ADMINISTRATION OF JUSTICE

Doctrine of separation of powers

Adjudication of civil and criminal cases, interpretation of statutes, etc.

EXECUTIVE JUDICIARY LEGISLATURE

Plural court system in Malaysia

ORDINARY COURTS OF LAW/CIVIL COURTS

SYARIAH COURTS

Hierarchy of civil courts

FEDERAL COURT

COURT OF APPEAL

HIGH COURT OF MALAYA

HIGH COURT OFSABAH AND SARAWAK

SESSIONS COURT

MAGISTRATE COURT

PENGHULU’S COURT

SESSIONS COURT

MAGISTRATE COURT

SUPERIOR COURTS

Federal Court Court of Appeal High Courts

SUBORDINATE COURTS

Sessions Court Magistrates Court

Courts to be open and public

Courts of Judicature Act 1964 15. (1) The place in which any Court

is held for the purpose of trying any cause or matter, civil or criminal, shall be deemed an open and public court to which the public generally may have access:

Proceedings in camera

Provided that the Court shall have power to hear any cause or matter or any part thereof in camera if the Court is satisfied that it is expedient in the interests of justice, public safety, public security or propriety, or for other sufficient reason so to do.

E.g. Judge can adjourn proceedings in chambers e.g. so as not to cause embarrassment to the victim.

Exception: Court for Children Court for children closed court

Child Act 2001 12. (1) a Court for Children shall, if practicable, sit—

(a) either in a different building or room from that in which sittings of Courts other than Courts for Children are held; or

(b) on different days from those on which sittings of those other Courts are held.

(2) if a Court for Children sits in the same building as other Courts, the Court for Children shall have a different entrance and exit from those of the other Courts to enable children to be brought to and from the Court for Children with privacy.

(3) no person shall be present at any sitting of a Court for Children except—

(a) members and officers of the Court; (b) the children who are parties to the

case before the Court, their parents, guardians, advocates and witnesses, and other persons directly concerned in that case; and

(c) such other responsible persons as may be determined by the Court.

Advocate and solicitorexclusive right to appear and plead in all Courts of Justice

The Judiciary

Court -- Designation

Chief Justice of the Federal Court President of the Court of Appeal Chief Judge of the High Court of

Malaya Chief Judge of the High Court of

Sabah and Sarawak

Appointment of judges of the superior courts

FC Articles 121 – 131A

Hold office up to age of 65 Cannot be removed save on grounds of

misconduct or inability arising from infirmity of body or mind

Salary paid from a special fund Conduct of judges may only be discussed in

Parliament under certain circumstances (A 127 FC).

Art 122B: Appointment is by YDPA.

Qualification of judges of the superior courts

Article 123 FC:(a) he is a citizen; and(b) for the ten years preceding his appointment he has been an advocate of those courts or any of them or a member of the judicial and legal service of the Federation or of the legal service of a State.

Appointment of Judicial Commissioner

To assist judges in easing the backlog of cases

Tenure is for 3 years – A 122AB Possesses the same power and

immunities as a High Court judge.

Appointment of Sessions Court judges and magistrates

Appointed by the Yang di-Pertuan Agong on the recommendation of the respective Chief Judges (section 59 of the Subordinate Courts Act 1948)..

They are members of the Judicial and Legal Service i.e. public servant – A 132 FC

Jurisdiction of courts

Relevant statutes

Court of Judicature Act 1964 -- CJA Subordinate Courts Act 1948 -- SCA Rules of the Court 2012

Civil jurisdiction of subordinate courtsRefer to the Subordinate Courts Act 1948 (SCA)

First Class Magistrate

S90. SCA Subject to the limitations contained

in this Act, a First Class Magistrate shall have jurisdiction to try all actions and suits of a civil nature where the amount in dispute or value of the subject matter does not exceed one hundred thousand ringgit.

Second Class Magistrate

S 92 SCA. A Second Class Magistrate shall only have jurisdiction to try original actions or suits of a civil nature where the plaintiff seeks to recover a debt or liquidated demand in money payable by the defendant, with or without interest, not exceeding ten thousand ringgit.

Sessions Court

S 65

A Sessions Court has– (a) unlimited jurisdiction to try all actions

and suits of a civil nature in respect of motor vehicle accidents, landlord and tenant and distress; and

(b) jurisdiction to try all other actions and suits of a civil nature where the subject matter does not exceed RM1, 000,000.00.

Sessions Court – The exceptions S 69 SCA: Sessions Courts shall have no jurisdiction in actions, suits or proceedings of a civil nature— (a) relating to immovable property except as provided in sections 70 and 71; (b) for the specific performance or rescission of contracts; (c) for an injunction; (d) for the cancellation or rectification of instruments; (e) to enforce trusts; (f) for accounts; (g) for declaratory decrees except in interpleader proceedings under section 73; (h) for the issue or revocation of grants of representation of the estates of deceased persons or the administration or distribution thereof; (i) wherein the legitimacy of any person is in question; *(j) wherein the guardianship or custody of infants is in question; and (k) except as specifically provided in any written law for the time being in force, wherein the validity or dissolution of any marriage is in question.

