Law Part 2 Assignment

8/8/2019 Law Part 2 Assignment

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The Courts in Malaysia

MTC 037: Introduction To Law II


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

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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

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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

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Federal Court

Court of Appeal

High Court

Penghulu Court

Magistrate Court

Sessions Court


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.

Figure 1.0

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Superior Courts

Subordinate Courts




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.

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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.

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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

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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.

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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

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forwarded to the High Court where the High Court must an order to make sure that

justice has been served.

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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.

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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,

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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.

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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.

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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

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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.

•

AdvisoryThis 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.

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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

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Syariah Court of Appeal

Syariah High Court

Subordinate Syariah Court


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.

Figure 1.2

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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.

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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.

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Law Part 2 Assignment