Cecily Zamora
Malaysia's legal system is a complex product of its history, particularly its colonisation by Britain in the 19th century. The country's highest law is the Constitution of Malaysia, which sets out the legal framework and citizens' rights. Malaysia's laws can be divided into two types: written law and unwritten law. The former is law that has been enacted in the constitution or legislation, while the latter is law that is not contained in any statutes but can be found in case decisions, also known as common law or case law. Malaysia's dual justice system includes both secular laws (criminal and civil) and sharia laws.
| Characteristics | Values |
|---|---|
| Type of law | Written law and unwritten law |
| Written law | Laws enacted in the constitution or legislation |
| Unwritten law | Laws not contained in statutes, found in case decisions (common law or case law) |
| Basis of law | Common law legal system |
| Highest law | Constitution of Malaysia |
| Federal laws | Enacted by the Parliament of Malaysia and apply throughout the country |
| State laws | Enacted by the State Legislative Assemblies and apply in the respective state |
| Dual justice system | Secular laws (criminal and civil) and sharia laws |
| Legal framework | Federal Constitution |
| Legal information provider | CLJLaw |
| Largest database of court judgments and legislation | eLaw.my |
| Legal degree | LL.B. from an accredited school recognised by the Malaysia Bar Association |
| Right to legal advice | A fundamental element of the rule of law |
| Open justice | Section 15 of the Courts of Judicature Act 1964 states that all civil and criminal matters are open and accessible to the public |
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What You'll Learn
Malaysia's dual justice system
Malaysia's legal system is primarily based on the British common law legal system, a legacy of British colonisation. The country's supreme law is the Federal Constitution, which sets out the legal framework and the rights of its citizens.
The Constitution also provides for a unique dual justice system, consisting of secular laws (criminal and civil) and sharia laws. The latter only applies to Muslims, with the Islamic court having jurisdiction over marriage, inheritance, and apostasy.
The dual system of law is provided in Article 121(1A) of the Constitution of Malaysia. Article 3 also specifies that Islamic law is a state law matter, except in the Federal Territories of Malaysia. Islamic law refers to sharia law, spelt as 'syariah' in Malaysia.
In some states, there are sharia criminal laws, for example, the Kelantan Syariah Criminal Code Enactment 1993. However, their jurisdiction is limited to imposing fines of no more than RM 5,000 and imprisonment of no more than three years.
In 2007, the then Chief Justice of Malaysia proposed replacing the current common law application in the country with sharia law. This proposal highlighted the complexities of the dual justice system, particularly regarding freedom of religion. While Article 11 of the Constitution guarantees the right to practise one's religion, the case of Lina Joy, a Malay who converted to Christianity, saw the Federal Court of Malaysia refuse to allow her to change her religion on her identity card.
Malaysia's legal system has faced criticism for the negative perception of its judiciary, with former Court of Appeal judge, Justice Mohd Hishamudin Mohd Yunus, attributing this to poor adjudication. Additionally, concerns have been raised about the strain on the public healthcare sector due to the Health Ministry's decisions impacting the livelihoods of healthcare workers.
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Federal and state laws
Malaysia is a federal constitutional monarchy formed in 1963 as a federation of Malaya, Singapore, Sabah, and Sarawak, all former British colonies. The country gained independence from Britain in 1957, and Singapore left the federation in 1965. Today, Malaysia comprises 13 states and three federal territories, with each state having its own elected assembly and head of state.
The Federal Constitution is the supreme law of the land, providing the legal framework for the laws, legislation, courts, and other administrative aspects of the law. It also defines the government and monarch, their powers, and the rights of the citizens. The Federal Constitution was amended in 1963 to include special provisions for the regions of Sabah and Sarawak, and each state also has its own constitution.
Federal laws enacted by the Parliament of Malaysia apply throughout the country, while state laws are enacted by the State Legislative Assemblies and apply in the respective states. The three federal territories of Kuala Lumpur, Putrajaya, and Labuan do not have state assemblies and are governed directly by the federal government.
