Chapter 3 :JUDICIAL SYSTEM IN MALAYSIA

THE JUDICIAL SYSTEM

Federal Court Court of Appeal High Court (Sabah & Sarawak) -- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Native Syariah Court & Court Syariah Court Sessions Court Sessions Court High Court (Malaya) Magistrates Court Juvenile Court Magistrates Court Juvenile Court

SUPERIOR COURTS

Penghulus Court # The present Court system

SUBORDINATE COURTS

Judicial Decision / Precedent

Malaysian law can also be found in the judicial

decisions of the High Court, Court of Appeal and the Federal Court, and the then Supreme Court, Federal Court and the Judicial Committee of the Privy Council. Decisions of these courts were made, and still are being made, systematically by the use of what is called the doctrine of binding judicial precedent. Precedents are basically decision made by judges previously in similar situations.

Contd
Eg.: If the Supreme Court made a certain

decision in 1987 and assuming the facts and situation before a High Court judge deciding a case in 1990 are similar to the said Supreme Court case, the High Court judge must decide the case before him by applying the principles laid down by the Supreme Court in 1987. In English law, the system of binding judicial precedent is called as stare decisis.

Contd
If a judge applies an existing rule of law

without extending it, his decision may be called a declaratory precedent. If the case before him is without precedent, then the decision made by him may be called an original precedent. In this way, judges are constantly contributing to the growth of unwritten law in this country.

Cont
Doctrine of judicial precedent - meaning: every time the judge is to make a decision in a trial, they are follow the previous decision made by the previous judge, where the fact in the previous case is the same as in the present case. - If there is no precedent, the judge is bound to make decision as he think just.

Cont
Doctrine of JP policies are: 1) decisions made by a court will bind decision made by courts which rank lower from her in hierarchy of courts 2) decisions of a HC will not bind decisions of other HC but are to be respected 3) decisions of subordinate courts will bind those particular courts only. Custom - The most common customs that apply are adat perpatih and adat temenggung. - There is also customs for Chinese and Indian

JUDICIARY
Has the power to hear and determine civil and criminal matters Can pronounce the legality of legislative/executive acts Can interpret the Federal and State Constitutions Power vested to Federal Court, Court of Appeal, High Courts and Subordinate Courts The jurisdiction and power of the courts and doctrine of separation of powers exist between legislative (authorities making the law-govmt, Federal, State), the executive (power in the government executing the law-make by State and Parliament) and the judiciary. ( case pg 47)

FUNCTIONS OF THE COURTS

1) Formulating original precedents -relies on customs and traditions -relies on standards, doctrines and principles of justice embedded in the life of community 2) Over-ruling earlier precedents -can be retrospective or prospective 3) Constitutional review Under Articles 4(1) and 128 of the Federal Constitution, Superior Courts have the power to condemn the entire statute as illegal or apply the doctrine of severability and invalidate only the sections that are unconstitutional

FUNCTIONS OF THE COURTS

4) Statutory interpretation -free to view the entire spectrum of law in its entirety; to read on statute in light of related statutes and relevant precedents; to understand the law in the background of wealth of presumptions, principles, doctrines and standards that operate in a democratic society 5) Operation of doctrine of binding precedent 6)Application of doctrine of ultra vires -7) Import of rules and natural justice -non-statutory standards of procedural fairness

FEDERAL COURTS
Is the highest court in Malaysia. Consists of the Chief Justice, the President of the Court of Appeal, the Chief Judge of Sabah and Sarawak, and six Federal Court Judges. Every proceeding is heard by a minimum of three judges or greater (uneven number of judges). The Chief Justice is the head of the Malaysian Judiciary. His appointment (like those of the President of Court of Appeal, the two Chief Judges, judges of the Federal Court, the Court of Appeal and the High Court) are made by The Yang di-Pertuan Agong on the advice of the Prime Minister after consulting the Conference of Rulers
Federal Court of Malaysia

FEDERAL COURTS
Article 121(2) of the Federal Constitution confers the Federal Court with the following jurisdiction:(a) To determine appeals from decisions of the Court of Appeal, of the High Court or a judge thereof; (b) Such original or consultative jurisdiction as is specified in Articles 128 and 130; and (c ) Such other jurisdiction as may be conferred by or under federal law.

