Abstract
The historical background of colonization and the resulting diversity of communities in Malaysia is reflected in the legal framework which comprises of multiple parallel legal systems. Nevertheless, there are conflicts when the issues straddle over to more than one legal system. The conflicts with regards to jurisdiction of the respective courts, the enforcement of religious laws and the individual’s fundamental rights which at first blush seem to be highlighting religious tensions within the society are, it is submitted, part and parcel of the developing legal pluralism. The judiciary plays an essential role in resolving legal conflicts which arise from the existing legal pluralism by remaining true to the letter and spirit of the Federal Constitution which guarantees fundamental liberties to the individuals.
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Notes
- 1.
This is not to deny the existence of a state or nation prior to the achievement of independence of the country from the British in 1957.
- 2.
Malaysia, Department of Statistics Malaysia, Population Distribution and Basic Demographic Characteristic Report 2010, last updated: 5 August 2011, accessed on 23 January 2014 http://www.statistics.gov.my/portal/index.php?option=com_content&id=1215. The Population and Housing Census is conducted once in every 10 years. The last Census was conducted in 2010, using face to face interview. Information collected includes the number of persons and households together with a wide range of demographic, social and economic characteristics. https://www.statistics.gov.my/index.php?r=column/cone&menu_id=ZHJlbWFBSTVEcHY1ait6akR3WmtVUT09
- 3.
It is to be noted that inter-racial marriages are not uncommon in Malaysia. Legally, the classification of the ethnicity of the children follows that of the father. However, it is a common practice to state the ethnicity as Malay if the religion is Islam even if either spouse or even neither spouse is not a Malay ethnically. This ensures the privileged status of bumiputera or ‘sons of the soil’ in Malaysia. A Malay is defined in Article 160 of the Federal Constitution as a person who professes the religion of Islam, habitually speaks the Malay language and conforms to Malay custom. See Bashiran Begum and Ainul Jaria, “Who is Malay: Defining ‘Malayness’”, Current Law Journal 5 (2008), at pp i–lv for a detailed discussion on the definition of Malay.
- 4.
Article 1, Federal Constitution of Malaysia.
- 5.
Ibid., Article 4(1).
- 6.
Ibid., Part 1, Third Schedule.
- 7.
Ibid., Article 38 and Fifth Schedule.
- 8.
Ibid., Article 40.
- 9.
Ibid., Article 3.
- 10.
Ibid., Ninth Schedule.
- 11.
Ibid., Article 74.
- 12.
Ibid., Article 75. See the case of The City Council of George Town & Anor v The Government of The State of Penang & Anor[1967] 1 MLJ 169.
- 13.
The State Legislative Assembly of Kelantan passed the Syariah Criminal Code (II) (1993) 2015 Enactment or better known as the Hudud Bill on 19 March 2015, an amendment to the Syariah Criminal Code (II) 1993 in its effort to pave the way for the implementation of Islamic criminal law in the state. See http://malaysianlaw.my/general/news/hudud-is-unconstitutional-discriminatory-and-divisive-says-bar-MY11996.html for Malaysian Bar Council’s immediate response to the unanimous passing of the state enactment. A few days before the Bill was tabled, the Sultan of Kelantan, the ruler of the state expressed support for the Bill. See http://www.thestar.com.my/News/Nation/2015/03/16/Kelantan-Sultan-Syariah-Criminal-Code/ . Despite its clear unconstitutionality, the total support for the Bill by all members of the State Legislative Assembly, both the ruling state party and the opposition parties raised the question of how transgression by the state into federal matters are to be dealt with.
- 14.
Federal Constitution, Article 160.
- 15.
Ibid., State List, Ninth Schedule. The Federal Constitution, Ninth Schedule is available at http://www.agc.gov.my/images/Personalisation/Buss/pdf/Federal%20Consti%20(BI%20text).pdf, at p193–p202.
- 16.
Article 75 of the Federal Constitution provides that if any State law is inconsistent with a federal law, the federal law shall prevail and the State law shall, to the extent of the inconsistency, be void.
- 17.
In no way does this mean that conflicts of law between federal law and native and customary laws are insignificant or unimportant. A proper analysis of the numerous and diverse native and customary laws is beyond the scope of this chapter.
- 18.
