The law of Malaysia is mainly based on the

common law Common law (also known as judicial precedent, judge-made law, or case law) is the body of law primarily developed through judicial decisions rather than statutes. Although common law may incorporate certain statutes, it is largely based on prece ...

legal system. This was a direct result of the colonisation of Malaya,

Sarawak Sarawak ( , ) is a States and federal territories of Malaysia, state of Malaysia. It is the largest among the 13 states, with an area almost equal to that of Peninsular Malaysia. Sarawak is located in East Malaysia in northwest Borneo, and is ...

, and North Borneo by Britain between the early 19th century to the 1960s. The supreme law of the land—the Constitution of Malaysia—sets out the legal framework and rights of

Malaysia Malaysia is a country in Southeast Asia. Featuring the Tanjung Piai, southernmost point of continental Eurasia, it is a federation, federal constitutional monarchy consisting of States and federal territories of Malaysia, 13 states and thre ...

n citizens. Federal laws enacted by the Parliament of Malaysia apply throughout the country. There are also

state law State law refers to the law of a federated state, as distinguished from the law of the federation of which it is a part. It is used when the constituent components of a federation are themselves called states. Federations made up of provinces, cant ...

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, Sharī'ah, Shari'a, or Shariah () is a body of religious law that forms a part of the Islamic tradition based on Islamic holy books, scriptures of Islam, particularly the Quran, Qur'an and hadith. In Islamic terminology ''sharīʿah'' ...

laws.

History

Adat (customary practices and tradition) provided Malay law before colonization. Prior to the

independence Independence is a condition of a nation, country, or state, in which residents and population, or some portion thereof, exercise self-government, and usually sovereignty, over its territory. The opposite of independence is the status of ...

in 1957, most of the laws of United Kingdom were imported and either made into local legislation or simply applied as

case law Case law, also used interchangeably with common law, is a law that is based on precedents, that is the judicial decisions from previous cases, rather than law based on constitutions, statutes, or regulations. Case law uses the detailed facts of ...

s. Malaysian law is also based on other jurisdictions namely Australia and

India India, officially the Republic of India, is a country in South Asia. It is the List of countries and dependencies by area, seventh-largest country by area; the List of countries by population (United Nations), most populous country since ...

. The

criminal law Criminal law is the body of law that relates to crime. It proscribes conduct perceived as threatening, harmful, or otherwise endangering to the property, health, safety, and Well-being, welfare of people inclusive of one's self. Most criminal l ...

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 A government is the system or group of people governing an organized community, generally a State (polity), state. In the case of its broad associative definition, government normally consists of legislature, executive (government), execu ...

and

monarch A monarch () is a head of stateWebster's II New College Dictionary. "Monarch". Houghton Mifflin. Boston. 2001. p. 707. Life tenure, for life or until abdication, and therefore the head of state of a monarchy. A monarch may exercise the highest ...

, and their powers, as well as the rights 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

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 have jurisdiction in personal law matters, for example marriage,

inheritance Inheritance is the practice of receiving private property, titles, debts, entitlements, privileges, rights, and obligations upon the death of an individual. The rules of inheritance differ among societies and have changed over time. Offi ...

, and

apostasy Apostasy (; ) is the formal religious disaffiliation, disaffiliation from, abandonment of, or renunciation of a religion by a person. It can also be defined within the broader context of embracing an opinion that is contrary to one's previous re ...

. 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."Minister: Study proposal on switch to Syariah law thoroughly"
, ''The Star'', 24 August 2007.

Complications

Complications have arisen with regard to the dual justice system, for example with regard to freedom of religion. 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 Federal or foederal (archaic) may refer to: Politics General *Federal monarchy, a federation of monarchies *Federation, or ''Federal state'' (federal system), a type of government characterized by both a central (federal) government and states or ...

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 Shariah Court, as indicated in Article 121(1A) of the Constitution.

Federal law and state law

Federal laws are made by legislators (members of Parliament and senators) sitting in the

Parliament of Malaysia The Parliament of Malaysia (; Jawi script, Jawi: ) is the national legislature of Malaysia, based on the Westminster system. The bicameral parliament consists of the Dewan Rakyat (House of Representatives, Literal translation, lit. "People's As ...

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.

Sabah and Sarawak

After the formation of Malaysia in 1963, the Federal Constitution was amended to include special provisions applicable to the regions of

Sabah Sabah () is a States and federal territories of Malaysia, state of Malaysia located in northern Borneo, in the region of East Malaysia. Sabah has land borders with the Malaysian state of Sarawak to the southwest and Indonesia's North Kalima ...

and

. Some federal Acts of Parliament apply to these states differently on a number of matters, particularly on issues 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''.

Kelantan attempts to impose strict Islamic laws

In recent years, hudud has been attempted to be introduced by Malaysian Islamic Party (PAS) in

Kelantan Kelantan (; Kelantan-Pattani Malay, Kelantanese Malay: ''Klate''; ) is a state in Malaysia. The capital, Kota Bharu, includes the royal seat of Kubang Kerian. The honorific, honorific name of the state is ''Darul Naim'' ("The Blissful Abode"). ...

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 constitution or in legislation. Unwritten laws are laws which are not contained in any statutes and can be found in case decisions. This is known as the

. 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 statutes. Section 5 of Criminal Procedure Code states that English law shall be applied in cases where no specific legislation has been enacted. Similarly, in context of civil law, Sections 3 and 5 of Civil Law Act allows for application of English common law, equity rules, and statutes in Malaysian civil cases where no specific laws have been made. In 2007, Chief Justice of Malaysia, Ahmad Fairuz Abdul Halim questioned need to resort to 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, Malaysian Bar Council responded by saying that common law is part of Malaysian legal system and that is no basis to replace it. Court appeals to 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.

References

*Wu Min Aun (吴明安). ''The Malaysian Legal System.'' Petaling Jaya, Selangor: Longman Malaysia. First edition (1990); 2nd ed. (1999) ; 3rd ed. (2005) .

External links

Asean Legal Information Portal
– A Free Access to Law Initiative.
Malaysia Law Portal

– contains a list of Malaysian legal resources on the Internet (published 3 February 2006)

Laws of Malaysia
a compilation of reprinted statutes from the Attorney General's website

''Benar News'' (October 24, 2024)

Iman Muttaqin Yusof and Minderjeet Kaur, ''Benar News'' (November 13, 2024) {{Asia in topic, Law of, IL=Israeli law