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Malaysia - Legal System
The Malaysian Legal System is largely based on the British Common Law system as a result of the colonization of the country by the British in the 19th century to the 1960s. The law system is known as The Constitution of Malaysia which lays down the legal framework to protect the citizens of the country. There are also individual state laws.
There is a dual-law in Malaysia – this is based on criminal and civil laws and sharia laws.
Malaysia has also incorporated Australian and Indian Laws into their justice system and their land laws are based on Australian land laws. Islamic law is state law and these laws only apply to Muslims and they have their own courts and sentencing guidelines.
The dual law system brings its own problems and those who oppose the laws claim the system goes against the Freedom of Religion. The dual system has caused difficulty for those who convert from the Muslim religion to another religion of which is illegal in sharia laws. Religion is stated on Mykads.
Federal and state laws are described as Acts of Parliament. State laws are set within the state and are passed in Parliament. In the case of state law, federal laws can override any law including sharia law.
In the case of unwritten law, where there is no particular Act which has been passed then English law is more often drawn upon. There have been cases where Australian and Indian laws have been drawn upon to use and to make decisions. Written law is based on English law and primarily operates that basis which makes up the constitution.
In comparison to English sentencing guidelines, capital punishment applies in Malaysia. The main offences where the death penalty may apply are described below:
- Offences against the King such as war
- Drug Trafficking
- Possession of firearms
There is no exemption for foreigners on capital punishment. Capital punishment can only be passed by the High Court of Malaysia. Death sentences are carried out by hanging. There are automatic appeals when a death sentence is passed and the last course of action on appeal is that of a pardon or clemency by the King or Governor of the State. Children and pregnant woman are exempt from the death sentence. There are to date approximately 150 people on death row.
If you find yourself needing a lawyer in Malaysia, for any reason, then you need to make sure you have an English speaking lawyer.
The Malaysian Bar has a list of lawyers available for direct access to the public including foreigners.
There is a legal aid system and this is means tested. There is a Bar Council Legal Aid Centre (BCLAC) and there is a form to be filled in to assess your financial circumstances. If you are charged with an offence which comes under death sentencing guidelines then legal aid is not available. The court will provide a lawyer for a defence and this cost will be borne by the court.
To qualify for legal aid in Malaysia, a foreigner has to be a MYKAD holder and come under the threshold for legal aid which is currently set at 650 RM for single person or a combined income of 950 RM for a couple. Foreigners who are charged with a criminal offense in Malaysia should also contact their country’s embassy.
embassy-finder.com/united-kingdom_in_kuala-lumpur_malaysia - The British High Commission in Kuala Lumpur.
malaysia.usembassy.gov - The United States of America Embassy in Kuala Lumpur.
As a general rule of thumb in Malaysia, there are no sentencing guidelines in place and each sentence is passed by the judge presiding over the case and other cases will be referred to in English, Indian and Australian law. There is a book available which is now used in sentencing: Sentencing Practice in Malaysia. This book is widely available for purchase. This means that the legal system in Malaysia is exceptionally uncertain and arbitrary and each and every expat needs to be fully aware of this.
Penalties are high in Malaysia if a criminal offense is committed. Be absolutely clear on all your dealings and behave as though you would in your own country and respect the laws. The legal system, just like in most jurisdictions, is convoluted and complex and there is little leniency when compared to European countries.
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