Tradition
The law of Malaysia is mainly based on the common law legal system. This was a direct result of the colonization of Malaya, Sarawak, and North Borneo by Britain between the early 19th century to 1960s. The supreme law of the land,the Constitution of Malaysia, sets out the legal framework and rights of Malaysian citizens. Federal laws enacted by the Parliament of Malaysia apply throughout the country. There are also state laws 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 laws.
Going back to in history, in 1511 the Malay States of Malacca was colonized by the Portuguese, followed by the Dutch and the British. At the Portuguese and Dutch time he influence was strong, as they aggressively tried to convert the population of Malacca to Catholicism at that time. We believe that the Portuguese and Dutch laws, which is based on Roman law influences at that time.
By the 19th century, the British also introduced the English common law and rules of equity and their legal and judicial system.
Prior to the independence in 1957, most of the laws of United Kingdom were imported and either made into local legislation or simply applied as case laws. Malaysian law is also based on other jurisdictions namely Australia and India. The 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 is based on the Australian Torrens system.
Courts in Peninsular Malaysia should apply Common Law and the Law of Equity as administered in England on 7th April1956.
Courts in Sabah and Sarawak should apply common law and law of equity together with the statutes of general application as administered in England.
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 legislations.
Unwritten laws are laws which are not contained in any statutes and can be found in case decisions. This is known as the common law or case law. 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.
The Federal Court of Malaysia is the highest judicial authority and the final court of appeal in Malaysia.
The country, although federally constituted, has a single-structured judicial system consisting of two parts - the superior courts and the subordinate courts.
The subordinate courts are the Magistrate Courts and the Sessions Courts whilst the superior courts are the two High Courts of co-ordinate jurisdiction and status, one for Peninsular Malaysia and the other for the States of Sabah and Sarawak, the Court of Appeal and the Federal Court.
The Federal Court, earlier known as the Supreme Court and renamed the Federal Court vide Act A885 effective from June 24, 1994, stands at the apex of this pyramid.
The Dual Justice System law of Malaysia is provided in Article 3 provides that Islamic law is a state law matter with the exception for the Federal Territories of Malaysia.
Islamic law refers to the Sharia law, known as syariah. The court is known as the Syariah Court. Shariah law is only application when both party are Malaysia who speak and practices Malay culture. Syariah courts has jurisdiction in personal law matters, for example marriage, inheritance, and apostasy.
In a landmark judgment of the Malaysian Supreme Court, the court clearly said that Malaysia was a secular State and that Islam was only relevant for ceremonial purposes. However, one of the first indications of conflict of laws and jurisdictions between the common law courts and the Shari’ah courts arose over the issue of custody of a Muslim child.
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