The law of Malaysia is mainly based on the

common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omniprese ...

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

Sarawak Sarawak (; ) is a state of Malaysia. The largest among the 13 states, with an area almost equal to that of Peninsular Malaysia, Sarawak is located in northwest Borneo Island, and is bordered by the Malaysian state of Sabah to the northeast, ...

, and

North Borneo (I persevere and I achieve) , national_anthem = , capital = Kudat (1881–1884);Sandakan (1884–1945);Jesselton (1946) , common_languages = English, Kadazan-Dusun, Bajau, Murut, Sabah Malay, Chinese etc. , ...

Britain Britain most often refers to: * The United Kingdom, a sovereign state in Europe comprising the island of Great Britain, the north-eastern part of the island of Ireland and many smaller islands * Great Britain, the largest island in the United King ...

between the early 19th century to the 1960s. The supreme law of the land—the

Constitution of Malaysia The Federal Constitution of Malaysia ( ms, Perlembagaan Persekutuan Malaysia) which was promulgated on 16 September 1963, is the supreme law of Malaysia and contains a total of 183 articles. It is a written legal document which was preceded ...

—sets out the legal framework and rights of

Malaysia Malaysia ( ; ) is a country in Southeast Asia. The federal constitutional monarchy consists of thirteen states and three federal territories, separated by the South China Sea into two regions: Peninsular Malaysia and Borneo's East Mal ...

n citizens.

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 in a federation, delegating their individual sovereignty and many ...

s 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 A federation (also known as a federal state) is a political entity characterized by a union of partially self-governing provinces, states, o ...

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 (; ar, شريعة, sharīʿa ) is a body of religious law that forms a part of the Islamic tradition. It is derived from the religious precepts of Islam and is based on the sacred scriptures of Islam, particularly the Quran and the H ...

laws.

History

Adat Alesis Digital Audio Tape (ADAT) is a magnetic tape format used for the recording of eight digital audio tracks onto the same S-VHS tape used by consumer VCRs. Although it is a tape-based format, the term ''ADAT'' now refers to its succ ...

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

independence Independence is a condition of a person, 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 stat ...

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 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 (Hindi: ), 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 and dependencies by population, second-most populous ...

. The

criminal law Criminal law is the body of law that relates to crime. It prescribes conduct perceived as threatening, harmful, or otherwise endangering to the property, health, safety, and moral welfare of people inclusive of one's self. Most 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 Land law is the form of law that deals with the rights to use, alienate, or exclude others from land. In many jurisdictions, these kinds of property are referred to as real estate or real property, as distinct from personal property. Land use ...

is based on the Australian

Torrens system Torrens title is a land registration and land transfer system, in which a state creates and maintains a register of land holdings, which serves as the Incontrovertible evidence, conclusive evidence (termed "Defeasible reasoning#Political and judi ...

. 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. In the case of its broad associative definition, government normally consists of legislature, executive, and judiciary. Government i ...

and

monarch A monarch is a head of stateWebster's II New College DictionarMonarch 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 authority ...

, 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 Syariah (the Malay spelling of "Sharia") refers to Sharia law in Islamic religious law and deals with exclusively Islamic laws, having jurisdiction upon every Muslim in Malaysia. The Syariah Court system is one of the two separate court systems w ...

''. 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 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. Of ...

, and

apostasy Apostasy (; grc-gre, ἀποστασία , 'a defection or revolt') is the formal 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 ...

. 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 Freedom of religion or religious liberty 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. It also includes the freedo ...

. 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 The Federal Court of Malaysia ( ms, Mahkamah Persekutuan Malaysia) is the highest court and the final appellate court in Malaysia. It is housed in the Palace of Justice in Putrajaya. The court was established during Malaya's independence in 1 ...

refused to allow her to change her religion indicated in her identity card (

MyKad The Malaysian identity card ( ms, kad pengenalan Malaysia), is the compulsory identity card for Malaysian citizens aged 12 and above. The current identity card, known as MyKad, was introduced by the ''National Registration Department of Malaysia ...

). 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 ( ms, Parlimen Malaysia) is the national legislature of Malaysia, based on the Westminster system. The bicameral parliament consists of the Dewan Rakyat (House of Representatives, lit. "People's Assembly") and the D ...

and applies nationwide. Federal laws are known as ''Acts'' (of Parliament).

State State may refer to: Arts, entertainment, and media Literature * ''State Magazine'', a monthly magazine published by the U.S. Department of State * ''The State'' (newspaper), a daily newspaper in Columbia, South Carolina, United States * ''Our S ...

laws are made by assemblymen sitting in the State Legislative Assembly (

Dewan Undangan Negeri A state legislative assembly ( ms, Dewan Undangan Negeri, DUN; also known simply as state assembly) is the legislative branch of the state governments in each of the 13 Malaysian states. Members of a state legislative assembly comprises elected r ...

) 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

Sabah Sabah () is a state of Malaysia located in northern Borneo, in the region of East Malaysia. Sabah borders the Malaysian state of Sarawak to the southwest and the North Kalimantan province of Indonesia to the south. The Federal Territory ...

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 A peninsula (; ) is a landform that extends from a mainland and is surrounded by water on most, but not all of its borders. A peninsula is also sometimes defined as a piece of land bordered by water on three of its sides. Peninsulas exist on all ...

, 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 ''Hudud'' (Arabic: ''Ḥudūd'', also transliterated ''hadud'', ''hudood''; plural of ''hadd'', ) is an Arabic word meaning "borders, boundaries, limits". In the religion of Islam it refers to punishments that under Islamic law (sharīʿah) are ...

has been attempted to be introduced by

Malaysian Islamic Party The Malaysian Islamic Party (PAS; ms, Parti Islam Se-Malaysia; ms, ڤرتي إسلام سمليسيا, label= Jawi, script=arab, italic=unset) is an Islamist political party in Malaysia. As the party focused on Islamic fundamentalism, PAS ...

(PAS) in

Kelantan Kelantan (; Jawi: ; Kelantanese Malay: ''Klate'') is a state in Malaysia. The capital is Kota Bharu and royal seat is Kubang Kerian. The honorific name of the state is ''Darul Naim'' (Jawi: ; "The Blissful Abode"). Kelantan is located in t ...

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 A precedent is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common-law legal systems place great va ...

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 {{DEFAULTSORT:Law Of Malaysia