Abstract
Malaysia exhibits such a high degree of centralization that some scholars argue it may best be classified as a quasi-federation rather than a true federation. The Malaysian Constitution enumerates areas of federal and state legislative competency. Most important areas of law are reserved for federal legislation, though the states of Sabah and Sarwak retain some additional legislative authority due to special conditions on their entry into the Federation. All states may in some cases legislate concurrently with the federal government, but any state legislation that conflicts with federal law is invalid.
The main area of law left to the states is Islamic (syariah) law, which relates primarily to family law, inheritances, and charitable trusts. Syariah law is separated by state into 14 independent jurisdictions. Influenced in part by centrally promulgated model codes, syariah law is relatively uniform across the states. However, some significant differences remain. By contrast, Malaysia has a single uniform court system for federal and state civil (non-religious) law, which also contributes to the civil law’s high level of uniformity.
ANG Hean Leng, LLB (Malaya); LLM (Melbourne); Advocate and Solicitor, High Court of Malaya; Sessional Lecturer, School of Arts and Sciences, Monash University (Sunway Campus), Selangor, Malaysia.
Amanda Whiting, Doctor, BA(Hons); Dip Ed; Grad Dip Modern Languages (Indonesian); LLB (Hons); PHD (History) (Melbourne), Associate Director, Malaysia, Asian Law Centre, The University of Melbourne, Australia.
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Notes
- 1.
ANG Hean Leng, LLB (Malaya); LLM (Melbourne); Advocate and Solicitor, High Court of Malaya; Sessional Lecturer, School of Arts and Sciences, Monash University (Sunway Campus), Selangor, Malaysia. Amanda Whiting, Doctor, BA(Hons); Dip Ed; Grad Dip Modern Languages (Indonesian); LLB (Hons); PHD (History) (Melbourne), Associate Director, Malaysia, Asian Law Centre, The University of Melbourne, Australia.
- 2.
For a standard history, see Virginia Matheson Hooker, A Short History of Malaysia: Linking East and West (Sydney: Allen & Unwin, 2003).
- 3.
Andrew Harding, “Global Doctrine and Local Knowledge: Law in Southeast Asia” (2002) 51(1) International and Comparative Law Quarterly 35.
- 4.
Andrew Harding, Law, Government and the Constitution in Malaysia (Leiden: Brill, 1996), 17–18.
- 5.
See the lengthy treatment in id. passim, but esp 24–40, and Joseph M Fernando, The Making of the Malayan Constitution (Kuala Lumpur: Malaysian Branch of the Royal Asiatic Society, 2002). The Reid Commission report is appended to Kevin Tan and Thio Li-ann (eds.) Constitutional Law in Malaysia and Singapore (Singapore: Butterworths, 1997) and J.C. Fong, Constitutional Federalism in Malaysia (Kuala Lumpur: Thompson/Sweet & Maxwell Asia, 2008).
- 6.
There is much written about this, but see especially Harding, Law, Government and the Constitution, supra note 3, at pp. 24–40; and Joseph M Fernando, “The Position of Islam in the Constitution of Malaysia” (2006) 37(2) Journal of Southeast Asian Studies 249.
- 7.
There is an extensive literature; two useful recent treatments are Tan Tai Yong, Creating “Greater Malaysia:” Decolonization and the Political Merger (Singapore: ISEAS, 2007) and Regina Lim, Federal-State Relations in Sabah, Malaysia: The Berjaya Administration, 1976–85 (Singapore: ISEAS, 2008). Despite the more limited scope promised in the title, the latter in fact provides a useful coverage of the 1963 merger.
- 8.
B.H. Shafruddin, The Federal Factor in Government and Politics of Peninsular Malaysia (1987), 38 characterizes the federation as a “two-tier federation system: the Federation of Malaya which federated the original eleven States and the Federation of Malaysia which federated these States with the three new States”.
- 9.
The neighboring state of Terengganu was briefly governed by PAS from 1999 to 2004, and Penang, on the opposite side of the peninsula, was briefly governed by the opposition liberal party Gerakan following the 1969 elections; however Gerakan subsequently joined the UMNO-led coalition in 1973.
- 10.
Mohammad Agus Yusoff, Malaysian Federalism: Conflict of Consensus (Bangi: Penerbit Universiti Kebangasaan Malaysia, 2006), 27, 323–347, especially pp. 325, 335, 340; and Lim, Federal-State Relations, supra note 6, p. 53.
- 11.
See, generally, Mohammad Agus Yusoff, Malaysian Federalism, supra note 9, chapters 5 and 6; Lim, Federal-State Relations, supra note 6, chapters 3–6.
- 12.
Mohammad Agus Yusoff, supra note 9, at p. 330.
- 13.
The PAS government was returned in Kelantan, and in addition component parties of the newly formed opposition coalition Pakatan Rakyat (composed of the Democratic Action Party (DAP), PAS and the National Justice Party (Keadilan Rakyat)) gained control of the states of Penang, Selangor, Perak and Kedah. Political developments and by-elections since 2008 have resulted in a shift of power away from the opposition in several parliamentary and state constituencies. The most dramatic instance is Perak, where several Pakatan Rakyat members defected to the Barisan Nasional, triggering a constitutional crisis: see Audrey Quay (ed.) Perak: A State of Crisis: Rants, Reviews and Reflections on the Overthrow of Democracy and the Rule of Law in Malaysia (Petaling Jaya: LoyarBurok Publications, 2010). Despite these electoral shifts, BN has not regained the crucial two-thirds majority: as of May 2013, BN held 133 out of 222 federal constituencies.
- 14.
