Law In Malaysia

Written by James Hirby and Fact Checked by The Law Dictionary Staff  

Malaysia has a unified judicial system, and all courts take cognizance of both federal and state laws. The legal system is founded on British common law. The judiciary has the power to hear and determine civil and criminal matters. It can even pronounce on the legality of legislative or executive acts. It can also interpret the Federal and State Constitutions.

 

Superior Courts in Malaysia

 

The High Court

High Court consists of two Chief Judges, one in Peninsular Malaysia and one in Sabah and Sarawak. There are at least fifty-six judges and Judicial Commissioners of where eleven are in Sabah and Sarawak and forty-five in Peninsular Malaysia. In the exercise of its original jurisdiction, it has unlimited criminal and civil powers. The High Court has general supervisory and revisionary jurisdiction over all the Subordinate Courts, and jurisdiction to hear appeals from the Subordinate Courts in civil and criminal matters under Section 35(1) of the Courts of Judicature Act 1964. In the interest of justice and when it appears desirable, the High Court may call for the records of any proceedings at any stage of such proceedings.  It may also remove the case to the High Court or give such directives to the subordinate courts as it thinks necessary. When the High Court calls for any records, all proceedings will stay pending further order of the High Court. In criminal cases, no case may be brought to the High Court unless an offender has been properly committed for trial after a preliminary hearing in Magistrates’ Court. 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 it is in the public interest and of paramount importance. The High Courts have no jurisdiction in matters involving Islamic law.

 

The Court of Appeal

The Court of Appeal constitutes the President of the Court of Appeal and up to ten Court of Appeal judges. The Court of Appeal is heard by three judges or such greater uneven number of judges. The Court of Appeal generally hears civil appeals where the amount or value of the subject-matter of the claim is at least RM 250,000. Notwithstanding, there are matters which are non-appealable to the Court of Appeal. Under the Section 68 the list of cases involves any of the following:

• When the amount or value of the subject matter of the claim (exclusive of interest) is less than RM250,000, except with leave of the Court of Appeal

• Where the Judgment or order is made by consent of parties

• Where the Judgment or order relates to costs only, which by law are left to the discretion of the Court, except with the leave of the Court of Appeal

• Where by any written law for the time being in force, the Judgment or order of the High Court is expressly declared to be final

The Court of Appeal also hears appeals of criminal decisions of the High Court. Where an appeal has been heard and disposed of by the Court of Appeal, it has no power to re-open, rehear or to re-examine its decision for whatever purpose. 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.

 

The Federal Court

The Federal Court is the highest court, and consists of the Chief Justice, the President of the court of Appeal, the Chief Judges of Malaya and Sabah and Sarawak, and six Federal Court Judges. Every proceeding in the Federal Court shall be heard and disposed of by three judges or such greater uneven number of judges as the Chief Justice may in any particular case determine. It has the power to hear appeals from Court of Appeal, hear original matters and give opinions on any questions by Yang di-Pertuan Agong. It makes new decision where the lower court should bind.

 

Subordinate Courts in Peninsular Malaysia

Subordinate courts are established under Section 3(2) of the Subordinate Courts Act 1948 which reads:

‘In the High Court case of Public Bank Bhd versus Chan Tak Kow, the judge stated that a subordinate court cannot include a registrar or a senior assistant registrar sitting in chambers. The jurisdiction of a registrar sitting in chambers is found in Order 32 Rule 9 of the Rules of the High Court 1980. A registrar’s decision is appeal able to a judge in chambers by way of Order 56 Rule 1, Rules of the High Court 1980.’

 

Penghulu’s Court

The Penghulu’s Court is the lowest level of subordinate courts in Peninsular Malaysia. A penghulu is appointed by the State Government for a district. It has the power to hear civil matters when the claim does not exceed RM 50, where the parties are of an Asian race and speak and understand the Malay language. The Penghulu's Court's criminal jurisdiction is limited to offences of a minor nature charged against a person of Asian race which is specially enumerated in his warrant, which can be punished with a fine not exceeding RM25.The Penghulu’s Court can only try criminal charges against persons of an Asian Race. Any person charged with an offense before a Penghulu’s Court may elect to be tried by a Magistrates’ Court.

