Malaysian Law

IDE Asian Law Series No.
4
Judicial System and Reforms in Asian Countries (Malaysia)
The Malaysian Legal System,

Legal Practice &
Legal Education
Sharifah Suhanah Syed Ahmad

Associate Professor
Faculty of Law
University of Malaya
Roy Rajasingham
Vice President
Bar Council Malaysia
INSTITUTE OF DEVELOPING ECONOMIES (IDE-JETRO)

March 2001
JAPAN
PREFACE
Due to the evolution of market-oriented economy as well as the increase of

cross-border transactions, there is an urgent need to research and make comparison of
judicial systems and role of law in development in Asian countries.
Institute of
Developing Economies (IDE-JETRO) established two research committees in FY 2000:

Committee on Law and Development on Economic and Social Development and
Committee on Judicial Systems in Asia. The former committee focuses on the role of
law in social and economic development and seeks for its theoretical legal framework.
The study conducted by member researchers ranges from marketization, development
assistant and law to environment, labor, consumer and law.
The latter committee studied
the judicial systems and its reforms in process in Asian countries for further analysis of
dispute resolution process therein.
In order to facilitate the committees activity, IDE organized joint research work
with research institutions in seven Asian countries, namely, China, India, Indonesia,
Malaysia, Philippines, Thailand and Vietnam. This publication is the outcome submitted
from each counter-partners on judicial systems and reforms in Asian Countries. The
purpose of the study was to research and analyze the current situation and reforms of
judicial systems in Asian countries. In order to compare the judicial system and its reforms
among the respective countries, each counter-partner were asked to include the following
common
contents,
i.e.
Judiciary
and
Judge,
Prosecutor/Prosecuting
Attorney,
Advocate/Lawyer, Legal Education, Procedure/Proceedings, ADR etc., together with

information of Statistical Data and Recent Trends and Movements.
We believe that this comprehensive work is unprecedented and we hope that this
publication will contribute as a research material and for further understandings of legal
issues we share.
Institute of Developing Economies
TABLE OF CONTENTS
CHAPTER 1: THE JUDICIARY
1. Appointment and Qualification of Judges of the Superior Courts
2. Terms of office and remuneration of Judges of the Federal Court
3. Jurisdiction of Courts
4. Administration of Courts Problems
11
5. Case-management as a method of resolving problem
11
6. Court Divisions and Number of Magistrates, Judicial
13
Commissioners and Judges in Malaysia

7. The Attorney General's Chambers
14
8. Parallel Court Systems
16
9. Other Courts
31
CHAPTER 2: JUDICIAL REVIEW
35
1. Procedure
35
2. Legal bases for review by High Court
36
3. The doctrine of Proportionality
37
4. Conclusion
38
CHAPTER 3: ALTERNATIVE DISPUTE RESOLUTION
39
1. The Public Services Tribunals
39
2. Malaysian Mediation Centre
41
3. Mediation Rules
44
4. The Kuala Lumpur Regional Centre for Arbitration
50
5. Others
53
CHAPTER 4: LEGAL EDUCATION
59
1. Philosophy of Legal Education
59
2. Courses and Structure of Legal Studies
60
3. Certificate of Legal Practice (CLP)
61
4. Post-graduate courses
62
5. External Degree Programme
62
6. Diploma in Public Law
62
CHAPTER 5: PRACTICE AT THE MALAYSIAN BAR
64
1. Practice as an Advocate and Solicitor
64
2. Certificate in Legal Practice Course
65
3. Discipline and Etiquette of Advocates and Solicitors
66
4. Legal Profession (Disciplinary Proceedings)(Investigating
66
Tribunal and Disciplinary Committee) Rules 1994

5. Legal Profession (Professional Liability)(Insurance) Rules 1992
70
6. Obligation of an advocate and solicitor
70
7. Solicitors' Remuneration Order 1991
71
8. Legal Profession (Practice and Etiquette) Rules 1978
71
9. The Role of the Malaysian Bar
75
10. External Relations
75
11. Legal Aid Programme
76
12. Language Used In the Courts
77
13. Legal Practice In Sabah and Sarawak (East Malaysia)
77
CHAPTER 6: CIVIL LITIGATION
78
1. Originating Process of Civil Litigation
79
2. Judgment-in-Default
80
3. Summary Judgment
80
4. Pleadings
81
5. Close of Pleadings
81
6. Setting Aside Judgment in Default of Defence
82
7. Striking Out Pleadings
82
8. Pre-Trial Case Management
82
9. Security For Costs
83
ii
CHAPTER 7: CRIMINAL LITIGATION
84
1. Penal Code
84
2. Criminal Procedure Code
84
3. A Magistrates Court can hear criminal matters:-
85
4. Sessions Court Criminal Jurisdiction
85
5. High Court Criminal Jurisdiction
85
6. Appellate Court Criminal Jurisdiction
85
7. Federal Court Criminal Jurisdiction
85
8. Police Action
86
9. Summary Trials by Magistrates
86
10. Transfer of Cases
86
11. Procedure at a Trial
87
12. Prosecution
87
13. Conduct of Prosecution in Court
87
14. Search Power of the Police
87
15. Evidence Act
88
16. Sentencing
88
CHAPTER 8: RECENT DEVELOPMENTS
89
1. The National Commission on Human Rights (SUHAKAM)
89
2. Proposed Family Court
90
iii
Chapter 1
THE JUDICIARY
The Malaysian legal system is based upon the English common law system
which Malaysia inherited by virtue of a long history of colonization by the British.
Central to the Malaysian legal system is a written Constitution based upon the
Westminster model. The organs of government and administration, together with their
respective powers and functions are to be found within the Malaysian Federal
Constitution.
The Malaysian Judiciary is established under Part IX of the Constitution.
Article 121 establishes the current hierarchy of courts:
Federal Court
Superior
Courts
Subordinate
Courts
Court of Appeal
High Court
(Malaya)
High Court
(Sabah & Sarawak)
Sessions Court
Sessions Court
Magistrates Courts
Magistrates Courts
The Federal Court consists of a President of the Court (styled as the Chief
Justice of the Federal Court), President of the Court of Appeal, Chief Judges of the High
Courts and seven other judges.1

The Court of Appeal consists of a Chairman (styled as the President of the
Court of Appeal), and ten other judges.2
The High Courts consist of a Chief Judge and not less than four other judges.
The number of other judges of the High Court may not exceed forty-seven for the High
Court in Malaya, and ten for the High Court in Sabah and Sarawak.3
1. APPOINTMENT
COURTS
AND
QUALIFICATION
OF
JUDGES
OF THE
SUPERIOR
The Chief Justice of the Federal Court, the President of the Court of Appeal
and the Chief Judges of the High Courts and the other judges of the Federal Court,
Court of Appeal and High Courts are appointed by the Yang di Pertuan Agong on advice
of the Prime Minister and after consultation with the Conference of Rulers.4 The Prime
Ministers advice must be preceded with consultations made with appropriate parties.
For example, before tendering his advice as to the appointment of a judge other than the
Chief Justice of the Federal Court, the Prime Minister is to consult the Chief Justice.5
Before tendering his advice as to the appointment of a Chief Judge of a High Court, the
Prime Minister is to consult the Chief Judge of each of the High Courts and, if the
appointment is to the High Court in Sabah and Sarawak, the Chief Minister of each of
the States of Sabah and Sarawak.6
Before tendering his advice as to the appointment of a Judge other than the
Chief Justice, President or a Chief Judge, the Prime Minister is to consult, if the
appointment is to the Federal Court, the Chief Justice of the Federal Court; if the
appointment is to the Court of Appeal, the President of the Court of Appeal, and if the
appointment is to one of the High Courts, the Chief Judge of that court.7
A person is qualified for appointment as a Judge of the Federal Court, a judge
of the Court of Appeal or a Judge of any of the High Courts if he is a citizen and for the
Federal Constitution, Art. 122(1).

ibid, Art. 122A(1).
3
ibid, Art. 122AA(1).
4
Federal Constitution, Art. 122B(1).
5
ibid, Art. 122B(2).
6
ibid, Art. 122B(3).
7
ibid, Art. 122B(4).
2
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, or sometimes one and sometimes the other.8
2. TERMS OF OFFICE AND REMUNERATION OF JUDGES OF THE FEDERAL

COURT
A judge of the Federal Court is to hold office until he attains the age of sixtyfive or such later time, not being later than six months after he has attained that age.9 A
judge of the Federal Court may at any time resign his office by writing under his hand
addressed to the Yang di Pertuan Agong, but he may not be removed from office except
in accordance with provisions of the Constitution. The Yang di Pertuan Agong is
empowered to have a judge removed from office, but representations to that effect must
first of all be made either by the Prime Minister or the Chief Justice after consulting the
Prime Minister.10 Removal from office may be made upon the following grounds, that
is, breach of any provision of the Judges Code of ethics or on the ground of inability,
from infirmity of body or mind or any other cause. Upon such representation being
made, the Yang di Pertuan Agong must appoint a tribunal and refer the representation to
it and removal from office may be effected only upon the recommendation of the
tribunal.11
The Tribunal is to consist of not less than five persons who hold or have held
office as Judge of the Federal Court, the Court of Appeal or a High Court or persons
who hold or have held equivalent office in any other part of the Commonwealth.12 The
Tribunal is to be presided over by the Chief Justice of the Federal Court, the President
and the Chief Judges according to their precedence among themselves, and other
members according to the order of their appointment. Pending any reference or report
of the Tribunal, the Yang di Pertuan Agong may on the recommendation of the Prime
Minister and, in the case of any other judge after consulting the Chief Justice, suspend a
Art. 123.
Art. 125(1).
10
Art. 125(2).
11
Art. 125(3).
12
Art. 12(4).
9
Judge of the Federal Court.13

Remuneration of judges of the Federal Court is provided for by law and
charged on the Consolidated Fund. Such law may also provide for other terms of office
of the judges.14
The conduct of a judge of the Federal Court, Court of Appeal or High Court is
not to be discussed in either House of Parliament except on a substantive motion of
which notice has been given by not less than one quarter of the total number of
members of that House.
Neither can the conduct of judges be discussed in the
Legislative Assembly of any state.15
3. JURISDICTION OF COURTS
The jurisdiction and powers of courts under the Malaysian hierarchy of courts
are contained principally in the Courts of Judicature Act 1964 (Act 91) for the superior
courts (that is, the Federal Court, the Court of Appeal and High Court) and in the
Subordinate Courts Act 1948 (Act 92) for the subordinate courts (Sessions and
Magistrates courts).
(1) Federal Court
In the exercise of its original jurisdiction, the Federal Court is empowered to
determine whether a law made by Parliament or by the Legislature of a State is invalid
on the ground that Parliament or the Legislature of the State has no power to make laws,
and as to disputes on any question between States or between the Federation and any
State.16
Where in any proceedings before another court a question arises as to the effect
of any provision of the Constitution, the Federal Court shall have jurisdiction to
determine the question and remit the case to the other court to be disposed of in
accordance with the determination.17 Where in any proceedings in the High Court a
question arises as to the effect of any provision of the Constitution, the judge hearing
13
Art. 125(5).
Art. 125(6).
15
Art. 127.
16
Federal Constitution, Art 128(1),
17
ibid, Art 128(2).
14
the proceedings may stay the same on such terms as may be just to await the decision of
the question by the Federal Court.18 An order staying proceedings in the High Court
under this issue may be made by the Judge of his own motion or on the application of
any party and it can be made at such stage of the proceedings as the Judge may see fit.19
The reference of a constitutional question to the Federal Court by the High Court shall
be by way of special case stating the question in a form, which might permit of an
answer being given either in the affirmative or negative.20
The Yang di Pertuan Agong may refer to the Federal Court for its opinion any
question as to the effect of any provision of the Federal Constitution which has arisen or
appears to him likely to arise, and the Federal Court shall then pronounce in open court
its opinion on any question so referred to it.21
In its appellate jurisdiction, the Federal Court is empowered with jurisdiction to
hear and determine any appeal from any decision of the Court of Appeal in its appellate
jurisdiction in respect of any criminal matter decided by the High Court in its original
jurisdiction.22
In a civil case, an appeal shall lie from the Court of Appeal to the Federal Court
with leave of the Federal Court granted in accordance with section 97 of the Courts of
Judicature Act 1964 -(a) from any judgment or order of the Court of Appeal in respect
of any civil cause or matter decided by the High Court in the exercise of its original
jurisdiction, and (b) from any decision as to the effect of any provision of the
Constitution including the validity of any written law relating to such provision.23
(2) Court of Appeal
The Court of Appeal has appellate jurisdiction in both civil and criminal
matters. In respect of criminal matters the Court of Appeal has jurisdiction to hear and
determine any appeal against any decision made by the High Court in the exercise of its
original jurisdiction, and in the exercise of its appellate or revisionary jurisdiction in
respect of any criminal matter decided by the Sessions Court.24 An appeal to the Court
18
Court of Judicature Act 1964, section 84(1).