The Freedom of Information (State of Selangor) Enactment 2010 received bipartisan support in the Selangor Legislative Assembly and was enacted in early 2011: R. Nadeswaran, “A Step Forward for Transparency” The Sun 6 April 2011; tabling of Penang’s Freedom of Information bill has been postponed to allow for further community consultation, “Tabling of Info Bill put off” The New Straits Times, 4 May 2011.
- 15.
Farish Noor, “Malaysia and the Myth of Tanah Melayu” Part 1, 22 August 2007; Part 2, 29 August 2007 www.othermalaysia.org.
- 16.
In a recent book, human rights activist and historian Kua Kia Soong challenges the official version of May 13. See Kua Kia Soong, May 13: Declassified Documents on the Malaysian Riots of 1969 (Petaling Jaya, Selangor: Suaram, 2007).
- 17.
Mahathir bin Mohamad, The Malay Dilemma (Singapore: D. Moore for the Asia Pacific Press, 1970).
- 18.
Harding, Law, Government and the Constitution, supra note 3, at p. 182. See also the view of Malaysian political scientist Mohammad Agus Yusoff, supra note 9, at p. 325, that “the Malaysian federal constitution was established on a basis favouring a distinct gravitational pull of power towards the centre, providing the states with only a circumscribed autonomy”.
- 19.
Federal Constitution, art 76 (1) (a), (b), (c).
- 20.
Federal Constitution, art 76(2).
- 21.
Federal Constitution, art 76(2).
- 22.
Federal Constitution, art 76(4).
- 23.
Federal Constitution, art 150(1).
- 24.
Federal Constitution, art 150(5). This means that the constitutional requirement to consult with the Conference of Rulers (the council of hereditary Malay sultans accompanied by and acting on the advice of their elected advisors) before certain kinds of laws are presented to parliament does not apply.
- 25.
Federal Constitution, art 150(6).
- 26.
Federal Constitution, art 150(4).
- 27.
Harding, Law, Government and the Constitution, supra note 3, at p. 155.
- 28.
In 1964, 1966, 1969 and 1977: see generally, Harding, Law, Government and the Constitution, supra note 3, at pp. 159–163; Wu Min Aun, The Malaysian Legal System (3rd edition) (Kuala Lumpur: Longmans, 2005), 307–324.
- 29.
Emergency (Federal Constitution and the Constitution of Sarawak) Act 1966; see Harding, Law, Government and the Constitution, supra note 3, at pp. 160–161.
- 30.
Emergency Powers (Kelantan) Act 1977; see Harding, Law, Government and the Constitution, supra note 3, at pp. 162–163.
- 31.
Harding, Law, Government and the Constitution, supra note 3, at p. 161. See also B.H. Shafruddin, supra note 7, at pp. 30–33.
- 32.
Federal Constitution, art 159(1).
- 33.
The Government of the State of Kelantan v. The Government of the Federation of Malaya and Tunku Abdul Rahman Putra Al-Haj [1963] MLJ 355; Johan Shamsuddin Sabaruddin, “The Kelantan Challenge” in Andrew Harding and H.P. Lee (eds.) Constitutional Landmarks in Malaysia: The First 50 years 1957–2007 (Kuala Lumpur: LexisNexis, 2007).
- 34.
Robert Linggi v. The Government of Malaysia Kota Kinabalu High Court Suit No. K21-07-2009 (unreported).
- 35.
Federal Constitution, article 161E.
- 36.
Federal Constitution, article 159 (5).
- 37.
Note that taxation as a federal matter is also authorized by Federal Constitution, article 96.
- 38.
In relation to tourism, it should be noted that prior to 1994, this was a residual matter and hence the subject of state laws and policies. In that year the Federal Parliament amended the federal legislative list to include Tourism as a federal matter – a step that plainly still rankles with the former Attorney General of Sarawak, who tartly observes that the states were not consulted even though the amendment plainly affected them in significant ways: Fong, Constitutional Federalism, supra note 4, at p. 56.
- 39.
Federal Constitution, article 95D expressly precludes the extension to Sabah and Sarawak of uniform federal legislation with respect to land or local government which might otherwise be made pursuant to article 76(4).
- 40.
Harding. Law, Government and the Constitution, supra note 3, at p. 182. For a contrasting, but much earlier view, see Salleh Abas, “Federalism in Malaysia: Changes in the First Twenty Years” in Tun Mohamad Hashim, H.P. Lee and F.A. Trindade (eds.) The Constitution of Malaysia: Its Development 1957–1977 (Kuala Lumpur: Oxford University Press, 1978), chapter 8.
- 41.
Adib Hj Mohd Adam, as reported in the New Straits Times, 22 July 1979, cited in Fong, Constitutional Federalism, supra note 4, at p. 65, note 46.
- 42.
Federal Constitution, art 76(4).
- 43.
See Harding, Law, Government and the Constitution, supra note 3, at pp. 40, 173–176; Wu Min Aun, supra note 27, at p. 47.
- 44.
Federal Constitution, art 95D.
- 45.
Immigration Act 1959/63 (Revised 1974) (Act 155)), Part VII Special Provisions for East Malaysia. This is actually a conferral of federal executive power upon the East Malaysian state governments. The power includes the right to refuse entry of West Malaysians into East Malaysia, and to require West Malaysians to obtain a work permit in order to obtain gainful employment in East Malaysia. Originally intended to protect the natives of East Malaysia from being outnumbered by internal migration from the comparatively more developed peninsular states, these provisions have been used also to prevent scrutiny of East Malaysian governance and the conduct of elections, see ‘Denied Entry, Bersih Chief Sues Sarawak Government’ The Malaysian Insider June 14, 2011.
