Question 1 (1168 words)
Jurisdiction Chosen: Country – Malaysia
Malaysia has a unique legal system as it is the only country in the world that adapts a dual-track legal system where Islamic courts co-exist alongside with civil-institutions. Apparently, because of the dual legal system, Malaysia inherits legal tradition from both the Islamic law and the common law. The more interesting discussion of this research would elaborate how co-existence is possible in Malaysia without conflict. Before British colonization in Malaya (confined to all states in the Peninsular Malaysia and excluding Sabah and Sarawak in the Borneo islands), Islamic law is only applicable in the state of Malacca. In Malacca the law was compiled in the Malacca Laws and when the Malacca Empire fell versions of the Malacca Laws were applied in the other States (Liam Yock Fang (Editor) Undang-Undang Melaka, The Hague, 1976 ). Subsequent to the fall of Malacca Empire and as a result inter-state migration that took place during that time, Islamic laws were then being spread across to other states of Malaya. However, when British colonized Malaya in year 1920, the influence of Islamic law became less significant. The British law was implemented in form of codes enacted from India which includes the Contract Act, Criminal Procedure Code and civil Procedure Code. Interestingly enough, the land law legislation introduced at that point of time was based on Torrens System from the Australia. However, the fact that the Torrens system was introduced during the British colonization in both Australia and Malaya clearly explains how the land law legislation originated in Australia was being implemented in Malaya. In the today world, the Torrens system land law legislation has been widely implemented in most commonwealth country. As a result of the implementation of the British laws in Malaya the Shariah law is no longer applicable to those areas covered by the British laws. The British proceeded to set up courts that were headed by British judges trained in the English Common Law. The Civil Law Ordinance 1956 stated that in the absence of any written law, the court shall apply in West Malaysia the Common Law of England and the rules of equity as administered in England on the 7th day of April 1956.(Civil Law Ordinance. 1956, Federation of Malaya Ordinance No. 5 of 1956). As a result of the enactment of Civil Law Ordinance, although Islamic law is the law of the land in Malaya, in actuality, English law became the basic law of the land in Malaya at that juncture. In the case of Ramah v Laton a majority of the Court of Appeal in the Malay States held that Islamic Law is not foreign law but it is the law of the land and as such it is the duty of the courts to declare and apply the law. (Ramah v Laton (1927) 6 FMSLR 128). However during the hearing of that case, the judge does not have prior knowledge of Islamic law and hence have to refer questions of Islamic Law and customs to the State Executive Council. Due to the complication and constant references back to the Mufti during hearing, Muslim Law was enacted in the States and the Shariah Courts to deal with cases under the enactments. The important fact to take note is that the Shariah courts deals only with Muslims in the Malaya and therefore the Islamic laws are confine to Malays or other races that have converted to Muslims. Judicial Independence
Montesquieu puts forward the idea that there is no liberty, if the judiciary power is not separated from the legislative and the executive. He said if it were joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; the judge would then be the legislator. If it were joined with the executive, the judge would behave with violence and oppression Montesquieu, The Spirit of the Laws, Book XI). In Malaysia, the judges of courts are appointed by the Yang-Dipertuan-Agong (Monarch) on the advice of the Prime Minister. The prime...
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