Legal Pluralism

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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 the

argument that English law is no longer relevant to hold a precedent position. With Malaysia’s 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 socio-political 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...
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