Module 2 the court system

WHAT IS A COURT ?

• Malaysia has a single hierarchy of courts which enforces both Federal and State laws.• The courts can pronounce on the:

a. Legality of executive Acts of Government, Federal and State.

b. Validity of any law passed by the Parliament and State legislatures

c. Interpretation of any provision of the Constitution, Federal and State• The hierarchy of courts begins from the Magistrates' Court, Sessions Court, High Court, Court of Appeal, and finally, the Federal Court. • 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.

Sinha & Dheeraj, Legal Dictionary, ILBS, Petaling Jaya, p. 49

Court - A body of men elected or appointed under the Constitution and laws of a state, and vested with the power of rendering judgments, issuing writs, or hearing and deciding appeals. Each member of the Court is called judge or justice, or sometimes “recorder” or “chancellor”.

WHAT IS A COURT ?

SESSIONS COURT

Su

peri

or

Cou

rts

Su

bord

inat

e C

ourt

s

FEDERAL COURTS

COURT OF APPEAL

* Formerly known as the ‘Supreme Court’

SYARIAH COURTS

HIGH COURT OF MALAYA

HIGH COURT OF SABAH & SARAWAK

SESSIONS COURT

JUVENILE COURT

MAGISTRATE’S COURT

NATIVECOURT

MEGISTRATE’S COURT

PENGHULU’S COURT

HIERARCHY OF MALAYSIAN COURT

FEDERAL COURTSFEDERAL COURTS• Is the highest court in Malaysia.

• Consists of the Chief Justice, the President of the Court of Appeal, the Chief Judge of Sabah and Sarawak, and six Federal Court Judges.

• Every proceeding is heard by a minimum of three judges or greater (uneven number of judges).

• The Chief Justice is the head of the Malaysian Judiciary.

• His appointment (like those of the President of Court of Appeal, the two Chief Judges, judges of the Federal Court, the Court of Appealand the High Court) are made by The Yang di-Pertuan Agong on the advice of the Prime Minister after consulting the Conference of Rulers

Federal Court of Malaysia

Article 121(2) of the Federal Constitution confers the Federal Court with the following jurisdiction:-

(a)To determine appeals from decisions of the Court of Appeal, of the High Court or a judge thereof;(b)Such original or consultative jurisdiction as is specified in

Articles 128 and 130; and(c ) Such other jurisdiction as may be conferred by or under federal law.

FEDERAL COURTSFEDERAL COURTS

Article 128(1) of the Federal Constitution states that the Federal Court has the exclusive jurisdiction to determine:-

(a) Any question whether a law made by Parliament or by the Legislature of a State is invalid on the ground that it makes provision with respect to a matter with respect to which Parliament or, the Legislature of the State has no power to make laws; and

(a) Disputes on any other question between States or between the Federation and any State.


Nuraisyah Chua Abdullah (2004), Questions & Answer on Malaysian Courts, Statutes, Cases & Contract, Tort & Criminal Law, ILBS, Petaling Jaya, pp. 23-24:

(1) To hear civil and criminal appeals from decisions of the Court of Appeal and a High Court as provided under Article 128(3) of the Federal Constitution. This appellate function occupies the bulk of the court’s work.

(2) To exercise exclusive original jurisdiction on those matters conferred on it under Article 128(1) and (2) of the Federal Constitution. It can also pronounce on the validity of any federal or state legislation as being in excess of powers.


Nuraisyah Chua Abdullah (2004), Questions & Answer on Malaysian Courts, Statutes, Cases & Contract, Tort & Criminal Law, ILBS, Petaling Jaya, pp. 23-24:

(3) To determine constitutional questions, which have arisen in the proceedings of the High Court but is referred to the Federal Court for a decision as provided under Article 128(2) of the Federal Constitution.

(4) To give its opinion on any question referred to it by the Yang di-Pertuan Agong concerning the effect of any provision of the Constitution which has already arisen or appears likely to ariseas provided under Article 130 of the Federal Constitution.


Nuraisyah Chua Abdullah (2004), Questions & Answer on Malaysian Courts, Statutes, Cases & Contract, Tort & Criminal Law, ILBS, Petaling Jaya, p. 24:

(1) The Court of Appeal has the jurisdiction to hear and determine any appeal against any High Court decision on criminal matters under Article 121(1B) of the Federal Constitution and section 50(1) of the Courts of Judicature Act 1964.

