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2011

The Malaysian Legal System: A Tale of Two Courts The Malaysian Legal System: A Tale of Two Courts

Yvonne Tew Georgetown University Law Center, ymt8@georgetown.edu

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19 Commonwealth Jud. J. 3-7 (2011)

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The Federal Constitution of Malaysia wascrafted during the birth pangs of the nation in1957 and provides the framework forMalaysia’s modern legal system. TheFederation of Malaya emerged from Britishcolonialism to achieve independence on 31August 1957 and was joined six years later bythe Borneo states – Sabah and Sarawak – andSingapore to form the new nation of Malaysia.Singapore left Malaysia in 1965 to become itsown sovereign nation, and the currentFederation of Malaysia comprises thePeninsula, Sabah, and Sarawak. Malaysia wasborn in a climate of multicultural compromiseas a constitutional monarchy governed bysecular laws. Islam was acknowledged as thereligion of the Federation, according to article3(1) of the Federal Constitution, ‘but otherreligions may be practised in peace andharmony in any part of the Federation’.

The Malaysian court system is based on theUK legal system familiar to those fromcommon law jurisdictions, but it also incorpo-rates distinct characteristics in the form ofIslamic religious courts and two separate HighCourts for the Peninsula and for the Borneostates. The judiciary in Malaysia can beassessed according to its external relationshipwith the other branches of government as wellas its own internal dynamics with the differentcourt systems. The external aspect is itsrelationship with the other two branches ofgovernment, i.e. the executive and the legisla-ture. The internal aspect relates to therelationship of the civil courts with thereligious Syariah courts – a relationship thathas raised jurisdictional issues in certain areas,such as apostasy.

External Relationship: The Vesting ofJudicial PowerThe relationship between the courts and theexecutive and legislature in Malaysia has beena delicate, and sometimes tense, one. TheWestminster style model on which theMalaysian government is based has meant that

in practice there is no strict separation ofpowers between the executive and legislature,where members of the executive (the PrimeMinister and Ministers) are also members ofParliament. The judiciary is hugely significantin checking a powerful executive and legisla-ture. In line with this, article 121(1) of theMalaysian Federal Constitution, before it wasamended in 1988, ‘vested’ judicial power in theHigh Courts and such inferior courts as mightbe provided by federal law.

The Constitutional Amendment Act 1988passed during the administration of Malaysia’sfourth Prime Minister, Mahathir Mohamad,amended article 121(1) by removing the terms‘judicial power’ and ‘vested’. Article 121(1)now specifies instead that the courts ‘shall havesuch jurisdiction and powers as may beconferred by and under federal law.’ The 1988Act was passed following increasing tensionbetween the Mahathir executive and thejudiciary after the judiciary had struck downseveral decisions made by the executive (see AHarding, ‘The 1988 Constitutional Crisis inMalaysia’ (1990) 39 ICLQ 57). The 1988Amendment was one development in severalevents that eventually led to the removal of thehead of the judiciary, the Lord President TunSalleh Abas, and two other Federal Courtjudges at the height of the 1988 judicial crisis –an event that has been criticised heavily as aconstitutional crisis and unwarranted intrusionon judicial independence.

The court has so far not dealt directly with theissue of whether the exclusive vesting ofjudicial power in the ordinary courts hasindeed been removed by the amendment.Andrew Harding in Law, Government and theConstitution in Malaysia, pp. 135-36, arguesthat the intention to vest judicial power in thejudiciary can be implied from other provisionsof the Constitution and that the amendmentmust be given a restricted meaning. TheMalaysian judiciary has adopted a restrictiveapproach toward the protection of individual

THE MALAYSIAN LEGAL SYSTEM: A TALE OF TWOCOURTS

Yvonne Tew BA, LLM, Attorney-at-Law New York Bar, Doctoral Candidate in Law, Universityof Cambridge

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rights and a generally pro-Executive approachafter 1988, but the causes for this are broaderthan the amendment of article 121(1). Theconstitutional crisis in 1988, culminating in theremoval of the Lord President, has led to anundermining of public confidence in thejudiciary and a perceived judicial reluctance tochallenge Executive power.

A Tale of Two Courts: Civil Courts andSyariah CourtsThe internal relationship of the civil courts withthe Syariah courts has also raised issues related tothe jurisdiction of both courts and the position ofIslam in the Constitution. The civil and Syariahcourts exist in a dual court structure producedfollowing Malaysia’s independence in an effort toensure that there would be a federal secular legalsystem in the form of the civil courts, as well as areligious forum for Muslims under which todispense Islamic personal and family law.