ibid, section 84(2).
20
21
Federal Constitution, Art 128(2).
22
Courts of Judicature Act 1964, section 87(1).
23
ibid, section 96.
24
19
of Appeal in this case is with leave of the Court of Appeal and such appeal is to be
confined only to questions of law which have arisen in the course of the appeal or
revision and the determination of which by the High Court has affected the event of the
appeal or revision.25
In civil matters, the Court of Appeal has jurisdiction to hear and determine
appeals from any judgment or order of any High Court whether made in the exercise of
its original or appellate jurisdiction.26 There are, however, several matters, which are
non-appeal able to the Court of Appeal:27
(a) where 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;
(b) where the judgment or order is made by consent of parties;
(c) where the judgment or order relates to costs only which by law are left to
the discretion of the court, except with leave of the Court of Appeal, and
(d) 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.
(3) High Court
The High Court has both original and appellate jurisdictions for both civil and
criminal matters. In its original criminal jurisdiction, the High Court is empowered to
try all offences committed within its local jurisdiction; all offences committed on the
high seas on board any ship or on any aircraft registered in Malaysia; all offences
committed by any citizen or any permanent resident on the high seas on board any ship
or aircraft; all offences committed by any person on the high seas where the offence is
piracy by the law of nations.28 In addition, the High Court may also try offences under
Chapter VI of the Penal Code and under any of the written laws specified in the
Schedule to the Extra-territorial Offences Act 1976 or offences under any written law
the commission of which is certified by the Attorney-General to affect the security of
Malaysia committed, as the case may be, on the high seas on board any ship or aircraft
registered in Malaysia; offences by any ship or aircraft registered in Malaysia; offences
by any citizen or any permanent resident on the high seas on board any ship or aircraft,
25

27
28
ibid, section 22(1)(a).
26
or by any citizen or any permanent resident in any place without and beyond the limits
of Malaysia.29 The High Court may pass any sentence allowed by law.30
The general, civil jurisdiction of the High Court include that of trying all civil
proceedings where the cause of action arose within the local jurisdiction of the court, or
the defendant or one of several defendants resides or has his place of business within
such local jurisdiction, or the facts on which the proceedings are based exist or are
alleged to have occurred, or any land, the ownership of which is disputed is situated
within the local jurisdiction of the court.31
The High Court has specific civil jurisdiction in respect of the following
matters:32
(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.
The High Court may refer any question arising in any cause or matter other
than a criminal proceeding by the Public Prosecutor, for inquiry or report to any special
referee. The report of a special referee may be adopted wholly or partially by the High
Court and enforced as a decree, judgment or order.33
29
ibid, section 22(1)(b).

31
32
ibid, section 24.
33
ibid, section 24A(1).
30
The High Court shall, in the exercise of its jurisdiction, have all the powers
which were vested in it immediately prior to Malaysia Day and such other powers as
may be vested in it by any written law in force within its local jurisdiction.34
The High Court hears both criminal35 and civil appeals.36 However, 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 RMl0,000 or
less except on a question of law.37 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.38
The High Court is imbued with special powers of revision of both criminals39
and civil proceedings. 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. 40 In addition, the High
Court is provided with general supervisory and revisionary jurisdiction over all
subordinate courts, and may in particular if it appears desirable in the interests of justice,
either of its own motion or at the instance of any party or person interested, at any stage
in any matter or proceeding, whether civil or criminal, in any subordinate court, call for
the record thereof, and may remove the same into the High Court or may give to the
subordinate court such directions as to the further conduct of the same as justice may
require.41
34
Ibid, section 25(1) inherent jurisdiction of court 'may be defined as being that reserve or fund of powers,
a residual source of powers, which the court may draw upon as necessary whenever it is just or
equitable to do so, and in particular to ensure the observation of the due process of law, to prevent
improper vexation or oppression, to do justice between the parties and to secure a fair trial between
them the source of the inherent jurisdiction of the court is derived from its nature as a court of law; so
that the limits of such jurisdiction are not easy to define, and indeed appear to elude definition: Sir Jack
Jacob; see R Rama Chandran v The Industrial Court [1997] I MU 145; Ngan Tuck Seng & Anar v Ngan
nn Groundnut Factary Sdn Bhd [1999] 5 MLJ 509.
35
ibid, section 26.
36
ibid, section 27.
37
ibid, section 28(1); the amount in dispute or the value of the subject-mater must relate to the judgment
sum of a subordinate court and not to the sum claimed by a plaintiff or the combined sum of a clam and
counterclaim Lein Tiam Hock v Arumugam Kandasamy [1999] 2 CLJ 853.
38
39
ibid, section 31.
40
ibid, section 32.
41
(4) Sessions Court

A Sessions Court shall have jurisdiction to try all criminal offences other than
offences punishable with death,42 and may pass any sentence allowed by law other than
the sentence of death.43
In its civil jurisdiction, the Sessions Court shall have unlimited jurisdiction to
try all actions and suits of a civil nature in respect of motor vehicle accidents, landlord
and tenant and distress, and jurisdiction to try all other actions and suits of a civil nature
where the amount in dispute or the value of the subject-matter does not exceed RM250,
000. 44 The exceptions to this, that is, where the Sessions Court will not have civil
jurisdiction, include the following:45
(a) relating to immovable property (except those provided in sections 70 and
71 of the Subordinate Courts Act 1948);
(b) the specific performance or rescission of contracts;
(c) injunction;
(d) cancellation or rectification of instruments;
(e) the enforcement of trusts;
(f) accounts;
(g) declaratory decrees, except in interpleader proceedings;
(h) the issue or revocation of grants of representation of the estates of deceased
persons or the administration or distribution thereof;
(i) where the legitimacy of any person is in question;
(j) guardianship or custody of infants, and
(k) validity or dissolution of any marriage.
(5) Magistrate's Courts

There are two classes of magistrates - first class magistrate and second class
magistrates. No person shall be appointed to be a First Class Magistrate unless he is a
member of the Judicial and Legal Service of the Federation. 46 The Yang di Pertuan
42
Subordinate Courts Act 1948, section 63.

ibid, section 64.
44
45
ibid, section 69.
46
ibid, section 78A.
43
Agong may appoint any fit and proper person to be a Second Class Magistrate in and for
the Federal Territory (and the State Authority may make the appointment in and for the
State).47
A First Class Magistrate in its criminal jurisdiction may try all offences for
which the maximum term of imprisonment provided by law does not exceed 10 years'
imprisonment or which is punishable with-fine only and offences under sections 392
and 457 of the Penal Code.48
In West Malaysia a First Class Magistrate shall have jurisdiction to hear and
determine criminal appeals by persons convicted by a Penghulu's Court situated within
the local limits of his jurisdiction.49 A First Class Magistrate may pass any sentence
allowed by law not exceeding: (a) 5 years' imprisonment; (b) a fine of RM10,000; (c)
whipping up to 12 strokes, or (d) any sentence combining any of the sentences
aforesaid.50
A second Class Magistrate shall only have jurisdiction to try offences for which
the maximum term of imprisonment does not exceed 12 months or which are punishable
with fine only.51 A Second Class Magistrate may pass any sentence allowed by law not
exceeding 6 months imprisonment; a fine of not more than RM1,000 or any sentence
combining either of the aforesaid.52
In its civil jurisdiction, a First Class Magistrate shall have jurisdiction to try all
actions and suits where the amount in dispute or value of the subject-matter does not
exceed RM25,000,53 and hear civil appeals from Penghulus court.54 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 RM3,000.55
47
ibid, section 79.

ibid, section 85.
49
ibid, section 86.
50
51
ibid, section 88.
52
ibid, section 89.
53
ibid, section 90.
54
ibid, saection 91.
55
ibid, section 92.
48
10
4. ADMINISTRATION OF COURTS PROBLEMS

The main problem facing, not only the Malaysian judiciary, but the justice
system in Malaysia as a whole today, is the rise in the number of litigation, so much so
that cases have piled up within the system, causing a severe backlog (see table below):
COURT STATISTICS as at DECEMBER 2000

No. of cases filed
299,411
1,087,617
155,478
Sessions Court
7,997
100,047
High Court
4,068
3,048
8,061
Court of Appeal
128
1,010
584
3,229
Federal Court
63
Source: Federal Court
Magistrates
Court
(civil)
(criminal)
(civil)
(criminal)
(civil)
(criminal)
(civil applications)
(civil appeals)
(criminal applications)
(criminal appeals)
(civil applications)
(civil Appeals)
(criminal appeals)
No of cases
cleared
140,248
749,399
71,149
4,876
45,812
2,265
1,867
3,629
101
552
421
3,216
43
No of active
cases
159,163
338,218
84,329
3,121
54,235
1,803
1,181
4,432
27
458
163
13
20
It is reported that the backlog is being cleared steadily, and the number of
pending cases have fallen from about 800,000 to 647,000 in the last one-year.56 The
government has initiated a RM20 million computerization project for the courts, which
is due to be implemented soon. Under this project, the courts case management system
will be computerized to enable it to monitor the movement of files. Legal clerks will
also be used to prepare immediate transcripts of court proceedings.
5. CASE-MANAGEMENT AS A METHOD OF RESOLVING PROBLEM

On September 22, 2000, the Rules of the High Court were amended. The
amendments governed the administration of civil cases and its main aim is to enable the
56
New Straits Times, 23 February 2001, p. 6.
11
judges to control the proceedings and progress of cases instead of lawyers. It is hoped
that this will help to clear the backlog of cases within the court system.
Briefly, the new Rules have instituted case management and timetables to keep
cases moving. A judge may decide if a case could be resolved only by deciding on a
question of law, and may accept affidavit evidence for examination-in-chief. The new
Rules also shorten the lifespan of a writ from twelve to six months, and only two
renewals of six months each are allowed for writs where previously the renewals were
limitless.
Parties must now move to bring their cases up for case management fourteen
days after pleadings are closed. Through this method, a judge may narrow down the
issues for trial, and issues that can be agreed upon or which are irrelevant may be struck
out. This principle of allowing the court to play a more active role instead of leaving it
to the lawyers or the parties, is keeping with similar moves in Britain and other
countries in the Commonwealth, such as Singapore.57
Lawyers, however, expressed reservations on two main aspects of the changes
first, the requirement that there must be an attempt to serve a writ within one month of
its issuance, a particularly difficult obligation if the defendant could not be found, is out
of town or overseas; and secondly, the requirement for parties to prepare a list of
documents ahead of time, where failure to include any document may preclude it from
being tendered later in court.58 Another reservation is that litigation costs may actually
rise as lawyers might charge higher fees because they can no longer take as many files
or cases as they used too.
57
The Woolf Reforms see also New Straits Times, 15 September 1999, and New Sunday Times, 3
December 2000, p.6.
58
According to Datuk Dr Cyrus Das, the Bar Councils Civil Procedure Committee Chairman, in an
interview with Carolyn Hong New Sunday Times, 3 December 2000, p. 6.
12
6. COURT DIVISIONS AND NUMBER OF MAGISTRATES, JUDICIAL

COMMISSIONERS AND JUDGES IN MALAYSIA
(1) At Kuala Lumpur
1. Federal Court: Lord President

- President of the Court of Appeal
- Chief Justice (Malaya)
- Chief Justice (Sabah and Sarawak)
3 other Federal Court judges
2. Court of Appeal: 10 judges
3. High Court (Kuala Lumpur):
- Criminal Division 3 judges
- Commercial Division 6 judges
- Civil Division 5 judge
- Appellate Division 3 judges
4. Sessions Court (Kuala Lumpur):
- Civil Division 8 judges
5. Magistrates Courts (Kuala Lumpur):
- Civil Division 6 judges
(2) Distribution of Magistrates and Sessions Courts in other States:
State
Sessions Court
Magistrates Court
Perlis
Kedah
11
Penang
Perak
18
Selangor
11
Negri Sembilan
Malacca
13
Johore
12
Pahang
Terengganu
Kelantan
Sabah
Sarawak
Source: Legal Directory Bar Council.