FEDERAL COURTS
Article 128(1) of the Federal Constitution states that the Federal Court has the exclusive jurisdiction to determine:(a) Any question whether a law made by Parliament or by the Legislature of a State is invalid on the ground that it makes provision with respect to a matter with respect to which Parliament or, the Legislature of the State has no power to make laws; and

(a) Disputes on any other question between States or between the Federation and any State.

FEDERAL COURTS
Nuraisyah Chua Abdullah (2004), Questions & Answer on Malaysian Courts, Statutes, Cases & Contract, Tort & Criminal Law, ILBS, Petaling Jaya, pp. 23-24:
(1) To hear civil and criminal appeals from decisions of the Court of Appeal and a High Court as provided under Article 128(3) of the Federal Constitution. This appellate function occupies the bulk of the courts work. (2) To exercise exclusive original jurisdiction on those matters conferred on it under Article 128(1) and (2) of the Federal Constitution. It can also pronounce on the validity of any federal or state legislation as being in excess of powers.

FEDERAL COURTS
Nuraisyah Chua Abdullah (2004), Questions & Answer on Malaysian Courts, Statutes, Cases & Contract, Tort & Criminal Law, ILBS, Petaling Jaya, pp. 23-24:
(3) To determine constitutional questions, which have arisen in the proceedings of the High Court but is referred to the Federal Court for a decision as provided under Article 128(2) of the Federal Constitution. (4) To give its opinion on any question referred to it by the Yang di-Pertuan Agong concerning the effect of any provision of the Constitution which has already arisen or appears likely to ariseas provided under Article 130 of the Federal Constitution.

COURT OF APPEAL
Nuraisyah Chua Abdullah (2004), Questions & Answer on Malaysian Courts, Statutes, Cases & Contract, Tort & Criminal Law, ILBS, Petaling Jaya, p. 24:
(1) The Court of Appeal has the jurisdiction to hear and determine any appeal against any High Court decision on criminal matters under Article 121(1B) of the Federal Constitution and section 50(1) of the Courts of Judicature Act 1964. (2) The Court of Appeal also has jurisdiction to hear and determine civil appeals generally for cases where the amount or value of the subject matter of the claim is at least two hundred and fifty thousand ringgit (RM250,000) under section 68(1) of the Courts of Judicature Act 1964.

COURT OF APPEAL
Jurisdiction on Criminal matters:- To hear and determine any criminal appeal against any decision by the High Court:(a) made in the exercise of its original jurisdiction; and (b) in the exercise of its appellate or revisionary jurisdiction on any criminal matter decided by the Sessions Court. - However, if it is an appeal from a decision of the High Court exercising its appellate jurisdiction on any criminal matter that originated from a Magistrates Court, then no further appeal to the Court of Appeal is permissible without leave of the Court of Appeal.

COURT OF APPEAL
Jurisdiction on Civil matters:-To hear and determine appeals from any judgment or order of any High Court in any civil cause or matter, whether made in the exercise of its original or of its appellate jurisdiction, subject to any written law regulating the terms and conditions upon which such appeals are brought (section 67 of the Courts of the Judicature Act 1964). - No appeal shall be brought:(a) If the amount or value of the claim is less than RM250,000, except with the leave of the Court; (b) The judgment or order is made by consent of parties; (c) The judgment or order relates to costs only; and (d) By virtue of any written law the judgment or order of the High Court is final.

HIGH COURT
Nuraisyah Chua Abdullah (2004), Questions & Answer on Malaysian Courts, Statutes, Cases & Contract, Tort & Criminal Law, ILBS, Petaling Jaya, p. 24:
(1) In the exercise of its original jurisdiction, it has unlimited criminal and civil powers. Any matter, which cannot be determined in the subordinate courts is heard before the High Court. (2) In criminal cases, no case may be brought to the High Court unless the offender has been properly committed for trial after the preliminary hearing in a Magistrates Court (See Part II of the Courts of Judicature Act 1964).