(1) The Court of Appeal also has jurisdiction to hear and determine civil appeals generally for cases where the amount or value of the subject matter of the claim is at least two hundred and fifty thousand ringgit (RM250,000) under section 68(1) of the Courts of Judicature Act 1964.

COURT OF APPEALCOURT OF APPEAL

Jurisdiction on Criminal matters:-

- To hear and determine any criminal appeal against any decision by the High Court:-(a) made in the exercise of its original jurisdiction; and(b) in the exercise of its appellate or revisionary jurisdiction on

any criminal matter decided by the Sessions Court.

- However, if it is an appeal from a decisionof the High Court exercising its appellatejurisdiction on any criminal matter that originated from a Magistrates’ Court, then no further appeal to the Court of Appeal is permissible without leave of the Court of Appeal.


Jurisdiction on Civil matters:-

-To hear and determine appeals from any judgment or order of any High Court in any civil cause or matter, whether made in the exercise of its original or of its appellate jurisdiction, subject to any written law regulating the terms and conditions upon which such appeals are brought (section 67 of the Courts of the Judicature Act 1964).

- No appeal shall be brought:-(a)If the amount or value of the claim is less than RM250,000, except with

the leave of the Court;(b) The judgment or order is made by consent of parties;(c) The judgment or order relates to costs only; and (d) By virtue of any written law the judgment or order of the High Court is final.



(1) In the exercise of its original jurisdiction, it has unlimited criminal and civil powers. Any matter, which cannot be determined in the subordinate courts is heard before the High Court.

(2) In criminal cases, no case may be brought to the High Court unless the offender has been properly committedfor trial after the preliminary hearing in a Magistrate’s Court (See Part II of the Courts of Judicature Act 1964).

HIGH COURTHIGH COURT

Nuraisyah Chua Abdullah (2004) (cont’d):

(3) In the exercise of its appellate jurisdiction, the High Court hears criminal and civil appeals from the Magistrate’s and Sessions Courts under sections 26 and 28 of the Courts of Judicature Act 1964 respectively).

(4) The High Court also possesses the power to refer any points of law arising in the appeal for the decision of the Court of Appeal if it feels that is in the public interest and of paramount importance under section 35 of the Courts of Judicature Act 1964.

(5) The High Court has been conferred general supervisory and revisionary jurisdiction over all subordinate courts under section 31 of the Courts of Judicature Act 1964.


Original Jurisdiction

-On all criminal matters punishable by death and in civil matters where the claim or the subject matter is land, bankruptcy, trusts, probate and administration of estates, divorce, exceeds RM100,000.00 or remedy sought specific performance, an injunction or recission of contract.

Appellant Jurisdiction

- To hears and determines civil and criminal appeals from the Magistrates' and Sessions' Courts.- 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 RM10,000 or less except where it involves a question of law (sections 26-29 of the Courts of Judicature Act 1964).



(1)Its criminal jurisdiction extends to all offences other than offences punishable with death under section 63-64 of the Subordinate Courts Act 1948.(2) In civil matters, it has 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 two hundred and fifty thousand ringgit under section 65(1)(b) of the Subordinate Courts Act 1948.

However, matters relating to land, specific performance, injunction and bankruptcy are excluded from its jurisdiction under section 69 of the Subordinate Courts Act 1948.

SESSION COURTSESSION COURT

- The Magistrate’s Court deals with minor civil and criminal cases. The court is presided by a magistrate.

MAGISTRATE COURTMAGISTRATE COURT

1. Jurisdiction (First Class Magistrate)

a. Criminal jurisdiction - The maximum term of imprisonment does not exceed ten years, in cases of

robbery, (section 392 Penal Code) lurking, house trespass and house breaking (section 457 Penal Code) or in all cases where the punishment is by fine only.

- The maximum sentence can pass is five years imprisonment, a fine of RM 10,000, whipping of 12 strokes or a combination of any of these punishments.

b. Civil jurisdiction: - The claim of the dispute does not exceed RM 25,000. - Disputes over immovable property, recovery of rent mesne profits and

damages where the amount claimed does not exceed RM 24,000, or where the rent payable does not exceed RM 24,000 per year or RM 2,000 per month.