(3) Distribution of High Court/High Court judges in other States.
State
High Court
No of judges
Perlis
Kedah
Penang
Perak
Selangor
Negri Sembilan
Malacca
Johore
Pahang
Terengganu
Kelantan
Sabah
Sarawak
Source: Legal Directory Bar Council.
7. THE ATTORNEY GENERALS CHAMBERS

In Malaysia, the Attorney General is not the Head of the Judicial and Legal
Service he is a civil servant. He belongs to the Judicial and Legal Service and is the
highest paid officer in the service. The Attorney General is appointed by the Yang di
Pertuan Agong on the advice of the Prime Minister, and the appointment is made from
14
amongst those qualified to be a judge of the Federal Court.59

His duties include, among others, to advise the Yang di Pertuan Agong or the
Cabinet or any Minister upon any legal matters and to perform such legal duties on
behalf of the government. The Attorney General is conferred discretionary power to
institute, conduct or discontinue any proceedings for an offence, other than proceedings
before a Syariah court, a native court or a court martial.60 The Attorney General is also
empowered to determine the courts in which or the venue at which any legal
proceedings shall be instituted, or to which such legal proceedings shall be transferred.61
The Attorney General holds office at the pleasure of the Yang di Pertuan Agong and may,
at any time, resign his office.
Within the Judicial and Legal Service of the Federation, the Attorney General is
the head of the Department known as the Attorney Generals Chambers. He is assisted
by several senior officers or Senior Federal Counsels, the highest in rank of whom is the
Solicitor General. Deputy Public Prosecutors form part of the corps of legal officers in
the Attorney Generals Chambers.
The work of the Chambers is divided into four divisions, namely:
(i)
Criminal Division, which handles all criminal prosecutions;
(ii) Civil Division, which handles all civil cases;

(iii) Drafting Division, responsible for the drafting of statutes, and
(iv) International Division, responsible for the management of international
affairs.
Law Revision, headed by a Commissioner for Law Revision, forms part of the
work of the Chambers as well. While carrying out his duties in criminal matters, the
Attorney General is styled as the Public Prosecutor.
(1) The Judicial and Legal Service Commission
The Judicial and Legal Service is governed by the Judicial and Legal Service
Commission, which consists of the Chairman of the Public Services Commission (who
also acts as the Chairman of the Judicial and Legal Service Commission); the Attorney
General, and one or more members appointed from among persons who are or have
59
Art. 145(1).
Art. 145(3).
61
Art. 145 (3A).
60
15
been or are qualified to be a judge of the Federal Court, Court of Appeal or a High
Court.62
The functions of the Commission include appointing, confirming, emplacing
on the permanent or pensionable establishment, promoting, transferring and exercising
disciplinary control over members of the service. 63 The Commission must prepare
annual reports on its activities and submit them to the Yang di Pertuan Agong. Copies
of those reports must be laid before both Houses of Parliament.64
8. PARALLEL COURT SYSTEMS

The Courts established under the Federal Constitution constitute the major civil
court system in Malaysia. Apart from this system of courts, there are at least three other
important court systems running parallel to the main civil court system the Native
Court System of Sabah and Sarawak, the Syariah Court System and the Industrial Court.
These courts are not established by the Federal Constitution but by specific enacted
legislation
(1) Native Courts System
The Native Courts System is established to settle disputes pertaining to native
customs and customary laws of the different tribes of native inhabitants of Sabah and
Sarawak. The Federal Constitution recognizes the special position of the Natives of
Sabah and Sarawak and makes provision for their protection. The Federal Constitution
defines a native in relation to Sarawak to mean a person who is a citizen and either
belongs to one of the races specified as indigenous to the state or is of mixed blood
deriving exclusively from those races.65 The races or tribes to be treated as natives of
Sarawak are identified as the Bukitans, Bisayahs, Dusuns, Sea Dayaks, Land Dayaks,
Kadayans, Kalabits, Keyans, Kenyahs, Kajangs, Lugats, Lisums, Malays, Melanos,
Muruts, Penans, Sians, Tagals, Tabuns and Ukits. In relation to Sabah, a native is a
person who is a citizen, is the child or grandchild of a person of a race indigenous to
62
Art. 138(2).
Art. 144(1).
64
Art. 146(1).
65
Art. 161A(a).
63
16
Sabah, and was born either in Sabah or to a father domiciled in Sabah at the time of
birth. 66 The native customs of these tribes were part of a great oral tradition in the
manner of other native tribes of the world, such as the Indians of North America. The
arrival of the British transformed these oral traditions into written codes of native
laws and customs. While this formalization of native customary law has the effect of
making it certain and ensuring its survival through written codes, it also places such
laws now within the formal, secular legal system, with a hierarchical court structure,
appellate system and system of precedent, evidentiary rules and burden of proof.
(a) Sarawak
The Native Courts System of Sarawak is established by state law, that is, the
Native Courts Ordinance, 1992. In order to give effect to the administration of native
laws and customs, the Native Courts Rules 1993 was also enacted.
The Central Registry, headed by a Chief Registrar and located in Kuching is the
Headquarters of the Native Courts. The Chief Registrar is the Chief Administrator of
the Native Courts system and supervises all Native Courts Registrars throughout
Sarawak. The functions of the Central Registry are, among others, the preparation of
yearly financial estimates; consultation with State Attorney General on issues touching
on the interpretation of the Native Courts Ordinance 1992 and Rules; assist in the
enforcement of Native Court judgments; publication of important judgments of Native
Courts; the giving of advice and consultation to persons who have to use the Native
Courts as an avenue to resolve disputes as well as those whose duty is to adjudicate
disputes; and assisting the Majlis Adat Istiadat (Council for Customs and Traditions) in
the revision of native laws.
In addition to the Central Registry, there are also established District Registries
for the many districts and sub-districts of the State of Sarawak. The District Registry is
under the charge, control and supervision of a District Officer or Sarawak
Administrative Office in-charge of the District and sub-district. The functions of a
District Registry include to accept lodgements of claims, complaints, appeals and other
legal applications; to keep records of case registers, to keep case files and records of
proceedings; to transmit case files of appeals to appropriate appellate courts; to assist in
66
Art. 161A(b); this must be read together with section 2(1) Interpretation (Definition of Natives)
Ordinance, 1952 which details the requirements for a native of Sabah.
17
the enforcement of court judgments and orders, and to submit periodical returns.
The Native Courts System Sarawak forms a part of the office of the Chief
Minister, and hence its principal officers come under the jurisdiction of the State
Secretary.
The Appellate Structure of Native Courts

Native Court of Appeal
(presided by a Judge with
one or more assessors)
Residents Native Court

(presided by a Resident
with two or four assessors)
Matters
involving
land disputes
District Native Court

(presided by a Magistrate
with two assessors)
Chiefs Superior Court

(presided by a Temenggong or
Pemancar with two assessors
or both Temenggong and
Pemancar with one assessor)
Chief s Court
(presided by a Penghulu
with two assessors)
Headmans Court
(presided by a Headman
with two assessors)
18
Matters involving
breaches of native
law and custom
The jurisdiction of Native Courts is circumscribed by statute, and consists of

the following specified matters:67
(i)
cases arising from the breach of a native law or custom (other than the
Ordinan Undang-Undang Keluarga Islam 1991 or the Malay custom of
Sarawak) in which all the parties are subject to the same native system of
personal law;
(ii) cases arising from breach of native law or custom (other than the Ordinan
Undang-Undang Keluarga Islam 1991 or the Malay custom of Sarawak)
relating to any religious, matrimonial or sexual matter where one party is a
native;
(iii) any civil case, not being a case under the jurisdiction of any of the Syariah
Courts constituted under the Ordinan Mahkamah Syariah 1991, in which
the value of the subject matter does not exceed RM2,000 and all the
parties are subject to the same native system of personal law;
(iv) any criminal case of a minor nature which ate specifically enumerated in
the Adat lban or any other customary law by whose custom the court is
bound and which can be adequately punished by a fine not exceeding that
which, under section 11 of the Ordinance, a Native Court may award;
(v) any matter in respect of which it may be empowered by any other written
law to exercise jurisdiction;
A Native Court shall not have jurisdiction over the following matters:68
(i)
any proceeding in which a person is charged with an offence in

consequence of which death is alleged to have occurred;
(ii) an offence under the Penal Code;

(iii) any proceeding concerning marriage or divorce regulated by the Law
Reform (Marriage and Divorce) Act 1976 and the Registration of
Marriages Ordinance 1952, unless it is a claim arising only in regard to
bride-price or adultery and founded only on native law and custom;
(iv) any proceeding affecting the title to or any interest in land which , is
67
68
section 5.
section 28.
19
registered, under the Land Code;

(v) any case involving a breach of native law or custom if the maximum
penalty which it is authorized to pass by virtue of section 11 of the
Ordinance is less severe than the minimum penalty prescribed for such
offence;
(vi) cases arising from the breach of Ordinan Undang-Uhdang Keluarga Islam
1991 and rules or regulations made there under, or the Malay custom of
Sarawak;
(vii) any criminal or civil matter within the jurisdiction of any of the Syariah
Courts constituted under the Ordinan Mahkamah Syariah 1991;
(viii)any proceeding taken under arty written law in force in the State.
In addition, section 20(1) empowers a District Native Court with special

jurisdiction to hear and determine the following cases:
(i)
for the purposes of section 9 of the Land Code, the question whether any
non-native has become identified with a particular native community and
subject to the native system of personal law of such community;
(ii) the question whether a person who is subject to a particular system of

personal law (whether native or otherwise) has become or became, by
virtue of subsequent events, or by conduct or mode of life, subject to a
different personal law;
(iii) the question whether a person subject to the personal law of a particular
native community ceased or has ceased to be so subject.
In determining any question under section 20(1) above, it is provided that a

District Native Court shall be entitled to take into consideration public opinion in the
community which the person has become so identified, even where it conflicts with a
strict application of the system of personal law of such community, and, unless such
community is an Islamic community, may disregard the fact that the person in question
was or is a Christian and that some modification of the system of personal law of such
community is, was or may be required on that account.69
The following is a table of Native Courts of original jurisdiction and their
69
section 20(2)(a).
20
constituted members:70
Classes of Native Courts

Constitution of Native Courts

Magistrate and 2 assessors
Chief s Court
Temenggong or Pemancar with 2 assessors, or

both Temenggong and Pemancar with one
assessor
Penghulu and 2 assessors
Headmans Court
Headman and 2 assessors
Chief s Superior Court
The judgment or order of a Chiefs Superior Court involving offences relating

to native law and custom other than land disputes is final and conclusive and shall not
be a subject of appeal.71
The following penalties may be imposed by the courts specified respectively:72
(a)District Native Court:
Imprisonment not exceeding two years

and fine not exceeding RM5, 000.
(b) Chiefs Superior Court:
Imprisonment not exceeding one year

and a fine not exceeding RM3, 000.
(c) Chiefs Court:
Imprisonment not exceeding six months

and a fine not exceeding RM2, 000.
(d) Headmans Court:
Fine not exceeding RM300.
Although the Native Courts of Sarawak do not form part of the main civil
courts system, the jurisdiction of the High Court is not ousted from examining decisions
of Native Courts. The Native Courts are creatures of statute and the High Court can
exercise its general supervisory powers through judicial review of Native court
decisions, and the grant of prerogative writs, such as the writ of certiorari.73
70
sections 3 and 4(1).

section 4(1), proviso (ii).
72
section 11(1).
73
Haji Laungan Tarki bin Mohd Noor v Mahkamah Anak Negeri Penampang [1988] 2 MLJ 85.
71
21
(b) Sabah
The Native Courts System of Sabah is much less elaborate than that of Sarawak.
The Native Courts are constituted under the Native Courts Enactment 1992, and is made
up of a native court, constituted by a District Chief and two other members; a District
Native Court, constituted by a District Officer and two other members, and a Native
Court of Appeal, made up of a Judge who acts as President, and two other members:
Native Court of Appeal
Native Court
A Native Court is constituted with original jurisdiction to hear and determine

cases pertaining to:74
(i)
breach of native law or custom, where all parties are natives;
(ii) breach of native law or custom which is religious, matrimonial or

sexual, where one of the parties is a non-native, and the written sanction
of the District Officer acting on the advice of two native chiefs have
been obtained;
(iii) native law or custom relating to betrothal, marriage, divorce, nullity of
marriage and judicial separation, adoption, guardianship or custody of
infants, maintenance of dependents and legitimacy, gifts, succession
testate and in testate.
Any sentence of imprisonment by a Native court needs to be endorsed by a

magistrate before it might take effect.75 A Native court is also empowered to order a
guilty party to pay to the person injured or aggrieved by any act or omission,
74
75
Native Courts Enactment 1992, s. 6(1).