- 46.
Although it was inserted in the constitution when the East Malaysian states joined in 1963, it has not been enlivened until recently, with the State Sales Tax Enactment 1998 (Sabah).
- 47.
Federal Constitution, art 74(4).
- 48.
Federal Constitution, art 79(2); Fong, supra note 4, at pp. 75–76.
- 49.
Federal Constitution, art 79(2).
- 50.
Fong, supra note 4, at p. 75.
- 51.
See further Thio Li-ann, “Jurisdictional Imbroglio: Civil and Religious Courts, Turf Wars and Article 121(1A) of the Federal Constitution” in Andrew Harding and H.P. Lee (eds.) Constitutional Landmarks in Malaysia: The First 50 Years 1957–2007 (Kuala Lumpur: LexisNexis, 2007) and Amanda Whiting, “Desecularizing Malaysian Law?” in Sarah Biddulph and Pip Nicholson (eds.) Examining Practice, Interrogating Theory: Comparative Law in Asia (Leiden: Martinus Nijhoff, 2008).
- 52.
See further Whiting, “Desecularising Malaysian Law?,” supra, at pp. 223–266; Amanda Whiting, “Secularism, The Islamic State and the Malaysian Legal Profession,” Asian Journal of Comparative Law 5.1 (2010): Article 10, 21–23. http://www.bepress.com/asjcl/vol5/iss1/art10
- 53.
See Sharifah Zubaidah Bt. Abdul Kader Al Junid, “Towards Good Water Governance in Malaysia: Establishing an Enabling Legal Environment” [2004] Malayan Law Journal civ 3.
- 54.
Federal Constitution, 9th Schedule, List I, item 11(b).
- 55.
Federal Constitution, 9th Schedule, List II, item 6(c).
- 56.
Federal Constitution, 9th Schedule, List II, item 12.
- 57.
Federal Constitution, 9th Schedule, List IIIA, item 13.
- 58.
Through enactment of the Federal Suruhanjaya Perkhidmatan Air Negara Act [National Water Services Commission Act] 2006.
- 59.
The Water Services Industry Act 2006 recites that it was enacted to “ensure uniformity of law and policy” throughout Peninsular Malaysia.
- 60.
Such laws include Street, Drainage and Building Act 1974; Irrigation Areas Act 1953; Fisheries Act 1985; Food Act 1983; Environmental Quality Act 1974; Sewerage Services Act, 1993; Road Transport Act 1987; Exclusive Economic Zone Act, 1984; Land Conservation Act 1960; Land Acquisition Act 1960; National Forestry Act 1984. See the discussion in Sharifah Zubaidah bt. Abdul Kader Al Junid, supra note 52, at notes 17–29.
- 61.
See generally Azmi Sharom, “Malaysian Environmental Law: Ten Years After Rio” (2002) Singapore Journal of International & Comparative Law 6: 855–890.
- 62.
Alan Tan, Preliminary Assessment of Malaysia’s Environmental Law (Asia Pacific Centre for Environmental Law, National University of Singapore) available at http://www.law.nus.edu.sg/apcel/dbase/malaysia/reportma.html\#sec3
- 63.
Tan Poh Ling, “Malaysia” in Tan Poh Ling, Asian Legal Systems: Law, Society and Pluralism in East Asia (1997) 263, 271.
- 64.
Fong, supra note 4, at p. 56 and 57.
- 65.
Ketua Pengarah Jabatan Alam Sekitar & Anor v. Kajing Tubek & Ors [1997] 3 MLJ 23; [1997] 4 CLJ 253 (“The Bakun Dam case”).
- 66.
For example, City Council of Georgetown & Anor v. The Government of the State of Penang & Anor [1967] 1 MLJ 169, invalidating the Municipal (Amendment) (Penang) Enactment 1966 (Penang); and see the discussion in Wu Min Aun, supra note 27, at p. 51.
- 67.
See, e.g., sections 73, 78 and Part XIII of the Local Government Act 1976 (Act 171)).
- 68.
Emergency (Suspension of Local Government Elections) Regulations 1965.
- 69.
Through the Local Government (Temporary Provisions) Act 1973.
- 70.
See generally Harding, Law, Government and the Constitution, supra note 3, at p. 122.
- 71.
Federal Constitution, article 4.
- 72.
Faridah Begum Bte Abdullah v. Sultan Haji Ahmad Shah Al Mustain Billah Ibni Almarhum Sultan Abu Bakar Ri'ayatuddin Al Mu'adzam Shah [1996] 1 MLJ 617, [1996] 2 MLJ 159 is an instance where the Federal Court remarked that even if the Parliament were to enact a law conferring a right on a foreign Commonwealth citizen to sue the Ruler, it would be void for illegality and unconstitutionality because the Federal Constitution, art 155(1) requires such a right to be reciprocally effective in both countries.
- 73.
Dewan Undangan Negeri Kelantan & Anor v Nordin Salleh & Anor [1992] 1 CLJ 72 (Rep).
- 74.
See above, part II, section 2 and more generally: Thio Li-ann, “Jurisdictional Imbroglio” supra n 52 discussing leading cases, and Whiting, “Desecularizing Malaysian Law?,” supra note 50, examining three recent cases in detail.
- 75.
Federal Constitution, article 159.
- 76.
See generally, Harding, Law, Government and the Constitution, supra note 3; see, e.g., id., at p. 54.
- 77.
Consultation with the state governments was apparently undertaken: Fong, Constitutional Federalism, supra note 4, at p. 86.
- 78.
The Bakun Dam case, supra note 64, at p. 274.
- 79.
