Legal Pluralism in Malaysia
- Author Nurul Akmal Azerin & Nabeel Mahdi Althabhawi
- Published November 7, 2021
- Word count 687
In 1957 when Malaysia achieved its independence, Islam was declared as the religion of state but other religion can still be practised in peace and harmony. Even though Islam is the religion of state, Islamic law is not the sole legal system in Malaysia. Since almost 40% of the population in Malaysia are non-Muslims, it does not make sense to apply Islamic law towards them. Therefore, Malaysia has practised a legal pluralism in its legal system in order to protect the interest of both Muslims and non-Muslim in this country.
According to Jacques Vanderlinden, legal pluralism is the existence within a particular society of different legal mechanisms applying to identical situations. Generally, legal pluralism can be defined as a pluralistic legal system in the juristic sense when the sovereign commands a different body of law to govern a different group of people which may vary by religion, geography and ethnicity (Merry, 1988). According to Griffith, there are two categories of legal pluralism which are weak and strong pluralism. Weak pluralism is when the sovereign commands a different body of law for a different group of people within the states while strong pluralism is where not all law is administered by the state legal institution but it was made by groups of people for themselves for the purpose of ethical and religious value.
In Malaysia, we can conclude that the first category of legal pluralism has been practised in its legal system. This can be seen where there are two sets of rules which are Civil Law and Sharia Law in this country. The source of Civil Law is common law that was introduced by the British during their colonization while Sharia Law was based on Quran and Sunnah. Since there are two different sets of rules, the court system can also be divided into Civil Court and Sharia Court. The Civil Court will govern the federal secular matter while the Sharia Court will handle the matter of Islamic personal and family law. However, Sharia law is not comprehensive as the civil law will still be applied to Muslim in all matters that Sharia law does not regulate.
The efficiency of legal pluralism in Malaysia has been improved after Article 121(1A) of the Federal Constitution has been amended. This is because, Article 121(1A) of the Federal Constitution mentioned that the High Court which is a Civil Court has no jurisdiction in respect of any matter within the jurisdiction of Sharia Courts. It means that Muslims are subject to Civil Law and Sharia Law, while non-Muslims are only subject to Civil Law. Any religious dispute by a Muslim must be brought to Sharia Court instead of Civil Court and Civil Court has no jurisdiction to interfere with religious issue under Sharia Court jurisdiction. Therefore, this will help to prevent any overlapping jurisdiction between Civil Court and Sharia Court.
The issue of conflict of jurisdiction can be seen in the case of Latifah Bte Mat Zin v Rosmawati Binti Sharibun. This case is about a deceased’s daughters arguing over the money in the joint account between the third wife and the deceased, whether it is included in the deceased’s estate or had been given by the deceased as gift inter vivos, which is hibah. The conflict arises when this case is brought to High Court instead of Sharia Court. Therefore, the Federal Court held that by Virtue of Article 121(1A) of Federal Constitution, the High Court had no jurisdiction over the dispute since the Sharia Court has jurisdiction in determining whether the assets are considered as a gift inter vivos or hibah as all the parties in this case are Muslims. Thus, the decision made by the High Court was null and void and had to be set aside.
In conclusion, we can see how the Malaysian legal system evolves and the importance of Malaysia adopting legal pluralism in its legal system in order to maintain the harmonization of all the races in the country. Therefore, a dual legal system which is civil and Sharia play a great role in accommodating the right and freedom of Muslim and non-Muslim in Malaysia.
Nurul Akmal Azerin is a third year law student in National University of Malaysia.
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