Legal Pluralism in Malaysia

HOW FAR CAN YOU APPLY LEGAL PLURALISM IN MALAYSIA
Definition
Legal pluralism is the existence of multiple legal systems within one geographic
area that, in Malaysia,
occur when
the law of the British colonial authority exists alongside more traditional Malay
adat, Islamic and
customary legal systems.
different laws govern different groups, i.e. Islamic Laws for Muslim conduct and
Common Law for
Non-Muslim conduct.
the customary legal systems of the indigenous population of Sabah and Sarawak
have been given
some recognition.
Historical Development
In the early period of the Malaccan empire, the justice system was based on the
ancient Malay customs or
adat, generated from the Adat Temenggung - a body of matriarchal customary laws
believed to have
originated from Minangkabau in Sumatra and later influenced by Hindu laws to
become patriarchal that
was administered by the rulers and their officials.
With the reception of Islam by the Malaccan rulers, the justice system of the Malay
Empire in Malacca,
primarily consisting of the Hukum Kanun Melaka (Laws of Malacca) and the
Undang-undang Laut
Melaka (Laws of the Sea of Malacca) within the Adat Temenggung, assimilated
principles of Islamic
law.
Elements of adat deemed to be in conflict with religious requirements and practices

were gradually
abandoned. The Malaccan law influenced the codification of Islamic law in the other
States in the Malay
Peninsula.
Early Portuguese (1511-1642) and Dutch (1642-1824) colonial powers had policies
of minimal
interference with the local customs and practices. The British (1824-1957) power,
however, had more
significant influence on the prevailing laws of the Malay States, through such
mechanisms as the Resident
system, that established justice systems based on English law.
As a result the Adat Temenggong, Islamic law and other customary laws were
relegated only to personal
and matrimonial affairs.
The Islamic law, moreover, was re-codified on the model of the English statutes and
administered in the
ordinary courts by English or English-trained judges. Though Sharia courts were
established later,
Muslims were able to use both the Sharia and civil courts to litigate personal and
family matters. And
often decisions made by Sharia courts were overturned by the civil courts (which is
not the case now,
since both courts are distinctly separated).
The evolving laws of the Malay states were therefore assigned to a secondary and
minor position by an
implanted British common law.
The Need for Legal Pluralism

A growing criticism against the use of the English common law as a basis for
Malaysian law lies in theargument that English law is no longer relevant to hold a
precedent position. With Malaysias post independent development, English

