Malaysia is known for its richness of multicultural and multi-racial country which is spread between Peninsular Malaysia, Sabah and Sarawak. Despite being one huge political unit, it has different set of rules and law to comply with. Malaysia law can be classified into various sources, mainly are written law, unwritten law and Muslim law. Written law comprises The Federal Constitution which is the supreme law of the land and State Constitution, a range of constitutions regulating the governments of thirteen states in Malaysia.
Second written law is the Legislation law which is endorsed by Parliament and Legislative Assemblies at the federal and state level respectively. Final source of written law is the Subsidiary legislation as states in the Interpretation Act ‘any proclamation, rule, regulation, order, notification, by-law or other instrument made under any Ordinance, Enactment or other lawful authority and having legislative effect’. Malaysia has huge amount of subsidiary legislation.
Subsidiary legislation is referred to law made through powers delegated by the legislature mainly Ministers and local authorities. Only Subsidiary legislation made in a proclamation of emergency under Article 150 of the Federal Constitution is accepted , other breaching of either a parent Act or the Constitution is voided. Unwritten law under the Malaysian law is the law which is not written or found in Federal and State Constitutions. It is also not endorsed by the Parliament or the State Assemblies.
Unwritten law comprises of Judicial decisions of the superior courts Principles of English Law and Customs law. Judicial decisions using the systematical method called `doctrine of binding judicial precedent` at the High Court, Court of Appeal and the Federal Court followed by Supreme Court can still be found in Malaysian law. Nevertheless the decisions made by Federal Court and Judicial Committee of the Privy Council are still binding on the present court. Binding or persuasive is a process of adjudication, this is after argument and before the judge reaches the conclusion.
The judge will formulate and apply a legal principle in accordance with certain rules to form a guide for future. The judge will provide reason for reaching a decision or the legal principles behind the decision; this may bind other similar disputes in future. Binding precedents depends on the court’s position in the hierarchy of the courts. These are binding until they are reversed or overruled, where else persuasive precedents are those which are not binding authorities. Another important unwritten law is the Principles of English Law.
It consists of Common Law and Equity. The common Law is the body of rules developed by the old common law courts of England which no longer exist. It is established on customs common throughout England. On the other hand, Equity is the body of incomplete rules developed as a supplement to Common Law to correct defects and to reduce the harshness. Even though English Law forms part of the Malaysian law, the facts and rules stated are only part of the entire law of English common law and rules of Equity.
Principles of English Common Law and rules of Equity received and applied in Malaysia Legal System is by virtue of the Civil Law Act 1956 (Revised01972) . Under Section 3(1) of the Civil Law Act, 1995 states that in Peninsular Malaysia, the courts shall apply the common law of England and the rules of equity as administrated in England on 7th April, 1956. As for Sabah and Sarawak, the courts shall apply the common law of England and the rules of equity, together with statutes of general application, as administrated or in force in England on 1st December 1951 and 12 December 1949 respectively.
Application of common law of England is subjected to two limitations; firstly Local law takes priority over common law. Common Law is applied only in the absence of local statues. It is only meant to fill up gaps in the legal system in Malaysia. Secondly, part of common law which suits the local circumstances is applied. Common Law was initially introduced to the Straits Settlements through Royal Charters of Justice which was then extended to the Malay states through administrative arrangements. Finally the third unwritten law of Malaysian law is the Customary law.
Malaysia is known as a multi-religious country, the multiracial local population of Malaysia is also a source of law which has been accepted by the Malaysian courts. Mostly family law limits, namely marriage, divorce and inheritance are given legal force by the courts of Malaysia. In peninsular Malaysia, `Adat` applies to Malays, there are two main diversities of Malay customary, the adat pepatih and adat temenggong. Adat pepatih is mainly known for the matrilineal system where else the adat temenggong is a patrilineal system of law.
As for the Hindu and Chinese, prior to the enforcement of the Law Reform Hindu and Chinese customary law is applied to Hindu and Chinese respectively. The Law Reform includes abolishing polygamous marriages, since then, Chinese and Hindu customs have become minimal to almost no effect as a source of law in Malaysia. In Sabah and Sarawak, native customary laws apply in land dealing over native customary lands and family matters where natives subject themselves to native customary laws. Other indigenous people of Malaysia apart from Sabah and Sarawak are the aborigines.
There is an aboriginal customary law for the aboriginal people under the law of Malaysia. In contrast to the source of law discussed previously, Muslim law or Islamic law continues to grow in importance as another source of law just like the written and unwritten law as part of Malaysian law. Government policies of absorbing Islamic values in administration by introducing Islamic banking and Islamic insurance where Muslim law and Islamic principles are applicable is part of the renaissance of Islam in Malaysia.
Also the Federal Constitution has provided that State has the power to administer Muslim Law. The head of the Muslim religion in State is the Sultan. Muslim law is applied only to Muslims and the courts which enforce Muslim law are the Syariah Courts. Malaysian Islamic law is of the Shafii school jurisprudence, as modified by Malay adat, which was discussed under customary law, Malay adat law. This Islamic law falls into two main categories; the primary and secondary sources. Primary sources are Qur’an which is the Word of Allah and Sunnah is rules deducted from the traditions.
