Topic 5: The Judicial System

-Superior Court
-Subordinate Court

Introduction

The Federal Constitution provides that

power is exercised by the legislative, the
executive and the judiciary.
The Judiciary has the power to hear and
determine civil and criminal matters.
The judicial power of Malaysia is vested in
the Federal Court, the Court of Appeal, the
High Courts and subordinate courts. The
head of the judiciary is the Chief Justice.

Court in Msia consist of

Subordinate Court and Superior
Court.
Court of Judicature Act 1964 (CJA)
provides the jurisdiction for
superior court.
Subordinate Court Act 1948 (SCA)
provides the jurisdiction for
subordinate court.
3

Superior Court

Subordinate Court

Local Jurisdiction

Refer to the geographical distinction

which has the jurisdiction to hear the
case.
court in whose district the matter
arose will have jurisdiction to hear
the case.
eg: case in Merbuk, so it fall under
local jurisdiction of Sg Petani court.
5

Jurisdiction

Original Jurisdiction: the right of court

to try case at first instance before
any other court/ the power to hear
case for the first time.

Appellate Jurisdiction: the power to

consider a case after the case has
been decided by a lower court.
6

Magistrates court

Established under S.76 SCA 1948.

MG court deals with minor civil and criminal cases
within the local jurisdiction assigned to them.
Presided by 1st class MG or 2nd class MG.
Both classes of MG are appointed by YDPA in
Federal Territories and by the Ruler or Yang
Dipertua Negeri in the state.
1st class MG- are legally qualified and must be a
member of the judicial and legal service of the
federation. Appointed on recommendation of Chief
Judge.
2nd class MG-not legally qualified. They are civil
servant who do magisterial work in addition to their
administrative duties.
7

Jurisdiction of 1st Class

Magistrates

Original jurisdiction
1) civil jurisdiction:
To try all cases where the amount in
dispute or value of subject matter
not exceed RM100 000 (one hundred
thousand ringgit).

2) Criminal jurisdiction:
Offences punishable with up to 10 years
imprisonment or ;
Offences punishable with fine only; and
Eg: theft (7year), kidnapping (7years), causing
miscarriage (7years), causing hurt (7years),
extortion (10years)
And offences under S.392 (robbery) and S.457
(housebreaking by night) of Penal Code. The
maximum punishment for these offences is 14
years imprisonment.
10

Criminal sentencing jurisdiction

1)
2)
3)
4)

Sentencing power of 1st Class MG.

What power does the MG court has?
MG may pass any sentence allowed by law
not exceeding:
5 years imprisonment;
Fine up to RM 10 000;
Whipping up to 12 strokes;
Combination of above
if MG award more than prescribe, he must
record his reason for doing so.
usually in grave offence and habitual offender.
11

2 Class Magistrates
nd

Only has original jurisdiction

Original
Jurisdiction

civil

criminal

12

1) civil jurisdiction:
Monetary jurisdiction: Recovery of
debt or liquidated demand in money
payable by Defendant not exceeding
RM 10 000 (ten thousand ringgit).

13

2) Criminal Jurisdiction:
Offence which maximum penalty 12
months imprisonment or fine only.
Eg: unlawful assembly
(6months/fine), does any obscene
act or recite obscene song at public
place (3months/fine), causing public
nuisance (fine RM400)
14

Criminal sentencing jurisdiction:

What power does the MG court has?

MG may pass any sentence allowed by law not
exceeding:
1) Imprisonment not exceeding 6 months;
2) Fine not exceeding RM 1000;
3) Combination of the above
However, if MG think that the accused if
convicted, deserves a penalty which exceed his
or her power of punishment, the case must be
adjourned for trial by 1st Class MG.
NOTE: appeal against decision of the MG court
both in civil & criminal lies to HG court.
15

Small Claim Court

Msia does not have small claim court.

Only small claim procedure introduced
into Magistrate court handling of small
claim.
Since 1st January 1991, all small claim
have been tried by 1st Class Magistrates.
Less procedure-Total exclusion of legal
representative (no lawyer involve) in
order to keep the process informal and
inexpensive.
16

The small claim procedure in

Magistrates court is mandatory for
recovery of all claim below RM5 000.
It is simplified, cheap and speedy
procedure.

17

Sessions Courts

Established under S. 59 SCA 1948

Presided by Sessions court judge
appointed by YDPA on
recommendation of Chief Judge.
Must be a member of judicial & legal
service of the Federation.