For example: See PP v Ta Hsin Enterprise Sdn Bhd [1998] 4 CLJ Supp 241; Malaysian Vermicelli Manufacturers (Melaka) Sdn Bhd v PP [2001] 7 CLJ 74.
- 80.
This constitutional principle of harmonious construction is not to be confused with the “basic structure” doctrine enunciated by the Indian Supreme Court, which acts as an implied restriction upon parliament’s legislative power to enact constitutional amendments that alter the framework and foundational principles of the constitution: Kesavananda v. State of Kerala ARI 1973 SC 1461. This principle has been considered, but rejected, by Malaysian courts in a succession of cases. See Fong, Constitutional Federalism supra note 4, at p. 200–202, discussing Phang Chin Hock v. Public Prosecutor [1980] MLJ 70, Mark Koding v. Public Prosecutor [1982] 2 MLJ 120, Loh Kooi Choon v Government of Malaysia [1977] 2 MLJ 187.
- 81.
Federal Constitution, article 76 (1) (b), (c).
- 82.
Another example is the Wood-Based Industries (State Legislatures Competency) Act 1984. See generally Rozanah Abd Rahman “Deforestation in Malaysia: A Legal Framework for Ecosystem Protection” [1996] 4 CLJ (Articles).
- 83.
Federal Constitution, article 91(5).
- 84.
Federal Constitution, article 91(6). There is an interesting discussion in Choo Chin Thye and Lucy Chang Ngee Weng, “Constitutional Procedure of Consultation in Malaysia’s Federal System” [2005] 4 MLJ xiii. The National Land Council, in turn, established the National Forestry Council in 1971. That body focuses on forestry matters leading to the issuance of the National Forest Policy and consequently, the National Forestry Act 1984 (Act 313). The Act has been adopted by all peninsular states by way of laws enacted by the respective state legislatures resulting in uniformity throughout these states. The governments of Sabah and Sarawak continue to maintain their own forestry policies and laws.
- 85.
Federal Constitution article 95A.
- 86.
State Grants (Maintenance of Local Authorities) Act 1981, section 3.
- 87.
These situations should be distinguished from Barisan Nasional’s political interference in the government of a component state, as occurred in the constitutional crises in Sarawak (1966), Kelantan (1977) and Perak (2008–2009), referred to above.
- 88.
Sewerage Services Act 1993, Preamble and Section 3.
- 89.
Kelantan, Sabah, Sarawak and the local authority of Johor Bahru city.
- 90.
See Abdul-Rashid Abdul Aziz, “Unraveling of BOT Scheme: Malaysia’s Indah Water Konsortium” (2001) Journal of Construction Engineering and Management November/December 457–460; “Up to IWK to Expand its Services, says Deputy Minister” BERNAMA Malaysian National News Agency 7 September 1998; Mimi Syed Yusof, “Nod by Kelantan to IWK takeover” The New Straits Times (Malaysia) 23 June 1997; Ho Wah Foon, “Sewerage Services is Trying to Keep its Head Above Water” The Straits Times (Singapore) 30 June 1996; Ho Wah Foon, “Indah Water Finalises New Sewerage Rates” The Straits Times (Singapore) 26 June 2006.
- 91.
In relation to the East Malaysian State of Sabah, see further Regina Lim, Federal-State Relations, supra note 6, at p. 70.
- 92.
Federal Constitution, art 160 “ ‘Malay’ means a person who professes the religion of Islam, habitually speaks the Malay language, conforms to Malay custom…”
- 93.
See Wu Min Aun, supra note 27, at pp. 227–258.
- 94.
This is because of the insertion of article 121(1A) into the Federal Constitution in 1988 – its subsequent history is examined in Thio Li-ann, “Jurisdictional Imbroglio” supra note 50. Recent suggestions that the general law ought to be Islamized or brought more into harmony with Islam have generated heated debate – discussed in Whiting, “Desecularising Malaysian Law?” supra note 50 – yet there is little prospect of this happening, at least in the short term, despite the fact that it is the expressed aim of one of the units of the Federal Attorney-General’s Chambers: see www.agc.gov.my/agc/agc/adv/adv.htm for the mission statement: “conduct studies on the federal laws to determine whether the implementation of the laws would be in conflict with Islamic laws and to propose any amendment or reform to the laws to bring it in line with Islamic laws”.
- 95.
The Kelantan hudud laws are unenforceable because the punishments mandated by the state enactment are in direct conflict with a federal law, Federal Syariah Courts (Criminal Jurisdiction) Act 1965 (rev 1988), section 2, which limits punishments for offences against Islam. As criminal law is a federal matter, and state legislative competency over Islam is narrowly circumscribed in 9th Schedule, List II, item 1, the federal law prevails over the inconsistent state enactment by virtue of Federal Constitution article 75. See further M.B. Hooker, “Submission to Allah: The Kelantan Syariah Criminal Code (II) 1993” in Virginia Hooker and Norani Othman (ed.) Malaysia: Islam, Society and Politics (Singapore: ISEAS, 2003), 80–100.
- 96.
See generally Jaclyn Ling-chien Neo, “‘Anti-God, anti-Islam and Anti-Qur’an’: Expanding the Range of Participants and Parameters in Discourse over Women’s Rights and Islam in Malaysia” (2003) 21 UCLA Pacific Basin Law Review 29; Shad Saleem Faruqi “The Malaysian Constitution, The Islamic State and Hudud Laws” in K.S. Nathan and Mohamad Hashim Kamali (eds.) Islam in Southeast Asia: Political, Social and Strategic Challenges for the 21st Century (Singapore: Institute of Southeast Asian Studies, 2005); and Virginia Hooker and Norani Othman (eds.) Malaysian Islam, Society and Politics: Essays in Honour of Clive Kessler (Singapore: Institute of Southeast Asian Studies).
