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Malaysia’s plural society with a Malay/Muslim majority. Because of this, the way religion, and its multifaceted legal system interact is often complicated and divisive. In Malaysia, Islam is the religion of the state, although other religions can be practiced in harmony. According to Harding, in Malaysia, Muslims comprise about 60% of the total population of 28.6 million; Buddhists about 19%; Christians about 9%; Hindus about 6%; Confucian/Taoists about 3%; Sikhs about 2%; and others (mainly animists) about 1% (Harding, 2012).
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There is also a clear relationship between ethnicity and religion. Almost all Malays are Muslim, and the definition of ‘Malay’ in the Constitution includes being Muslim (Sangeeta, 2012). In recent years, religion has, to a certain extent, replaced ethnicity in defining identity (Peletz, 2002). Because values are culturally or socially influenced, the relationship between religion, ethnicity, and law is important to understanding legal pluralism in Malaysia (Hoffstaedter, 2015). Rights in Malaysia have both a social and ethnic aspects, so that equality before the law has a different meaning for Muslims versus non-Muslims. This can create a divide between the two.
Malaysia is neither a secular state nor an Islamic state since taking on the English common law tradition at its independence in 1957. The Malaysian Constitution has brought Islamic law under the legislative powers of the federal States. Thus, historical developments have led to the existence of both civil law and syariah law (Chevallier-Govers, 2010). The syariah as well as legal pluralism seem to question the rule of law in Malaysia. In this paper, I will explore the ways legal pluralism in Malaysia exists and explain the ways in which the Malaysian constitution, civil law, syariah law and their courts interact with each other within Malaysian society.
Law and religion in Malaysian history
Malaysian legal pluralism is rooted in British colonialization and the coexistence legislation and a dual system of courts are the result of the country’s colonial past. (Chevallier-Govers, 2010). Acording to Chevallier- Govers, before British rule, Islamic law was of great importance and the earliest record of Islamic law in Malaysia can be found on the Terengganu stone inscription, which dates to 1303 CE (Chevallier-Govers, 2010). In pre-colonial Malaysia, the Sultans in each of their States were not only the heads of the religion of Islam but also the political leaders of their territories. (Chevallier-Govers, 2010). Courts had Islamic Judges called qāḍīs that were tasked with enforcing the syariah and in this sense, were Islamic States (Chevallier-Govers, 2010).
When British colonialism occurred, Malay Sultans made treaties with the British agreeing to receive British “guides” and that they would follow their advice in matters except for matters involving Islamic religion and “adat” or Malay custom (Chevallier-Govers, 2010). The British “advisors” also had the Malay Sultans set up civil courts, which were chaired by British judges. Those British judges deferred to law prevalent in England at the time for these courts and because of this some English ideas were introduced.
The Federal Constitution of Malaysia that was adopted in 1957 when Malaysia achieved independence. With this Malaysia formally started endorsing the principles of a democratic constitutional state for example democracy, checks and balances, rights and liberties (Muhammad, 2011). Along with a Bill of Rights, the Malaysian Constitution also accepts group-specific rights and foresees the possibility for positive action policies for Malays (Muhammad, 2011). Article 3 of the Constitution states that Islam is the official religion of the Federation, although other religions may be practiced anywhere in the country. (Chevallier-Govers, 2010) However, in 1988, the Federal Court has asserted that the syariah was not the supreme law of the land. (Muhammad, R. (2011).
Legal pluralism regarding family and personal matters and, to a certain extent, regarding criminal law are accounted for in the Constitution as well (Hoffstaedter, 2015). While Malaysia adopted English law at the time of its independence, the Constitution brought Islamic law under the legislative powers of the States. According to Hoffstaedter, historical developments in Malaysia have led to the existence of two sets of law, recognized by the Constitution; one for non-Muslims and one for Muslims. This has resulted in an increasingly damaging legal pluralism in Malaysia that has divided society into groups of Muslims and (Hoffstaedter, 2015). Muslims are subject to civil as well as syariah law, while non-Muslims are only subject to civil law. (Hoffstaedter, 2015) In today’s time it seems that this legal pluralism in Malaysia is not working effectively. For example, Malaysia’s civil courts are deferring to syariah law and its law courts in many matters where both have jurisdiction. This is leading to unease among non-Muslims (Lee, 2012). In Malaysia, the same ruling coalition headed by the United Malays National Organization (UMNO) still remains in power and has ruled Malaysia since its independence in 1957 (Harding, 2012).
Adat, is the “customary law” of the indigenous peoples of Malaysia and Indonesia. It was the unwritten, traditional code that regulated all aspects of personal conduct in day to day life prior to colonial influence. Two kinds of Malay adat law developed prior to the 15th century. The first was Adat Perpateh and the second Adat Temenggong. Both Adat forms were markedly transformed by Islamic and later European legal systems.
Adat Perpateh stressed law based on group responsibility and in this form criminal or civil offenses were not differentiated. Punishment focused on compensation rather than retribution. For example a crime was resolved with payment or perhaps a reconciliation feast given to the wronged person (Chew Li Hua, 2016). Payment was enforced by community pressure and physical harm or death penalties rarely were invoked. (Harding, 2012) Acceptance of circumstantial evidence was also a part of Adat Perpateh. Prior to Islamic influence Adat Temenggong consisted of a mixture of Hindu law and native custom (Harding, 2012). It encompassed civil, criminal, constitutional, and maritime law and resolved conflict with punishments such as torture, amputation, or even death(Harding, 2012). Both Adat systems continued into the 20th century, until colonialism largely removed them (Harding, 2012).
