There is no god but Allah, and Muhammad is the messenger of
Allah.
Legal Pluralism And Its Influence In Shaping The Current Legal
System Of Malaysia.
Md. Zubair Kasem Khan.Master of Comparative Laws(MCL)
International Islamic University Malaysia.
Main Features.
Concept of Legal Pluralism.
Concept of Legal System.
Historical Background Of The Different Legal Systems.
The Existence Of Legal Pluralism In The Judicial System
Of Malaysian.
Conclusion.
Concept of Legal Pluralism
“… law and legal institutions are not all subsumable within one ‘system’ but have their sources in the self-regulatory
of all the multifarious social fields present, activities which may support, complement, ignore or frustrate one
another…” [Griffiths.]
“…the existence within a particular society of different
societies of different legal mechanisms applying to identical
situation”.
[Jacques Vanderlinden]
It is the multiplicity of forms of law present within any social field.
[Norbert Rouland.]
It is the incorporation or recognition of customary law norms or
institutions within state law…or to the independent coexistence of
indigenous norms and institutions alongside state law whether or not
officially recognized.
Concept of Legal System.
Legal System means, the allocation of the laws of a particular country and the process and technique in which they are used to construe and constrain.
Legal system refers to the official way of determining the people about the rights he inherently possessed and the responsibilities he is bound to observe.
Legal System
The aggregation of legislations &
legal principles.e.g.: the law of
the land.
The institutions that apply
laws.e.g.: the Courts and Tribunal.
The process or machinery for
pursuing administration of
justice.e.g.: the basic
structure of the court system.
The persons in the law.e.g.: the judges,
magistrates, legal
practitioners.
Bygone Developments of the Different legal systems.
Human civilization in Malaysia was started from the time some back to 250,000 years age.
Proto-Malays administrative structures were up-to-date whose reflection also seen in today's modern administrative system
Ancient ad. hierarchy headed by “Batin”->Menteri->Penglima->Penghulu.
Menteri Besar ->“Batin” & Municipal government-> ”Penghulu”
Cust
oms
In A
ncie
nt
Perio
ds
Rece
ption
of H
indu
&
Chin
ese
Cus
tom
ary
Law
s
Hindu admin. Hierarchy was headed by “Devaraja” and basic source of law were, Dharmasutras, Dharmasastra, customary laws and other principles.
Chinese customary laws had got recognition by the EIC to strengthen relations. It was headed by a “Capitan”.
Numerous customary laws such as- Personal matters (i.e.- Polygamy, Marriage and Divoese), Hindu-Rites, Charitable Trusts and Adoption
got recognition by the British administration.
Rece
ption
of E
nglis
h La
ws
Rece
ption
of I
slam
ic L
aw
Continuation..
Islam gained footing in the Malay peninsula in the 14th centuryduring the period of Sultan Iskandar Shah, Changed the system of
“Devaraja” to Islamic “Khalifah”.
The traditional Hindu based Malay customary laws(adat) were reformed and modified by new adat influenced by the Shariah as set
out in Abu Shuja’s At-Taqrib, Ibn al-Qasim Al- Ghazzi’s Fath al –Qarib.
The Undang-Undang Melaka of Johor state was codified and adopted on Turkey and Egypt’s Islamic law, Majallat Al-Ahkam and Ahkam
Shariyyah of Johore were according to Turkey & Egypt Hanafi Code.
The EIC first gained footing into Malay archipelago with acquisition of Penang in 1786, albeit it got statutory affirmation of constituting English
law by the Charter of Justice on 25th of March, 1807 in Penang only.
The formal English law introduced officially in the Federation of Malaysia by the adoption of Civil Law Ordinance 1956, in Sarawak, Sarawak
Application Law Ordinance 1949 and for the North Borneo North Borneo Application of Law Ordinance 1951.
English Law penetrated into Malaysian States in two ways- 1st On the advice of the British administrations ; Ex- The penal Code; 2nd Through
decisions of the judges in the Courts .
Legal Pluralism before Independence.
Continuation..“Malay adat” (Islamic law) was the
law only enforceable for the Muslim Malays.
Case Study: Shaik Abdul Latif and others Vs. Shaik Elias Bux [1915] 1
F.M.S.L.R 204 at page: 214; Re Dato Bentara Luar decd. [1981] 2 MLJ
264,n269 etc.
“English common laws” applicable for general people.
Case Study: Yeap Cheah Neo Vs. Ong Cheng Neo Case [1875] 1 Ky 326, 343-4 and Choa Choon Neoh Vs. Spottiswoode [1869] 1 Ky 216,
221.
“Personal laws” were the governing law for non-
Malays(Hindus & Chinese).Case Study: Chulas & Anor v.
Kolson [1867] Leic 462-4. & the decision of Sir. Edward S. & Sir. R.
Rice
Today, the application of English Law throughout Malaysia is based on the provisions of Section- 3 & 5 of the Civil Law Act- 1956.
Existence of Civil Courts
The evidence of establishing Common Law Court(Civil Court) first proved by the decision of the Judicial Committee of the Privy Council in Yeap Cheah Neo Vs. Ong Cheng Neo Case[1875]…
“……the Law of England must be taken to be the governing law, so far as it is applicable to the circumstances of the place
and modified in its application by those principles…….”
Constitutional Affirmation: The Civil law Courts has been established under Article- 121 of the Federal Constitution of Malaysia.
Hierarchy of Civil Courts
Existence of Syariah Courts
11 out of 13 colonial regions got independence in 1957 and got constitutional affirmation to adopt and apply Islamic law and therefore
established Syariah courts to adjudicate disputes arising between Muslim.
Article 74, Schedule 9, list II(State List)of the Federal Constitution confers the absolute right to enact and establish Syariah courts in each
states.
A recent revolutionary amendment made whereby, the right to appeal from State Syariah Courts to Federal Civil Courts has been eliminated which confirms that the state Syariah courts are now Effectively A Self-
contained System.
Continuation. . .
Institutions & Enactments.
The Department of Islamic Development Malaysia (Jabatan Kemajuan Islam Malaysia
or “JAKIM”) [1997].
The Department of Syariah Judiciary Malaysia (“JKSM”) [1998].
Administration of the Religion of Islam (Certificate of Faraid Fees) Sel. P.U. 22 of 2004
(Selangor).
Administration of Wakaf (Wakaf Forms) (State of Selangor) Rules 2001 (Sel. P.U. 5 of 2001)
Muslim Courts (Criminal Jurisdiction) (Amendment) Act 1984, Act A612 of 1984, § 2.
Headman’s Court Presided by a Headman with two assessors.
Chief’s CourtPresided by a Penghulu with two assessors.
Chief’s Superior CourtPresided by a Temenggong or Pemancar with
two assessors.
District Native CourtPresided by a Magistrate with two
assessors.
Resident’s Native CourtPresided by a Resident with two or four
assessors.
Native Court of AppealPresided by a Judge with one or more
assessors.
Existence of Native Courts in Borneo
According to the
Section-13 of the
N.C. Ordinanc
e-1992
Matters involving breach of
Native Law and Custom.
Matters involving
Land Disputes.
Conclusion
After having a serious and close analysis on the development and the trends of the Malaysian legal system, it can be summarized that, the legal system of Malaysian contains a type of Multiple Legal Systems, which can be Exemplified by the mixture of the Customary Laws(native Court), Islamic Law(syariah Court) and English Laws(civil Court).
Therefore, the concept of legal pluralism is very much apparent and to some extend so much integrated that, these different court systems cannot be repeal from the body of the Malaysian legal system.
Thank You For Your Attention…
