Malaysian court system.pdf

7/26/2019 Malaysian court system.pdf

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MALAYSIANCOURTSYSTEM

Ibtisam Ilyana Ilias

Faculty of Law

UiTM


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Federal Court

Court of Appeal

High Court ofMalaya

Session Court

Magistrate Court

Penghulu Court

High Court ofSabah & Sarawak


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MAGISTRATESCOURT

COMPOSITION

Magistrate sitting alone

2 classes of Magistrates:-

1) First Class

Legally qualified person, appointed by the YDPA or StateAuthority on recommendation of the Chief Judge.

Drawn from Judicial and Legal Services

2) Second Class Usually an administrative officer who performs magisterial

functions.

Usually public servants and court officials

Appointed by YDPA or State Authority


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MAGISTRATESCOURT

JURISDICTION

Can hear civil and criminal matters arising within the

local limit.

First Class

(Criminal matters)

Try offences for which maxterm of imprisonment does

not exceed 10 years/whichare punishable with fineonly

Eg. S.392 Penal Code-robbery

First Class

(Civil matters)

The value of the subject-matter does not exceed

RM25000


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MAGISTRATESCOURT

SENTENCING POWER

May pass any sentence allowed by law, not exceeding:-

1. 5 years imprisonment2. Fine of RM10,000

3. Whipping up to 12 strokes

4. Any combination of the above

Also hears appeal from Penghuluscourt.


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MAGISTRATESCOURT

Second Class

(Criminal matters)

Try offences which

1)max penalty does notexceed12 monthsimprisonment

2)Punishable with fine only

Eg. Minor traffic offences,e.g. summons

Second Class

(Civil matters)

Plaintiff seeks to recoverdebt or liquidated damagesnot exceeding RM3000.


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MAGISTRATESCOURT

SENTENCING POWER

May pass any sentence not exceeding

1. 6 months imprisonment2. A fine of RM1000

3. Any combination of the above


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SESSIONS COURT

COMPOSITION

Session Court judge sitting alone

Appointed by YDPA on recommendation of the Chief

Judge

JURISDICTION

Hear and determines civil and criminal matters arising

within its local limit/jurisdiction


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SESSIONS COURT

Criminal matters

Try all offences other thanthose punishable by death

Civil matters

Unlimited jurisdiction to tryall actions of civil nature inrespect of motor vehicle

accidents, landlord & tenants,distress (seizure of goods assecurity for performance ofobligation, e.g in cases ofnon-payment of rent)

No jurisdiction to try cases

e.g. injunctions and specificperformance.

Jurisdiction to try all otheractions where value in disputedoes not exceedRM250,000.00


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SESSIONS COURT

SENTENCING POWER

May pass any sentence allowed by law other than death

penalty


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HIGHCOURT

Since August 1965, 2 High Courts-in Malaya and in

Sabah and Sarawak

Court of co-ordinate jurisdiction and status

Provided in Art 121 FC HC in KL is divided into various divisions-Commercial,

Criminal, Civil, Appellate and Special Power but not in

other towns.


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HIGH COURT

COMPOSITION

1. Each court consist of a Chief Judge (One for HC ofMalaya and another for HC of Sabah and Sarawak)

2. High Court Judges

3. Judicial Commissioner

Appointed by YDPA on the recommendation of the ChiefJustice (Art 122AB FC)

Usually the judge will sit alone when hearing cases.

Exceptions:

1) Compulsory acquisition of land (1 judge and 2 assessors)

2) Kidnapping Act 1961 offences: 1 HC judge & 2 assessors(e.g. Welfare Officers)


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HIGH COURT

JURISDICTION

ORIGINAL

APPELLATE

REVISIONARY&

SUPERVISORY


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HIGH COURT

ORIGINAL JURISDICTION

Unlimited jurisdiction in both civil and criminal matters.


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HIGH COURT

ORIGINAL CRIMINAL JURISDICTION

General rule, HC has jurisdiction over people (citizen/non-

citizen) and offences committed within its territory. Exception to the general rule; s.22(1)(a) 1964 provides that

HC has jurisdiction to try over people and offences

committed outside Malaysia (extra-territorial jurisdiction):-


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HIGH COURT

ORIGINAL CRIMINAL JURISDICTION

Unlimited jurisdiction, will try casesoutside jurisdiction of Subordinate Courts.