Malaysia Country Study Guide, (Washington DC: USA International Business Publications, 2008), at http://books.google.com.my/books?id=vBm2b0BwU9EC&pg=PA21&dq=history+of+malaysia+%2B+the+British+first+came+%2B++malacca+%2B+Malay+Muslims&hl=en&sa=X&ei=AZv1Ur2bHc3jkAXy-YG4Aw&ved=0CD8Q6AEwBA#v=onepage&q=history%20of%20malaysia%20%2B%20the%20British%20first%20came%20%2B%20%20malacca%20%2B%20Malay%20Muslims&f=false
- 19.
See Andaya & Andaya, A History of Malaysia, 1982, Macmillan at p. 109.
- 20.
Parmer JN, Colonial Labour Policy and Administration: A History of Labour in the Rubber Plantation Industry in Malaya, 1960, JJ Augustin Inc, p. 16.
- 21.
Stockwell, A. J., Political testament of the Alliance’: Memorandum by Tunku Abdul Rahman for the Reid Commission, (London: HMSO, 1995).
- 22.
In the case of Che Omar bin Che Soh v Public Prosecutor Wan Jalil bin Wan Abdul Rahman & Anor v Public Prosecutor [1988] 2 MLJ 55 at pp 56–57, His Lordship Saleh Abas LP traced the constitutional history of Malaya then and put in perspective the proper meaning of ‘Islam’ referred to in art 3(1). It was concluded that all laws including administration of Islamic laws had to receive validity through a secular fiat. Thus, it can be seen that during the British colonial period, through their system of indirect rule and establishment of secular institutions, Islamic law was rendered isolated in a narrow confinement to the law of marriage, divorce, and inheritance only (see MB Hooker, Islamic Law in South-east Asia, 1984).
- 23.
Article 11(4), Federal Constitution.
- 24.
The first was granted to the East India Company in March 1807 and this set up the judicial administration in the Presidency of Penang. The second was granted to the East India Company in November 1826 and extended the jurisdiction of the Court to cover Singapore and Malacca. The third Charter was granted in August 1855.
- 25.
See R v Willans[1858] 3 Ky 16 and Fatimah v Logan [1871] 1 Ky 255 and the Civil Law Act 1956, sections 3 and 5.
- 26.
For an overview of the Malaysian legal system, see Sharifah Suhana Ahmad, Malaysian Legal System, 1999, Butterworths Asia and Wan Arfah Hamzah & Ramy Bulan, An Introduction to the Malaysian Legal System, 2003, Penerbit Fajar Bakti Sdn Bhd, Shah Alam.
- 27.
In the context of Syariah or Islamic law proper, which encompasses all aspects of the lives of its believers, it is conceded that the Islamic law applicable in Malaysia is actually limited in its application.
- 28.
See footnote 16.
- 29.
Article 4(1), Federal Constitution of Malaysia.
- 30.
[2007] 5 MLJ 101, at pp. 107–108.
- 31.
See footnote 16.
- 32.
The raiding of the premises of the Bible Society by the religious authority of Selangor (JAIS) and the confiscation of 351 copies of translated bibles in early January 2014 precipitated the legal challenge on the validity of such action. This is better known as the “Allah” controversy as the apparent basis for the raid and confiscation of the copies of the bibles was the use of the term Allah. See http://www.thestar.com.my/News/Nation/2014/01/02/Jais-raid-Bible-Society/, last accessed on 16 March 2015. This issue has been hotly debated and discussed, to the extent that even the Prime Minister made references to it. See http://www.thestar.com.my/News/Nation/2014/01/07/Najib-Tackle-issues-via-dialogue-and-engagement/. See also http://www.thestar.com.my/News/Nation/2014/01/07/NUCC-Raid-on-Bible-Society-regrettable-Move-a-blatant-disregard-for-10point-solution/, http://www.thestar.com.my/News/Nation/2014/12/08/BSM-disappointed-over-desecration-of-returned-Bibles/ and http://www.thestar.com.my/News/Community/2014/01/04/Selangor-Jais-raid-draws-more-flak-from-state-politicians/. Other issues include the participation of Muslim women in beauty pageants and even the practice of yoga. See http://www.thestar.com.my/story/?file=%2f2008%2f11%2f30%2ffocus%2f2683235&sec=focus whereby fatwas were issued. The relentless prosecution by the religious authority of a Muslim woman who is the store manager of the bookstore Borders for the offence of selling a book which was subsequently banned is another case in point. See http://www.freemalaysiatoday.com/category/nation/2015/03/15/jawi-pursues-nik-raina-with-notice-of-appeal/
- 33.
