Legal pluralism and its influence in shaping the current legal system of Malaysia

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Abstract: Malaysia is a multi-ethnic and multi-cultural country where heterogeneous groups of people follow different religions peacefully. This land was previously ruled by Dutch, Portuguese and English colonisers who left huge influences in framing its plural legal systems. The objective of this study is to analyze the influences of ancestral customs and norms that have been practiced along with the introduction of Islamic principles and the recognition of English laws in Malay and Borneo-islands and their impact on framing the current legal system of Malaysia. It will investigate if different cultures have influenced the adoption and development of legal systems in Malaysia. This study will also look at the changes in Malay culture because of the adoption of different legal systems and will analyse the factors that may have encouraged the Malay Sultans to accept different laws into their own states. This article will also identify the reasons why orthodox people willingly abide by this plural legal system in settling their daily disputes in different courts. Data from journals and books have been taken into consideration in undertaking this study. It has also sifted through some prominent decisions of the judges. After considering all materials, this study advocates that, the federal laws of Malaysia are the combination of three principles: the common laws (applicable to all citizens in civil and criminal matters), the Shariah (applicable for Muslims especially in matrimonial matters) and the Native laws (for the indigenous people of Sabah and Sarawak). This study will look into how the state authority as well as the federal government manages and controls these plural court systems within a federal territory. Key Words: Legal Pluralism, Legal System, Civil Courts, Shariah Courts & Native Courts.


<ul><li>1.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. </li></ul> <p>2. 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. 3. Concept of Legal Pluralism law and legal institutions are not all subsumable within one systembut 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 lawor to the independent coexistence of indigenous norms and institutions alongside state law whether or not officially recognized. 4. 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 &amp; 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. 5. 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-&gt;Menteri-&gt;Penglima- &gt;Penghulu. Menteri Besar -&gt;Batin &amp; Municipal government-&gt; Penghulu CustomsInAncient Periods ReceptionofHindu&amp; ChineseCustomaryLaws 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. 6. ReceptionofEnglishLawsReceptionofIslamicLaw Continuation.. Islam gained footing in the Malay peninsula in the 14th century during 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 Shujas At-Taqrib, Ibn al-Qasim Al- Ghazzis Fath al Qarib. The Undang-Undang Melaka of Johor state was codified and adopted on Turkey and Egypts Islamic law, Majallat Al-Ahkam and Ahkam Shariyyah of Johore were according to Turkey &amp; 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 . 7. 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 &amp; Chinese). Case Study: Chulas &amp; Anor v. Kolson [1867] Leic 462-4. &amp; the decision of Sir. Edward S. &amp; Sir. R. Rice 8. Today, the application of English Law throughout Malaysia is based on the provisions of Section- 3 &amp; 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. 9. Hierarchy of Civil Courts 10. 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. 11. Continuation. . . Institutions &amp; 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. 12. Headmans Court Presided by a Headman with two assessors. Chiefs Court Presided by a Penghulu with two assessors. Chiefs Superior Court Presided by a Temenggong or Pemancar with two assessors. District Native Court Presided by a Magistrate with two assessors. Residents Native Court Presided by a Resident with two or four assessors. Native Court of Appeal Presided 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. 13. 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. 14. Thank You For Your Attention </p>


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