Civil CourtsMalaysia’s civil court structure is largely basedon a court structure familiar to those fromcommon law jurisdictions. It consists of theSubordinate Courts and the Superior orAppellate Courts. The Superior Courts aremade up of the High Court of Malaya, theHigh Court of Sabah and Sarawak, the Courtof Appeal, and the Federal Court.

The Federal Court is the highest and finalcourt of appeal. It has appellate jurisdiction tohear appeals from the Court of Appeal;original or federal-state jurisdiction overwhether a federal or state legislative body haslegitimately made a law within its power;referral jurisdiction to determine constitutionalquestions referred to it by another court; andadvisory jurisdiction to give an advisoryopinion on any question referred to it by theYang di-Pertuan Agong (His Majesty)concerning the effect of any provisions of theConstitution. Prior to 1 January 1985, appealscould be made to the Judicial Committee of thePrivy Council. After the abolition of PrivyCouncil appeals, however, the Federal Courtbecame the final court of appeal in the country.The Federal Court consists of a Chief Justice,the head of the Malaysian judiciary; thePresident of the Court of Appeal; the twoChief Judges of the High Courts in Malaya andSabah and Sarawak; and, at present, four otherFederal Court judges.

The Court of Appeal was created in 1994 toact as an appellate court to hear appealsagainst decisions of the High Courts. It hasonly appellate jurisdiction. The creation of theCourt of Appeal in 1994 reinstated a three-level system of appeal, lost with the abolitionof appeals to the Privy Council, and providednecessary relief for the Federal Court.

There are two High Courts of co-ordinatejurisdiction and status: the High Court ofMalaya for the states of Peninsular Malaysiaand the High Court of Sabah and Sarawak forthe Borneo states. There is a Chief Judge thatheads each High Court. The separation of thetwo Courts is partly for practical reasons asthe principal registry of the High Court ofMalaya is in Kuala Lumpur and the registriesfor the Borneo states are in the respectivestates. The independence of the High Court ofBorneo is also important symbolically and asmatter of principle for the Borneo states, whichremain keen to have their own High Court.Both High Courts have general supervisoryand appellate jurisdiction, and have unlimitedcivil and criminal jurisdiction.

The Subordinate Courts consist of the SessionsCourt, the Magistrates’ Court and thePenghulu Court in Peninsular Malaysia. TheSessions Court and the Magistrates’ Courthave general jurisdiction in both civil andcriminal matters. The Sessions Courts hascriminal jurisdiction over all offences notpunishable by death, and civil monetary juris-diction over claims between RM 25,000 andRM 250,000 (£1 sterling equals approximately5 ringgits; $US1 3 ringgits). Magistrates’Courts deal with minor civil and criminalcases. It may hear disputes for civil claimsbelow RM 25,000 and has criminal jurisdic-tion over offences that are punishable by amaximum term of imprisonment that does notexceed 10 years or by fine only. TheMagistrates’ Courts may also hear appealsfrom the Penghulu Courts. These rural courtsare presided over by the Penghulu or villageheadman and are meant for informal settle-ment of small village disputes.

Syariah CourtsIn Malaysia, the civil and Syariah courts existside by side in a dual court structure. The civilcourts were established as federal courts todeal with federal matters, whereas the Syariahcourts are provided for in the Federal

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Constitution as state courts that can be estab-lished to deal with matters of Islamic law. Theunderstanding of the Syariah courts as subor-dinate to the civil courts has arguably beenaltered following the introduction of anamendment to article 121(1A) of theConstitution following the ConstitutionalAmendment Act 1988. Article 121(1A) nowprovides that the civil courts ‘shall have nojurisdiction in respect of any matter within thejurisdiction of the Syariah Courts.’

