The Courts in Malaysia

MTC 037: Introduction To Law II

The Courts in Malaysia

Prepared By:

Muhammad Ikhwan Bin Zulkafli

(2008246982)

Muhammad Shah Nizam Bin Abdullah (2008246956)

Muhammad Norazam bin Ishak

(2008246856)

Noorazwan Bin Mohd. Yazid

(2008246972)

Prepared For:
Sir Zulhelmy

1
The Courts in Malaysia

Contents

Introduction………………………………………………………………………......3

Court System in Malaysia……………………………………………………………5

Subordinate Court……………………………………………………………………6

Penghulu Court………………………………………………………………...6

Magistrate Court……………………………………………………………….7

Sessions Court………………………………………………………..………10

Superior Court………………………………………………………………………12

High Court……………………………………………………………………12

Court of Appeal………………………………………………………………15

Federal Court……………………………………………………...………….16

Other
Court………………………………………………………………………….18

Court for Children……………………………………………………………18

Special Court ………………………………………………………………...18

Syariah Court…………………………………………………………………19

Reference…………………………………………………………………………….21

2
The Courts in Malaysia

INTRODUCTION

History

The creation of the court system in Malaysia dates back to 1807 where then it
is known as First Charter of Justice. The charter was created by the British East India
Company, after having the rights to establish a Court of Judicature from the British
Crown in Penang.

Before Malaysia was formed on 16th September 1963, they were 3 Supreme
Courts of Judicature which was:

• The Supreme Court of The Federation of Malaya

• The Supreme Court of Singapore
• The Supreme Court of Sabah, Sarawak, and Borneo

After the formation of Malaysia, the 1963 Federal Constitution replaced the
various Courts of Appeal with a single Federal Court of Malaysia, headed by the Lord
President of the Federal Court with three high courts below:

• The High Court of Malaya

• The High Court of Singapore
• The High Court of Borneo

In Brunei, a separate Court of Judicature was established.

On the 9th of August 1965, Singapore left Malaysia but the High Court of
Singapore is still part of the Malaysian judicial system until 1969 where it was
introduced.

Privy Council was once established in Malaysia and was applied during the
colonial era, during the British settlement in Malaysia. Back then, all the decisions of
the Malayan courts are taken to the Queen-in-Council which is advised by the Judicial
Committee of the Privy Council in London. After the independence, The Queen of
3
The Courts in Malaysia

England and the YDPA agreed that, with the binding of Article 131 of the Federal
Constitution, the Privy Council served as the highest court in Malaysia and it was
abolished for criminal matters on 1st of January 1978 and for civil matters on 1st of
January 1985.

A constitutional crisis occurred in 1988 when the Lord President and several
Supreme Court judges were suspended, then dismissed. This resulted to the
amendment of Article 121 of the Federal Constitution, in line with Article 39 which is
to apply the doctrine of separation of power, Article 44 that is about the legislative
power of the Parliament. Then, these provisions were repealed in 1988, discounting
any reference of judicial power of the federation in the Constitution.

In 1994, after the abolishment of the Privy Council, the Constitution was
amended to establish a second tier of appellate, i.e. the Court of Appeal, which is
headed by the President of the Court of Appeal. With the reform, the office of the
Lord President of the Supreme Court is changed to “Chief Justice of Malaysia”. The
Chief Justice of Malaya and The Chief Justice of Borneo were also re-titled as The
Chief Judge of Malaya and The Chief Judge of Sabah and Sarawak respectively. The
High Court of Borneo was also renamed The High Court of Sabah and Sarawak. The
opposition side in that time views this reform as a way to downgrade the judiciary
system.

Malaysia once used the trial by jury system. It is firstly used in the British
settlements of Malacca and Penang. This came with the introduction of the English
Law. But in the rest of the country, the trial by jury is not available and capital cases
were tried by a judge with two assessors (judge’s assistant). During the Malayan
Emergency, the first prime minister extended the trial to all capital cases in Malaya
due to concerns of miscarriage after the independence in 1957. While in Sabah and
Sarawak, trials of cases was still tried by a judge with two assessors, which until 1963
which where both joined Malaysia. In 1978, to make it in line with the rest of the
states, the trial by jury in Malacca and Penang were limited to capital cases only. The
trial by jury and trials with assessors was abolished on 1st January 1995.