- 97.
Examined in Amanda Whiting “In the Shadow of Developmentalism: The Human Rights Commission of Malaysia at the Intersection of State and Civil Society Priorities” in C. Raj Kumar and D.K. Srivastava (ed.) Human Rights and Development: Law, Policy and Governance (Hong Kong: LexisNexis, 2006). See further Norani Othman, “Grounding Human Rights Arguments in Non-Western Culture: Shari’a and Citizenship Rights of Women in a Modern Islamic State” in Joanne Bauer and Daniel Bell (eds.) The East Asian Challenge for Human Rights (Cambridge: CUP, 1999).
- 98.
Kikue Hamayotsu, “Politics of Syariah Reform: The Making of the State Religio-Legal Apparatus” in Virginia Hooker and Norani Othman (eds.) Malaysia: Islam, Society and Politics (Singapore: ISEAS, 2003), 55–79. A detailed evaluation of the modernization of syariah is in Donald Horowitz, “The Qur’an and the Common Law: Islamic Law Reform and the Theory of Legal Change” (1994) 42 American Journal of Comparative Law 233 (Part 1) and 543 (Part 2).
- 99.
See generally Neo, “Anti-God” supra note 95.
- 100.
These diverse and conflicting outcomes are frequently reported critically in the mass media and are also the subject of a modernizing syariah law reform campaign by the women’s advocacy group Sisters In Islam. For typical news commentary, see: “In dire need of uniformity” New Sunday Times 12 January 2003; “States asked to gazette Islamic Family Law Immediately” Bernama Daily Malaysian News 14 January 2003; “Malaysian Gov’t Mulls Standardisation Of Syariah Laws” Bernama Daily Malaysian News 11 January 2003; “Amended Islamic Family Law Can Be Model For All States” Bernama Daily Malaysian News 14 January 2006; “PM to chair special meeting on Syariah Law” Bernama Daily Malaysian News 13 January 2003; “Perlis’s Move On Polygamy Is In The Interest Of Children, Says Shahidan” Bernama Daily Malaysian News 6 January 2003; “Cabinet Approves Six Draft Bills To Streamline Islamic Laws” Bernama Daily Malaysian News 11 February 2000; “Sarawak State Assembly Passes Six Syariah Bills” Bernama Daily Malaysian News 6 November 2001.
- 101.
This must be done in accordance with Revision of Laws Act 1968, s 6(1).
- 102.
Law reform was added to the Law Revision Division’s functions in 2002: see the website of the Attorney General’s Chambers at www.agc.gov.my/agc/agc/rev/act1.htm
- 103.
Attorney-General’s Chambers Malaysia Annual Report 2005/2006, “Law Revision and Reform Division”, pp. 170–171.
- 104.
See the website of the Law Revision and Reform Division at www.agc.gov.my/agc/agc/rev/rev.htm and the Attorney-General’s Chambers Malaysia Annual Report 2005/2006, “Law Revision and Reform Division”, p. 158.
- 105.
The Attorney-General’s Chambers Malaysia Annual Report 2005/2006, “Law Revision and Reform Division” pp. 159–160 itemises 9 law reform references for 2005 and 10 for 2006, on the topics of: private agencies; copyright; the secular family law; community service as a sentencing alternative; compensation for victims of crime; limitation of actions; the revision of laws scheme; human trafficking; no fault liability insurance for motor vehicles; regulation of the legal profession; banking; child care; investment; road transport; offshore companies; cooperative societies; care centres; financial services in the federal territories; and Malaysian standards.
- 106.
The harmonization project (Projek Harmonisasi) was officially launched in December 2007, but has apparently been longer in the making. See the Attorney-General’s Chambers website: www.agc.gov.my/agc/agc/adv/adv.htm.
- 107.
The Federal Department of Syariah Judiciary has begun to publish case reports prospectively, but there does not seem to be much effort to publish older decisions.
- 108.
See the official website of the JKSM: www.jksm.gov.my, where the official mission statement includes standardizing the Islamic legal system in the nation and streamlining Islamic legal processes throughout the country.
- 109.
See further Harding, Law, Government and the Constitution, supra note 3, at p. 72 ff.
- 110.
See Amanda Whiting, “Situating Suhakam: Human Rights Debates and Malaysia’s National Human Rights Commission” (2003) 39(1) Stanford Journal of International Law 59; Andrew Harding and Amanda Whiting, “‘Custodians of Civil Liberties and Justice in Malaysia’: The Malaysian Bar and the Moderate State” in Terence C. Halliday, Lucien Karpik and Malcolm M. Feeley (eds.) Fates of Political Freedom: The Legal Complex in the British Post-Colony (Cambridge: Cambridge University Press, 2012), chapter 7.
- 111.
The official website is http://www.sistersinislam.org.my/
- 112.
Malaysia is a state party to the International Convention to Eliminate All Forms of Discrimination Against Women, and has submitted its first and second periodic reports – Malaysia, Combined Initial and Second Periodic Report to the Committee on the Elimination of Discrimination against Women (UN Doc CEDAW/C/MYS/1-2, 12 April 2004).
- 113.
Information about the campaign is at http://www.awam.org.my/networks/jag_vaw_activities.htm; see further Cecilia Ng, Maznah Mohamad and Tan beng hui, Feminism and the Women’s Movement in Malaysia: An Unsung (R)evolution (Abingdon: Routledge, 2006), 41–62.
- 114.
We are indebted to Dr. Maizatun Mustafa of the law faculty at the International Islamic University of Malaysia for this information.
