ASSIGNMENT BUSINESS LAW

TOPIC:

JUDICIAL SYSTEM IN MALAYSIA

PREPARED FOR DR.NAEMAH AMIN

PREPARED BY:

1) MOHD HEIKAL ALIAS DL1016817

2) FAIZAH ABD RAHIM DL1019690

3) HASNIM BT KAMIL DL1015698

4) SYAKIRAH HANIM ABDUL RAHMAN DL1019242

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JUDICIAL SYSTEM IN MALAYSIA

EXECUTIVE SUMMARY

1.The purpose of this paper is to discuss on the judicial system in Malaysia as part of the

requirement for Law LAW 3112 – Malaysian Business

2.There are 4 parts of this paper to be discussed on judicial system in Malaysia which

comprises of :

• Hierarchy of courts, jurisdiction and powers

• Superior Courts in Malaysia

• Subordinate Courts in Peninsular Malaysia

• Subordinate Courts in East Malaysia

2

Introduction

Article 121 of The Federal Constitution has stated that power is exercised by the judiciary .

The judiciary has the power to hear and determine civil and criminal matters. It can even

pronounce on the legality of legislative or executive acts. It can also interpret the Federal and

State Constitution

History

The law of Malaysia is mainly based on the common law legal system. This was a direct

result of the colonization of Malaya, Sarawak, and North Borneo by Britain between early

1800s to 1960s. The supreme law of the land— the Constitution of Malaysia—

sets out the legal framework and rights of Malaysian citizens. A federal law enacted by the

Parliament of Malaysia applies throughout the country. There are also state laws enacted by

the State Legislative Assembly which applies in the particular state. The constitution of

Malaysia also provides for a unique dual justice system— the secular laws (criminal

and civil) and sharia’ laws. The operations and relationship between the two legal systems

can be complicated and has caused uncertainties.

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History

Prior to the independence in 1957, most of the laws of United Kingdom were imported and

either made into local legislations or simply applied as case laws. Malaysian law is also

based on other jurisdictions namely Australia and India. The criminal law in Malaysia&mdas

the Criminal Procedure Code&mdash were based on the Indian criminal code. Similarly, the

Contracts Act is based on the Indian model. Malaysian land law is based on the Australian

Torrens system.

Malaysia has a unified judicial system, and all courts take cognizance of both federal and

state laws. The legal system is founded on British common law. Most cases come before

magistrates and sessions courts. Religious courts decide questions of Islamic law and custom.

The Federal Court, the highest court in Malaysia, reviews decisions referred from the High

Court of Peninsular Malaysia, the High Court of Sabah and Sarawak, and subordinate courts.

The Federal Court, of which the Yang Di Pertuan Agong is lord president, has original

jurisdiction in disputes among states or between a state and the federal government. The

Federal Court consists of the chief justice, the two chief judges from the High Courts, and

seven other judges. Administrative detention is permitted in security cases, in which certain

other guarantees of due process are reportedly suspended.

The judiciary has traditionally functioned with a high degree of independence. Most civil and

criminal cases are fair and open. The accused must be brought before a judge within 24 hours

of arrest. Defendants have the right to counsel and to bail. Strict rules of evidence apply in

court and appeal is available to higher courts. Criminal defendants may also appeal for

clemency to the paramount ruler or to the local state ruler. Severe penalties, including the

death penalty, are imposed for drug-related offenses.

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Although British colonialism deeply influenced the judiciary of Malaysia, law and a system

of courts were well established long prior to the arrival of the British. For example, Melaka

and Brunei maintained order using Islamic law and unwritten law based on tradition and

custom. Judges were appointed by the sultan of their state. Before the creation of the

Federated Malay States in 1895, chief judges heard appeals from the Islamic courts and

further appeals were heard directly by the sultans in consultation with

their religious advisors. Under this system the ruler was the source of justice and supreme

judicial authority.