precedents are becoming alien to Malaysians. This is especially true in references
to English law that has to be made in Malaysian statutes, but when the sociopolitical situation in both places take different turns, amendments to the law in one
place is no more applicable to the other place. There is therefore an undeniable
need for Malaysian law to take its own path. But must this path be still heavily
leaned towards the common law system that was imposed on Malaysians only in the
recent past, or do we explore the pre-colonial legal system that were part of our
socio-politico-economic environment
Many reasons point in this direction, some of which are
It is an undisputed fact that the common law system is litigatious, confrontational
and procedural. In
the process of implementing justice, gross injustice may be instituted, especially for
those who do not have the means to wade through the legalities and procedures in
a confrontational and litigatious
manner. Evidence is not truth but proof.
The legal procedures themselves cause extensive delays and miscarriage of
justice.
Malaysians are not a confrontational people. ASEAN is the only regional grouping
that places
determinant rules on consensual decisions. Why do we need a confrontational legal
system from a
confrontational and aggressive people?
When a judge is forced to evict an indigenous family occupying traditional land
near modernization,
because the land title says otherwise, or deny citizenship to the child of a poor
farmer because the
farmer did not know that the child has to be registered at birth, then the legal
structure is shaken, and
judges act against their conscience and better judgment.
The commoner is not qualified to represent himself in court, requiring to hire
legal expertise that will
cost him, and abandon him when his resources run out, or betray him when the
other party is able to
offer advantages.
When faced with these challenges, the only recourse for the commoner is to yearn
for the laws of his
forefathers, where it was cheaper, non-confrontational, transparent and just in the
eyes of the community
and not the judge. And these laws were dispensed through the
Syariah Courts with civil and criminal jurisdiction.
The Penghulu's court (court of the village head-man)
Native Courts in Sabah and Sarawak.
How Far Have We Gone With Legal Pluralism
In spite of the rampant pluralism, South East Asia works better than many other
regions of the world. A very significant reason for this is the cultural toleration which
has allowed almost every worldview to be accommodated in the South East Asian
psyche. To a great extent this toleration has extended into the legal world; just as a
street in Malacca houses a Buddhist temple, a Hindu Temple, a mosque and a
Catholic church, so the Malaysian legal system caters very adequately, in a way
which European legal systems clearly do not, for several varieties of law, even
providing Special Courts in Sabah and Sarawak to administer native law to the
indigenous population. (A. Harding, Law, Government and the
Constitution in Malaysia, 216.)
Malaysia is a constitutional state that formally endorses the principles of a
democratic constitutional state, namely democracy, checks and balances, rights
and liberties and the rule of law. Though using the British Westminster model of
parliamentary democracy, Malaysia takes into account the existence of collective
identities in the Malaysian society. Besides a bill of rights, containing an
enumeration of the classical individual rights and liberties (with caveats), the
Malaysian constitution also accepts group-specific rights and foresees the possibility
for positive action policies. The Malaysian constitution institutionalized the policies
of multiculturalism by adopting communalism, or a communitarian-liberal
democracy: namely a liberal democracy with a communitarian ethos (S. Fenton,
Malaysia and Capitalist Modernisation: Plural and Multicultural Models, IJMS, 2003,
pg135), which provides for individual rights, safeguards for religious and cultural
minorities and group rights and group-based quotas in education and public
employment and privileges for the economically disadvantaged Malays and the
natives of Sarawak and Sabah .Although the constitution declares that Islam is the
religion of the state, people are free to practice the religion of their choice. And
though Islam enjoys a privileged status in law and policy through state and federal
Islamic departments, functions and officials, and higher allocations for places of
worship, burial and religious education compared to the other religions, Malaysia is
not a theocratic state: it can be best characterized as an intermediate hybrid along
the secular-theocratic continuum (Li-Ann Thio and Jaclyn
Ling-Chien Neo, l.c., 673).
Legal pluralism is particularly well advanced in family law, with the existence of
three systems of family law (and in limited sense also penal and land law), which
are recognized by the constitution: one for nonMuslims, one for Muslims and one for
natives in Sabah and Sarawak. There are generally not many issues with the
application of customary laws. Their application is localized to a people who choose
to abide by them and apparently there seems to be a high level of justice and
acceptance of these laws by the parties concerned. With regard to the
implementation of nation wide Islamic family laws that will need to co-exist with
civil law, Malaysia has been careful to draft them. In Malaysia, Islamic law is subject
to the supremacy of the constitution and the federal law. The Malaysian example
shows that the content of Islamic law can be very contextual and can evolve in a
direction which meets the prevailing English legal tradition. It is an interesting
example of hybridizing, transposition, union, mixing and absorption.
Much of the progressive reforms of the Islamic family law are moving in a similar
direction as their
secular equivalents (and where it is clearly not possible, as in the case of polygamy,
conditions of
polygamy, unusual to other Islamic countries, are stipulated). These progressive use
of Islamic law
emerged in a top-down way, legitimized by the use of Islamic legal methods,
especially ijtihad (free
interpretation or pragmatic interpretation of Islamic texts), takhayyur (free selection
between rules and
opinions of different Islamic schools of law) and talfiq (the combining of points of
view of different
schools of law and lawyers in a single legal rule). The direction taken can be
understood in the light of the
identity of the reformers (who represented both the common law and the Islamic
law tradition), the force
of the parallel secular legal system, the aim of the reformers to create an authentic
comparable legal
system and the opportunity to borrow from a variety of supposedly legitimate

sources of rules and
institutions.(D.L. Horowitz, The Qur'an and the Common Law: Islamic Law Reform
and the Theory of
Legal Change, l.c., part II, 569 e.v.)
As far as the world is concerned, Malaysia has gone quite far ahead of others in the
application of legal
pluralism. In fact such constitutional measures to protect minority rights and
recognize differences are
unusual, enviable and seriously challenged in a self-righteous Western world.

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HOW FAR CAN YOU APPLY LEGAL PLURALISM IN MALAYSIA

Elements of adat deemed to be in conflict with religious requirements and practices

The Need for Legal Pluralism

precedent position. With Malaysias post independent development, English

system and the opportunity to borrow from a variety of supposedly legitimate

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