- 115.
University of Malaya; National University of Malaysia (Universiti Kebangasaan Malaysia); the International Islamic University Malaysia; University of Technology MARA (Universiti Teknologi MARA), University of Northern Malaysia (Universiti Utara Malaysia); Multimedia University; the Islamic University College Malaysia. Overseas universities also offer legal education in Malaysia and several private colleges offer the University of London External LLB.
- 116.
Legal Profession Act 1976, s 43.
- 117.
For example, under s 10(c) of the Sabah Ordinance.
- 118.
Note further that even with an ad hoc practicing licence, a peninsular Malaysia lawyer must also apply for and receive a work permit from the Immigration Department of the relevant East Malaysian State.
- 119.
In Re Mohamed Azahari Matiasin (Applicant) [2011] 2 CLJ 630.
- 120.
A typical example of hostile media commentary is Julian Puvenaswaran, “Purpose of CLP exam – you tell me”, letter to the editor, Malaysiakini, 20 October 2006 www.malaysiakini.com
- 121.
Malaysian Bar, Ad Hoc Committee on the Common Bar Course, Report 2010–2011, available at http://www.malaysianbar.org.my/ad_hoc_committee_on_the_common_bar_course/ad_hoc_committee_on_the_common_bar_course.html; see further Roger Tan, “High Time for a New Bar” Sunday Star, 6 February 2011, and posted to Malaysian Bar at http://www.malaysianbar.org.my/members_opinions_and_comments/high_time_for_a_new_bar.html
- 122.
Sharifah Zubaidah bt. Syed Abdul Kader, “How To Become A Syarie Lawyer” (1995) 1 CLJ cxlix.
- 123.
As provided for in Administration of Islamic Law (Federal Territories) Act 1993, s59 (1).
- 124.
Victoria Martin, for several decades a practicing member of the Malaysian Bar, subsequently obtained a Diploma of Syariah Law and Practice from the International Islamic University and sought admission to practice as a peguam syarie from the Federal Territories Islamic Affairs Council. Her application was refused because she is not a Muslim. Her High Court challenge to the validity of the faith stipulation in the Rules argued that the parent act was ultra vires and in violation of Federal Constitutional guarantees of equality before the law and freedom of association. The judicial review in the High Court was unsuccessful, but succeeded in the Court of Appeal: see further Whiting “Secularism”, supra note 51, pp 21–23; Hafiz Yatim, “Non-Muslim loses bid to practice in Syariah Courts” Malaysiakini 17 March 2011; “Appeals Court rules non-Muslim lawyers eligible to practise as syariah lawyers in Federal Territories” Bernama 21 June 2013.
- 125.
See further Amanda Whiting, “The Training and Practice of ‘Islamic Lawyers’ in the Federal Territories of Malaysia” in R. Michael Feener, Mark E. Cammack and Clark B. Lombardi (eds.) Islamic Legal Professionals in Contemporary Southeast Asia (forthcoming).
- 126.
- 127.
As at the end of 2010, there were 13358 lawyers, and 6008 legal firms in peninsular Malaysia and the distribution by state or territory is as follows: Federal Territory of Kuala Lumpur, 5459 lawyers, 1724 firms; Selangor, 2863 lawyers, 1522 firms; Johor, 1028 lawyers, 584 firms; Penang, 1057 lawyers, 531 firms; Perak, 655 lawyers, 391 firms; Kedah, 373 lawyers, 229 firms; Negri Sembilan, 362 lawyers, 230 firms; Pahang, 330 lawyers, 190 firms; Melaka, 328 lawyers, 173 firms; Kelantan, 314 lawyers, 185 firms; Perlis, 32 lawyers, 221 firms; Federal Territory of Labuan, 12 lawyers and 7 firms; “others” (presumably including the new federal administrative capital of Putrajaya), 105 lawyers, but no firm statistics available. Source: http://www.malaysianbar.org.my/legal_directory_statistics.html. This total does not include those admitted to practice in Sabah or Sarawak. There are around 1575 syariah lawyers.
- 128.
Advocates’ Association of Sarawak, http://sarawak-advocates.org.my/index.php/rolls-a-directories/rolls (list of lawyers) and http://sarawak-advocates.org.my/index.php/rolls-a-directories/legal-firms (list of firms).
- 129.
Sabah Law Association: http://www.sabahbar.org.my/firms.aspx
- 130.
All figures are taken from the official list on the Federal Department of Syariah Judiciary website www.jksm.gov.my, carian peguam syarie (syariah lawyer search) http://www.jksm.gov.my/jksmv2/index.php?option=com_wrapper&view=wrapper&Itemid=187&lang=bm. For completeness, the remaining figures are as follows: Johor, 128; Kedah, 86; Melaka, 145; Negri Sembilan, 139; Perak, 56; Perlis, 49, Sabah, 61, Sarawak, 75. Analysis of gender breakdown, based on different statistics, is made in Amanda Whiting, “The Training and Practice of ‘Islamic Lawyers,’” supra note 124.
- 131.
“Peguam kurang pengalaman tidak dibenar buka firma sendiri” Utusan Malaysia 23 July 2008 http://www.malaysianbar.org.my/berita/komen_undang_undang/peguam_kurang_pengalaman_tidak_dibenar_buka_firma_sendiri.html
- 132.
See Harding and Whiting, supra note 109.
- 133.
For this reason it was not mentioned in the discussion non-state actors, above. Its website, clearly showing close connections with the government, is http://www.ikim.gov.my/v5/index.php
- 134.
Kikue Hamayotsu, supra note 97, at p. 61.
- 135.