The question of whether the Syariah Court hasjurisdiction over any particular matter is there-fore significant: once an issue is within thejurisdiction of the Syariah Court, by definition,the civil courts’ jurisdiction is excluded. It isunclear whether the civil High Courts continueto have the power to intervene as a matter ofjudicial review. The view that article 121(1A)does not exclude the supervisory review powerof the High Court is supported by severalcommentators, such as Andrew Harding (Law,Government and the Constitution of Malaysia,136-7 (1996)), Thio Li-Ann (in an essay inConstitutional Landmarks in Malaysia: TheFirst 50 Years, 197 at 202), and the MalaysianBar Council (in its Amicus Brief in Lina Joy)who argue that article 121(1A) simply statesthe obvious, i.e. that each court deals withmatters within its own jurisdiction, but it doesnot transfer additional powers to the Syariahcourts. Another view is that the very objectiveof the amendment was to prevent the HighCourt from having the power of judicial reviewover the Syariah Court as had happened incertain family law cases: see, e.g. HassanSaeed, in Freedom of Religion, Apostasy andIslam (2004) 149 at 150.

The judicial trend recently has appeared tolean towards the latter view. In SubashiniRajasingam v Saravanan Thangathoray([2007] 7 CLJ 584), a case concerning thecustody of children when one parent hadconverted to Islam, the demarcation betweenthe civil and Syariah courts was interpreted tomean that the Syariah courts ‘are not lower instatus than the civil courts . . . they are of equalstanding under the [Federal Constitution]’ (at[23]). This clear separation between the civiland Syariah courts appears to have resulted inan either/or jurisdictional relationship: amatter is either within the jurisdiction of thecivil court or the Syariah court; it cannot beunder both.

The general jurisdiction of the Syariah Court isexpressly provided for in the FederalConstitution under article 74(2) and List II,Schedule 9. Syariah courts have jurisdictionover ‘Islamic law and personal and family lawof persons professing the religion of Islam’,which includes, inter alia, matters such asbetrothal, marriage, divorce, legitimacy,dowry, maintenance, adoption, succession, andreligious endowments. This is consistent withthe idea that the Syariah courts are meant to bestate courts established to deal with Islamiclaw ‘only over persons professing the religionof Islam’ according to List II, Schedule 9. Statelegislatures are then meant to specify the juris-diction of the Syariah courts of their particularstates, within the general jurisdiction laiddown by the Federal Constitution.

Conversion Cases: A Matter for the Civilor Syariah Courts?Conversion cases in general have raised partic-ular complexities in navigating jurisdictionalissues. Difficult issues include the conversionand custody of minors by one parent who hasconverted, such as in the Subashini case above;posthumous disputes regarding whether thedeceased had converted to Islam for burialpurposes; and apostasy cases. Apostasy cases,in particular, lie at very heart of the jurisdic-tional complexities arising from therelationship between the civil and religiouscourts because it concerns the sensitive issue ofMuslims who wish to leave the religion,compounded by Malays being constitutionallydefined as Muslims under article 160 of theFederal Constitution: ‘“Malay” means aperson who professes the religion of Islam,habitually speaks the Malay language,conforms to Malay customs…’.

The 2007 case of Lina Joy ([2007] 3 AllMalaysia Reports 693) is an illustration of this.Lina Joy was a woman born to a Malay-Muslim family who had converted from Islamto Christianity and had applied to have thisofficially recognised as her legal status in orderto marry her Christian fiancé. The FederalCourt, in a two to one judgment, ruled thatMuslims who wish to convert out of Islamcould not do so without a certificate ofapostasy from the Syariah Court. Such a condi-tion creates a situation of practicalimpossibility for a Muslim who wishes toconvert: no Syariah court has ever granted

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such an order of apostasy to a living person;indeed, apostasy is regarded as an offence bythe Syariah courts in certain states.

As a result, Lina Joy continues to be officiallyrecognized as Muslim by the State and cannotmarry her non-Muslim fiancé as Muslimscannot enter into marriage with non-Muslimsunder Islamic law and the civil law in Malaysiaonly covers marriages between non-Muslimpersons. The decision throws into sharp focusthe tension between article 11 of the FederalConstitution, which guarantees ‘the right toprofess and practice [one’s] religion’, andarticle 3, which declares Islam as the religionof the Federation of Malaysia.

Apostasy is not listed in the Constitution as amatter under the purview of the Syariah Court.Many state laws deal with conversion intoIslam, but not conversion out of Islam. Instates where express provision regardingapostasy had not been made in the state lawsregulating the Syariah courts, the crucialquestion was whether the jurisdiction of theSyariah Court over apostasy in that particularstate could be implied. There have been twolines of cases dealing with this matter. The firstapproach affirms that the Syariah Court has nojurisdiction without express jurisdiction fromthe written laws of the state or Parliament; bydefinition, the Syariah Court owes its existenceto such statutes. This was the approachadopted in Ng Wan Chan v Majlis UgamaIslam ((1991) 3 MLJ 487) and Lim Chan Sengv Pengarah Jabatan Agama Islam PulauPinang ((1996) 3 CLJ 23).