E.g. drug trafficking under DDA 1952 andmurder under Penal Code


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HIGH COURT

ORIGINAL CIVIL JURISDICTION

HC has jurisdiction to try all civil matters regardless of

value where :-1. The cause of action arose

2. The defendant or one of the several defendants resides

or has his place of business

3. The facts on which the proceedings are based exist orare alleged to have occurred and

4. Any land, the ownership of which is disputed, is

situated within the local jurisdiction


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HIGH COURT

ORIGINAL CIVIL JURISDICTION

Unlimited jurisdiction to try all actions ofcivil nature (USUALLY outside thejurisdiction of subordinate court)

Specific jurisdiction in the followingmatters; inter alia divorce and matrimonialcases, bankruptcy and companies, admiraltymatters and so on.(S.24 CJA 1964)


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HIGH COURT

APPELLATE JURISDICTION

HC hears appeal from subordinate courts in both civil

and criminal matters. It also hears appeals from quasi-judicial bodies if

authorized by laws.


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HIGH COURTHIGH COURT

APPELLATE CRIMINAL JURISDICTION

Hear appeals from both Sessions andMagistrates courts

No appeal if punishment of fine of RM25or less


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HIGH COURT

APPELLATE CIVIL JURISDICTION

Hear appeals from both Sessions and Magistratescourts

No appeal to HC if the amount in dispute /value of thesubject matter is less than RM 10,000-00 EXCEPT on

question of law UNLESS the proceedings relate tomaintenance of wife / children.


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HIGH COURT

SUPERVISORY AND REVISIONARY

JURISDICTION

Power to revise decisions of Subordinate Courts and tosupervise them.

i.e. power to check that rules of procedures were

followed when the lower court decided a particular cases.

So HC may examine records or proceedings in the lower

court.


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COURTOFAPPEAL

Created by Constitution (Amendment) Act 1994 to act as

additional appeal court.

Stated in Art 121(1B) FC

COMPOSITION

Chairman :President of Court of Appeal and other CA

judges

Quorum:3/greater uneven number Proceedings decided according to majority opinion.


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COURTOFAPPEAL

JURISDICTION

No original jurisdiction

Hears appeal from HC, civil and criminal


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COURTOFAPPEAL

CRIMINAL APPEAL

S. 50 CJA 1964- appeal from HC on question of fact or

question of law or mixed question of fact and law.

CIVIL APPEAL To hear and determine appeal from HC decision

But no appeal to CA when:-

1. the amount of dispute is less than RM250000, except

with CAs leave or2. Where order/judgment is made with the parties consent

or

3. Where judgment of HC is expressed in written law as

final


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COURTOFAPPEAL

CRIMINAL APPEAL S. 50 CJA 1964- appeal from HC on question of fact or

question of law or mixed question of fact and law.

CIVIL APPEAL To hear and determine appeal from HC decision

But no appeal to CA when:-

1. the amount of dispute is less than RM250000, except

with CAs leave or

2. Where order/judgment is made with the parties consent

or

3. Where judgment of HC is expressed in written law as

final


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FEDERAL COURT

The highest and final court of appeal in Malaysia Stated in Art 121 (2) FC

COMPOSITIONART 122

Headed by Chief Justice of the Federal Court

Other members : President of CA, Chief Judges of High

Court, other FC judges (7)

Quorom : 3/greater uneven number

Usually presided by the Chief Justice. In his absence,the

most senior member shall preside.

Proceedings decided according to majority

opinion/decision.


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FEDERAL COURT

JURISDICTION Has original, appellate, referral and advisory jurisdiction


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FEDERAL COURT

ORIGINAL JURISDICTION- ART 128 (2) FCrt has jurisdiction to determine the question whether a

law made by Parliament or the State Legislature is

invalid on the basis that the Legislature has no power to

make laws

Will hear disputes between States and between State and

the Federation.