The secondary sources are more to the means of discovering the law rather than source. These sources are Ijma which is consensus of jurists of any particular era on a juridical rule and Qiyas which are the deductions from reasoning by ijtihad or analogy. Initially Islamic law was not included in the definition of law; this was even after the independence of the Federation of Malaya. Federal Constitution was declared as the supreme law . Before amendment in 1988, Article 121 Clause (1A) Syariah courts were excluded.
However, upon recommendation from Alliance Party, a provision was added to the original draft of Reid Constitution Commission where Article 3 of Federal Constitution declares that ‘Islam is the religion of the Federation’. Article 3 appeared with necessary qualification that ‘other religions may be practiced in peace and harmony in any part of the Federation’. However there are clauses to ensure non-Muslim’s civil rights are also not affected. At any official functions, Islamic way of prayers is being offered.
Islam being the official religion of the federation has two main consequences, firstly, the government (federal or state) may lawfully establish or maintain, or assist in establishing or maintaining, Islamic institution, or provide or assist in providing instruction in Islam, and incur the necessary expenditure for these purpose. Secondly, through annual Supply Acts and Enactments, may spend money on the administration of Islamic law. Also in some of the cases for marriages where a non-Muslim is involved, Islamic law takes precedence over the common law.
The religion of a child from previous marriage is determined by the parents of the child , in the case of where the consent is not given the minor will remain in the religion of the parent at the time of marriage . Furthermore polygamy marriages are allowed with judicial permission dependent upon application and court hearing should be with the existence of wife or wives. Judicial permission is requested only upon permission granted for marriages by the existing wife or wives. As Muslim Law is one of the main sources of law in the county, Malaysia became a member of Organisation of the Islamic Conference (OIC) when it was established in 1969.
OIC is a major organization of Islamic States that voices and coherent Muslim opinion on issues which are affecting the Islamic States. Other associations where Malaysia is involved will be ASEAN where Malaysia was one of the first five countries to establish ASEAN in 1967. It was established to work together amongst the members of the association to speedup the economic growth, social progress as well as cultural development jointly to strengthen and prosperous with peaceful in amongst Southeast Asian Nations.
Also to support regional peace and stability for justice and the rule of law in relationship amongst the member’s countries, making sure it adhere to the principles of United Nations Charter. ASEAN also provides assistance amongst the members in form of training and research facilities in the educational, professional, technical and administrative spheres. Other Malaysian involvement in reference to Asia-Pacific concerning economic growth is APEC which aims to support sustainable economic growth and prosperity in the Asia-Pacific region. This is done by multiple different encouragement and enhancements.
Apart from regional involvement, Malaysia does have collaboration with particular country which may not be part of ASEAN or APEC to jointly enhance for the benefits of both countries. Malaysia has jointly signed agreement to work together in multiple areas with many other countries. Malaysia has been involved in relationship with countries like China and India since before independence was declared in 1957. Till today Malaysia has been maintaining the well established relationship especially with these two countries by getting into agreement in multiple collaborations.
Chinese is the second largest race in Malaysia followed by Indian since they were brought in by the British Empire before independence. Chinese migrated to Malaysia vastly as coolies in tin mining industry and rubber plantation. Although it is said that Chinese have been in “Malaya” since Malacca Empire in 15th Century . Today, 25% of the country populations are Chinese which are made up of various dialect groups such as the Hokkien, the Hakka, the Cantonese, the Teochew, the Hainanese, the Hokchiu and etc. who have intermarried extensively with each other.
The Chinese have dedicated media and publication exposure for example daily newspapers, dedicated Chinese language radio stations and daily broadcast from all terrestrial television stations . Till date Chinese communities still perform traditional art, the lion dance and the dragon dance mainly during Chinese New Year. Chinese New Year is declared as a national public holiday where there Chinese celebrate the New Year by fulfilling most of the tradition and cultural activities. However the fireworks or firecrackers are part of the Chinese culture which has been ban in Malaysia due to safety reason .
For the Chinese, apart from the myth that says firecrackers are to frighten away the “Nian”, it also signifies a joyful time of year which is an important element of Chinese New Year celebrations . On the other hand, the Indians started migration to Malaysia for the purpose of plantation labour, traders, policemen and colonial soldiers. Some English-speaking Indians were also brought to work in the British colonial government . However just like the Chinese, it is said that the Indians have been here from more then 500 years ago.
Initially the Arabs and the Indians mainly the Indian Muslims from Gujerat came to Malaya as traders and merchants. Now the Indian population in Malaysia is 8% which is made up from Tamil, Malayalam, Telegu, Punjabi, Bengali, Gujerati and etc. Just like the Chinese, Indians also have dedicated media and publication exposure of daily newspapers, dedicated Indian language radio stations and daily broadcast from all terrestrial television stations. This is mainly in Tamil language as 80% of the Indian communities are the Tamils (South Indians) .
Diwali aka Deepavali is the most significant celebration of Indian community where national holiday is acknowledged for. Fireworks during Diwali are to mark several significant , however in respect to the law it is not legally practiced in this country. Another tradition not being legally practice is gambling under Act 495 Betting ACT 1953. Among other tradition obstructed by the Malaysian law is the architecture of a Sikh Gurdwara should not have a dome to avoid the Muslims to mistaken that for a mosque .