The Islamic system of justice was slowly weakened under British rule due to the emphasis

placed on separating religious and civil power and creating a formal bureaucratic state

governed by written law. William A. Graham, the first head of state government in Kelantan

per the Anglo-Siamese Treaty of 1902, provides an illustrative example. In violation of the

treaty with the state ruler Graham worked to curb the power of Islamic courts by refusing

police assistance in carrying out their orders and collecting evidence. The marginalization of

indigenous courts was formalized with the Judicial Commissioners' Regulations and Order in

Council in 1896. This legislation removed the power of the sultans to hear legal appeals and

created the office of judicial Commissioner to carry out this function. The Federated Malay

States Appeals Orders in Council of 1906 provided for appeals to the Privy Council in

London.

Before the Japanese invasion in 1941 the Straits Settlements, the Federated Malay States and

the Unfederated Malay States each had their own appeals courts. These appeals courts were

later integrated into the Court of Appeal of the Malayan Union in 1946. When the Federation

of Malaya was put into place in 1948 following the abandonment of the Malayan Union a

Court of Appeal was established for the entire federation that lasted until independence from

the British in 1957.

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Hierarchy of Courts, Power and Jurisdiction

Prior to the formation of Malaysia in 1963, there were three Supreme Courts of Judicature in

Commonwealth South-east Asia:

• The Supreme Court of the Federation of Malaya

• The Supreme Court of Singapore

• The Supreme Court of Sarawak, North Borneo and Brunei

Each Supreme Court consisted of a High Court and a Court of Appeal, and was headed by a

Chief Justice.

When the Federation of Malaysia was founded in 1963 the Federal Court (not to be confused

with the Federal Court in Malaysia's current judicial arrangement) took the place of the Court

of Appeal. Upon independence, by mutual agreement of the United Kingdom and Malaysia,

and by Article 131 of the Federal Constitution, the Privy Council continued to function as the

highest court in Malaysia, formally advising the Yang di Pertuan Agong on the determination

of appeals from the Federal Court. Appeals to the Privy Council in London were not

abolished entirely until 1 January 1985 upon the establishment of the Supreme Court. The

Supreme Court was renamed the Federal Court in a further reorganization of the court system

in 1994.

During the colonial era, decisions of the Malayan courts could be taken on appeal to the

Queen-in-Council, advised by the Judicial Committee of the Privacy Council in London.

Upon independence, by an Agreement between Her Majesty The Queen and His Majesty The

Yang di-Pertuan Agong, and by Article 131 of the Federal Constitution, the Privy Council

continued to function as the highest court in Malaysia, formally advising the Yang-di-Pertuan

Agong on the determination of appeals from the Federal Court.

Privy Council appeals on criminal and constitutional matters were abolished on 1 January

1978. Civil appeals were abolished on 1 January 1985, whereupon the Federal Court was

renamed the "Supreme Court of Malaysia".

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In 1963 the remaining British territories in Southeast Asia, save Brunei, were incorporated

into an enlarged federation of Malaysia. The 1963 Federal Constitution replaced the various

Courts of Appeal with a single Federal Court of Malaysia, headed by a Lord President of the

Federal Court, with three High Courts, each headed by a Chief Justice, below it:

• The High Court in Malaya

• The High Court in Singapore

• The High Court in Borneo

A separate Supreme Court of Judicature was established in Brunei.Singapore left the

Federation on 9 August 1965, but the High Court in Singapore remained part of the

Malaysian judicial system until the Supreme Court of Singapore was reintroduced in 1969:

see Law of Singapore.

In 1988, a constitutional crisis occurred after the Lord President and a number of Supreme

Court judges were suspended and later dismissed. As a consequence of the crisis, Article 121

of the Constitution was amended. Originally, in line with the doctrine of separation of

powers, Article 39 vested the executive authority of the federation in the Yang di-Pertuan

Agong (King), Article 44 vested legislative power in Parliament, and Article 121 provided

that "the judicial power of the Federation shall be vested in two High Courts of coordinate

jurisdiction and statute". This provision was repealed in 1988, removing any reference to the

judicial power of the federation in the Constitution. Most legal scholars believe that despite

this change, since no mention was made of a new holder of judicial authority, "it may still be

presumed to reside in the courts". The motivation for the amendment has been criticized:

"Exactly what was intended to be achieved by tampering with the original version that was

founded on well established principles remains unclear.

