1

Malaysian Court and Law

Prepared by :-

Musbri MohamedDIL; ADIL ( ITM )Pursuing MBL ( UKM )

2

The Federal Court of Malaysia is the highest judicial authority and the final court of appeal in Malaysia. The country, although federally constituted, has a single-structured judicial system consisting of two parts - the superior courts and the subordinate courts.

3

The subordinate courts are the Magistrate Courts and the Sessions Courts whilst the superior courts are the two High Courts of co-ordinate jurisdiction and status, one for Peninsular Malaysia and the other for the States of Sabah and Sarawak, the Court of Appeal and the Federal Court. The Federal Court, earlier known as the Supreme Court and renamed the Federal Court vide Act A885 effective from June 24, 1994, stands at the apex of this pyramid.

4

Before January 1, 1985, the Federal Court was the highest court in the country but its decisions were further appealable to the Privy Council in London.

However on January 1, 1978, Privy Council appeals in criminal and constitutional matters were abolished and on January 1, 1985, all other appeals i.e. civil appeals except those filed before that date were abolished.

The setting up of the Court of Appeal on June 24, 1994 after the Federal Constitution was amended vide Act A885 provides litigants one more opportunity to appeal. Alternatively it can be said that the right of appeal to the Privy Council is restored, albeit in the form of the Federal Court.

5

The Special Court was established on March 30, 1993 vide Act A848, now provided for in Article 182 of the Federal Constitution. All offences committed by the Rulers (the Rulers being the monarchical heads of the component states of the Federation of Malaysia) including His Majesty The Yang di-Pertuan Agong shall be heard by the Special Court.

The Special Court shall also hear all civil cases by or against them. This Court shall be chaired by the Chief Justice of the Federal Court and he shall be assisted by four other members, namely the two Chief Judges of the respective High Courts and two other persons appointed by the Conference of Rulers who hold or have held office as a judge.

6

The Constitution of Malaysia , or the Federal Constitution, is the supreme law of the land. It provides the legal framework for the laws, legislations, courts, and other administrative aspects of the law. It also defines the government and monarch, and their powers, as well as the rights of the citizens

7

The dual system of law is provided in Article 121(1A) of the Constitution of Malaysia. Article 3 also provides that Islamic law is a state law matter with the exception for the Federal Territories of Malaysia. Islamic law refers to the sharia law, and in Malaysia it is known and spelled as syariah. The court is known as the Syariah Court. Looking at the Malaysian legal system as a whole, sharia law plays a relatively minimal role in defining the laws on the country. First and foremost, sharia law only applies to Muslims. With regards to civil law, the Syariah courts shall have jurisdiction in personal law matters, for example, marriage, inheritance, and apostasy. In some states, there is the sharia criminal laws, for example, the Kelantan Syariah Criminal Code Enactment 1993. Their jurisdiction is however limited to imposing fines for an amount not more than RM 3000, and imprisonment to not more than 6 months

8

Complications have arisen with regard to the dual justice system. An example of this will be in the context of feedom of religion. Article 11 of the Constitution provides that "Every person has the right to profess and practice his religion". However in the case of Lina Joy —a Malay who converted to Christianity —the Federal Court of Malaysia refused to allow her to change her religion indicated in her identity card (MyKad). The judges held that they had no jurisdiction on the matter—that it was a matter of the Syariah Court, as indicated in Article 121(1A) of the Constitution.

9

Federal laws are made by legislators (members of Parliament and senators) sitting in the Parliament of Malaysia and applies nationwide. State laws are made by assemblymen sitting in the State Legislative Assembly (Dewan Undangan Negeri) and only applies in the particular state. Article 75 of the Constitution states that a federal law shall prevail over any inconsistent state laws, including sharia laws.

10

The states of Sabah and Sarawak joined Malaya and Singapore to form Malaysia in 1963, and there are special laws applicable only to these two states. An important area in this regard is the immigration law . Other areas of law peculiar to these two states is land law . Generally, land matters and natural resource management is a federal law matter. However, there are special provisions in the Constitution allowing for the states of Sabah and Sarawak to create separate legislations. For example, in the Peninsular , the National Land Code governs most of the laws relating to land. In Sabah, the main legislation is the Sabah Land Ordinance; and in Sarawak, the Sarawak Land Code.

11

The application of English law or common law is specified in the statutes. Section 5 of the Criminal Procedure Code states that English law shall be applied in cases where no specific legislation has been enacted. Similarly, in the context of civil law, Sections 3 and 5 of the Civil Law Act allows for the application of English common law,equity rules, and statutes in Malaysian civil cases where no specific laws have been made.

12

In 2007, the then Chief Justice of Malaysia, Tan Sri Ahmad Fairuz Abdul Halim questioned to need to resort to the English common law despite Malaysia having already been independent for 50 years and proposed to replace it with Islamic law jurisprudence or sharia law.

However, the Malaysian Bar Council responded by saying that the common law is part of Malaysian legal system and that there is no basis to replace it.

13

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 jurisdiction 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.

14

Thus this creates two separate local jurisdiction 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.

15

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).

16

Federal Court

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).

17

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 RM 250,000, the judgment or order relates to costs only,and the appeal is against a decision of a judge in chambers on an interpleader 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.

18

High CourtsThe 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.

19

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.

20

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

Sessions Courts

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.

21

Magistrates' Courts

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.The Magistrates' Courts hear all civil matters of which the claim does not exceed RM25,000.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 also hear appeals from the Penghulu's Courts.