ibid, s. 11.
22
compensation in cash or kind. 76
In default of the
payment of the penalty or
compensation, a Native court may order the offender to suffer such period of
imprisonment as will justify the justice of the case.77
(2) The Syariah Courts System
It has been argued, that if colonization had not been responsible for the
introduction and application of English law, Islamic law would have developed to
become the law of the land. 78 Islamic law, coupled with the customary law of the
various races, indeed represent the indigenous sources or basic foundation upon which
the eventual growth of a legal system could have been founded.79 However, the grant of
the Charters of Justice to the Straits Settlements, and the eventual application of English
law both through the judicial process and through legislation in the Malay States had
effectively displaced Islamic law from its premier position. The role, which Islamic law
now plays in the system, is extremely limited.
Under the Federal Constitution, Islamic law is a matter falling within the State
List, that is, it is a matter over which the State Legislature has jurisdiction, and not the
Federal Legislature. 80 In this regard, matters over which the State Legislatures have
been permitted to make laws have been stated to be 'Islamic law and personal and
family law of persons professing the religion of Islam', and this includes matters such as,
inter alia, succession, betrothal, marriage, divorce, maintenance, adoption, guardianship,
trusts, Islamic religious revenue and mosques. With regard to offences, or Islamic
criminal law, the Federal "Constitution goes on to provide that the State Legislature may
make laws 'for the creation and punishment of offences by persons professing the
religion of Islam against precepts of that religion, except in regard to matters included in
the Federal List. Likewise, the State Legislature has jurisdiction over the (constitution,
organization and procedure of Syariah courts which shall have jurisdiction only over
persons professing the religion of Islam and in respect only of any of the matters
included in this paragraph, but shall not have jurisdiction in respect of offences except
in so far as conferred by federal law.'
76
ibid, s. 12.
s. 14(1).
78
Wilkinson, RJ, Papers on Malay Subjects (1971) k. Lumpur.
79
See also, Shaik Abdul Latif & Ors v Shaik Elias Bux (1915) 1 FMSLR 204, 214.
80
Federal Constitution, Article 74, Ninth Schedule.
77
23
While it may be true that the practice of Islamic law differed among the various
Malay States due to the varied influences of custom, British intervention in the affairs of
the Malay States had the effect of formalizing the manner in which Islamic law was
administered. Islamic law was left to be administered by the respective states, with the
Sultans proclaimed as (Head' of Islamic religion in each state, thus giving rise to the
lack pf uniformity in the administration of Islamic law in Malaysia, whereas the uniform
application of English law throughout the land was guaranteed.
(3) The Administration of Islamic Law
The Administration of Islamic Law (Federal Territories) Act 199381 provides
for the Federal Territories of Kuala Lumpur and Labuan, a law concerning the
enforcement and administration of Islamic law, the constitution and organization of the
Syariah Courts, and other related matters.
(a) The Majlis Agama Islam
Section 4(1) of the Act establishes a 'Majlis Agama Islam Wilayah Persekutuan'
advise the Yang di Pertuan Agong in matters pertaining to the religion of Islam. The
Majlis is a body corporate having perpetual succession and corporate seal, may sue and
be sued in its corporate name, and is given the power to enter into contracts and acquire,
purchase, take, hold and enjoy movable and immovable property, which includes the
conveyance, assignment, surrendering and yielding, charging, mortgaging, demise,
reassignment and transference of any such property.82 The Majlis also has the power to
act as an executor of a will, or as an administrator of the state of a deceased person, or
as a trustee of any trust.83
The main function of the Majlis for which it has been established is to 'promote,
stimulate, facilitate and undertake the economic and social development and well-being
of the Muslim community in the Federal Territories consistent with Islamic law.'84 For
the above purpose, the Majlis has been given several powers. For example, it may carry
out activities of commercial and industrial nature, such as manufacturing, assembling,
81
Act 505.
ibid, section 5(3).
83
ibid, section 5(4).
84
ibid.
82
24
processing, and packing, grading and marketing of products. 85 It may invest in any
authorized investment, establish any scheme for the granting of loans to Muslim
individuals for higher learning and establish, and maintain Islamic schools.86 In pursuit
of the above main objective, the Majlis may so establish companies under the
Companies Act 1965 (with the approval of the Yang di-Pertuan Agong).87
(b) Appointment of Mufti, and the Islamic Legal Consultative Committee
The Mufti and Deputy Mufti shall be appointed by the Yang di Pertuan
Agong.88 The main function of the Mufti is to aid and advise the Yang di Pertuan Agong
in respect of all matters of Islamic Law. Upon the direction of the Yang di Pertuan
Agong or on his own initiative or on the request of any person by letter, the Mufti may
make and publish in the Gazette, a fatwa or ruling on any unsettled or controversial
question of or relating to Islamic law.89 Upon publication in the Gazette, the said fatwa
will be 'binding on every Muslim resident in the Federal Territories as a dictate of his
religion and it shall be his religious duty to abide by and uphold the fatwa ...'90 All
courts in the Federal Territories shall recognize the fatwa as authoritative of all matters
laid down therein.91
Section 37(1) of the Act establishes an Islamic Legal Consultative Committee
consisting of the Mufti as Chairman, the Deputy Mufti, two members of the Majlis
nominated by the Majlis, not less than two fit and proper persons to be appointed by the
Majlis and an officer of the Islamic Religious Department of the Federal Territories to
be appointed by the Majlis, who shall act as the Secretary. The main duty of the
Committee is to provide a forum for discussion and thereby aid the Mufti in the making
of any fatwa.
(c) The Syariah Court
The Syariah Court System is made up of the Syariah Subordinate Courts, the
Syariah High Court and the Syariah Appeal Court. It is headed by a Chief Syariah Judge
85

ibid, section 7(2) generally.
87
ibid, section 8A(1).
88
89
90
91
86
25
appointed by the Yang di Pertuan Agong.92

Jurisdiction of the Syariah Subordinate Court93
In its criminal jurisdiction, the court may try any offence committed by a
Muslim under the Enactment or any other written law prescribing offences against
precepts of the religion of Islam for which the maximum punishment provided does not
exceed RM2, 000 or imprisonment for a term of one year or to both.
In its jurisdiction, the court is authorized to hear and determine all actions and
proceedings in which the amount or value of the subject matter in dispute does not
exceed RM50,000 or is not capable of estimation in terms of money.
An appeal from the Syariah Subordinate Court shall lie to the Syariah High
Court.94
Jurisdiction and Powers of the Syariah High Court

In its criminal jurisdiction, the Syariah High Court may try any offence
committed by a Muslim and punishable under the Enactment or the Islamic Family Law
(Federal Territory) Act 1984, or any other written law prescribing offences against
precepts of the religion of Islam, and may impose any punishment provided therefore.95
In its civil jurisdiction, 96 the court may hear and determine all actions and
proceedings in which all the parties are Muslims and which relate to the following
matters:
(i)
betrothal, marriage, ruju', divorce, nullity of marriage (fasakh), nusyuz,

or judicial separation (faraq) or other matters relating to the relationship
between husband and wife;
(ii) any disposition of, or claim to, property arising out of any of the matters
set out under (i);
(iii) the maintenance of dependants, legitimacy, guardianship or custody of
infants;
(iv) the division of, or claims to, harta sepencarian;
92

ibid, section 47.
94
Act 505, section 48(1).
95
96
93
26
(v) wills or death-bed gifts;

(vi) gifts inter vivos, and settlements made without adequate consideration in
money or money's worth;
(vii) wakaf or nazr;
(viii)division and inheritance of testate or interstate property;
(ix) the determination of the persons entitled to share in the estate of a
deceased Muslim or of the shares to which such persons are respectively
entitled; and
(x) other matters in respect of which jurisdiction is conferred by any written
law.
The Syariah High Court also has supervisory and revisionary jurisdiction over
all Syariah Subordinate Courts and may, if it appears desirable in the interest of justice,
either of its own motion or at the instance of any party or person interested, at any stage
in any matter or proceeding, whether civil or criminal in any Syariah Subordinate Court,
call for and examine any records thereof and give such directions as justice may
require.97
An Appeal from the Syariah High Court
And appeal from the Syariah Court shall lie to the Syariah Appeal Court.98
The Syariah Appeal Court is given the power to determine any question of law
of public interest which has arisen in the course of an appeal in the Syariah High Court,
and which has affected the result of the appeal.99
The Syariah Appeal Court also has supervisory and revisionary jurisdiction
over the Syariah High Court, in the same way that the Syariah High Court has such
jurisdiction over the Syariah Subordinate Courts.100
Prosecution and Representation
A Chief Syariah Prosecution is appointed by the Yang di Pertuan Agong,101
who has the power to institute, conduct or discontinue any proceedings for an offence
before a Syariah Court.
97

99
100
101
ibid, section 58.
98
27
The Majlis may admit any person having sufficient knowledge of Islamic law
to be the Peguam Syarie to represent parties in any proceeding before the Syariah
Court.102
(4) The Industrial Court
The Industrial Court was established under the Industrial Relations Act 1967 as
a specialist tribunal for the adjudication of industrial or trade disputes, that is, disputes
between employers, workmen and their trade unions. The Industrial Court is the main,
indeed the only adjudication tribunal within the Malaysian industrial relations system.
There is no hierarchical structure, as there are no appeals from decisions of the
Industrial Court to a higher appellate Industrial Court. Industrial Court decisions are
open to review by the High Court in the exercise of its general powers of revision over
decisions of inferior courts.
The Industrial Court consists of a President and eight Chairmen, each in charge
of a division, appointed by the Yang di Pertuan Agong, and two panels of members
representing employers and workmen, appointed by the Minister of Human Resources.
Each panel consists of about 100 members. For the purposes of any sitting of the
Industrial Court to hear a trade dispute, the Court is constituted by the President as
Chairman and one representative from each panel selected by the President.
(a) Jurisdiction of the Industrial Court
The Industrial Court has jurisdiction to hear and settle complaints of unfair
labour practices, representations of unfair dismissals, and trade disputes, but this
jurisdiction is exercisable only when the Minister of Human Resources refers them to
the court, either of his own motion or upon the joint request of the parties concerned.
The court is also empowered to hear cases pertaining to collective agreements, namely,
questions pertaining to interpretation of collective agreements, variation of terms of
collective agreements and complaints of non-compliance with collective agreements.
In these instances, parties concerned may make direct application to court without the
necessity of a Ministerial reference.
The requirement for Ministerial reference before adjudication by the court
might commence in certain cases arises out of the system of industrial dispute resolution
102
ibid, section 59.
28
in Malaysia, where the dispute is first brought to the attention of the Ministry of Human
Resources in the hope that its officers might be able to settle the dispute through
conciliation and mediation before it is brought for arbitration. Failing conciliatory
measures the dispute is referred to the Industrial Court for arbitration. Once the process
of conciliation and mediation has been started, parties to the dispute, especially trade
unions, are prevented from resorting to industrial action, such as strikes. The Malaysian
industrial relations system is premised upon the doctrine of compulsory arbitration as
opposed to voluntary arbitration, that is, parties must settle all disputes through the
conciliation and arbitration process as quickly as possible without taking industrial
action. Once the Minister or the Court has handed down its decision, such decision
binds all parties to the dispute, and no industrial action may be taken in consequence
thereof.
(b) Powers of the Industrial Court
The Industrial Court, as a court of industrial adjudication or arbitration,
functions with less formality than a normal court of law and the courts powers are also
much broader in scope than the powers of a civil court. Under the main provision of
section 30 of the Industrial Relations Act 1967, the court is empowered to make an
award (decision) relating to all or any of the issues in dispute. In making its award, the
court is to have regard to the public interest, the financial implications and the effect of
the award on the economy, the industry concerned and also as to the probable effects in
related or similar industries. It is also provided that in making its award the court is not
to be restricted to the specific relief claimed by the parties, but may include in the award
any matter or thing which the Industrial Court thinks necessary or expedient for the
purpose of settling the dispute. Principally, in all maters, the court is enjoined to act
according to equity, good conscience and the substantial merits of the case without
regard to technicalities and legal form.
(c) Problems with the Industrial Adjudication Machinery
As in the civil court system, a major problem faced by the Industrial Court
relates to rising litigation and an administrative machinery that is no longer sufficient to
deal with the bulk of cases, thus causing a severe backlog, as shown in the tables below
(1)-(2):
29
(1)
CLAIMS FOR REINSTATEMENT 1995-2000
Particulars
Brought forward
from previous years
1995
1996
1997
1998
1999
1,507
1,812
1,459
2,123
4,275
2000
(Jan June)
4,511
3,099
3,055
3,524
8,819
5,369
2,482
4,606
4,867
4,983
10,942
9,644
6,993
2,794
3,408
2,860
6,667
5,133
1,740
Reported to Minister
Still being dealt by
Industrial Relations
Department
Resolved
Source: The Sun, 4 August 2000.
(2)
METHOD OF SETTLEMENT
1995
1996
1997
1998
1999
2000
(Jan-June)
Resolved through
conciliation
Referred to
Industrial Court
1,981
1,972
2,060
5,003
3,346
1,239
596
393
713
886
1,419
444
The peculiarity of the Malaysian Industrial Relations System where disputes

are referred in the first instance to the Industrial Relations Department for conciliation,
or, in the case of claims for reinstatement, to the Minister, has meant that a lot of cases
begin to pile up at the Ministerial level before they even reach the Industrial Court. As
table (1) shows, a lot of cases have to be dealt with or are still being dealt with at the
Ministry level, but due to limited personnel, these cases cannot be resolved as
expeditiously as they should. Hence, the backlog.
As table (2) shows, a lot of cases, which cannot be resolved through
conciliation, are then referred to the Industrial Court. Due to shortage of personnel, the
Industrial Court is not able to clear the bulk of cases that gets referred to it. In order to
try and resolve this problem, the Government has recently appointed six new Industrial
Court chairmen to try and speed up the resolution of disputes.
30
9. OTHER COURTS
(1) The Juvenile Court
The Juvenile Court is established under the Juvenile Courts Act, 1947, to
provide for the care and protection of children and young persons. The Act applies to a
child, that is a person under the age of fourteen, and juveniles, defined as persons under
the age of eighteen.103
A Juvenile Court consists of a Magistrate of the first class who is assisted by
two advisers chosen from a panel of persons resident in the Federal Territory or a State,
nominated by the Minister or the State Authority. It is provided that one of the two
advisers shall, if practicable, be a woman.104 The advisers are to inform and advise the
Court with respect to any consideration affecting the punishment or other treatment of
any child or young person brought before it. A Juvenile Court may try all offences
except those punishable with death.
A Juvenile Court sits either in a different building or room from that in which
sittings of regular courts are held, or on different days from those on which sittings of
those courts are held. No person is allowed to be present at any sitting of a Juvenile
Court except105(i)
members and officers of court;
(ii) parties to the case before the court, their parents, guardians, advocates and
witnesses;
(iii) bona fide representatives of newspapers, and
(iv) such other persons as the court may specially authorize to be present.
A Sessions Court or Magistrates court may try in a summary way any juvenile
alleged to have committed a petty offence.106 A Sessions Court Judge or a magistrate
exercising jurisdiction over a juvenile must sit in Chambers, or if that is not practicable,
in camera. A Juvenile may be arrested with or without a warrant, but he must be
brought before a Juvenile Court or, failing which, a Sessions Court Judge or Magistrate
who shall inquire into the case and release the person on a bond, with or without
103
Juvenile Courts Act 1947, s. 2(1).

