Scope

Theoretically, Islamic law applies only to the Muslims, but over the years, Islamic authorities have been flexing their muscles even against non-Muslims.

Civil law meanwhile applies to everyone.

While Islamic law is limited in its scope of criminal offenses (and peculiar in nature), it is almost all encompassing when it comes to personal laws, such as family matters and probate.

An interesting feature, however, is that Muslims will still have to go to civil court for probate matters, even though the applicable laws are the Islamic ones.

Legislation

As Malaysia is a federation, both the state government and the federal government have power to make laws. The demarcation of legislative scope is found in the Ninth Schedule of the Federal Constitution.

Islamic law falls under the State List. The enactment of Islamic law  is therefore done at the state legislative council.

Civil (secular, really) Law: Statutory Legislation and Common Law

Malaysia inherits its legal system from the British, and therefore largely follows the British law. Just like the rest of the Commonwealth, most of law in Malaysia has been codified (i.e. reduced in writing in the form of statutes) by the relevant legislative arm.

However, there are still large areas of laws remains uncodified. They are instead formulated and expended by the court. This is what we call "Common Law". You will not be able to find a statute explaining in detail how these laws work. These are found in a huge collection of previously decided cases and lay down the general principles as well as those for specific situation. Examples include negligence and personal injury. Yup, we are archaic that way.

And despite the plethora of statutes that we have, the interpretation of the statutory provisions relies on, and in turn becomes part of, the common law in Malaysia.

Court system

Leaving aside those specially constituted courts and the natives court, both the civil courts and syariah courts (administering Islamic law) share the same basic structure.

Civil courts consist of Magistrate Court, Session Court, High Court, Court of Appeal and Federal Court.

Magistrate Court, Session Court and High Court have originating civil and criminal jurisdiction (i.e. cases starts there), with their respective jurisdiction (i.e. power) in that sequence. Court of Appeal hears only appeals, while Federal Court, apart from hearing appeals, has specific originating jurisdiction to hear, among others, disputes between the state government and federal government.

The Federal Court also has the jurisdiction to give its opinion to the Yang Di-Pertuan Agong as to the effect of any provisions in the Federal Constitution (if the Yang Di-Pertuan Agong so refers such question(s) to the Federal Court) . The opinion is to be pronounced in open court.

While the limit of jurisdiction of the syariah court is determined by the respective state legislative councils, generally, the syariah court system consists of a Syariah Subordinate Court, Syariah High Court and Syariah Court of Appeal. The syariah court hears only matters concerning Islamic law, be it personal law or criminal law.

This article is written by our Partner, Loke Yuen Hong