The second line of decisions expands the juris-diction of the Syariah Court significantly byfinding that ‘the jurisdiction of the Syariahcourts to deal with the conversion out of Islam,although not expressly provided for in theState Enactments, can be read into them byimplication derived from the provisionsconcerning conversion into Islam’, as wasdecided in Soon Singh v Pertubuhan KebajikanIslam Malaysia ((1999) 1 MLJ 489, 502). TheFederal Court’s decision in Soon Singh is basedon the assumption that Syariah courts are themost appropriate forum for the determinationof a Muslim’s apostate’s conversion out ofIslam as it ‘involves inquiring into the validityof his purported renunciation out of Islamunder Islamic law...’ (at 502). The FederalCourt in this case refused to consider the appli-

cant’s right to religious liberty under article11(1) on the basis that the issue was notproperly raised before the Court.

The stage was set in Lina Joy for a clarificationof the constitutional and jurisdictional issues atstake. Significantly, it pointedly raised theprecise question of whether a Muslim convert’sfundamental religious liberty under theConstitution had been infringed under theimplied jurisdiction approach, which the courthad been able to avoid in Soon Singh. Themajority opinion affirmed the implied jurisdic-tion approach taken in Soon Singh, agreeingthat since matters on conversion into Islam areunder the jurisdiction of the Syariah courts,conversion out of Islam should also fall underthe same jurisdiction by implication.

The Federal Court’s response is significant fortwo distinct, but interrelated, reasons. First,the majority held that jurisdiction of theSyariah court regarding apostasy need not beexpressly laid out in the state laws. RichardMalanjum, Chief Justice of Sabah andSarawak and the only non-Muslim on thebench, argued in a powerful dissent thatimplied jurisdiction ‘must be limited to thosematters that are incidental to a power alreadyconferred or matters that are necessary for theperformance of a legal grant’ (at para [82]).Syariah Court jurisdiction over apostasy fallsunder neither of these categories and is unwar-ranted, particularly since ‘there must be as faras possible express authorization for curtail-ment or violation of fundamental freedoms’ (atpara [82]). There is an intrinsic differencebetween allowing jurisdiction for conversioninto Islam and conversion out of Islam, whichthe doctrine of implying the latter from theformer ignores entirely.

Secondly, and crucially, the majority’s interpre-tation of the right ‘to profess and practice’one’s religion under article 11(1) of theConstitution leaves the content of the rightdevoid of the freedom to choose one’s religion.The Federal Court concluded that forcingapostates to go through the Syariah courtsystem in order to convert is not an infringe-ment of the individual’s constitutional rightbecause ‘[i]f a person professes and practicesIslam, it would definitely mean that he mustcomply with Islamic law which has prescribedthe way to embrace Islam and converting outof Islam’ (at [17.2]). According to the Chief

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Justice, ‘one cannot renounce or embrace areligion at one’s own whims and fancies’ (at[14]). This restrictive interpretation of a‘person [who] professes and practices Islam’effectively makes the definition dependent onthird party affirmation, rather than onindividual freedom of conscience.

Lina Joy represented a crucial juncture in clari-fying where the line should be drawn betweenthe jurisdiction of the civil court and Syariahcourt. The Federal Court’s decision effectivelyshifted responsibility for the substantive issueof allowing conversion out of Islam to theSyariah Court. Jurisdictional complexitiesshould not obscure the fact that constitutionalissues remain in the ambit of the civil courts,and that proper engagement with these issuesis required to provide meaningful protection ofthese fundamental constitutional rights.

ConclusionThe Malaysian legal system is a relativelyyoung one, barely over half a century old. Thecourts have had to deal with complex issuesarising out of an evolving legal system over thepast 50 years, but there remains much to bedeveloped. The next generation of theMalaysian judiciary will need to continue todecide and clarify issues that will invariablyarise over the coming years. In order to do so,an independent and impartial judiciary is vital:meaningful development of the legal landscapeis dependent on respect for the separation ofpowers on the part of the other branches ofgovernment as well. The evolution of the legallandscape as Malaysia moves forward in the21st century will hopefully be guided by anapproach that is true to the spirit of theConstitution and the safeguarding of thefundamental liberties enshrined therein.

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