 

Small Claims Court

‘The Subordinate Courts (amendment) Rules 1987 came into force on 1 August 1987 in Peninsular Malaysia and on 1 September 1987 in Sabah and Sarawak. The ‘Small Claims” Court was set up under these Rules in order to decide on claims for recovery of debts or liquidated demands in money, with or without interest, and not exceeding RM 3,000 at the date of filing. The unique features of this court are that it is cheap and no legal representation is allowed, for example, no party to any suit in this court can be represented by an advocate and solicitor. This court is heard by second class magistrates.’ (Lee Mei Pheng, General Principles of Malaysian Law, 5th Edition, pg 58, 59)

 

Magistrates’ Court

The Magistrates’ Court deals with minor civil and criminal cases. The court is presided over by a magistrate. Magistrates are divided into First Class and Second Class Magistrates. A First Class Magistrate must be legally qualified and must be a member of the Judicial and Legal Service of the Federation. Second Class Magistrates are normally appointed from administrative officers who are not legally qualified. Under Section 85 of the Subordinate Courts Act 1948 (Revised 1972) amended by the Subordinate Courts (Amendment) Act 1978, a First Class Magistrate possesses jurisdiction to try all offences for which the maximum term of punishment provided by law does not exceed ten years’ imprisonment, or all offences punishable with fine only, as well as offences under Section 392 and 457 of the Penal Code (Section 392 of the Penal Code deals with the punishment for robbery while Section 457 deals with lurking, house-trespass or house breaking at night). When one is found guilty, the magistrate may pass any sentence allowed by law not exceeding:

• Five years’ imprisonment.

• A fine of ten thousand ringgit (RM 10,000).

• Whipping of up to twelve strokes.

• A combination of any of the above mentioned.

A Second Class Magistrate has jurisdiction to try offences for which the maximum term of imprisonment provided by law does not exceed twelve months’ imprisonment or offences punishable with a fine only. A Second Class Magistrate may pass any sentence allowed by law:

• Not exceeding 6 months’ imprisonment.

• A fine of not more than RM 1000

• Any sentence combining either of the aforesaid sentences.

 

As regards civil matters, the First Class Magistrate has authority to try all actions and suits where the amount in dispute or value of the subject matter does not exceed RM 25,000. It may also exercise jurisdiction in actions for the recovery of immovable property and for recovery of rent, mesne profits and damages when the claim does not exceed RM 24,000, or where the rent payable in respect of the premises does not exceed RM 24,000 per year or RM 2000 per month.

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 on money payable by the defendant, with or without interest, not exceeding RM 3000.

 

Sessions Court

The Session Court is the highest of the subordinate or inferior courts. Its criminal jurisdiction extends to all offences other than offences punishable with death. A Session Court may pass any sentence allowed by law other than the death sentence. 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 RM 250,000. However, in general, matters relating to land, specific performance or recession of contracts, injunction, probate and administration of estates, divorce, bankruptcy, trusts, and accounts are excluded from its jurisdiction.

 

The Sessions Court may exercise jurisdiction to hear and determine any action for the recovery of immovable property and for the recovery of rent or profits or damages where the money claimed does not exceed RM 96,000 or where the rent payable in respect of the premises does not exceed the sum of RM 96,000 per annum.

 

Juvenile Court, Syariah Court and Native Court are also part of the courts in Malaysia. However, Native Court only set up in Sabah and Sarawak which tries matters related to ‘native customs’. A native is a citizen or race indigenous of Sabah and Sarawak.

 

In conclusion, the court system lightens the burden of the country and eases the process of legal system due to different kind of cases will be tried in different courts where it will bring fairness and justice to whom that brings the case for legal actions. By having the proper hierarchy of the court system, the process of running legal actions is in the proper channel and it would not burden or cause any inconvenience to any party or the country.

 

Bibliography

• Abdul Majid bin Nabi Baksh & Krishnan Arjunan, (2005) Business Law in Malaysia, Malaysia Law Journal Sdn Bhd

• Lee Mei Pheng, (2005) General Principles of Malaysian Law 5th Edition, Percetakan Printpack Sdn Bhd

• BBC World, (1993) BBC English Dictionary, HaperCollins Publishers

 

• Peter Gillies, Business Law, the Federal on Press, 11th Edition.

 

• Paul Latimer, Australian Business Law 2005, CCH, 24th Edition.

 

• Martin Partington, Introduction to the English Legal System, Oxford, 2nd                                         Edition

 

• http://www.kehakiman.gov.my/courts/judicialEN.shtml

• http://www.icj.org/IMG/pdf/malaysia.pdf

 

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