As noted above, the Malaysian Bar technically covers West Malaysia only; the two East Malaysian States each have a separate bar association: the Advocates’ Association of Sarawak and Sabah Law Association.
- 136.
Human Rights Commission of Malaysia Act 1999, sections 4(1) (b), (c).
- 137.
See generally Amanda Whiting, “Situating Suhakam: Human Rights Debates and Malaysia’s National Human Rights Commission” (2003) 39 Stanford Journal of International Law 59–98; and “In the Shadow of Developmentalism” supra note 96, at p. 550.
- 138.
“Nazri: Malaysia to join ICC” The Star Online, 22 March 2011.
- 139.
Malaysian constitutional scholar Shad Saleem Faruqi proposes that this is because Malaysian judges are still “steeped in the British tradition of parliamentary supremacy”, Document of Destiny: The Constitution of the Federation of Malaysia (Malaysia: Star Publications, 2008), 83; see further Sheridan and Groves, The Constitution of Malaysia 5th edition, edited by Dato’ V.C. Vorah, Philip T.N. Koh and Peter S.W. Ling (Kuala Lumpur: Malayan Law Journal, 2004), 38.
- 140.
Federal Constitution, article 4(3), (4).
- 141.
Daud bin Mamat & Ors v. Government of Malaysia [1988] 1 MLJ 119.
- 142.
Kamal Halili Hassan, “Development of Judicial Review in Malaysian Industrial Law” (2006) 8(1) Australian Journal of Asian Law 25–67; Shad Saleem Faruqi, Document of Destiny, supra note 138, at pp. 75–76.
- 143.
For some academic commentary, see: Thio Li-ann, “Jurisdictional Imbroglio” supra note 50; Salbiah Ahmad, “The Freedom of Religion Impasse and Powers of the High Court” (2003) XXII (no 3) INSAF (The Journal of the Malaysian Bar) 60; Whiting, “Desecularizing Malaysian Law?,” supra note 50; Thio Li-ann “Apostasy and Religious Freedom: Constitutional Issues Arising from the Lina Joy Litigation” [2006] 2 MLJ 1; Whiting, “Secularism,” supra note 51.
- 144.
See the description in Wu Min Aun, supra note 27, at pp. 244–249.
- 145.
See Ibid., 249–258.
- 146.
Federal Constitution, articles 148, 158; and see Stephen Kalong Ningkan v. Government of Malaysia [1968] 1 MLJ 119.
- 147.
See the discussion of the 1977 Kelantan Emergency and the Emergency Powers (Kelantan) Act 1977 (Act 192)), above, Part II, section 1, overview.
- 148.
Federal Constitution, 9th Schedule, List I, item 3 (a) (police) and item 6 (machinery of government).
- 149.
Federal Constitution, art 80(4) (6). See, for instance: Printing of Qur’anic Texts Act 1986 (Act 326)).
- 150.
Federal Constitution, article 45 (1) (a).
- 151.
Federal Constitution, art 45 (1) (aa).
- 152.
Federal Constitution art 45(1) (b), 45 (2).
- 153.
Federal Constitution, art 160.
- 154.
See Shafruddin, Federal Factor supra note 7, at p. 18.
- 155.
See further Harding, Law, Government and the Constitution, supra note 3, at pp. 30–31, 79, 96.
- 156.
Federal Constitution, article 112 C and Tenth Schedule, Part V.
- 157.
Federal Constitution, art 109 and schedule 10.
- 158.
See generally Harding, Law, Government and the Constitution, supra note 3, at p, 176ff.
- 159.
See supra section 1.
- 160.
Federal Constitution, art 87.
- 161.
Federal Constitution, art 80(6).
- 162.
Federal Constitution art 156.
- 163.
Federal Constitution, art 38 and 5th Schedule.
- 164.
Federal Constitution, art 38 (3).
- 165.
See in this regard the comments of Harding, Law, Government and the Constitution, supra note 3, at p. 72.
- 166.
Fong, supra note 4, at pp. 236–241.
- 167.
Established by Judicial Appointments Commission Act 2009 (Act 695); appointment provisions in sections 22–28, read with Federal Constitution article 122B.
- 168.
The National Finance Council is established by article 108 of the Federal Constitution.
- 169.
Fong, supra note. 4, at p. 243.
- 170.
Fong, supra note. 4, at pp. 243–244. Sabah and Sarawak participate in the Council but are not voting members.
- 171.
Federal Constitution, article 95A (5), (6), (7).
- 172.
See Article 139 of the Federal Constitution for Penang and Malacca; for Perlis and Negeri Sembilan: Public Services Commission (Extension of Jurisdiction) Enactment, 1958 (Perlis), Public Services Commission (Extended Jurisdiction) Order, 1960 (Perlis), Public Services Commission (Extension of Jurisdiction) Enactment, 1959 (Negeri Sembilan) and Public Services Commission (Extension of Jurisdiction) Order, 1959 (Negeri Sembilan). See further Shafruddin, The Federal Factor supra note 7, chapter 4.
- 173.
Federal Constitution, art 133.
- 174.
Joint Service (Islamic Affairs Officers) Act 1997 (Act 573), s 4.
- 175.
See Public Service Commission Circular No. 1 of 2005 http://www.spa.gov.my/pls/portal/docs/PAGE/SPA_CONTENT/MAKLUMAT_KORPORAT/MK_PROFIL/MK_PEKELILING/MKP_PANDUAN_TUKAR/PEK105.PDF.
- 176.
“Perlis gets new State Secretary”, New Straits Times, http://www.nst.com.my/Current_News/NST/Wednesday/NewsBreak/20080326150355/Article/index_html.
- 177.