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In 1994, in order to restore a second tier in the appellate system which was lost when Privy

Council appeals were abolished, the Constitution was amended to establish a Court of Appeal

of Malaysia (headed by a President of the Court of Appeal) under the Supreme Court, which

once again was renamed the "Federal Court".

As part of the reforms, the office of Lord President of the Supreme Court was replaced by

that of "Chief Justice of Malaysia", while the Chief Justices of Malaya and Borneo were re-

titled "Chief Judge of Malaya" and "Chief Judge of Sabah and Sarawak" respectively. The

High Court in Borneo was also renamed "High Court in Sabah and Sarawak". These changes

were seen by many in the Opposition as an attempt to downgrade the prestige of the

judiciary.

In the former British settlements of Penang and Malacca, the introduction of English law

brought about a system of trial by jury (a jury consisted of originally twelve, but later seven,

persons) in all criminal cases on indictment. In the Malay states, Sarawak and North Borneo,

trial by jury had not been available, and capital cases were tried by a judge sitting with two

assessors.

Due to concerns about miscarriages of justice during the Malayan Emergency, the first prime

minister of Malaya, Tunku Abdul Rahman, extended trial by jury to all capital cases in

Malaya after independence in 1957.

In Sabah and Sarawak, which did not join the Federation until 1963, capital trials continued

to be tried by a judge sitting with two assessors, as they had been before independence.

In 1978, jury trials in Penang and Malacca were restricted to capital cases, bringing them into

line with the rest of Malaya. From 1 January 1995, jury trials and trials with assessors were

abolished throughout Malaysia.

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There are generally two types of trials, criminal and civil. The hierarchy of courts begins

from the Magistrates' Court, Sessions Court, High Court, Court of Appeal, and finally, the

Federal Court. The jurisdictions of the courts in civil or criminal matters are contained in the

Subordinate Courts Act 1948 and the Courts of Judicature Act 1964. Article 121 of the

Constitution provides for two High Courts of coordinate jurisdiction, the High Court in

Malaya, and the High Court in Sabah and Sarawak. Thus this creates two separate local

jurisdictions of the courts – for Peninsular Malaysia and for East Malaysia. The highest

position in the judiciary of Malaysia is the Chief Justice of the Federal Court of Malaysia

(also known as the Chief Justice of Malaysia), followed by the President of the Court of

Appeal, the Chief Judge of Malaya, and the Chief Judge of Sabah and Sarawak. The superior

courts are the High Court, Court of Appeal, and the Federal Court, while the Magistrates'

Courts and the Sessions Courts are classified as subordinate courts.

The current President of the Federal Court is Justice Dato' Abdul Hamid Mohamad, the

President of the Court of Appeal is Tan Sri Dato' Zaki bin Tun Azmi, and the Chief Judge of

Malaya is Justice Dato' Alauddin Mohamad Sheriff. The current Chief Judge of Sabah and

Sarawak is Justice Tan Sri Richard Malanjum (appointed 2006). Bypassing many other

senior judges, Tan Sri Dato' Zaki was the first lawyer appointed directly to the Federal Court.

After some 2 months as a sitting judge, Tan Sri Dato' Zaki was subsequently appointed as the

President of the Court of Appeal.

The judicial power of Malaysia is vested in the Federal Court, the Court of Appeal, the High

Courts and Subordinate Courts.