ibid, s. 4(2).
105
S. 5.
106
S. 3A(1).
104
31
sureties.107 This is not applicable if the charge against the juvenile is one of murder or
other grave crime or where his release would defeat the ends of justice.
(2) Procedure in Juvenile Court108
Where a juvenile is brought before a Juvenile Court for any offence, it is the
duty of the Court as soon as possible to explain to him in simple language the substance
of the alleged offence. After this, the Court shall ask the juvenile whether he admits the
facts constituting the offence. If the juvenile does not admit the facts, the court shall
then hear the evidence of the witnesses in support thereof. At the closes of the evidence
in chief of each witness, the juvenile (or his parent or guardian) shall be asked if he
wishes to put any question to the witness. If, instead of asking questions, the juvenile
wishes to make a statement, he will be allowed to do so.
If it appears to the court that a prima facie case has been made out, the court
shall explain to the juvenile the substance of the evidence against him and, in particular,
any points therein which specially tell against him or require explanation. At this stage,
the juvenile will be allowed to give evidence on oath or affirmation or to make any
statement if he so desires, and the evidence of any defence witness will be heard.
If the juvenile admits the offence or the court is satisfied that it is proved, he
shall then be asked if he desires to say anything in mitigation. Before deciding how to
deal with him, the court must obtain such information as to his general conduct, home
surroundings, school record and medical history.
(3) Powers of a Juvenile Court on proof of offence
When a Juvenile Court is satisfied that an offence has been proved, the court has
the following powers:109
(i)
to admonish and discharge the offender;
(ii)
to discharge the offender upon his entering into a bond to be of good

behaviour;
(iii) to commit the offender to the care of a relative or other fit person;
(iv) to order his parent or guardian to execute a bond to exercise proper care
and guardianship;
107
S. 6(1).
S. 10.
109
S. 12(1).
108
32
(v)
to make a prohibition order;
(vi) to order the offender to be sent to an approved school or the Henry Gurney
School for boys;
(vii) to order the offender to pay a fine, compensation or costs, and
(viii) where the offender is a young person and the offence is punishable with
imprisonment, the court may impose upon him any term of imprisonment
which could be awarded by a Sessions Court, or commit him to the High
Court for sentence.
Appeals from the Juvenile Court lie to the High Court.

Sentence of death shall not be pronounced or recorded against a person convicted
of an offence if at the time the offence was committed he was a juvenile. In lieu thereof,
the Courts shall order him to be detained during the pleasure of the Yang di Pertuan
Agong.110
Where a juvenile is found guilty of an offence other than murder, and the Court is
of the opinion that having regard to the circumstances, including the nature of the
offence and the character of the offender, it is expedient to do so, the court may make a
probation order.111 A probation order shall have effect for a period not less than one
year and not more than three years from the date of the order, and shall require the
probationer to submit during that period to the supervision of a probation officer.
Where an order is made committing a child or young person to the care of a fit
person, or sending him to a probation hostel, an approved school, a Henry Gurney
School or an approved institution or home, the court may make an order requiring the
parent or guardian or other person having custody of the child or young person to make
such monthly contributions as the court thinks fit, and it shall then be the duty of the
parent or guardian to comply with the order.112
(4) The Special Court
Under the Federal Constitution, the Rulers (Malay Sultans or Rajas) and the
Ruling Chiefs of the State of Negeri Sembilan enjoy sovereign immunity. 113 No
110
S. 16.
S. 21.
112
S. 34(1).
113
Art. 181(1)..
111
33
proceedings whatsoever shall be brought in any court against the Ruler of a State in his
personal capacity, except in the Special Court established under Part XV of the
Constitution.
The Special Court consists of the Chief Justice of the Federal Court, who acts
as Chairman, the Chief Judges of the High Courts and two other persons who hold or
have held office as judge of the Federal Court or a High Court appointed by the
Conference of Rulers.
The Special Court shall have exclusive jurisdiction to try all offences
committed in the Federation by the Yang di Pertuan Agong or the Ruler of a State and
all civil cases by or against the Yang di Pertuan Agong or the Ruler of a State,
notwithstanding where the cause of action arose.114
The Special Court shall have the same jurisdiction and powers as are vested in
the inferior courts, the High Court and the Federal Court, and the practice and procedure
applicable in any proceedings in any inferior court, High Court and the Federal Court
shall apply in any proceedings in the Special Court.115
The proceedings in the Special Court shall be decided in accordance with the
opinion of the majority of the members and its decision shall be final and conclusive
and shall not be challenged or called in question in any court or any ground.116
114
Art. 182(3).
Art. 182(4) & (5).
116
Art. 182 (6).
115
34
Chapter 2
JUDICIAL REVIEW
While Parliament remains the principal legislator, other administrative bodies,

agencies and authorities may likewise be conferred with law-making powers by
Parliament. The growth of delegated or subsidiary legislation in the form of rules, bylaws, regulations, orders or other instrument is reflective of governments increased role
in administration. Under the Malaysian legal system, the delegation of powers to
members of the executive such as the minister is common. He is generally conferred
with discretionary powers to make decisions pertaining to the particular issues at hand.
It is also common to find within Acts of Parliament, what is known as ouster or privatise
clauses, wherein it will be enacted that a ministers or other executives decision on any
matter shall be regarded as final and may not be questioned in court. The delegation of
broad discretionary powers, coupled with the ouster of the jurisdiction of courts have
contributed to the healthy growth of administrative law in Malaysia, and an active and
at times interventionist judiciary has seen to it that there is a richness of case law and
case precedent which sets out the rules and principles regarding this subject.
1. PROCEDURE
It has been long acknowledged that judicial review is not an appeal in the
process of exercising judicial review over the inferior tribunals, the superior courts
exercise merely a supervisory jurisdiction as opposed to an appellate jurisdiction.117
Application for judicial review requires leave of court. Order 53 rule 1(1) of the
117
Hotel Equatorial (M) Sdn Bhd v Nat. Union of Hotel, Bar & Restaurant Workers [1984] 1 MLJ 363;
Chief Constable of the North Wales Police v Evans [1982] 1 WLR 1155.
35
Rules of the High Court provides that no application for an order of mandamus,
prohibition or certiorari shall be made unless leave has been granted in accordance with
this rule. The procedure for leave is set out under Order 53 rule 1(2), which provides
for the application for leave to be made ex parte and supported by a statement setting
out the name and description of the applicant, the relief sought and the grounds on
which it is sought, and by affidavits to be filed before the application is made, verifying
the facts relied on. This requirement has been judicially interpreted as imposing upon
the party a duty to disclose material facts, the breach of which could result in the order
being set aside.118
Judicial review in Malaysia follows closely the law in the United Kingdom, that
is, through the issue of the prerogative writs of certiorari, mandamus and prohibition
developed by the Court of Kings Bench. Declaration and Injunction, developed by the
Court of Chancery, are also added to the list of prerogative writs.
2. LEGAL BASES FOR REVIEW BY HIGH COURT

There are several legal bases upon which the High Court will review the
decision of an inferior tribunal or an administrative body or a member of the executive.
They can be summarized as follows:
(i)
Illegality, that is, where a wrong decision has been made, whether due to
taking into account irrelevant matters or not taking into account matters
which are relevant;
(ii)
rationality, which refers to unreasonable decisions, the yardstick of the

doctrine of unreasonableness being the English case of Associated
Provincial Picture Houses Ltd. v Wednesbury Corporation,119 and
(iii) Procedural impropriety, which refers to the need to follow the rules of
procedural fairness or natural justice.
Where statute contains an ouster clause, the basis for review had been that
judicial review would not lie except for errors of law, which affects the jurisdiction of
the tribunal or administration (what is commonly known at common law as
118
119
Tuan Haji Sarip Hamid v Patco Malaysia Bhd [1995] 2 MLJ 442.
[1948] 1 KB 223.
36
jurisdictional errors of law). However, since the decision of the House of Lords in
Anisminic v Foreign Compensation Commission,120 this legal basis has been altered
judicial review will now be effected for mere errors of law (or errors of law on the face
of the record) as opposed to jurisdictional errors of law.121
In Malaysia, there was
initial confusion as Malaysian courts felt bound by a Privy Council decision on appeal
from Malaysia, that is, the case of South East Asia Firebricks Sdn Bhd v Non-Metallic
Mineral Products Manufacturing Employees Union, 122 which decided that judicial
review will only lie for jurisdictional errors of law, and not errors of law on the face of
the record. However, in 1995, the Malaysian Court of Appeal delivered judgment in the
case of Syarikat Kenderaan Melayu Kelantan Bhd v Transport Workers Union,123 which
affirmed that judicial review will lie for all errors of law and is not restricted to
jurisdictional errors of law. Since this decision, the Malaysian judiciary has adopted a
pro-active and interventionist approach in judicial review, culminating in the case of R.
Rama Chandran v The Industrial Court,124 which decided that in the exercise of judicial
review, the tribunals decision may be reviewed for substance as well as process, and
that should the decision be found to be wrong, the court had the power to mould the
appropriate relief and award it to the party concerned instead of remitting the case back
to the tribunal for a re-hearing. This decision has gone much further than the House of
Lords decisions, and has greatly expanded the scope of the doctrine of judicial review
in Malaysia, so much so in effect, there is really no difference anymore between a
review and an appeal.
3. THE DOCTRINE OF PROPORTIONALITY

The Malaysian courts have begun to apply the doctrine of proportionality
borrowed from the continental droit administratif with the case of Tan Teck Seng v
Suruhanjaya Perkhidmatan Pendidikan.125 In that case, it was decided that by virtue of
120
[1969] 2 AC 147.
Upheld, since then, by other Court of Appeal and House of Lords decisions, for example Re A
Company [1980] 1 All ER 284 (CA); Re Racal Communications [1981] AC 374 (HL); Page v Hull
University Visitor [1993] 1 All ER 97 (HL).
122
[1980] 2 MLJ 165.
123
[1995] 2 MLJ 317.
124
[1997] 1 MLJ 145.
125
[1996] 1 MLJ 261.
121
37
the constitutional guarantee of certain fundamental liberties, fair and just punishment
must be imposed, that is, the sentence had to suit the offence and the offender without
being disproportionate as to shock the conscience.
4. CONCLUSION
Post Rama Chandran and Tan Teck Seng, the Malaysian courts appear to
retreat from their pro-active and interventionist stance. Subsequent decisions on judicial
review had not picked up from where the earlier cases had left off. For example, in the
case of Ng Hock Cheng v Pengarah,126 the Federal Court appeared to disapprove of the
proportionality principle. Similarly, there are decisions, which have not applied the
greatly expanded scope of judicial review formulated in the case of R Rama Chandran.
For example, in Michael Lee v Menteri Sumber Manusia,127 the court observed that the
exercise of discretionary power was vested in the Minister, not the courts, and that when
this discretion is challenged, the court must be vigilant and resist any temptation to
convert the jurisdiction of the court to review into a consideration of the case on its
merits as if on appeal. The result is that there is some uncertainty at the moment
regarding the scope of the doctrine of judicial review.
126
127
[1998] 1 MLJ 153.