Civil jurisdiction of the

High Court

Civil jurisdiction -- general Civil jurisdiction—generalS23 CJA: (1) Subject to the limitations contained in Article 128 of the Constitution the High Court shall have jurisdiction to try all civil proceedings where— (a) the cause of action arose; (b) the defendant or one of several defendants

resides or has his place of business; (c) the facts on which the proceedings are based

exist or are alleged to have occurred; or (d) any land the ownership of which is disputed is

situated,within the local jurisdiction of the Court…

“local jurisdiction”

S 3 CJA:

“local jurisdiction” means—

(a) in the case of the High Court in Malaya, the territory comprised in the States of Malaya, namely, Johore, Kedah, Kelantan, Malacca, Negeri Sembilan, Pahang, Penang, Perak, Perlis, Selangor, Terengganu and the Federal Territory* of Kuala Lumpur; and

(b) in the case of the High Court in Sabah and Sarawak, the territory comprised in the States of Sabah, Sarawak and the Federal Territory of Labuan,

Specific jurisdiction

Civil jurisdiction—specific S 24 CJA . Without prejudice to the generality of section 23

the civil jurisdiction of the High Court shall include— (a) jurisdiction under any written law relating to divorce and

matrimonial causes; (b) the same jurisdiction and authority in relation to matters of

admiralty as is had by the High Court of Justice in England under the United Kingdom Supreme Court Act 1981;

(c) jurisdiction under any written law relating to bankruptcy or to companies;

(d) jurisdiction to appoint and control guardians of infants and generally over the person and property of infants;

(e) jurisdiction to appoint and control guardians and keepers of the person and estates of idiots, mentally disordered persons and persons of unsound mind; and

(f) jurisdiction to grant probates of wills and testaments and letters of administration of the estates of deceased persons leaving property within the territorial jurisdiction of the Court and to alter or revoke such grants.

Additional powers

S 25 CJA (2) Without prejudice to the

generality of subsection (1) the High Court shall have the additional

powers set out in the Schedule

-- these and many more (please refer to the Schedule)

Appellate jurisdiction

Appellate civil jurisdiction

27. The appellate civil jurisdiction of the High Court shall consist of the hearing of appeals from subordinate courts…

-- requirements for civil appeals to High Court

Civil appeals from subordinate courts

28. (1) Subject to any other written law, no appeal shall lie to the High Court from a decision of a subordinate court in any civil cause or matter where the amount in dispute or the value of the subject-matter is ten thousand ringgit or less except on a question of law.

(2) An appeal shall lie from any decision of a subordinate court in any proceedings relating to maintenance of wives or children, irrespective of the amount involved.

Revisionary and supervisory jurisdiction

Power of High Court to call for records of civil proceedings in subordinate courts

32. The High Court may call for and examine the record of any civil proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any decision recorded or passed, and as to the regularity of any proceedings of any such subordinate court.

Powers of High Court on revision of civil proceedings

33. In the case of any civil proceedings in subordinate court the record of which has been called for, or which otherwise comes to its knowledge, the High Court may give such orders thereon, either by directing a new trial or otherwise, as seems necessary to secure that substantial justice is done.

No revision at instance of party who could have appealed

34. Where an appeal lies from any decision in any civil matter, and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of a party who could have appealed

Pendakwa Raya lwn Burhanuddin [2006] 6 MLJ 465

Armed robbery at 3:45 cm Accused pleaded guilty. Magistrate

imposed imprisonment 30 month and one stroke rotan.

Abdull Hamid Embong H: “Kes ini telah dipanggil oleh saya setelah

membaca siaran berita tentangnya dalam akhbar tempatan minggu lepas (12 Julai 2006). Selepas mengkaji latar belakang dan fakta kes daripada rekod perbicaraan, saya telah memutuskan untuk membuat semakan terhadap hukuman yang dijatuhkan oleh majistret terhadap tertuduh dalam kes ini, mengikut kuasa mahkamah ini di bawah Kanun Acara Jenayah ss 323 dan 325.”

Held: (1) The facts of this case shows that the armed robbery by the

accused was committed at 3.45am in the complainant's own house. It was clear that this was a heinous and horrid crime. It was made worse because the incident happened in the complainant's own house, ie a place where one should assume as the safest place. This country practises a liberal and friendly policy towards foreign workers who come to find work here legally. Nevertheless, there are also foreigners who enter here illegally and involve themselves with crimes such as in this case. The public should be protected against such people. The court should be blamed for not performing its role if it is not aware of the public's desire to be protected by criminals such as the accused. Justice to the victim in this robbery ought to be reflected in a heavy sentence on the accused (see paras 9–10, 12–13).

(2) The 30 month imprisonment on the accused did not reflect this heinous and horrid crime. The sentence was too lenient, light, and could be regarded as an insult to justice. On principle, the sentence was worng and this court should exercise its powers of revision against it (see para 15).

(3) The High Court had imposed a sentence of seven years imprisonment and five strokes of rotan. This sentence should start after the accused had gone through detention under the detention order of the Minister of Internal Security.6 MLJ 465 at 467

After completing his sentence the accused should refer to the Malaysian Immigration Department to manage his exile out of Malaysia (see para 22).

Civil jurisdiction of the

Court of Appeal