The judiciary is headed by Chief Justice. Below are the list of Chief Justice from 1994 until

present :

• Abdul Hamid Omar 1994, previously Lord President

• Mohamed Eusoff Chin 1994 – 2000

• Mohamed Dzaiddin Abdullah 2000 – 2003

• Ahmad Fairuz Abdul Halim 2003 – 2007

• Abdul Hamid Mohamad 2007 - 2008

• Zaki Tun Azmi 2008–present

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High courts have jurisdiction over all serious criminal cases and most civil cases. The

sessions courts hear the cases involving landlord-tenant disputes and car accidents.

Magistrates' courts hear criminal cases in which the maximum sentence does not exceed 12

months. The Court of Appeals has jurisdiction over high court and sessions court decisions

The Federal Court is the highest court in Malaysia. The Federal Court may hear appeals of

civil decisions of the Court of Appeal where the Federal Court grants leave to do so. The

Federal Court also hears criminal appeals from the Court of Appeal, but only in respect of

matters heard by the High Court in its original jurisdiction (i.e. where the case has not been

appealed from the Subordinate Courts).

Further information: Malaysian Court of Appeal

The Court of Appeal generally hears all civil appeals against decisions of the High Courts

except where against judgment or orders made by consent. In cases where the claim is less

than RM250,000, the judgment or order relates to costs only, and the appeal is against a

decision of a judge in chambers on an interpleaded summons on undisputed facts, the leave

of the Court of Appeal must first be obtained. The Court of Appeal also hears appeals of

criminal decisions of the High Court. It is the court of final jurisdiction for cases which

began in any subordinate courts.

The two High Courts in Malaysia have general supervisory and revisionary jurisdiction over

all the Subordinate Courts, and jurisdiction to hear appeals from the Subordinate Courts in

civil and criminal matters.

The High Courts have unlimited civil jurisdiction, and generally hear actions where the claim

exceeds RM250,000, other than actions involving motor vehicle accidents, landlord and

tenant disputes and distress. The High Courts hear all matters relating to:

• the validity or dissolution of marriage (divorce) and matrimonial causes,

• bankruptcy and matters relating to the winding-up of companies,

• guardianship or custody of children,

• grants of probate, wills and letters of administration of estates,

• injunctions, specific performance or rescissions of contracts,

• legitimacy of persons.

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The High Courts have unlimited jurisdiction in all criminal matters other than matters

involving Islamic law. The High Courts have original jurisdiction in criminal cases

punishable by death.Cases are heard by a single judge in the High Court, or by a judicial

commissioner. While High Court judges enjoy security of tenure, judicial commissioners are

appointed for a term of two years, and do not enjoy similar protection under the Constitution.

An application for a judicial review is applied in this court.

The Magistrates' Courts and Sessions Courts in Malaysia have jurisdiction in both criminal

and civil matters.Somewhat like the former Quarter Sessions in England, the Sessions Courts

have jurisdiction to try offences which are not punishable by death. They are presided over

by Sessions Court judges (formerly Sessions Court Presidents).

The Sessions Courts also hear all civil matters of which the claim exceeds RM25,000 but

does not exceed RM250,000, except in matters relating to motor vehicle accidents, landlord

and tenant and distress, where the Sessions Courts have unlimited jurisdiction.

Magistrates are divided into First Class and Second Class Magistrates, the former being

legally qualified and having greater powers. Second Class Magistrates are now not normally

appointed.

In criminal matters, First Class Magistrates' Courts generally have power to try all offences

of which the maximum term of imprisonment does not exceed 10 years or which are

punishable with fine only, but may pass sentences of not more than five years imprisonment,

a fine of up to RM10,000, and/or up to twelve strokes of the cane. The Magistrates Courts

hear all civil matters with less than RM25,000 in dispute. The Magistrates' Courts also hear

appeals from the Penghulu's Courts.The court of a penghulu, or Malay village head, has the

power to hear civil matters of which the claim does not exceed RM50, where the parties are

of an Asian race and speak and understand the Malay language.The Penghulu Court's

criminal jurisdiction is limited to offences of a minor nature charged against a person of

Asian race which is specially enumerated in his warrant, which can be punished with a fine

not exceeding RM50.In Sabah and Sarawak, there are no Penghulus' Courts, but there are

instead Native Courts having jurisdiction on matters of native law and custom.