2. Jurisdiction (Second Class Magistrate)

- criminal jurisdiction exists where the maximum term of imprisonment does not exceed one year, in cases of robbery, (section 392 Penal Code) lurking, house trespass and house breaking (section 457 Penal Code) or in all cases where the punishment is by fine only. The maximum sentence can pass is 6 months imprisonment, a fine of RM 1,000 or a combination of any of these punishments.

- Civil jurisdiction exists where the plaintiff seeks recovery of a debt or liquidated demand where the amount claimed does not exceed RM 3,000. Small claims courts are also available in the magistrates' courts jurisdiction before a second class magistrate. These have the same civil monetary limit but disallow any legal representation.



(1) The penghulu is empowered to hear and determine original proceedings of a civil in nature in which the plaintiff seeks to recover a debt or liquidated demand in money not exceeding fifty ringgit.

(2) All the parties to the proceedings are persons of an Asian race speaking and understanding the Malay language (section 94 of the Subordinate Courts Act 1948).

PENGHULU COURTPENGHULU COURT


(3) The criminal jurisdiction of a Penghulu’s Court is restricted to the trial offences of a minor nature which are specifically enumerated in his kuasa and which can be adequately punished by a fine not exceeding twenty-five ringgit (RM25.00) under section 96 of the Subordinate Courts Act 1948.

(4) Under section 95(2) of the Subordinate Courts Act 1948, the Penghulu’s Court can only try criminal charges against persons of an Asian race. Any person charged with an offence before a Penghulu’s Court may elect to be tried by a Magistrate’s Court under section 95(3) of the Subordinate Courts Act 1948.

PENGHULU COURTPENGHULU COURT

Lee Mei Pheng (2005), General Principles of Malaysian Law (5th Ed.), Penerbit Fajar Bakti Sdn. Bhd., Shah Alam, p. 59:

Juvenile Courts have been set up to deal with criminal offenders below the age of eighteen… Under Section 4(4) of the Juvenile Courts Act 1947 (Revised 1972), the court is conferred jurisdiction to try all offences except those punishable by death.

JUVENILE COURT / JUVENILE COURT / THE COURT FOR THE COURT FOR

CHILDRENCHILDREN

Lee Mei Pheng (2005), General Principles of Malaysian Law (5th Ed.), Penerbit Fajar Bakti Sdn. Bhd., Shah Alam, p. 61:

It exercises jurisdiction over matters affecting ‘native customs’ where the parties are natives. Native Courts are empowered to try civil and criminal matters including the following:

1. Cases arising from breach of native law or custom, e.g. those relating to religious or matrimonial matters.

2. Cases involving land where there is no title issued by the Land Office and in which all the parties are subject to the same native system of personal law.

3. Civil cases (excluding land) where the value of the subject-matter does not exceed fifty ringgit and all parties are subject to the same native system of personal law.

NATIVE COURTNATIVE COURT


The courts, which enforce the Islamic law are the Syariah Courts… the jurisdiction given by the State and the Syariah Courts is limited. However, it should be noted that amendment has been made to the Syariah Courts (Criminal Jurisdiction) Act, 1965 in 1984 which has extended the jurisdiction of the Syariah Courts to deal with cases punishablewith imprisonment up to three years, or fine upto RM5,000 or whipping up to six stokes or the combination of all these.

NATIVE COURTNATIVE COURT

1. Sinha & Dheeraj, Legal dictionary, Petaling Jaya: International Law Book Services (ILBS).2. Nuraisyah Chua Abdullah (2004), Questions & answers on malaysian

courts, statutes, cases & contract, tort and criminal law, Petaling Jaya: International Law Book Services (ILBS).

3. Lee Mei Pheng (2005), General principles of malaysian law (5th ed.), Shah Alam: Penerbit Fajar Bakti Sdn. Bhd.

4. http://www.cljlaw.com/membersentry/judges/courts.asp5. http://www.kehakiman.gov.my/courts/maljudiciary.shtml6. http://en.wikipedia.org/wiki/Courts_of_Malaysia

Module 2 the court system

Documents

Transcript of Module 2 the court system