See “Legislating Faith in Malaysia”, Nurjaanah Abdullah, Singapore Journal Of Legal Studies [2007] 264–289, at pp. 270–272 for comments on the Malaysian government’s claim that Malaysia is an Islamic State. This article looks at the position of apostasy and freedom of religion in Malaysia in the light of the conflict between state legislation which makes apostasy a crime and Article 11 of the Federal Constitution which guarantees freedom of religion.
- 34.
In Majlis Agama Islam dan Adat Melayu Perak Darul Ridzuan v Mohamed Suffian bin Ahmad Syazali & Anor [2014] 3 MLJ 74 the Court of Appeal held that when a question of whether the Syariah Court has jurisdiction over a matter, one must proceed first to consider whether the state has legislative competency before considering whether the courts have jurisdiction. Here, the state has no legislative competency to enact any state laws where the Syariah Courts may adjudicate a dispute involving a non-Muslim. The State List in the Ninth Schedule in Item 1 List II does not allow that to begin with.
- 35.
[2015] 7 MLJ 153.
- 36.
Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak & Ors [2013] 5 MLJ 552.
- 37.
The IGP declined to take any action to enforce the warrant on the basis that there are two conflicting custody orders, the husband having obtained a custody order from the Syariah Court and the wife having obtained a custody order from the civil High Court. See http://www.thestar.com.my/News/Nation/2014/09/10/Indira-Gandhi-custody-contempt-appeal-by-Mohd-Riduan-dismissed/. Such a refusal is unprecedented and warrants another article to be written. See http://www.thestar.com.my/News/Nation/2014/09/13/Court-orders-IGP-to-arrest-dad-Khalid-must-detain-Muslim-convert-who-abducted-child-from-exwife/
- 38.
[2014] MLJU 1139, by a majority decision of 2:1.
- 39.
[2014] MLJU 1140.
- 40.
[2007] 5 MLJ 101, at pp. 117–118.
- 41.
[2008] 2 MLJ 147.
- 42.
Although there are cases which supported the proposition that Syariah Courts have jurisdiction over non-Muslims by implication such as the Court of Appeal case of Kaliammal a/p Sinnasamy v Majlis Agama Islam Wilayah Persekutuan (JAWI) & Ors [2012] 3 MLJ 694, Soon Singh a/l Bikar Singh v Pertubohan Kebajikan Islam Malaysia (PERKIM) Kedah & Anor [1999] 1 MLJ 489 and Majlis Ugama Islam Pulau Pinang dan Seberang Perai lwn Shaik Zolkaffily bin Shaik Natar dan lain-lain [2002]4 MLJ 130; [2003] 3 CLJ 289, the subsequent Federal Court’s decision of Latifah Mat Zin and Abdul Kahar bin Ahmad v Kerajaan Negeri Selangor (Kerajaan Malaysia, intervener) & Anor [2008] 3 MLJ 617 have clearly and categorically stated that the jurisdiction of the Syariah Court must be expressly provided for by law enacted by the Legislature. When two decisions of the Federal Court conflict, on a point of law, the later decision prevails over the earlier decision.
- 43.
[2014] MLJU 1063.
- 44.
Art. 5(1) of the Federal Constitution guarantees that no person shall be deprived of his life and personal liberty save in accordance with law. The right to life has been held to include the right to live with dignity by the Court of Appeal in Lembaga Tatatertib Perkhidmatan Awam Hospital Besar Pulau Pinang & Anor v Utra Badi K Perumah [2000] 3 CLJ 224. Article 8(1) of the Federal Constitution guarantees equality before the law and the equal protection of the law. Article 9(2) of the Federal Constitution guarantees freedom of movement within the Federation. Art. 10(1)(a) of the Federal Constitution guarantees freedom of expression.
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Chew Li Hua, N. (2016). Legal Pluralism and Conflicts in Malaysia: The Challenge of Embracing Diversity. In: Bottoni, R., Cristofori, R., Ferrari, S. (eds) Religious Rules, State Law, and Normative Pluralism - A Comparative Overview. Ius Comparatum - Global Studies in Comparative Law, vol 18. Springer, Cham. https://doi.org/10.1007/978-3-319-28335-7_15
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