The Court for Children, previously known as the Juvenile Court, hears cases involving

minors except cases carrying the death penalty, which are heard in High Courts instead.

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Cases for children are governed by the Child Act 2001. A child is defined as any person

below the age of 18.

The Special Court was established in 1993 to hear cases of offences or wrongdoings made by

a Ruler. A Ruler includes the Yang di-Pertuan Agong (King), the sultans of monarchical

states in Malaysia, the Yang di-Pertua Negeri, and the Yang di-Pertuan Besar, i.e.: the head

of states of Malaysia and its component states. Prior to this, a Ruler was immune from any

proceedings brought against them in their personal capacity.[2]

There is a parallel system of state Syariah Courts which has limited jurisdiction over matters

of state Islamic (sharia) law. The Syariah Courts have jurisdiction only over matters

involving Muslims, and can generally only pass sentences of not more than three years

imprisonment, a fine of up to RM5,000, and/or up to six strokes of the cane.

The appointment of the Chief Justice is governed by Article 122B of the Constitution of

Malaysia whereby the Yang di-Pertuan Agong (King) appoints the Chief Justice on the

advise of the Prime Minister of Malaysia after consulting the Conference of Rulers. As for

the appointment of the President of the Court of Appeal, the Chief Judge of Malaya, the

Chief Judge of Sabah and Sarawak, and other Federal Court judges, similar procedure is

taken with the additional requirement of consultation with the Chief Justice.[3]

The appointment of Court of Appeal judges is also governed by the same procedures with the

additional requirement for the consultation of the President of the Court of Appeal. As for the

appointment of High Court judges, similar procedures are prescribed with the additional

requirement of consultation with the respective Chief Judges.

The appointment of Sessions Court judges is governed by Section 59 of the Subordinate

Court Act 1948. They are appointed by the Yang di-Pertuan Agong upon the advise of the

respective Chief Judges.

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Section 78 of the Subordinate Courts Act 1948 provides that the appointment of magistrates

are done by the respective state government upon the advise of the respective Chief Judges,

except for magistrates in the Federal Territory, where thy are appointed by the Yang di-

Pertuan Agong upon the advise of the Chief Judge.

Subordinate Courts In East Malaysia

Prior 1 June 1981, the subordinate Courts in east Malaysia consisted of the Native Court and

Magistrate courts . However, upon the implementation of Subordinate Courts Act

(Extension) Order 1980, there are some modification of Subordinate Courts Act 1948 which

extended to Sabah and Sarawak. By this extension, the subordinate courts now consist of

Native courts, Sessions Courts, and Magistrate Courts

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Definition of Native Court

1. Short title.

This Ordinance may be cited as the Interpretation (Definition of Native) Ordinance.

2. Interpretation.

(1) The word ‘native’ used as a substantive occurs in any written law in force at the

commencement of this Ordinance, other than the Ordinances set out in the Schedule to this

Ordinance, or in any written law coming into force after the commencement of this

Ordinance, unless expressly otherwise enacted therein;

(a) Any person both of whose parents are or were members of a people indigenous to Sabah

(b) Any person ordinarily resident in Sabah and being and living as a member of a native

community, one at least of whose parents or ancestors is or was a native within the meaning

of paragraph (a) hereof; or

(c) any person who is ordinarily resident in Sabah, is a member of the Suluk, Kagayan,

Simonol, Sibutu or Ubian people or of a people indigenous to the State of Sarawak or the

State of Brunei, has lived as and been a member of a native community for a continuous

period of three years preceding the date of his claim to be a native, has borne a good

character throughout that period and whose stay in Sabah is not limited under any of the

provisions of the Immigration Act, 1959/63:

Provided that if one of such person's parents is or was a member of any such people and

either lives or if deceased is buried or reputed to be buried in Sabah, then the qualifying

period shall be reduced to two years; or

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(d) any person who is ordinarily resident in Sabah, is a member of a people indigenous to the

Republic of Indonesia or the Sulu group of islands in the Philippine Archipelago or the States

of Malaya or the Republic of Singapore, has lived as and been a member of a native

community for a continuous period of five years immediately preceding the date of his claim

to be a native, has borne a good character throughout that period and whose stay in Sabah is

not limited under any of the provisions of the Immigration Act, 1959/63.