4
The Courts in Malaysia

COURT SYSTEM IN MALAYSIA

The Federal Constitution vested the power to hear and determine civil to the
judiciary. The judiciary also can pronounce the legality of legislative or executive acts
and interpret the Federal Constitution. There are 6 courts that have the power of the
judiciary vested by the Federal Constitution which is the Federal Court, the Court of
Appeal, the High Court, the Sessions Court, the Magistrate Court and the Penghulu
Court. All this courts are categorized into two groups, the Superior Courts and
Subordinate Courts. Figure 1.0 shows the hierarchy of the courts in Malaysia.

Federal Court

Court of Appeal Superior Courts

High Court
Figure 1.0

Sessions Court

Magistrate Court Subordinate Courts

Penghulu Court

5
The Courts in Malaysia

SUBORDINATE COURTS

Penghulu Court

Penghulu Court if the lowest level court in the subordinate court. It is

governed by part 8 of the Subordinate Court Act 1948, Section 94 to 97. It only exists
in West Malaysia. It is presided in front of the Penghulu or headman appointed by the
State Government for a mukim or district. All disputes trial at the Penghulu Court is
settled informally if possible.

The jurisdiction of the Penghulu Court for civil cases applies as follows:

• Applies to a person of Asian race speaking and understand the Malay

language
• Plaintiff seeks to recover a debt or liquidated demand not exceeding
RM 50
• Dispute where state matter does not exceed RM 50

The jurisdictions of the Penghulu Court for criminal cases are as follows:

• Applies to a person of Asian race

• Punishment or fine does not exceed RM 25
• Cases trialed are only of minor offences

In criminal cases, the accused can option to be trialed in the Magistrate Court
but he must be informed of this right before the trial commence. Appealing the
decision of the Penghulu Court is the responsibility of the First Class
Magistrate. If a decision of the Penghulu Court are not obeyed, the Penghulu
Court may report the matter to the Magistrate Court, which the Magistrate
Court may enforce the order as if it was its own.

6
The Courts in Malaysia

Magistrate Court

The Magistrate Court is established under section 76 of the Subordinate Court

Act 1948. This court handles civil and criminal cases that are minor within the local
jurisdiction assigned to them. Magistrate Court is presided by either a First Class
Magistrate or a Second Class Magistrate, of which is appointed by the Yang di-
Pertuan Agung in federal states or Yang di-Pertuan Negeri in states.

There are a few differences between a First Class Magistrate and a Second
Class Magistrate:

• Legal Qualification
o A First Class Magistrate has legal qualification and a member of the
judicial and legal service of the federation. A Second Class Magistrate
does not have legal qualifications and is only civil servants who do
magisterial work in addition of their administration work.

• Appointment
o First Class Magistrates are appointed by recommendation of the Chief
Judge. Second Class Magistrates are now not normally appointed.

Magistrate Courts in Malaysia has 2 different jurisdictions, one for each class
of Magistrate. For the First Class Magistrate, it has 2 jurisdictions, an original
jurisdiction and an appellate jurisdiction.

• Original
For civil cases, a First Class Magistrate can try all cases where the value of the
state matter or amount in dispute is not more than RM25000. The value of the state
can be more than RM25000 if both parties, the plaintiff and defendant, agreed in
writing beforehand.

For criminal cases, cases that be tried are cases where the maximum punishment is
not more than 10 years imprisonment or offences that are punishable with fine only.
7
The Courts in Malaysia

First Class Magistrates can also try offences under Section 392 for robbery and
Section 457 for lurking, house-trespass and house-breaking at night, of the Penal
Code.

The criminal sentencing jurisdictions of a First Class Magistrate are any sentence
that are allowed by law not exceeding five years imprisonment, fine up to RM10000,
whipping up to 12 strokes, or the combination of the above. The sentence given to the
accused can exceed the sentencing jurisdiction of the Magistrate. But the Magistrate
must record the reason for doing so. Usually, it is because of grave offences and
repeated offenders.