Joint Service (Islamic Affairs Officers) Act 1997 (Act 573), section 5.
- 178.
Constitution of the State of Perak, article 36C.
- 179.
“Suspensions not valid, says Chief Secretary to Govt”, New Straits Times, 13 May 2009.
- 180.
See Quay, Perak: A State of Crisis, supra note 12.
- 181.
Economic and Planning Unit, Third Outline Perspective Plan 2001–2010 (Putrajaya: Economic and Planning Unit, Prime Minister’s Office, 2001), table 6.1, “Population Structure 1990–2010”.
- 182.
Federal Constitution articles 89 (Reservation of Land for Malays), 152 (National Language) and 153 (Reservation of quotas in respect of services, permits, etc. for Malays and Natives of any of the States of Sabah and Sarawak).
- 183.
There is a huge literature on this topic. Key recent studies include: Lee Hock Guan, “Affirmative Action in Malaysia” Southeast Asian Affairs 2005 (Singapore: ISEAS, 2005), 211–228 and Edmund Terence Gomez, “Governance, Affirmative Action and Enterprise Development: Ownership and Control of Corporate Malaysia” in Gomez, The State of Malaysia: Ethnicity, Equity and Reform (London: RoutledgeCurzon, 2004), chapter 6.
- 184.
Sedition Act 1948 (Act 15), s 3(1)(f) criminalizes advocating change to the constitutionally expressed Malay privileges; and the Malay-controlled government periodically threatens its critics with punishment under s 3(1)(e).
- 185.
This is the infamous analysis of former Prime Minister Mahathir bin Mohamad in The Malay Dilemma, supra note 16. For a different view of the May 13 riots, see Kua Kia Soong, May 13, supra note 15.
- 186.
Mavis Puthucheary and Norani Othman (eds.) Elections and Democracy in Malaysia (Kuala Lumpur: Universiti Kebangsaan Malaysia, 2005), chapter 1.
- 187.
Fernando, “The Position of Islam” supra note 5; and more generally The Making of the Malayan Constitution, supra note 4.
- 188.
That is, according to the Supreme Court in Che Omar bin Che Soh v. Public Prosecutor [1988] 2 MLJ 55. The meaning of article 3 and the place of religion in the federation are now important political and legal questions: see Whiting, “Secularism,” supra note 51.
- 189.
Shafruddin, supra note 7, at p. xxiv.
- 190.
Only the rulers take part in the election and removal of the King to the exclusion of all the Yang di-Pertua Negeri. See paragraph 7, Fifth Schedule, Federal Constitution.
- 191.
Not being the head of Islam in their respective states, the Yang di-Pertua Negeri do not have say in the aspect of Islamic matters. See paragraph 7, Fifth Schedule, Federal Constitution.
- 192.
See Federal Constitution, articles 16A, 95B–95E, 112A–112D, and, in particular, Part XIIA, comprising arts 161-161H: “Additional Protections for States of Sabah and Sarawak” as well as 10th Schedule, part IV, “Special Grants to states of Sabah and Sarawak”.
- 193.
Regarding which, see R.D.L. Jumper, Orang Asli Now: the Orang Asli in the Malaysian Political World (Lanham, NY: American University Press, 1999).
- 194.
For recent threatened use of the Sedition Act against a leader of the Hindu Rights Action Force (HINDRAF), see Fauwaz Abdul Aziz, “HINDRAF Leader faces fresh sedition charge” malaysiakini, 11 December 2007 – the charge is in relation to a letter sent to the British PM on 15 November (and currently accessible on the government run news service, Bernama, at www.bernama.com/bernama/v3/news.php?id=300857) accusing the Malaysian government of ethnic cleansing policies against Indians in Malaysia.
- 195.
Sajad Hussein, “70,000 More Bangladeshi Workers Coming To Malaysia”, Bernama Daily Malaysian News, 8 March 2009; “Declining Birth Rate Affects 70 Mln Population Target”. Bernama Daily Malaysian News, 4 July 2007 (this report states that as at March 2006, there was a total of 1.85 million registered foreign workers in Malaysia); Farrah Naz Karim and Patrick Sennyah, “Two-week amnesty for 1.2 m illegal immigrants”, New Straits Times, 22 October 2004.
- 196.
Pauline Puah, “Guan Eng meets Abdullah on deferred projects” The Edge 16 July 2008. http://www.theedgedaily.com/cms/content.jsp?id=com.tms.cms.article.Article_2a6bf920-cb73c03a-11151520-d4fbdb32.
- 197.
In current litigation over oil royalties mounted by the State Government of Kelantan against Petroleum Nasional Bhd, a federal government corporation, the Federal Government has asserted that it should be joined as a party on the basis that petroleum in the continental shelf off the coast of Kelantan belonged to the Federal, and not the State, government. See “Kelantan Government loses appeal to stop Federal Government from Intervening Suit,” Bernama, 26 May 2011.
- 198.
Petroleum Nasional Bhd v Kerajaan Negeri Terengganu & Another Appeal [2003] 4 CLJ 337.
- 199.
Andrew Ong, “T’ganu to withdraw oil royalty suit,” Malaysiakini, 8 January 2009.
- 200.
William Case, “Semi-democracy and Minimalist Federalism in Malaysia” in Baogang He, Brian Gilligan, Takashi Honugochi (eds.) Federalism in Asia (Cornwall, UK: Edward Elgar Publishing, 2007).
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Ang, H.L., Whiting, A. (2014). Federalism and Legal Unification in Malaysia. In: Halberstam, D., Reimann, M. (eds) Federalism and Legal Unification. Ius Gentium: Comparative Perspectives on Law and Justice, vol 28. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-7398-1_12
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