(2) In the definition of “native” set out in subsection (1)

(a) “Ancestor” means progenitor in the direct line other than a parent;

(b) “Native community” means any group or body of persons the majority of whom are

natives within the meaning of paragraph (a) of subsection (1) and who live under the

jurisdiction of a Local Authority established under the provisions of the Rural Government

Ordinance* or of a Native Chief or Headman appointed under the provisions of that

Ordinance;

(c) “Parent” includes any person recognized as a parent under native law or custom.

(3) No claim by any person to be a native by virtue of the provisions of paragraphs (b), (c)

and (d) of subsection (1) shall be recognized as valid unless supported by an appropriate

declaration made by a Native Court under section 3.

3. Powers of Native Courts.

(1) Any person claiming to be a native may apply to a Native Court established under the

Native Courts Enactment, 1992 and having jurisdiction in the area in which such person

resides to declare.

(a)That such person is recognized by native law and custom as the parent or child, as the case

may be, of any other person; or

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(b) that such person is a member of a native community, has so lived during any stated

period, and while so living has borne a good character; or

(c) That such person is a member of a people named in paragraphs (c) or (d) of subsection (1)

of section 2; or

(d) that a parent of such person is or was a member of a people named in paragraph (c) of

subsection (1) of section 2 and living, or if deceased is buried or reputed to be buried, in

Sabah.

(2) Subject to the provision of subsection (3) of this section, any Native Court referred to in

subsection (1) to whom an application is properly made under such subsection shall have

exclusive jurisdiction to entertain and determine any such application and to make such

declaration as the case requires.

(3) Any declaration of any Native Court made in the exercise of the jurisdiction conferred

upon it by subsection (2) shall be subject to review and scrutiny by, and appeal to the District

Officer or a Board of officers appointed by the Yang di-Pertuan Negeri for the purpose.

(4) The final decision on any application made under subsection (1) shall be conclusive

evidence for all purposes in respect of the matter or matters to which it relates.

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The Native Courts

A separate system and hierarchy of Native Courts has been established in Sabah and Sarawak

under the Native Courts Ordinance 1992 to hear and determine disputes among natives in

relation to native customary laws. The Native Courts Ordinance 1992 which replaces the

previous Native Courts Ordinance 1953 in Sabah and Native Courts Ordinance 1955 in

Sarawak provides for a system of Native Courts in Sabah and Sarawak with both original and

appellate jurisdictions.

Native Courts in Sabah

The composition and structure in Sabah is governed by the Sabah Native Courts Enactment

1992, which replaced the Native Courts Ordinance 1953. According to Section 3 of the

Native Courts Enactment 1992, the Yang DiPertua Negeri of Sabah has the power to

establish Native Courts at such places, as he or she may deem fit.

The Native Court in Sabah is divided into of a three-tier structure consisting of the following;

(a) The Native Court

(b) The District Native Court

(c) The Native Court of Appeal

Composition

Under the restructured Native Court in Sabah, every level of courts consists of three

members. According to Section 3(2) of the Sabah Native Courts Enactment 1992, each

Native Court consists of three Native Chiefs or Headmen resident within the territorial

jurisdiction of such court as maybe empowered from time to time by the State Secretary.