• Appellate
First Class Magistrates can hear and determine civil and criminal appeal for any
decision of the Penghulu Court within its jurisdiction. A First Class Magistrate can
reverse the charges, acquit discharge and order retrial of a case. A First Class
Magistrate can also appeal, reduce or vary sentences, but cannot enhance sentences.

For Second Class Magistrates, it only has an original jurisdiction and no

appellate jurisdiction.

• Original
For civil cases, the Second Class Magistrate has monetary jurisdiction, which
means it can only handle cases of the recovery of liquidated demand in money not
more than RM3000.

For criminal cases, a Second Class Magistrate can only handle cases where the
sentence does not exceed 12 months of imprisonment or fine only.

The criminal sentencing jurisdictions of a Second Class Magistrate are

imprisonment not exceeding six months, fine not exceeding RM1000 or the
combination of the above. But, if the Magistrate feels that the accused deserves a
harsher punishment, in which exceed the Magistrates powers, the Magistrate must

8
The Courts in Malaysia

adjourned the case for trial to the First Class Magistrate. All appeals of the decision of
the Magistrate Court are handled by the High Court.

As Malaysia does not have a Small Claims Court, all small claims procedures are
introduced into the Magistrate Court. All small claims have been handled by the First
Class Magistrate Court since New Year’s Day of 1991. It has less procedure than the
usual court proceeding as they do not have legal representatives to keep it informal
and inexpensive. This procedure is mandatory for claims that are below RM5000.

9
The Courts in Malaysia

Sessions Court

The Sessions Court is established under Section 59 of the Subordinate Court

Act 1948. It is the highest of the subordinate court in Malaysia. It is presided by the
Sessions Court Judge which is appointed by the Yang di-Pertuan Agung wit
recommendation of the Chief Judge. The Judge, before being appointed, must be a
member of the judicial and legal service of the federation.

The jurisdictions of the Sessions Court are original and supervisory. There is
no appellate jurisdiction for Sessions Court.

• Original
Sessions Court, in civil cases, has monetary jurisdictions where all actions and
suits where amount of subject matter does not exceed RM250000. But, the
jurisdiction is unlimited when it comes to road accidents, landlord and tenants and
also distress. If the state matter exceeds RM250000, the Plaintiff may relinquish any
portion of his or her claim, but the relinquished portion may not be claimed as another
suit. A plaintiff also can not split a claim concerning the same cause of action and the
same party if the claim exceeds RM250000.

For criminal cases, Sessions Court can try all cases except cases which carry the
death penalty.

The sentencing jurisdictions of the Sessions Court are it may pass any sentence
allowed by law except the death penalty.

• Supervisory
Sessions Court has a supervisory role over the Penghulu Court and Magistrate
Court. It may call for the records of the cases of the Penghulu Court or Magistrate
Court to satisfy itself as to the correctness, legality, or propriety of any decision
recorded or passed and as to the regularity of any of the proceeding of the court. If in
the opinion of the Sessions Court that the records are wrong or illegal, it must be

10
The Courts in Malaysia

forwarded to the High Court where the High Court must an order to make sure that
justice has been served.

11
The Courts in Malaysia

SUPERIOR COURT

High Court

In Malaysia, there are two High Courts, the High Court of Malaya and the
High Court of Sabah and Sarawak. It consists of a Chief Judge for each High Court
and 47 judges for the High Court in Malaya and 11 judges for the High Court of
Sabah and Sarawak.

The jurisdiction of the High Court is original, appellate, supervisory and

revisionary.

• Original
The High Court has unlimited jurisdiction in both civil and criminal cases. This
means it can try any cases no matter how high the state matter and how severe the
offence done. But normally, it only tries for cases that are out of the jurisdiction of the
subordinate courts.

For civil cases, the High Court has the jurisdiction to try all civil cases regardless
of amount inside its local jurisdiction. In practice, High Court tries cases where the
state matter is above RM250000. Each High Court only tries cases in its own territory,
but if there is consent in writing from both parties, the Plaintiff and Defendant, the
High Court may try cases from the territory of other High Courts. The High Court
also has specific jurisdictions enumerated in Section 24 of the Courts of Judicature
Act 1964 which includes:

o Divorce and matrimonial causes

o Admiralty matters
o Bankruptcy and winding-up of companies
o Custody of children
o Wills and probate
o Injunctions, specific performances or recessions.