Malaysian Constitution and Dual Court System
Formally, Islamic law is subject to the authority of the Constitution and the federal law. Article 4 of the Constitution declares that the Constitution is the supreme law of the land, such that incompatible legislation is void (Chevallier-Govers, 2010). Article 75 of the Constitution stipulates that in case of conflict between the federal law and state law, federal law shall be applicable (Chevallier-Govers, 2010). The supremacy of the Constitution means that native law, received law and religious legal practice are all subject to the constitution.
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The constitutional framework of dispersal of power between State and Federal legislatures clearly states that syariah law is under the responsibility of the States (Chevallier-Govers, 2010). There are however discrepancies between the Federal Constitution and States syariah Laws. The constitution says Judicial review should be used as a remedy to discrepancies’ but it is not necessarily executed that way (Chevallier-Govers, 2010). The internal relationship of the civil courts with the syariah courts have also elevated issues related to the jurisdiction of both courts and the position of Islam in the Malaysian Constitution. The civil and syariah courts exist as a dual court structure which was created following Malaysia’s independence to try and ensure that there would be a federal secular legal system in the form of the civil courts, as well as a religious setting for Muslims under which to dispense Islamic personal and family law in the form of the syariah courts (Muhammad, 2011).
Malaysia’s civil court structure isbased on a court structure familiar to those from “common law” jurisdictions and was developed out of British colonialization. (Yvonne, 2011). It consists of the Subordinate Courts and the Superior Courts. The Superior Courts are made up of the High Court of Malaya, the High Court of Sabah and Sarawak, the Court of Appeal, and the Federal Court (Yvonne, 2011). The Federal Court is the final court and hears over whether a federal or state legislative body has legitimately made a law within its power. It has referral jurisdiction to decide on constitutional questions referred to it by any other court as well as advisory jurisdiction to give opinion on any question referred to it concerning the Federal Constitution. (Yvonne, 2011). According to Yvonne, the Federal Court consists of a Chief Justice, the head of the Malaysian judiciary, the President of the Court of Appeal, the two Chief Judges of the High Courts, along with other Federal Court judges. The Court of Appeal was created in 1994 to hear appeals against decisions of the High Courts. Magistrates’ Courts deal with minor civil and criminal cases. These courts may only hear disputes for civil claims below a small amount of money and only has jurisdiction over crimes whose sentences are at maximum 10 years of imprisonment or by fine (Yvonne, 2011). These courts may also hear appeals from the Penghulu Courts. These rural courts are presided over by the Penghulu or village headman and are meant for informal settlement of small village disputes (Yvonne, 2011). The civil court system is meant to be for persons in Malaysia who are non-Muslim, however, when coexisting with syariah courts and a majority Muslim population, issues can and do arise.
In Malaysia, the civil and syariah courts coexist in a dual court structure side by side. The civil courts were established as federal courts to deal with federal matters, whereas the syariah courts are provided for in the Federal Constitution as state courts that can be created to deal with matters of Islamic law (Yvonne, 2011). The Constitutional Amendment Act 1988, tried to change the understanding that syariah court was somehow less superior to civil courts. Article 121(1A) now provides that the civil courts ‘shall have no jurisdiction in respect of any matter within the jurisdiction of the syariah courts” (Yvonne, pg 3, 2011) This elevates the question then of what exactly syariah courts do have jurisdiction over. This amendment inherently says that once an issue is within the jurisdiction of the syariah Court, by definition, the civil courts’ jurisdiction is excluded (Chevallier-Govers, 2010). The view this amendment does not exclude the over reviewing power of the High Court is supported by several researchers, such as Harding, and Chew Li Hua who in their works argue each court deals with matters within its own jurisdiction, but it does not allow further powers to the syariah courts. One case concerning the custody of children where the parent had converted to Islam’s ruling was interpreted to mean that the syariah courts ‘are not lower in status than the civil courts . . . they are of equal standing under the Constitution’ (Harding, 2012). The distinct separation between civil and syariah courts have created a “pick one or the other” jurisdictional relationship between each court because while it can fall under one it explicitly cannot be under both. The Federal Constitution states the jurisdiction of syariah courts is in regard to “Islamic law and personal and family law of persons professing the religion of Islam”. (Yvonne, pg. 4, 2011) Some examples of this would be marriage, divorce, dowry, adoption etc. This seems to support the idea that syariah courts are meant to be state courts that deal with Islamic law only over persons professing that religion. State legislatures are then meant to specify the jurisdiction of the syariah courts of their states, within the general jurisdiction set forth by the Constitution as discussed above (Yvonne, 2011).
The informal definition of the rule of law in Malaysia would include law that must consider human rights. The largest complications that occur within the dual court system in Malaysia are instances where human rights are brought into question especially in terms of religious freedom. The Federal Constitution in Malaysia is supposed to protect those basic human rights and particularly freedom of religion. For example, one complication would be in the instance of apostacy. Would people abandon their religion to avoid punishment under syariah law? Is that still considered religious freedom? One could argue that legal pluralism in Malaysia has led to religion and law being dangerously intertwined. When law and religion coexist, it’s easy for conflict to arise. By separating the courts in Malaysia, it creates room for grey area, as well as a divide between different ethnic groups, in this case Muslims and non-Muslims.
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