Dewan Undangan Negeri Kelantan v Nordin bin Salleh

[1992] 2 SCR 453

The Supreme Court was asked to consider the validity of

a provision in the Kelantan State Constitution . It was

alleged that the provision was unconstitutional since it

contravened the Federal Constitution.


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FEDERAL COURT

APPELLATE JURISDICTION- ART 128 (2)

CRIMINAL APPEAL FROM CA

Court of Judicature Act 1964, s.87 jurisdiction to hear and determine

appeal from CAs decision regarding any criminal matter decided by

HC in its original jurisdiction.

POWERS OF FC

May affirm, reverse or vary decision

May order retrial May remit matter to trial court with FCrtsopinion

May make other such order as may seem just

May exercise any power which trial court may have exercised

May dismiss appeal if considers that no substantial miscarriage of

justice has occurred


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FEDERAL COURT

CIVIL APPEAL FROM CA

The amount in dispute is RM250,000/more

Where claim involves property or some civil rights of the

same value/amount


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FEDERAL COURT

REFERRAL JURISDICTION

FCrt has jurisdiction to determine constitutional questions

referred to it by the High Court

Where in any proceedings, a question arises as to the effectif any provision of the Constitution, then the HC may stay

the proceedings and wait the decision of the FCrt

Once Fcrt had decided on the matter, the case will be

remitted to the original court. Then HC will continue and

decide the case.

DYTM Tengku I dr is Shah I bni Sul tan Salahuddin Abdul

Aziz Shah v Dikim Holding Sdn Bhd [2002] 2 MLJ 11


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FEDERAL COURT

ADVISORY JURISDICTION

Special advisory jurisdiction on the interpretation of the

Constitution

Art 130:the YDPA may refer to the FCrt for its opinionany question as to the effect of any provision of the

Constitution

The FCrt then will state its opinion on the matter

Very rare


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FEDERAL COURT

Government of Malaysia v Government of State of

Kelantan [1968] 1 MLJ 129

Whether certain mining and forest concession

agreements entered into between the Kelantan State Govt

and a private company contravened the FC. The Federal

Govt argued that it amounted to borrowing which is

not allowed under the FC. FCrt was asked to determine

whether it constituted borrowing and ruled that it did not.


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COURT OF SPECIAL JURISDICTION:

SPECIAL COURT (SC)

CONSTITUTION

Established in 1993 under Part XV of FC.

Art 182 provides for a court comprising the Chief Justice of

the Federal Court (the Chairman), the Chief Judge of theHigh Courts and two other persons who hold or have held

office of the Federal Court or a High Court appointed by

the Conference of Rulers.

The decision of the SC is final and conclusive and cannot

be challenged in any court on any ground.


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SPECIAL COURT (SC)

JURISDICTION

Original jurisdiction only.

Exclusively for proceedings by or against the YDPA or the

Ruler of a State in his personal capacity. Such proceedings cannot be instituted without the consent

of the Attorney General personally to ensure there is a

prima facie case against the YDPA or the Ruler of a State in

question.

Only citizen of Malaysia have the right to institute such

proceedings.


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SPECIAL COURT (SC)

WHAT HAPPEN WHEN THE YDPA ? RULER OF

STATE IS CHARGED WITH AN OFFENCE UNDERANY LAW IN THE SPECIAL COURT ?IMPRISONED ?


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COURT FOR CHILDREN (CFC)

CONSTITUTION

CFC were established by the Child Act 2001 (CA 2001),

replacing Juvenile Courts.

It comprises a magistrate who must be assisted by twoadvisers, one of whom must be a woman. The advisers are

appointed by the responsible Minister from a panel of

persons resident in the state or territory concerned.

If one or both are absent, the proceedings are unlawful.


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COURT FOR CHILDREN (CFC)

JURISDICTION AND POWER

To try all offences by child offenders except those

punishable with death (must be tried in ordinary courts).

Criminal Procedure Code applies to CFC as if such courtswere MagistratesCourts (unless modified by CA 2001).

The CA 2001 prohibits the usage of the words conviction

or sentence. Instead, afinding of guiltand ordermade

upon a finding of guiltare used. Where an offence has been proved, the CFC must :-

i. Consider a probation report

ii. Seek the opinion of each of the advisers

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Malaysian court system.pdf