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Jurisdiction

Section 6 of the Native Courts Enactment 1992 provides that the Native Court in Sabah has

original jurisdiction over the following matters;

(a) Cases arising from a breach of native law or custom where all the parties are natives; or

(b) Cases arising from a breach of native law or custom in respect of religion, matrimony or

sex where one of the parties is a native; a written sanction of the District Officer acting

on the advice of two Native Chiefs to institute proceedings is a requirement where one party

is not a native

(c) cases involving native law, custom relating to;

(i) Betrothal, marriage, divorce, nullity of marriage and judicial separation;

(ii) Adoption, guardianship or custody of infants, maintenance of dependants and legitimacy;

(iii) Gifts or succession testate or intestate; and

(iv) Other cases if jurisdiction is conferred upon it by the Native Court Enactment or any

other written law

As far as legal matters concerning Muslims, it was previously dealt with by the Native Courts

but their jurisdiction concerning Muslims were abolished by the Native Court (Amendment)

1961. The current position is governed by Section 9 of the Sabah Native

Courts Enactment 1992, which provides that; Native Courts shall have no jurisdiction in

respect of any cause or matter within the jurisdiction of the Syariah Courts or of the Civil

Courts.

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Native Courts in Sarawak

The structure and composition of the Native Court in Sarawak consists of the Headman’s

Court, Chief’s Court, Chief’s Superior Court, District Native Court, Resident’s Native Court

and the Native Court of Appeal.

Composition

1. The Headmen’s Court is presided by a Headman and 2 assessors.

2. The Chief’s Court is presided by a Penghulu and 2 assessors.

3. The Chief’s Superior Court is presided by a Temenggong or Pemancar with 2

assessors or both Temenggong and Pemancar with one assessor.

4. The District Native Court is presided by a Magistrate and 2 assessors.

5. The Resident’s Native Court is presided by a Resident with 2 or 4 assessors.

6. The Native Court of Appeal is presided by a Judge with one or more assessors.

Jurisdiction

Section 5 of the Native Court Enactment 1992 provides that the Native Court in Sarawak

shall have original jurisdiction in the following matters;

(a) breach of native law or custom where all the parties are subject to the same native system

of personal law

(b) cases arising from breach of native law or custom relating to religious, matrimonial or

sexual matter where one party is a native; and

(c) Civil matters (excluding cases under the jurisdiction of the Syariah Court) in which the

value of the subject matter does not exceed RM2,000 and where all the parties are subject to

the same native system of personal law.

(d) any criminal case of a minor nature which are specifically enumerated in the Adat Iban or

any other customary law whose custom the court is bound and which can be adequately

punished by a fine not exceeding that which the Native Court can award.

(e) any matter in respect of which it maybe empowered by any other written law to exercise

jurisdiction.

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The Native Court in Sabah and Sarawak does not have jurisdiction

over the following matters;

(a) any proceedings in which a person is charged with an offence in consequence of which is

alleged to have occurred

(b) an offence under the Penal Code

(c) any proceedings concerning marriage or divorce regulated by the Law Reform (Marriage

and Divorce) Act 1976 and the Registration of Marriages Ordinance

1952, unless it is a claim arising only in regard to bride-price or adultery and founded only on

native law

(d) any proceedings affecting the title to or any interest in land which is registered under the

Land Code

(e) any case involving a breach of native law or custom if the maximum penalty which is

authorized to pass is less severe than the minimum penalty prescribed for such offence

(f) cases arising from the breach of Ordinan Undang- Undang Keluarga Islam 1991 and rules

or regulations made thereunder, or the Malay custom of Sarawak

(g) any criminal or civil matter within the jurisdiction of any of the Syariah Courts

constituted under the Ordinan Mahkamah Syariah 1991

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References

1) Article 121 Federal Constitution

2) General Principles of Malaysian Law, Lee Mei Pheng, 5th Edition 2005

3)http://www.facebook.com/board.php?uid=209006328849#!/topic.php?uid=209006328849&topic=11196

4) www.wikipedia.org – Malaysian court system

5) Encyclopedia of the Nations – Malaysia Judicial System

6) General Principles of Malaysian Law

7) Asean Law Association

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