School of Advanced Study, University of London
Institute of Advanced Legal Studies
The Impact of Parallel Legal Systems On Fundamental Liberties in Multi-Religious Societies: An Inquiry Into Jurisdictional Conflict In Malaysia and Other Jurisdictions
Justice Azahar Mohamed
(Federal Court, Malaysia; Inns of Court Fellow)
This seminar will involve a discussion on the parallel systems of law in Malaysia and its impact on fundamental liberties, in particular the right to freedom of religion.
Malaysia is a multi-ethnic and multi-religious country. Freedom of religion as a fundamental right is guaranteed under the Federal Constitution.
As of 1.1.2015, the population was estimated to be 30 million people, the majority of whom are Muslims (60%) with the remainder being Christians, Buddhists, Hindus and others.
The Federal Constitution provides a federal-state separation of legal system between a federal civil law and a state sharia law system. On matters pertaining personal and family la as well as certain aspects of criminal offences, the Malaysian law provides different laws for followers of different faiths; the sharia law for Muslims and the civil law for non-Mislims. The sharia court system pre-dated the civil court system.
The civil courts being courts of general jurisdiction administers laws, which are applicable to all persons, which are of general application passed by the federal parliament. On the other hand, sharia courts administer sharia laws as contained under the various legislations passed by state legislatures, which are applicable to persons professing the religion of Islam. The Federal Constitution has stated that the sharia courts have exclusive jurisdiction over matters under their jurisdictions. This is to give affect to a pluralistic law and the court system as it existed in Malaysia.
The dual parallel systems of civil courts and sharia courts have resulted in a complicated overlapping web of jurisdictions. This gives rise to debates of human rights, secularism and the status of Islam in Malaysia.
Many issues are involved in this complex and challenging situation, including the legal status of apostasy, the conflict caused by conversion of religion of only one spouse, the effect of change of religion on marriage, and the implementation of Islamic Law. Problematic issues arise where is a change of personal status into Islam or conversion out of Islam.
Over the years, conflicts of jurisdiction between the parallel systems have become more apparent. There is a long list of cases on jurisdictional conflict between civil and sharia courts.
What are the solutions? Is harmonization ever possible under the present dual parallel legal system?
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