18

Jurisdiction of Sessions
court

Superviso
ry
Jurisdictio
n

Original
Jurisdiction

Civil

Criminal

19

Original Jurisdiction
1) Civil jurisdiction:
Monetary jurisdiction i.e all
actions and suits where amount
of dispute or value of subject
matter does not exceed
RM1,000,000 (one million
ringgit).

20

Exception i.e unlimited jurisdiction in

respect of road accident, landlord and
tenant and distress (the seizure of
goods as security for the performance
of an obligation eg, the siezing of a
tenants goods by landlord to secure
payment of rent arrears. If tenant fails
to pay the rent arrears after distress
has been levied, the landlord may sell
the goods and keep the amount due.)
21

In all civil case, the jurisdiction is covers

matters where the amount in dispute
does not exceed RM1,000 000.
Pf may relinquish any portion of his claim
if his claim exceed RM1,000 000, but he
may not afterwards sue for the balance
in any court.
Eg: if PF claim RM1,010 000 and he may
relinquish RM10 000 and cannot claim
the portion relinquished afterwards.
22

Pf cannot split the claim into two

concerning the same cause of action
and the same party.
Eg; if a creditor is owed RM1,020 000,
he may not split the claim into two
claims of RM510,000 each and bring
two suits against the debtor. If he
wants to claim the full amount he
must go to High court.
23

Court also has jurisdiction to try all actions

and suits of a civil nature for the specific
performance or rescission or for
cancellation or rectification of
instruments.
A sessions court may, in respect of any
action or suit within the jurisdiction of the
sessions court, in any proceeding before
it, grant injunction and make a
declaration.
24

2) Criminal Jurisdiction
can try all offences other than
punishable with death.

Sentencing jurisdiction: may pass

any sentence allowed by law except
death penalty.

25

Supervisory jurisdiction

S.54 - Sessions court has supervisory role

over MG court and Penghulu court.
Sessions court judge may call for and
examine the record of any civil
proceeding before MG court or Penghulu
court to satisfy the himself as to the
correctness, legality, or propriety of any
decision recorded or passed and as to the
regularity of any proceeding of that court.
26

If in the opinion that the decision are

wrong/illegal/improperly/irregularity
in procedure, court must forward the
record to HG court.
then HG court may give such order
as are necessary to ensure that
justice is done.

27

High Court

In Malaysia there are two High Courts

having coordinate jurisdiction and status,
that is the High Court in Malaya and the
High Court in Sabah and Sarawak.
The High Court in Malaya consists of a
Chief Judge and not exceed sixty judges
whilst High Court in Sabah and Sarawak
consists of a Chief Judge and not exceed
thirteen judges. (Articles 121(1) and
122AA(1) of the Federal Constitution).
28

Jurisdiction of HC
Jurisdictio
n

original

civil

appellate

superviso
ry

revisionar
y

crimina
l

civil

crimina
l

29

Original jurisdiction

HC has unlimited jurisdiction in both

civil and criminal matters.
It can try any civil case of any value
and any criminal case no matter how
grave.
However HC normally tries only
cases outside the jurisdiction of the
subordinate courts.
30

Civil jurisdiction

HC has jurisdiction to try all civil matters

regardless of value within its local
jurisdiction i.e:
a) where cause of action arose;
b) where the DF or one of several DF
resides or has place of business;
c) where any land, the ownership of which
is disputed is situated.
In practice HC tries cases where the
amount involved exceeds RM1,000,000-00
31

Each HC tries only cases that arise

from its own territory, but if the
parties consent in writing, the court
may try cases from the territory of
other HC.

32

HC has specific jurisdiction in matters

enumerated in S.24 CJA which includes:
a) divorce and matrimonial causes;
b) bankruptcy and winding-up of
companies;
c) guardianship or custody of children;
d)Wills and probate;
e) injunctions, specific performance or
rescissions;
33

Criminal jurisdiction of HC

Has jurisdiction over people (citizen

and non citizen ) and offences
committed within its territory.
May impose the maximum sentence
allowed by law under S.22 (2) CJA
All sentence including death penalty.

34

Appellate jurisdiction

Hear an appeals from subordinate

court in both civil and criminal cases.
Civil
No appeal to HC from a
decision of Subordinate court
in civil matter where the
amount in dispute less than
RM10 000 except on a
question of law.

Criminal
-No appeal if offence
punished only with a fine of
RM25 or less.
-a person who pleaded guilty
and been convicted cannot
appeal except as to the
extent or legality of the
sentence.
-no appeal against an
acquittal except with writen
sanction of Public Prosecutor.