[1997] 4 AMR 4258.
38
Chapter 3
ALTERNATIVE DISPUTE RESOLUTION
Alternative dispute resolution, which utilizes methods of dispute resolution

such as mediation, conciliation and arbitration without resort to the ordinary civil courts,
is not a new phenomenon in Malaysia. Numerous tribunals exist apart from the formal
civil court system, and their function is to conduct hearings and make decisions on
specified maters. They do not function as courts do, although they have been imbibed
with quasi-judicial powers and functions. Strict rules of evidence and procedure do not
apply. Indeed, most of these tribunals establish their own procedures. Their decisions,
as with decisions of all inferior tribunals and members of the administration, are subject
to judicial review by the High Court based on judicially established principles.
1. THE PUBLIC SERVICES TRIBUNALS

The Public Services are outlined under the Federal Constitution as follows: the
armed forces; the judicial and legal service; the general public service of the Federation;
the police force; the joint public services under Article 133; the public service of each
state, and the education service. 128
For the purposes of regulating conduct and
maintaining discipline in the Public Service, the Public Officers (Conduct and
Discipline) Regulations 1993, and the Public Services Disciplinary Board Regulations
1993 have been enacted. The Public Officers (Conduct and Discipline) Regulations
1993 identifies types of conduct unbecoming on the part of civil servants, and provides
for disciplinary procedure. The Public Services Disciplinary Board on the other hand is
entrusted with the responsibility of conducting hearings and making a determination in
each case whether any member of the civil service is guilty of the disciplinary offence,
128
Art. 132.
39
as charged.
The Disciplinary board has jurisdiction over all civil servants, except officers
holding or acting in the posts of Chief Secretary of the Government and Director
General of the Public Service. These officers come within the purview of the Public
Services Commission. Further, the Board is not empowered to dismiss or reduce in
rank an officer in the Top Management Group and the Managerial and Professional
Group, which is exercisable only by the Public Services Commission. The Disciplinary
Board in any disciplinary proceedings may not order a dismissal or reduction in rank
unless such officer has been informed in writing of the grounds on which it is proposed
to take action against him and has been afforded a reasonable opportunity of being
heard.129 This requirement will not apply in the following cases:130
(i)
where an officer is dismissed or reduced in rank on the ground of conduct

in respect of which a criminal charge has been proved against him;
(ii)
where the Board is satisfied for some reason to be recorded in writing, that
it is not reasonably practicable to carry out the requirement;
(iii) where the Yang di Pertuan Agong is satisfied that in the interests of the
security of the Federation it is not expedient to carry out the requirement;
or
(iv) where there has been made against the officer any order of detention,
supervision, restricted residence, banishment or deportation, or where
there has been imposed on such officer any form of restriction or
supervision by bond or otherwise under any law relating to the security of
the Federation.
Before making a decision regarding any matter upon which it is required to

determine, the Board is empowered to require an investigation to be conducted for the
purpose of obtaining an explanation and a recommendation in the said matter. 131
Anyone dissatisfied with the decision of the Board may appeal to the Public Services
Disciplinary Appeal Board, chaired by the Chairman of the Public Services
Commission.132 The functions of the Appeal Board are to receive, consider and decide
129
Reg. 10(1).
Reg. 10(2).
131
Reg. 11.
132
Reg. 12.
130
40
on any appeal. An appeal must be made in writing by the officer concerned through his
Head of Department within fourteen days from the date on which the decision of the
Board is communicated to him in writing.133 The Head of Department shall, not later
than thirty days from the date of receipt of the appeal, submit such appeal to the Appeal
Board together with his comments. It is the duty of the Board to prepare a copy of the
records of proceedings, including the grounds on which the Board relied upon in
arriving at its decision. These records must be sent to the Appeal Board not later than
thirty days from the receipt of the appeal by the Board.134
The Appeal Board is to decide an appeal solely on the merits of the grounds of
appeal without receiving any further statement or evidence.135 After considering the
appeal, the Appeal Board may136(i)
remit the case to the Disciplinary Board for reconsideration;
(ii) confirm the decision of the Disciplinary Board;

(iii) confirm the decision, but vary the punishment to that of a lesser one, or
(iv) reverse the decision and punishment of the Board and acquit the
appellant.
The decision of the Appeal Board is final.137
2. MALAYSIAN MEDIATION CENTRE

The Malaysian Mediation Centre (MMC) is a body established under the
auspices of the Bar Council with the objective of promoting mediation as a means of
alternative dispute resolution and to provide a proper avenue for successful dispute
resolutions. The MMC is based in Kuala Lumpur and shares premises with the Bar
Councils Auditorium. Other centers will be established in other States if and when the
need arises. The Alternative Dispute Resolution Committee of the Bar Council is
responsible for the proper functioning and implementation of the Centres objectives.
The Centre offers a comprehensive range of services, which include:
(i)
Professional mediation services by trained mediators who have been
133
Reg. 15(1).
Reg. 15(4).
135
Reg. 16(2).
136
Reg. 16(4).
137
Reg. 16(5).
134
41
accredited and appointed to the Panel of Mediators of the MMC;

(ii)
Assistance and advice on how clients may best look after their interests
in using Alternative Dispute Resolution processes such as mediation;
(iii) Provides training in mediation techniques, accredits and maintains a

panel of mediators;
(iv) Consultancy services in dispute management and conflict avoidance;
(v)
Administrative and secretarial support.
At present the MMC accepts only commercial matters but intends to expand its
scope of services to cover civil matters at a later stage. The MMC may accept cases at
any stage, whether pre-trial, commencement of legal proceedings, during proceedings
etc. Cases deemed suitable for mediation include cases where there is a deadlock in the
negotiation process or where parties face obstacles. Majority of cases mediated involve
construction agreement clauses, business agreements etc. Matrimonial and defamation
suits are unsuitable for mediation. The type of mediation offered by the MMC is the
facilitative model of mediation where the mediator is a neutral party who assists the
parties to negotiate a settlement. The mediator will not make a ruling or finding unless
expressly requested by all parties involved.
The Mediator is subject to a Code of Conduct whilst the parties are bound by
the Mediation Agreement, which they enter into. The mediator and all parties are
subject to the Mediation Rules of the MMC.
The Mediation process involves the following steps:
(i)
Pre-Mediation Process where parties sign a mediation agreement

indicating their submission to mediation;
(ii) Preliminaries an introduction to mediation;

(iii) Mediators Opening ground rules are laid down by the mediator for
the session; Mediators are provided with a brief statement of facts. No
prior in-depth knowledge of the issues at dispute are required;
(iv) Joint session parties are invited to state their respective cases in each
others presence;
(v) Caucuses optional and usually exercised to enable the parties to vent
emotions and to speak freely. Allows mediator to pick out common
issues and hidden messages;
(vi) Settlement Agreement parties sign a settlement agreement witnessed
42
by the mediator. Parties are at liberty to pursue court action should

outcome be unsatisfactory.
Either parties solicitors may draw up
agreement or mediator may do so if assistance is required.
The mediators scale of fees is as follows*:
Quantum of Claim
Mediators Fee Per Party
RM100,000 and below
RM500 per day or part thereof
RM100,001 RM250,000
RM750 per day or part thereof
RM250,000 RM500,000
RM1,000 per day or part thereof
RM500,000 RM750,000
RM750,000 RM1,000,000
RM1,000,001 RM2,000,000
RM2,000,001 RM3,000,000
RM3,000,001 RM5,000,000
RM5,000,001 RM10,000,000
Above RM10,000,000
(*The Mediators Scale of Fees is subject to change from time to time)

In addition to the above, the following charges are shared by the parties on an
equal basis:
(i)
Administrative charge of RM300 per case;
(ii)
Room rental rates at RM350 for a full day and RM175 for half a day,
which is defined as a period of 3 hours or less;
(iii) Refreshments/catering; and

(iv) Secretarial services.
Members of the Bar have been encouraged to adopt the Mediation Clause in
contracts and agreements prepared by them, that is where a dispute has arisen, and is not
resolved within fourteen days, the parties must submit the dispute to the Malaysian
Mediation Centre of the Bar Council. If the parties cannot agree on a Mediator, the
Centre shall appoint a Mediator from the Panel of Mediators, and the dispute is to be
mediated in accordance with the Rules of the Centre (see below).
Mediators registered with the Malaysian Mediation Centre must be of at least
seven years standing as an Advocate and Solicitor of the High Court, and a member of
43
the Malaysian Bar with a valid practicing certificate. All mediators are required to
complete a minimum of forty hours of training conducted by the centre, and must be
successfully assessed at the end of the training.
3. MEDIATION RULES
(1) The Mediation Process
The mediation process conducted by the Malaysian Mediation Centre
(MMC) is to be governed by this mediation procedure/Rules.
(2) Agreement of Parties
Whenever by stipulation or in their contract, the parties have provided for
mediation of existing or future disputes under the Rules of the Malaysian Mediation
Centre, they shall be deemed to have made these rules, as amended and in effect as of
the date of the submission of the dispute, a part of their agreement.
(3) Initiation of Mediation
(i)
All parties to a dispute may initiate mediation by filing jointly with the
MMC a submission (the Joint Submission) to mediation pursuant to
these Rules, together with a non-refundable processing fee of RM100.
(ii) Any party to a dispute may initiate mediation by filing with the MMC a
request (the Request) to mediate pursuant to these Rules together with a
non-refundable processing fee of RM100.
The initiating party shall
inform the MMC of the names and particulars of all other parties
interested in the dispute.
(iii) Upon receipt of the Request with the payment of RM100, the MMC will
contact all parties involved in the dispute and attempt to obtain a
submission to mediation within fourteen days from the date of the receipt
of the Request and shall within twenty-one days from the date of receipt
of the Request inform all parties whether mediation can proceed.
(iv) In the event the parties proceed with mediation, the processing fee will be
utilized as part payment of the administrative fee.
44
(4) Request for Mediation

(i)
The Joint Submission or the Request for mediation shall contain a brief
statement of the nature of the dispute and the names, addresses, and
telephone numbers of all parties to the dispute and those who will
represent them, if any, in the mediation.
(ii) The initiating party shall simultaneously file two copies of the Request
with the MMC and one copy with every other party to the dispute.
(5) Appointment of Mediator
(i)
Upon the parties agreeing to submit to mediation, the MMC will forward a
list of Mediators on the panel and in the event the parties not having
agreed upon a Mediator on MMCs panel within seven days, the MMC
shall appoint a person on MMCs panel to act as the Mediator.
(ii) The MMC in the selection will choose a person who, in its view will be
best placed to serve as the Mediator. In the event that any of the parties
has reasonable cause to object to the choice, the MMC will appoint
another person. The Mediator will:
(a) prepare himself appropriately before the commencement of the
mediation;
(b) abide by the terms of the Mediation Agreement and the Code of
Conduct;
(c) assist the parties in the drawing of any written settlement agreement;
and
(d) in general, facilitate negotiations between the parties and steer the
direction of the discussion with the aim of finding a mutually
acceptable solution. Unless expressly requested by all the parties
involved, the Mediator will not make any ruling/finding with respect
to the dispute.
(iii)
The Mediator (or any member of his firm or company) should not act
for any of the parties at any time in connection with the subject matter
of the mediation. The Mediator and the MMC are not agents of, or
acting in any capacity for, any of the parties. The Mediator is not an
agent of the MMC.
45
(6) Disqualification of Mediator

(i)
No person shall serve as a mediator in any dispute in which that person

has any financial or personal interest in the result of the mediation, except
by written consent of all parties.
(ii) Prior to accepting an appointment, the prospective mediator shall disclose

any circumstances likely to create a presumption of bias or prevent a
prompt meeting with the parties.
(iii) Upon receipt of such information, the MMC shall either replace the
mediator or immediately communicate the information to the parties for
their comments.
(iv) In the event that the parties disagree as to whether the Mediator shall serve,
the MMC will appoint another Mediator. The MMC is authorized to
appoint another Mediator if the Mediator is unable to serve promptly.
(7) Mediation Agreement
Before mediation is carried out, the parties will enter into an agreement for
appointment of Mediator (the Mediation Agreement).
(8) Vacancies
If any Mediator shall become unwilling or unable to serve, the MMC will
appoint another mediator.
(9) Representation
(i)
Individuals should attend the mediation in person. In the case of corporate

entities, the parties shall appoint representatives to the mediation who
have the necessary authority to settle the dispute. The parties will supply
the MMC and the Mediator with the names of the representatives.
(ii) The Mediator will determine the steps to be taken during the mediation
proceedings after consultation with the parties.
The parties will be
deemed, upon signing the Mediation Agreement, to have accepted and will
be bound by the terms of this procedure.
(10) Date, Time and Place of Mediation
The MMC shall fix the date and the time of each mediation session. The
46
mediation shall be held at the appropriate office of the MMC or at any other convenient
location as may be determined by the MMC.
(11) Identification of Matters in Dispute and Exchange of Information
(i)
At least five days prior to the Mediation, each party shall submit to the
Mediator the following:
(a) concise summary not exceeding three pages (the Summary) stating
its case; and
(b) if necessary, copies of all documents referred to in the Summary and
which are to be referred to during the Mediation.
(ii) Each party may also bring to the Mediator documents which it wishes to
disclose only to the Mediator, stating clearly in writing that the contents of
these documents are to be kept confidential by the Mediator.
(12) Authority of Mediator
(i)
The Mediator does not have the authority to impose a settlement on the
parties but will attempt to help them reach a satisfactory resolution of their
dispute.
The Mediator is authorized to conduct joint and separate
meetings with the parties and to suggest options for settlement.

