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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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COURT OF SPECIAL JURISDICTION:
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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COURT OF SPECIAL JURISDICTION:
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 OF SPECIAL JURISDICTION:
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 OF SPECIAL JURISDICTION:
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