You are on page 1of 5

AN OVERVIEW OF MALAYSIAN LEGAL SYSTEM : Interaction Of Syariah Law

and Civil Law


Kamarul Azim Muhaimi bin Kamaruddaman

The scope of this paper is merely elaboration in corresponding of Malayan Law Journal Article entitled The
Malaysian Legal System: The Roots, The Influence and The Future by Shamrahayu A.Aziz (2009) and the topic
will be examined in simplified comparison method, synthesis of analogical analysis and not necessarily in greater
details.

Malaysia and its unique law and legal system have undergone series of essential
changes and face many problems and challenges throughout the journey of justice
for all the people and for better future. It is now necessary to look back and trace the
history of the system, as a background to get bigger picture of understanding the
changes that have taken place in the roots, the influence and the future- The
Malaysian Legal System.
It was Benard Shaw who said something to the effect that the past reflects the
present while the presents reflects the future. Therefore, to understand the pluralism
of our legal system it is imperative to investigate the tapestry of Melaka Sultanate
law and the colonization of the Malay States.1
Melaka Sultanate
The roots:
As we know, Melaka marked the zenith of the old Malay Kingdoms and in
considering the evolution, the reference ought to be made to the era of Melaka
Sultanate. Islamic law and local customs were adopted in the legal system and
administered accordingly. The transition can be seen from small political and legal
influence which conducted by the elders of community merged into form of bigger
communities under a chief or even a ruler.
The influence and impact:
The Sultan Melaka was powerful and have supreme discretionary power and he had
many minor rulers under him. When the Malacca Kingdom was at the height of its
power, Islam had a major influence. Two sets of Malacca law; the Canon Law of
Malacca and the Maritime Law of Malacca are the example of codified laws that
eventually influenced the development of laws in other Malay States. Islamic law
become the root of the law and the legal system of the country.

1 The Melaka Sultanate and British Intervention was conferred due to the greater impact
on the fabric of our legal systems by be oblivious to the other account of history which
are :a) Japanese occupation
b) Application of English Law and Equity
c)Privy Council as British Legacy
The colonization of the Malay States
The roots:
The next major landmark in the legal history of Malaysia is the period between 1786
and 19572, the period of British intervention, and that which still has a major impact
on the present fabric of the legal system.

The Influence and impact:


As a Commonwealth country or can be deemed as a former colony, Malaysia ought
to face the importation of English law and the relegation of Islamic law to a narrower
sphere of personal law. Malaysian law is also modeled on other jurisdictions laws
such as India. The Malaysian Criminal Procedure Code was based on the Indian
criminal code. Similarly, the labour law and the Contracts Act are also based on the
Indian model. Malaysian land law is based on the Australian Torrens system. There
are a number of laws made during the colonization still in existence and applicable
with certain modifications in line with domestic and current circumstances.
Prior to the independence in 1957, most of the laws of United Kingdom were
adopted and either made into local legislations or simply applied as case laws. The
application of English law or common law is specified in the Civil Law Act 1956 as
stated in Sections 3 and 5 of the said Act which allows for the application of English
common law, equity rules, and statutes in Malaysian civil cases where no specific
laws have been made. Similarly, in the context of civil law, Section 5 of the Criminal
Procedure Code also states that English law shall be applied in cases where no
specific legislation has been enacted.
The Malaysian Federal Constitution is a written document and represents the
supreme law of the land.3 The legal system of Malaysia was modeled after the
English legal system which practices parliamentary democracy and is ruled by a
Constitutional Monarchy, with His Majesty the Yang di-Pertuan Agong (the King)
ceremonially as the Head of the country. The Yang di-Pertuan Agong is elected by
the Conference of Rulers for a five-year term from amongst the hereditary Rulers of
the nine states in the Federation which are ruled by Sultans. The states are Perlis,
Kedah, Perak, Selangor, Negeri Sembilan, Johor, Pahang, Terengganu and
Kelantan. In the other states, namely Melaka, Pulau Pinang, Sabah and Sarawak,
the Head of State is the Yang di-Pertua Negeri or Governor of the State. The Yang
di-Pertua Negeri is appointed by the Yang di-Pertuan Agong for a four-year term
2 a)British Intervention b) Straits Settlements (SS)
c)Federated Malay States (FMS)
d) Unfederated Malay States (UFMS)
e) British Military Administration (BMA)
f) The Malayan Union
g) Federation of Malaya (1948)
h) Independence : Federal Constitution 1957

3 Article 4 of Federal Constitution


INTERACTION BETWEEN SYARIAH LAW AND CIVIL LAW

As mentioned earlier, Islamic Law has a place in the administration of justice


Malaysia, be it in Civil court or Syariah court. The Federal Constitution has placed
Islamic law and the constitution and procedure of syariah courts under the
jurisdiction of the state governments while civil and criminal law and procedures and
the administration of justice including the constitution and organization of civil courts
under the jurisdiction of the federal government (Item 1 of the State List and item 4 of
the Federal List).
Perhaps by virtue of federal constitution,we have a parallel system where with the
syariah courts dealing with matters relating to Islam and having 3 jurisdiction only
over persons professing the religion of Islam and civil courts having jurisdiction on
matters relating to civil and criminal law.
According to Article 121(1A) ,Syariah court jurisdiction will be protected from
interference by ordinary courts.
shall have no jurisdiction in respect of any matter within the jurisdiction of the
Syariah courts.