12
The Courts in Malaysia

For criminal cases, the High Court has jurisdiction over people, no matter citizen
or non-citizen, and offences committed in its jurisdiction. It may impose the
maximum amount of sentence allowed by law according to Section 22(2) of the
Courts of Judicature Act. It includes all the sentences, not excluding the death
sentence.

• Appellate
The High Court’s appellate jurisdiction enables it to hear both civil and criminal
appeals for the subordinate courts. But, there are some conditions for cases to be
appealed at the High Court.

For civil cases, no appeal can be made from the subordinate court if the amount in
dispute or state matter is below the sum of RM10000 except on the question of law.

For criminal cases to be appealed in the High Court, it must not be an offence that
carries a fine of RM25 of less. An appeal also can not be made if a person pleaded
guilty and has been convicted except to the extent of the sentence and also the legality
of it. Lastly, there is no appeal if there were an acquittal except with the written
sanction of the Pubic Prosecutor.

• Supervisory
Under Section 35(1) of the Courts of Judicature Act, the High Court has been
conferred general supervisory and revisionary jurisdiction over the subordinate courts.
This translates to where the High Court can call for the records of any proceedings of
the subordinate courts, civil or criminal, to either transfer the same to the High Court
or give direction for further conduct of the case, in the interest of justice.

• Revisionary
The revisionary jurisdiction of the High Court is where the High Court can revise
the decisions made by the subordinate courts in both civil and criminal cases to satisfy
itself to the legality, correctness or propriety of decisions passed and regularity of any
proceeding of the subordinate court. Under Section 33 of the Courts of Judicature Act,

13
The Courts in Malaysia

the High Court may call for a revision of a case by ordering for a new trial or other
wise to make sure that justice has been done.

14
The Courts in Malaysia

Court of Appeal

The Court of Appeal is governed under part II of the Court of Judicature Act
1948. It is presided by the Court of Appeal Judges and every case; it is heard and
disposed by at least three judges or a greater uneven number. A decision will be
derived by a majority of the judges.

The only jurisdiction of this court is an appellate jurisdiction, hence the name
the Court of Appeal.

• Appellate
For civil cases, the Court of Appeal can hear and determine the appeals from High
Court either made in their original or appellate jurisdiction. One compulsory condition
for appeals to be made in the Court of Appeal is its state matter or claim must be more
than RM250000. If it is less than RM250000, it must get leave from the Court of
Appeal. This is done by the court by rehearing a case and the court has all powers of
the High Court and its duties. The Court of Appeal also has full discretionary powers
to receive more evidence through many ways such as oral examinations or affidavit.
Court of Appeal also may order a new trial if there is a wrong or there is no justice
carried and reverse the decision of the High Court.

For criminal cases, the Court of Appeal may hear any appeal made by the High
Court in exercise of their original and appellate jurisdiction in respect of the criminal
matters of the Sessions Court. If an appeal originates from the Magistrates Court, it
cannot be appealed at the Court of Appeal except with the leave of the Court of
Appeal. The Court of Appeal has the power to dismiss an appeal, confirm, reverse or
vary a decision made by the High Court and order a retrial with the opinion of the
court thereon the trial. The Court of Appeal may also quash the sentence given if it is
thought that the sentence given should be different.

15
The Courts in Malaysia

Federal Court

The Federal Court is the highest court in Malaysia. It consists of the Chief
Judge, the President of the Court of Appeal, two Chief Judge of the High Court, and
for other judges of the Federal Court. There are only one Federal Court for the
Peninsula and also Sabah and Sarawak. Each proceeding is heard and disposed by
three judges or by greater uneven number as determined by the Chief Judge.

The jurisdictions of the Federal Court are original, appellate, referral and
advisory.