(ii) Whenever necessary, the Mediator may also obtain expert advice
concerning technical aspects of the dispute, provided that the parties agree
and assume the expenses of obtaining such advice. Arrangements for
obtaining such advice shall be made by the Mediator or the parties as the
Mediator shall determine.
(iii) The Mediator is authorized to end the mediation whenever, in the opinion
of the Mediator, further efforts at mediation would not contribute to a
resolution of the dispute between the parties.
(13) Settlement Agreement
No settlement reached in the Mediation will be binding until it has been
reduced to writing and signed by and or on behalf of the parties.
(14) Privacy
Mediation sessions are private.
The parties and their representatives may

47
attend mediation sessions. Other persons may attend only with the permission of the
parties and with the consent of the Mediator. Where appropriate, the Mediator is
authorized to limit the number of representatives from each party.
(15) Confidentiality
(i)
All communications made in the Mediation, including information

disclosed and views expressed are made on a strictly without prejudice
basis and shall not be used in any proceedings.
(ii) All records, reports or other documents including anything electronically

or any other information produced or received by a mediator while serving
in that capacity shall be privileged.
(iii) The Mediator or the MMC (or any employee, officer or representative for
or arising in relation to mediation) shall not be compelled to divulge such
records or to testify as a witness, consultant, arbitrator or expert in regard
to the mediation in any arbitral judicial or other proceedings.
(iv) The parties shall maintain the confidentiality of the mediation and shall
not rely on, or introduce as evidence in any arbitral, judicial, or other
proceedings:
(a) Views expressed or suggestions made by another party with respect
to a possible settlement of the dispute;
(b) Admissions made by another party in the course of the mediation
proceedings;
(c) Proposal made or views expressed by the Mediator; or
(d) The fact that another party had or had not indicated willingness to
accept a proposal for settlement made by the Mediator.
(16) No Stenographic record, Audio-Visual Recording or Formal Record
There shall be no stenographic record, no transcript or formal record. No
audio-visual recording will be made of the proceedings.
(17) Stay of Proceedings
Unless the parties otherwise agree, the Mediation will not prevent the
commencement of any suit or arbitration, nor will it act as a stay of such proceedings.
48
(18) Termination of Mediation

The mediation shall be terminated:
(i)
by the execution of a settlement agreement by the parties;
(ii) by a written declaration of the mediator to the effect that further efforts at
mediation are no longer worthwhile; or
(iii) by a written declaration of a party or parties to the effect that the
mediation proceedings are terminated.
(19) Exclusion of Liability (Waiver)
(i)
Neither the MMC nor any mediator is a necessary party in judicial

proceedings relating to the mediation.
(ii) Neither the MMC nor any mediator shall be liable to the parties or any
other person for any act or omission in connection with any mediation
conducted under these Rules unless the act or omission is fraudulent or
involves dishonest misconduct.
(20) Interpretation and Application of Rules
The Mediator shall interpret and apply these Rules in so far as they relate to the
procedure of mediation, the Mediators duties and responsibilities. All other Rules shall
be interpreted and applied by the MMC.
(21) Expenses
The expenses of witnesses for either side shall be paid by the party producing
such witnesses. All other expenses of the mediation including required traveling and
other expenses of the mediation of the Mediator and representatives of the MMC and
the expenses of any witness and the cost of any proofs or expert advice produced at the
direct request of the Mediator, shall be borne equally by the parties unless they agree
otherwise.
(a) Administrative and rental charges and the Mediators fees are as
prescribed by the MMC from time to time.
(b) The administrative and rental charges of the MMC and the Mediators fees
for the first scheduled session shall be paid at least three days prior to the
first scheduled session. The balance charges and fees, if any, shall be paid
at least three days before the next scheduled session or upon termination
49
or conclusion of the mediation within seven days of receipt of the bill

from the MMC.
4. THE KUALA LUMPUR REGIONAL CENTRE FOR ARBITRATION

(1) Organization of the Kuala Lumpur Regional Centre for Arbitration and its
Functions
The Regional Centre for Arbitration was established in 1978 in Kuala Lumpur
under the auspices of the Asian-African Legal Consultative Committee (an intergovernmental organization) in co-operation with and with the assistance of the
Government of Malaysia.
The Centre is a non-profit making institution and has been established with the
objective of providing a system for settlement of disputes for the benefit of parties
engaged in trade and commerce and investment with and within the region. The Centre
functions under the supervision of the Asian-African Legal Consultative Committee and
is headed by a Director.
One of the principal functions entrusted to the Centre is the provision of
facilities for arbitration under the rules of the Centre for settlement of disputes in
matters arising out of commercial transactions including investment disputes through
fair, expeditious and inexpensive procedures, so that resort to arbitration institutions
outside the region may no longer become necessary.
The facilities for arbitration under the auspices of the Centre can be availed of
by the parties who may request for it, whether government, individuals or bodies
corporate, provided the dispute is of an international character, that is to say, the parties
belong to or are resident in two different jurisdictions, or the dispute involves
international commercial interests.
(2) Request for Arbitration
Parties who may wish to avail of the arbitration facilities provided by the
Centre should make a written request to the Director of the Centre for the purpose
intimating at the same time that the parties have entered into an agreement under which
they have agreed to refer their disputes and differences for settlement by arbitration
under the auspices of and the rules of the Centre.
50
Such an agreement may be incorporated in a contract between the parties out of

which the disputes and differences have arisen or by a separate agreement which the
parties may enter into.
(3) Rules for Arbitration
The Rules for arbitration under the auspices of the Centre are the UNCITRAL
Arbitration Rules of 1976 with certain modifications and adaptations. The UNCITRAL
Rules have been recommended by the United Nations General Assembly by its
Resolution No XXXI 98 adopted on the 15th December 1976 and has been widely
accepted by the international community.
The rules of the Centre allow a great deal of flexibility in the conduct of
proceedings of the arbitration and leaves a wide discretion to the parties in regard to the
choice of arbitrators, the place of arbitration and the applicability of the procedural rules.
(4) Arbitrators
The parties are free to choose their own arbitrators in the manner indicated in
the UNCITRAL Rules but where they have failed to agree on the choice of the sole
arbitrator or the presiding arbitrator in the case of a three member tribunal, the
appointment shall be made by an appointing authority chosen by the parties.
If the parties appoint the Centre as the appointing authority or where the parties
have failed to nominate an appointing authority, the sole arbitrator or the presiding
arbitrator shall be appointed by the Centre.
(5) Panel of Arbitrators
In its function as appointing authority, the Centre appoints qualified Arbitrators,
such as eminent Jurists, Judges and Diplomats drawn from the countries in the AsianAfrican region as well as the countries which have close economic links or large
investments in the Asian-African region.
(6) Place of Arbitration
The arbitration may be held either at the seat of the Centre at Kuala Lumpur or
at any other place chosen by the parties.
(7) Facilities for Arbitration
51
The Director of the Centre shall, at the request of the arbitral tribunal or either
party, make available or arrange for such facilities and assistance for the conduct of
arbitral proceedings as may be required including suitable accommodation for sittings
of the arbitral tribunal, secretarial assistance and interpretation facilities.
(8) Enforcement of Awards
The Centre shall, at the request of either party, render all assistance in the
enforcement of awards, which may be made in the arbitration proceedings held under
the auspices of the Centre.
(9) Costs of Arbitration
The costs of arbitration including the fees of arbitrators as also the expenses
reasonably incurred by the Centre in connection with the arbitration as well as its
administrative charges would be borne by the parties in such proportion as may be
determined in the arbitral award.
The fees of arbitrators, which depend on several factors, such as the complexity
of the case, the nature of the dispute, time spent and the expeditious conduct of the
proceedings, would be fixed in each case in accordance with a schedule.
The fees and charges of the centre would be fixed taking into account the actual
expenses incurred and also keeping in view the non-profit making character of the
Centre.
(10) Provision of Facilities and Assistance in ad hoc Arbitration
The Centre also provides technical facilities and assistance for holding of ad
hoc arbitration proceedings where parties request for such services upon payment of
certain charges which would be fixed, taking into account the expenses incurred by the
Centre in providing the facilities and the non-profit making character of the Centre.
(11) Provision of Facilities in Arbitrations Held Under the Auspices of Other
Institutions
The Centre has arrangements with certain institutions such as the World Banks
International Centre for Settlement of Investment Disputes under which arbitration
proceedings under the auspices of such institutions can be held at the seat of the Centre.
These facilities would be provided at the request of the institution concerned
52
with which arrangements have been made.
5. OTHERS
(1) The Insurance Mediation Bureau
In 1992, the Insurance Mediation Bureau (IMB) was established after a spate of
complaints by policyholders against insurers. The Bureau is designed along the lines of
the British Insurance Ombudsman Bureau, and the mediator does not merely assist
parties to resolve their dispute but also makes decisions.
The IMB is established as a company limited by guarantee, which has a
membership comprising all insurance companies. The mediator is appointed by a
council which includes representatives from outside the industry.
The Bureaus
jurisdiction is confined to complaints in respect of awards of up to RM100,000.

Complaints may be received from individuals as well as companies and currently, over
90% of the complaints are from individuals.138 The mediators jurisdiction is limited to
settling disputes on general and life policies, excluding third party claims. Cases, which
have gone to court, cannot be brought for mediation.
A case is normally resolved within two to three months and it can be initiated
by a letter and the process can be conducted entirely through correspondence. The
service is free and while the complainant may engage a lawyer, he has to bear his own
legal fees, as costs will not be awarded. The mediators decision is binding on the
insurer but not the policyholder. In 1997 insurers were directed by the Central Bank to
publicize the Bureau. As a consequence, the number of cases heard by the Bureau rose
from 375 in 1998 to 483 in the first eight months of 1999.139
(2) The Banking Mediation Bureau
Established in 1997, its structure is very much like the IMB. It is a company
limited by guarantee with a membership comprising all the banks, finance companies
and merchant banks. The mediator is appointed by a council, which has representatives
from outside the industry. The mediator can hear disputes involving the charging of
excessive fees, misleading advertisements, ATM withdrawals, unauthorized use of credit
138
139
The New Straits Times, 12 September 1999.

53
cards and guarantors. The bulk of cases so far comprise of ATM withdrawals. A case is
normally resolved within two to three months and matters, which have gone to court,
cannot be mediated by the Bureau. A case may be initiated by letter, but the Mediator
must meet the parties. Such sessions normally take only about two hours.
Once again, the service is free and while the complainant may engage counsel,
costs will not be awarded. The mediators decision is binding on the bank but not the
complainant. The mediator is limited in his jurisdiction to awards of up to RM25,000.
The Bureau handled about 144 cases in 1999.
In both the IMB and the Banking Mediation Bureau, the procedures established
are flexible and informal and strict rules of evidence do not apply.
(3) Tribunal for Consumer Complaints
This new tribunal is established under the Consumer Protection Act, 1999.
Membership of the Tribunal is by appointment of the Minister and consists of a
Chairman and Deputy Chairman from among members of the Judicial and Legal
Service and not less than five other members from the legal profession.140 Proceedings
before the Tribunal have been simplified in that a consumer only needs to lodge a claim
in the prescribed form and pay a prescribed fee.141 At the hearing of a claim every party
is entitled to attend and be heard, but no party is to be represented by an advocate and
solicitor.142 A corporation or unincorporated body of persons may be represented by a
full-time paid employee while a minor or any other person under a disability may be
represented by his next friend.143 The Tribunal is to make its award without delay and
where practicable within sixty days from the first day of hearing.144
A point of interest is section 107, which enjoins members of the Tribunal to
assess whether, in all the circumstances, it would be appropriate for the Tribunal to
assist the parties to negotiate an agreed settlement. Where the parties have reached an
agreed settlement, the Tribunal must approve and record the settlement and the
settlement shall then take effect as if it were an award of the Tribunal.145 Every agreed
settlement and award of the Tribunal is final and binds all parties to the proceedings and
140
Act 599, s 86(1).

ibid, s. 97.
142
S. 108(2).
143
S. 108(3).
144
S. 112(1).
145
S. 107(3).
141
54
is deemed an order of a Magistrates court and is to be enforced accordingly.146

The Tribunals jurisdiction however is limited to where the total amount in
respect of which an award is sought does not exceed RM10, 000.147 The Tribunal does
not have jurisdiction over matters in respect of land, wills or settlement, goodwill, any
chose in action or any trade secret or other intellectual property.148
(4) Copyright Tribunal
The Copyright Tribunal was recently launched by the Domestic Trade and
Consumer Affairs Minister.149 The power to establish the Tribunal is given under the
Copyright Act, 1991,150 but it is only now that the Tribunal has been set up with limited
jurisdiction confined to settling disputes on royalties for translation of Bahasa Malaysia
literary works. 151 The power includes the power to settle disputes relating to the
calculation of royalty and determination of rates on literary and creative works.
The Chairman of the Tribunal is appointed by the Minister from the ranks of
lawyers and other professionals who are experts in copyright laws. Proceedings before
the Tribunal are heard of and disposed by the Chairman and three other members
selected by the Chairman. There is a right of appeal from the decision of the Tribunal to
the High Court to be made within 30 days of such decision.
(5) The Special Commissioners of Income Tax
The Income Tax Act 1967 provides for the establishment of a special body,
called the Special Commissioners, consisting of three persons appointed by the Yang di
Pertuan Agong. There is also provided the post of a clerk to the Special Commissioners.
The Special Commissioners shall be persons with judicial or other legal experience.
A person aggrieved by an assessment made in respect of him may appeal to the
Special Commissioners against the assessment by giving to the Director General within
thirty days after the service of the notice of assessment, or in the case of an appeal
against assessment, within the first three months of the year of assessment for which the
146
S. 116(a) & (b).