Nevertheless there is still uncertainty and controversy regarding the powers and
jurisdiction of the syariah courts. Civil courts recorded the highest number 4 of cases
continue to exercise jurisdiction over matters relating to Islam which are within the
jurisdiction of the syariah courts. Unfortunately, the amendment did not clarify a
number of things. The problems can be seen in these matters:
1. Who has the power to determine whether a matter is within or outside the
jurisdiction of syariah courts?
2. Conversion vs Freedom of Religion: Islamic Law violates the Federal
Consitution?
3. Where a case should go if one party is a Muslim and the other is a non-
Muslim?
4. Legal Position Of A Non-Muslim Spouse Of A Muslim Convert
5. Custody Children and Inheritance

4 Extracted from Session 1 Syariah Law Jurisdictions by DATO IDRUS BIN HARUN
ATTORNEY GENERALS CHAMBERS MALAYSIA
If there is a clash and difference in decision between Civil and Syariah court whose
decision will be prevail? The answers is by no means clear. These different attitude
will depends on the factual of the case.For example, Tongiah Jumali v Kerajaan
Johor {2004} 5 MLJ 41 and Norlela Mohamad Habibullah v Yusuf Maldoner {2004} 2
MLJ 629.
The issue of conversion involving a Muslim and Non-Muslim always involve the
jurisdictional disputes between civil court and Syariah Court. In Ng Wan Chan V.
Majlis Ugama Wilayah Persekutuan(1991) 3 MLJ 487 the High Court was asked to
determine whether a person who had converted to the religion of Islam had died as a
Muslim. This is one of the numerous cases that conflicted between the dual-system
courts. The defendant raised a preliminary objection contending that by virtue of
Clause 121(1A) the High Court had no jurisdiction to adjudicate the issue whether
the deceased was a Muslim at the time of his death. Eusoff Chin J in dismissing the
objection ruled that the High Court was not precluded from determining the issue as
there was nothing to show that the syariah court had the jurisdiction conferred on it
by the Selangor Administration of Muslim Law Enactment 1952 or the Islamic Family
Law (Federal Territories) Act 1984 to determine the issue of whether a person was or
was not a Muslim at the time of his death. Jurisdiction could not be derived from
implication. On the other hand if the syariah court had such jurisdiction, the High
Court would not under Clause 121(1A) have the jurisdiction to deal with the
application. Consequently, the High Court could determine the issue.
Since 1988, the civil courts have generally shown great reluctance and restraint in
any matter where there is the slightest whiff an Islamic religious issue.Article
121(1A),added by Act A704 in 1988,insulates the Syariah courts from interference by
the civil courts in matters within the jurisdiction of the Syariah courts.In actual
practice,however,what has happened is that on any issue that is connected with
Islamic law, whether it is within or outside the jurisdiction of the Syariah courts, civil
court are extremely reluctant to pronounce a judgement even if issues of jurisdiction,
constitutionality and human rights are involved.
The future: Way Forward
We can see that there is no doubt that from the cases and decision highlighted
above, I can say that the syariah courts have power pertaining to Islam but always
exposed to the shortcomings and inadequacies in both federal and state
enactments.There are no provisions on conversion out of Islam in these enactments
(with the exception to Negeri Sembilan).In order to avoid any challenge in the future
on the ground of lack of jurisdiction on the part of the syariah courts to determine the
question of conversion, clear and adequate provisions should be made into the state
enactments to confer jurisdiction on the syariah courts both on the subject matter
provided in item 1 of the State List .
Conclusion
The demarcation of jurisdiction between the syariah courts and civil courts with the
starting point being the Federal Constitution itself has seen an interaction between
syariah and civil law and in the process helped evolve in what we see today a
parallel system of justice in Malaysia. The issue of jurisdiction of the syariah courts
always involves jurisdictional conflict between the syariah courts and the civil courts
and this tussle for jurisdiction between both courts is certain to continue if nothing is
done to resolve it. Admittedly this issue can be emotive because the disputes usually
involve ones faith, status, family and parties of different faiths. The problem is further
compounded by the fact that Islam and the constitution, organization and procedure
of syariah courts are state matters which make any enactment of legislation and
exercise of executive authority on the same outside the purview of the federal
legislative and executive authorities respectively. There are undoubtedly problems
within the system, but the system is here to stay and accordingly it deserves a
detailed study because of its importance to the Muslims and equally the non-Muslims
in Malaysia. We have to move forward and through judicial pronouncements,
improvement in the law either by way of amendments or enactment of new
legislation as well as effective enforcement thereof the system can be strengthened
and improved further. For a full spectrum of justice,for All Malaysian and for better
nation !

You might also like