HIGH COURT
Nuraisyah Chua Abdullah (2004) (contd):
(3) In the exercise of its appellate jurisdiction, the High Court hears criminal and civil appeals from the Magistrates and Sessions Courts under sections 26 and 28 of the Courts of Judicature Act 1964 respectively). (4) The High Court also possesses the power to refer any points of law arising in the appeal for the decision of the Court of Appeal if it feels that is in the public interest and of paramount importance under section 35 of the Courts of Judicature Act 1964. (5) The High Court has been conferred general supervisory and revisionary jurisdiction over all subordinate courts under section 31 of the Courts of Judicature Act 1964.

HIGH COURT
Original Jurisdiction -On all criminal matters punishable by death and in civil matters where the claim or the subject matter is land, bankruptcy, trusts, probate and administration of estates, divorce, exceeds RM100,000.00 or remedy sought specific performance, an injunction or recission of contract. Appellant Jurisdiction - To hears and determines civil and criminal appeals from the Magistrates' and Sessions' Courts. - No appeal shall lie to the High Court from a decision of a subordinate court in any civil cause or matter where the amount in dispute or the value of the subject matter is RM10,000 or less except where it involves a question of law (sections 26-29 of the Courts of Judicature Act 1964).

SUBORDINATE COURTS IN PENINSULAR MALAYSIA -consists of Penghulus Courts, Magistrates Courts and Sessions Courts -established under section 3(2) of the Subordinate Courts Act 1948 -for the administration of civil and criminal law

SESSION COURT
-highest of the subordinate/inferor courts -under the charge of sessions court judge Nuraisyah Chua Abdullah (2004), Questions & Answer on Malaysian Courts, Statutes, Cases & Contract, Tort & Criminal Law, ILBS, Petaling Jaya, p. 25:

(1) Its criminal jurisdiction extends to all offences other than offences punishable with death under section 63-64 of the Subordinate Courts Act 1948. (2) In civil matters, it has jurisdiction to try all actions and suits of a civil nature where the amount in dispute or value of the subject matter does not exceed 100,000 ringgit under section 65(1)(b) of the Subordinate Courts Act 1948. However, matters relating to land, specific performance, injunction and bankruptcy are excluded from its jurisdiction under section 69 of the Subordinate Courts Act 1948.

MAGISTRATE COURT
- The Magistrates Court deals with minor civil and criminal cases. The court is presided by a magistrate.

MAGISTRATE COURT
-deals with minor civil and criminal cases.
-presided by a magistrate

1. Jurisdiction (First Class Magistrate)

a. Criminal jurisdiction
The maximum term of imprisonment does not exceed ten years, in cases of robbery, (section 392 Penal Code) lurking, house trespass and house breaking (section 457 Penal Code) or in all cases where the punishment is by fine only. The maximum sentence can pass is five years imprisonment, a fine of RM 10,000, whipping of 12 strokes or a combination of any of these punishments. The claim of the dispute does not exceed RM 25,000. Disputes over immovable property, recovery of rent mesne profits and damages where the amount claimed does not exceed RM 24,000, or where the rent payable does not exceed RM 24,000 per year or RM 2,000 per month.

b. Civil jurisdiction:
-

MAGISTRATE COURT
2. Jurisdiction (Second Class Magistrate)
- criminal jurisdiction exists where the maximum term of imprisonment does not exceed one year, in cases of robbery, (section 392 Penal Code) lurking, house trespass and house breaking (section 457 Penal Code) or in all cases where the punishment is by fine only. The maximum sentence can pass is 6 months imprisonment, a fine of RM 1,000 or a combination of any of these punishments. - Civil jurisdiction exists where the plaintiff seeks recovery of a debt or liquidated demand where the amount claimed does not exceed RM 3,000. Small claims courts are also available in the magistrates' courts jurisdiction before a second class magistrate. These have the same civil monetary limit but disallow any legal representation.