The laws of Malaysia can be categorized into two types: written law and unwritten law. Written laws are those enacted in the constitution or legislation, while unwritten laws are not contained in any statutes and are found in case decisions. In situations where no specific law governs a particular circumstance, Malaysian case law may apply. If there is no Malaysian case law, English case law can be applied, as specified in statutes like Section 5 of the Criminal Procedure Code and Sections 3 and 5 of the Civil Law Act.
Malaysia's legal system features a unique dual justice system, consisting of secular laws (criminal and civil) and sharia laws. The Syariah Courts, consisting of a Court of Appeal, a High Court, and Subordinate Courts, have jurisdiction over civil and criminal matters, but only for Muslims, typically concerning family law. Islamic law, or sharia law, is a state law matter, except in the Federal Territories of Malaysia. While the Federal Constitution guarantees freedom of religion (Article 11), the dual justice system has led to complications, as seen in the case of Lina Joy, where the Federal Court refused to allow a Malay who converted to Christianity to change her religion on her identity card.
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Civil and criminal law
Malaysia's legal system is based on English common law, alongside other legal influences from the country's long history, including indigenous laws and customs, as well as Islamic law. The country's legal system can be broadly divided into two main categories: civil law and criminal law.
Civil Law
Civil law in Malaysia deals with disputes between individuals or organisations, where one party seeks
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Islamic law
Malaysia has a dual-track legal system, with civil courts running in parallel with Islamic Sharia courts. The Sharia courts deal with the personal affairs of Muslims, while civil courts govern Hindus, Christians, Buddhists, and other religious minorities. Islamic law is selectively enforced by local officials in each of Malaysia's 13 federal states.
Malaysia's constitution established a federal structure that reflected the pluralistic colonial system. The constitution grants the states the power to apply a version of Islamic law on certain topics enumerated in the constitution and to create Shariah courts to adjudicate disputes involving Muslims relating to matters of Islamic law. All of the states have established Shariah courts to adjudicate disputes based on Islamic legislation. The Shariah courts' sentencing jurisdiction includes fines, imprisonment, and/or caning.
The Shariah Criminal Code in each state does not distinguish between the three types of crimes in Islamic law: Hudood, Qisas, and Tazir. Instead, they are all combined, which often produces confusion. Shariah courts implement codes passed by state assemblies based on their interpretations of Islam's Sharia law.
The Muslim courts established by state authorities have jurisdiction only over Muslims and have no jurisdiction over criminal offenses unless specifically conferred by federal law. The rules of Shariah are set by various sultans, who serve as the Head of the Islamic religion in their respective states.
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The right to a fair trial
Malaysia's legal system is primarily based on the common law legal system, a result of British colonisation of the Malay territories from the early 19th century to the 1960s. The supreme law of the land is the Constitution of Malaysia, which establishes the legal framework and the rights of citizens.
In the context of criminal justice, the prosecution has a high burden of proof—beyond reasonable doubt. This is to ensure that there is less chance of a miscarriage of justice. All that the defence needs to establish is the existence of a reasonable doubt, and then the courts will not convict.
In Malaysia, pre-trial disclosure is a fundamental part of the right to a fair trial. This includes the right of the accused to have access to all evidence and facts soon after being charged, to enable them to prepare their defence. The prosecution should be interested in the truth and justice, not simply winning a case. There should be no delay in pre-trial disclosure, no suppression of evidence, and no surprising of the accused with last-minute, previously undisclosed evidence.
Malaysia also adheres to the principle of open justice, with Section 15 of the Courts of Judicature Act 1964 stating that all civil and criminal matters shall be open and accessible to the public.
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Frequently asked questions
The laws of Malaysia can be divided into two types: written law and unwritten law. Written laws are laws that have been enacted in the constitution or legislation. Unwritten laws are laws that are not contained in any statutes and can be found in case decisions, also known as common law or case law. Malaysia's legal system is predominantly common law, with a separate Islamic law system.
The Constitution of Malaysia is the country's highest law and sets out the legal framework and rights of Malaysian citizens.
eLaw.my is Malaysia's largest database of court judgments and legislation. It provides a user-friendly platform for legal professionals to access and cross-reference federal and state legislation, including municipal by-laws and amendments.
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