35

Supervisory jurisdiction

S.35(1) CJA: HC shall have general

supervisory and revisionary jurisdiction
over all subordinate court.
Supervisory jurisdiction is where HC has
power in the interest of justice to call for
the record of any proceeding whether civil
or criminal in any subordinate court, at
any stage of such proceeding and either
transfer the same to the HC or give to
subordinate direction for further conduct
of the case.
36

Revisionary jurisdiction

HC may revise the decision of any subordinate

court in respect of criminal and civil matters
for the purpose of satisfying itself as to the
correctness, legality or propriety of any
decision recorded or passed and regularity of
any proceeding of subordinate court.
Case that had been decided by lower court.
Purpose: to check, to satisfy itself legality and
correctness.
S.33 CJA: HC may give such order either by
directing a new trial or otherwise as seems
necessary to secure that justice is done.
37

Court of Appeal

Governed under part III of CJA 1964

Presided by COA judges and in every
proceeding in the COA is heard and
disposed of by three judges or such
greater uneven numbers (3,5,7)
Decision will be made by a majority of
judges
COA only has appellate jurisdiction i.e
to hear an appeal from HC in both civil
and criminal matters.
38

Civil appeal

COA has jurisdiction to hear and determine

appeals from HC in any civil cause or matter
whether made in exercise of its original or its
appellate jurisdiction.
No appeal is allowed where the amount or
value of subject matter of the claim is less
that RM250000 unless with leave from COA.
Original
HC
COA
Appellate (eg:SC)
39

An appeal to COA is by way of rehearing a

case, and it has all powers and duties of HC
together with full discretionary power to
receive further evidence by oral examination,
or by affidavit etc.
COA may:
a) order a new trial (eg: in case of substantial
wrong or there is miscarriage of justice)
b) reverse or vary the decision of HC (eg:
amount of compensation etc)
40

Criminal appeal

COA may hear any appeal against any

decision made by HC in exercise of its:
a) original jurisdiction
b) appellate jurisdiction in respect of any
criminal matters decided by session court. (if
from MG court, cannot except by leave of
COA)
Original
HC COA
Appellate (eg:SC)
41

COA has power to:

a) dismiss the appeal;
b) confirm, reverse or vary the decision;
c) order retrial or remit the matter with its
opinion thereon to trial court;
COA also may quash the sentence passed
by trial court and pass new sentence if it
think that a different sentence should be
passed.
42

Federal Court

Highest court in Msia.

Consist of Chief Justice, President of
COA, Two Chief Judge of the HG court
and eight other judges of FC
There is only one FC for peninsula
Msia and Sabah & Sarawak.
Every proceeding shall be heard and
disposed of by 3 judges or greater
uneven number of judges as the Chief
Justice may determine.
43

Jurisdiction
Jurisdiction

Original

Appellate

Civil

Referral

Advisory

Criminal

44

Original

Has the same original jurisdiction as the HC.

(Unlimited jurisdiction)
In addition FC has exclusive jurisdiction i.e:
1) decide dispute btw state and state;
2) decide dispute btw state GV and Federal
GV.
3) determine whether a law was validly
made by Parliament or any SLA.
4) a question on the effect of a
constitutional provision (reference made by
HC)
45

Appellate

The bulk of the FCs work is hearing

and determining civil and criminal
appeals.

46

Civil Appeal

Appeal can be made from COA to FC

with the leave of the FC.
Appeal shall lie to FC from judgment
of COA in respect of any matter
decided by HC in its original
jurisdiction in any matter.

47

Criminal appeal

To hear and determine any appeal

against any decision from COA in its
appellate jurisdiction concerning any
criminal matter decided at first
instance by HC. (an appeal from HC)
Eg: murder case (decided by HC at 1st
instance)

HC

appeal

COA

appeal

FC
48

FC may summarily dismiss an

appeal. It may also confirm, or vary
the decision of COA or order retrial.

49

Referral

HC may refer the case to FC i.e to

determine constitutional provision
which have arisen in proceeding in the
HC for a decision by way of special
case.
When FC has decided, it remit back the
case to HC to be disposed accordance
with that decision.
Pending decision by FC, HC may stay
proceeding.
50

Advisory

FC may give its opinion on any

question which has arisen or appears
likely to arise, and which has been
referred to it by YDPA concerning the
effect of any provision of constitution.
Rarely invoke.
Constitutionally AG is legal advisor to
the King.
51

52