PENGHULU COURT
Nuraisyah Chua Abdullah (2004), Questions & Answer on Malaysian Courts, Statutes, Cases & Contract, Tort & Criminal Law, ILBS, Petaling Jaya, p. 26: - The lowest level of subordinate courts in Peninsular Malaysia. - Presided by penghulu/headman appointed by State Government for a mukim - Settles disputes informally (whenever possible) (1) The penghulu is empowered to hear and determine original proceedings of a civil in nature in which the plaintiff seeks to recover a debt or liquidated demand in money not exceeding fifty ringgit. (2) All the parties to the proceedings are persons of an Asian race speaking and understanding the Malay language (section 94 of the Subordinate Courts Act 1948).

PENGHULU COURT
Nuraisyah Chua Abdullah (2004), Questions & Answer on Malaysian Courts, Statutes, Cases & Contract, Tort & Criminal Law, ILBS, Petaling Jaya, p. 26: (3) The criminal jurisdiction of a Penghulus Court is restricted to the trial offences of a minor nature which are specifically enumerated in his kuasa and which can be adequately punished by a fine not exceeding twentyfive ringgit (RM25.00) under section 96 of the Subordinate Courts Act 1948. (4) Under section 95(2) of the Subordinate Courts Act 1948, the Penghulus Court can only try criminal charges against persons of an Asian race. Any person charged with an offence before a Penghulus Court may elect to be tried by a Magistrates Court under section 95(3) of the Subordinate Courts Act 1948.

JUVENILE COURT / THE COURT FOR CHILDREN

Lee Mei Pheng (2005), General Principles of Malaysian Law (5th Ed.), Penerbit Fajar Bakti Sdn. Bhd., Shah Alam, p. 59:

Juvenile Courts have been set up to deal with criminal offenders below the age of eighteen

Under Section 4(4) of the Juvenile Courts Act 1947 (Revised 1972), one of whom shall, if practicable, be a woman. -consists of a first class magistrate who is assisted by 2 lay advisers -the functions of the advisers are to inform, and advise the court in regards to punishment or other treatment of young child/person.
the court is conferred jurisdiction to try all offences except those punishable by death. -court is closed to the public to protect the young offender from publicity -guilty-send over to approved institutions/schools-given corrective education -did not involve homicide-court may discharge him/her on the condition that he /she executes a bond, with/without sureties, to be of good behaviour and come up for sentencing when called upon -the bond may contain conditions such as placed under the supervision of a probationary officer -can appeal to High Court

NATIVE COURT
-peculiar only to Sabah and Sarawak
Lee Mei Pheng (2005), General Principles of Malaysian Law (5th Ed.), Penerbit Fajar Bakti Sdn. Bhd., Shah Alam, p. 61: It exercises jurisdiction over matters affecting native customs where the parties are natives. Native Courts are empowered to try civil and criminal matters including the following:

1. Cases arising from breach of native law or custom, e.g. those relating to religious or matrimonial matters.
2. Cases involving land where there is no title issued by the Land Office and in which all the parties are subject to the same native system of personal law. 3. Civil cases (excluding land) where the value of the subject-matter does not exceed fifty ringgit and all parties are subject to the same native system of personal law.

NATIVE COURT
Nuraisyah Chua Abdullah (2004), Questions & Answer on Malaysian Courts, Statutes, Cases & Contract, Tort & Criminal Law, ILBS, Petaling Jaya, p. 21: The courts, which enforce the Islamic law are the Syariah Courts the jurisdiction given by the State and the Syariah Courts is limited. However, it should be noted that amendment has been made to the Syariah Courts (Criminal Jurisdiction) Act, 1965 in 1984 which has extended the jurisdiction of the Syariah Courts to deal with cases punishable with imprisonment up to three years, or fine up to RM5,000 or whipping up to six stokes or the combination of all these.