• Original
The Federal Court has the same, unlimited jurisdiction of the High Court and
more, which is only exclusive to the federal court, which are:

o Deciding disputes between states

o Deciding disputes between state government and federal government
o Determining the validity of law made by the Parliament of the State
Legislative Assembly
o Questions on the effect of constitutional provisions

• Appellate
The appellate jurisdiction of the Federal Court consists of both civil and criminal
cases. It is the majority of the courts work. In civil matters, a litigant may appeal on a
point of law or upon a rejection or admission of evidence of the lower court. For
criminal cases, an appeal may be made against the acquittal or conviction or against
the sentence on a point of law or fact.

• Referral
The referral jurisdiction of the Federal Court actuates to when the High Court
refers a case back to the Federal Court to determine constitutional provisions that
have arise during the proceedings for the decision by way of a special case. After the
Federal Court has decided, the case will be sent back to the High Court and the High
16
The Courts in Malaysia

Court has to take action according to the instructions given by the Federal Court. The
proceeding may continue when the decision of the Federal Court is still pending.

• Advisory
This jurisdiction allows the Federal Court to give its opinion or question which
has risen or likely to arise, and which has been referred to the Yang di-Pertuan Agung
concerning the provisions of the constitution. This jurisdiction is rarely invoked.
According to the Federal Constitution, the Attorney-General is the advisor of the king.

17
The Courts in Malaysia

OTHER COURTS

There are other courts in Malaysia. As such, they serve the different needs of
the citizens of Malaysia. Some of the examples of the other courts in Malaysia are
Court for Children, Special Court, and Syariah Court.

• Court for Children

It is established following the Child Act 2001. It is used to be known as the
Juvenile Court. Section 2 of the act defines a child as an individual under the age of
18. The court consists of a First Class Magistrate, as the case may require, assisted by
two advisors, preferably one of the advisors is a women. No person, public, parents or
guardian are allowed to be in the proceeding. This is to protect the offender from
publicity. If the child is found guilty, the child shall not be imprisoned, but sent to
approved schools or be released on bail. For capital offences, the child shall be
detained in prison at the pleasure of the ruler.

• Special Court
It is established on 30th March 1993, following Article 182 of the Federal
Constitution. It is established to hear both civil and criminal offences and
wrongdoings of the Yang di-Pertuan Agung and the nine rulers of the state. It consists
of the Chief Judge as the chairman, Chief Judge of two High Courts, and other two
judges of either the Federal Court or High Court appointed by the Conference of
Rulers.

Its jurisdiction are exclusive only to the Special Court as it handles the offences
made by the Yang di-Pertuan Agung and the rulers and on all civil matters by or
against the Yang di-Pertuan Agung or rulers nowithstanding where the cause of action
arose. It also has the same jurisdiction of all the courts in Malaysia combined except
the Court of Appeal as vested by the Federal Constitution.

The proceedings are as the same in the Subordinate Courts, High Courts and
Federal Courts and it is decided by the opinion of the majority of the members. The

18
The Courts in Malaysia

decision of the Special Court is final and cannot be challenged or questioned in any
court on any ground.

The sitting may be done at the Federal Court at the Palace of Justice on such date
and time as Chief Justice may form from time to time appoint.

• Syariah Court
There is a parallel system of state Syariah Courts which has limited jurisdictions
over matters of state Islamic (Syariah) law. It concerns only with the Muslim party
only. It is a three-tiered system. Figure 1.2 shows the three-tiered system of the
Syariah Court.

Syariah Court of Appeal

Syariah High Court

Figure 1.2

Subordinate Syariah Court

19
The Courts in Malaysia

Each of the Syariah Courts has civil and criminal jurisdiction. For civil
jurisdictions, it concerns matters like family, divorce, matrimonial claim, wills,
custody and so on. For criminal jurisdictions, it concerns matters like khalwat,
prostitution, drinking of alcohol, non-payment of zakat,and so on.

20
The Courts in Malaysia

Reference:

Lee Mei Pheng (2005). General Principles of Malaysian Law. Selangor: Oxford
Fajar.

Courts of Malaysia. (2006). Retrieved February 28, 2009 from Wikipedia:

http://en.wikipedia.org/wiki/courts_of_malaysia.

21