S. 98(1).
148
S. 99(1); see also s. 100(1), where the Tribunal may have jurisdiction to hear and determine the claim
even if the value of the subject matter exceeds ten thousand ringgit; and s. 101(1), where a claimant
may abandon so much of a claim that exceeds ten thousand ringgit in order to bring the claim within
the jurisdiction of the Tribunal.
149
150
Section 28.
151
147
55
assessment was made, a written notice of appeal in the prescribed form stating the
grounds of appeal and containing such other particulars.152 There is a right, given under
section 100(1), to ask for an extension of the period within which notice of appeal
against the assessment may be given.
On receipt of the notice of appeal, the Director General may review the
assessment against which the appeal is made, and for that purpose may
(a) require the appellant to furnish such particulars as the Director General
may think necessary with respect to the income to which the assessment
relates and any other matter relevant to the assessment in the Director
Generals opinion;
(b) require the appellant to produce all books or other documents in the
appellants custody or under the appellants control relating to any
source to which the assessment relates or any other matter relevant to
the assessment in the Director Generals opinion;
(c) summon any person who in the Director Generals opinion is able to
give evidence respecting the assessment to attend before the Director
General, and
(d) examine any person so attending on oath or otherwise.
Where, as the result of the review the Director General and the appellant has
come to an agreement in writing either as to the amount of the chargeable income and
the tax chargeable thereon or the amount of tax or additional tax, or that there is no
chargeable income or tax, the assessment against which the appeal is made shall be
treated as having been confirmed, reduced, increased or discharged in accordance with
the agreement.
As a result of the review, the appellant and the Director General may come to
an oral agreement, which the Director General may have confirmed in writing and
which will be regarded as an agreement, unless repudiated earlier by the appellant.153
Where there is deemed to be an agreement between the Director General and the
appellant, one of the Special Commissioners on the application of the appellant made to
the Special Commissioners within a period of thirty days after the agreement is deemed
152
153
Income Tax Act, 1967, s. 99(1).

Income Tax Act, 1967, s. 101(4).
56
to be come to may, after giving the Director General an opportunity to make oral or
written representations, set the agreement aside if he thinks it just and equitable to do so
in the circumstances.
The decision of one of the Special Commissioners on an
application to set aside the agreement shall be notified by the clerk in writing to the
applicant and the Director General and shall be final.154
The Director General may send an appeal forward to the Special
Commissioners at any time if he is of the opinion that there is no reasonable prospect of
coming to an agreement with the appellant, and where he sends an appeal forward under
this provision, he must give the appellant written notice that he has done so.155 Where
an appeal has been sent forward to the Special Commissioners, the Director General and
the appellant at any time before the hearing of the appeal by the Special Commissioners
is completed may come to an agreement with regard to the assessment to which the
appeal relates, and where they do so, the proceedings before the Special Commissioners
shall abate, and the agreement shall have effect.
(6) The Court (Land Acquisition)
Under the Federal Constitution, land is a state matter. There shall be no
acquisition of land without the payment of adequate compensation (Article 13, Federal
Constitution, and the Land Acquisition Act, 1960, Revised 1992). For the purposes of
determining adequate compensation, a Special Court is constituted under the Land
Acquisition Act, 1960.
This court consists of a Judge sitting alone. Where the objection before the
court is in regard to the amount of compensation, the court is to appoint two assessors
(one of whom shall be a valuation officer employed by the Government) for the purpose
of aiding the Judge in determining the objection and in arriving at a fair and reasonable
amount of compensation.156 The assessors are to come from a list of names submitted
to the court by the President of the Board of Valuers, Appraisers and Estate Agents.
Every person appointed as an assessor is legally bound to attend and serve as an
assessor unless excused by the Judge. The opinion of each assessor on the various
heads of compensation claimed by all persons interested shall be given in writing and
recorded by the Judge.
154
ibid, s. 101(6).
Income Tax Act 1967, s. 102(1).
156
Land Acquisition Act 1960, s. 40A.
155
57
In a case before the court as to the amount of compensation or as to the amount

of any of its items the amount of compensation to be awarded shall be the amount
decided upon by the two assessors. Where the assessors have each arrived at a decision
which differs from each other, then the Judge, having regard to the opinion of each
assessor, shall elect to concur with the decision of one of the assessors and the amount
of compensation to be awarded shall be the amount decided upon by that assessor. Any
decision made under this provision is final and there shall be no further appeal to a
higher court on the matter.157
157
ibid, s. 40D(3).
58
Chapter 4
LEGAL EDUCATION
Legal Education in Malaysia had a late beginning. A Faculty of Law at the

University of Malaya was only established in 1972. In that year, the first batch of 51
law students enrolled for the first session 1972-1973. Since then, other universities
have been established with their own Faculties of Law, notably, the Universiti
Kebangsaan Malaysia and the International Islamic University. Law is also taught at
Institut Teknologi MARA (newly up-graded to an University) where, for many years
prior to its status as an University, it had been providing a Diploma in law course,
catered to producing para-legal personnel to service the courts and other Legal
Departments.
1. PHILOSOPHY OF LEGAL EDUCATION

The Philosophy behind the need for legal education in Malaysia is clearly
outlined in the Report of the Board of Studies prepared for the establishment of the
Faculty of Law at the University of Malaya. Among others, it states the following:
(i)
As an independent country, Malaysia should have a Faculty of Law

where its Constitution and laws can be studied and from which
knowledge about its Constitution and laws can be disseminated.
(ii)
The study of law needs to be oriented to the needs of Malaysia.

Students who study law in the United Kingdom or Australia only study
the basic English law. While students in the University of Singapore
are required to study Singapore and Malaysian Law, the coverage of
Malaysian law especially in regard to Muslim law and Customary law
is insufficient for the needs of Malaysia. It is essential to build up a
59
Malaysian consciousness in law studies as in other fields.

(iii)
Malay is the national language of Malaysia and it will be necessary to

train legally qualified men and women who are also proficient in
Bahasa Malaysia. If our laws and the proceedings in our courts are to
be in Bahasa Malaysia in future it will be necessary to train our legally
qualified men and women in Bahasa Malaysia. The institution of a
Faculty of Law in Malaysia is a necessary step for the implementation
of the use of Bahasa Malaysia in the courts and in the legal
departments.
(iv)
Malaysia has hitherto been largely dependant an universities and

professional organisations (the Inns of Court and the Law Society) in
the United Kingdom and Australia and on the University of Singapore
for the training of legally qualified persons. It is estimated that the
total number of students who seek to read law from Malaysia is about
120 annually and this number is likely to increase in future.
(v)
There is a great need for research into Malaysian law, not only as
regards the reception of the common law but also in the fields of
Muslim Law and Customary Law.
Legal Faculties in the University of Malaya, as well as Universiti Kebangsaan

Malaysia and the MARA University of Technology follow the same philosophy behind
legal education as above, that is, a concentration on Malaysian law which will include
the reception of English law or the Common law, as well as Muslim law and customary
law. However, at the International Islamic University, the study of law differs, in that
the emphasis is on Islamic law, with a comparison between Islamic law or Islamic Legal
System with the secular law.
2. COURSES AND STRUCTURE OF LEGAL STUDIES

Public Universities in Malaysia follow what is known as the semester system,
borrowed from the United States, as opposed to the Term System of the United
Kingdom (previously, the structure of studies was based on the term system). An
academic year is divided into basically two semesters, with examinations conducted at
60
the conclusion of each semester.
A semester runs for approximately 14 weeks,
exclusive of a one-week mid-semester break.

Legal studies at the University of Malaya is made up of two components: (i) a
three-year academic legal studies course, leading to the award of a Bachelor of
Jurisprudence degree, and (ii) a one-year professional legal studies course, at the end of
which, the Bachelor of Law s (LLB) degree is awarded.
This structure became
operational from the 1996/97 academic years. Previously, the Faculty of Law offered a
four-year course, combining both academic and professional elements, leading to the
LLB degree. The split in structure is to enable students to make a choice, that is,
whether they wish to exit after the conclusion of the academic degree, or whether they
wish to continue with the professional component and obtain the LLB degree. The
professional component would be important and is required if the student wishes to
pursue a career in the Judicial and Legal Service, or to serve as advocates and solicitors.
Otherwise, it is not really a necessity to have the professional component.
The academic component is offered in three Parts with Part I (the beginning
stage) comprising of courses such as the Malaysian Legal System, Constitutional Law,
Contract and Tort as well as Islamic Law. The second stage, Part II or the Middle Stage
comprises of courses such as Criminal Law, Administrative Law, Land Law, Equity and
Trusts and Moots. The Third Stage or Part III consists of courses such as Jurisprudence,
Company Law and three other elective courses such as International Law, Family Law,
Commercial Transactions, Environmental Law, Intellectual Property, Landlord and
Tenant, Media Law, Banking Law, Cyber Laws, and Medical Law. A student could also
opt to do a minor dissertation or project paper in a chosen field. At the Professional
level, the courses offered include Evidence, Criminal Procedure, Civil Procedure,
Professional Practice, Remedies and Ethics.
3. CERTIFICATE OF LEGAL PRACTICE (CLP)

There is no common Bar Examination. However, the Certificate of Legal
Practice examination was introduced in 1984 to help students who have graduated
overseas, particularly from the United Kingdom, who have failed to gain admission to
the English Bar due to the requirement that they obtain at least a second class (upper) in
their English Bar examination. Such students could return to Malaysia and do the CLP,
61
which, upon passing, will enable them to be called to the Malaysian Bar. This course is
actually under the auspices of the Qualifying Board of the Bar, but since 1984, the
Faculty of Law University of Malaya had been helping the Qualifying Board to conduct
the course and examination. About 300 students are admitted into this course each year.
4. POST-GRADUATE COURSES
Like other Law Faculties throughout the world, the Faculty of Law at the
University of Malaya also offers post-graduate courses such as the Doctor of Philosophy
and Masters in Law.
The Masters in Law (LLM) programme consists of that by pure dissertation,
coursework and dissertation and pure coursework. Some of the courses offered at the
Masters level include Comparative Constitutional Law, International Human Rights and
Humanitarian Law, Law of the Sea, Securities Regulation, Copyright, Employment Law,
International Environmental Law and Comparative Administrative Law. Candidates
have to take four courses for the pure coursework course, and two courses for the
coursework and dissertation course.
The minimum period of completion is two
semesters, and maximum is six semesters.
5. EXTERNAL DEGREE PROGRAMME

An External Degree Programme in Law is offered only by the Faculty of Law,
University of Malaya. This programme began in 1996, and is modeled along the
University of London, external degree in law programme. Candidates who successfully
complete their studies under this programme will be awarded the Bachelor of
Jurisprudence degree (external). In order to enter the legal profession candidates will
have to obtain the Certificate in Legal Practice.
6. DIPLOMA IN PUBLIC LAW

In 1997 the Faculty of Law University of Malaya introduced the Diploma in
62
Public Law course. The course is the result of a request from the Royal Malaysian
Police Council for the Faculty to offer a Diploma specifically tailored for the needs of
police officers. The first twenty candidates enrolled in the 1997/98 academic session.
The course includes many subjects offered by the Faculty for the Bachelor of
Jurisprudence/LLB degree. The Diploma entitles the holder to continue his or her
studies in the Bachelor of Jurisprudence/LLB degree by transferring the credits obtained
for the Diploma course.
63
Chapter 5
PRACTICE AT THE MALAYSIAN BAR
The Malaysian legal system is very much inherited from the British as
Malaysia was once under British rule. The British system of administration of justice
based on statute law and common law has been incorporated into the Malaysian system
with modifications to suit local conditions. Since the attainment of independence in
1957, several changes have been made in Malaysia with regard to laws and procedures
pertaining to civil jurisdiction, criminal jurisdiction and appellate jurisdiction, etc.
1. PRACTICE AS AN ADVOCATE AND SOLICITOR

To be admitted to practice law as an Advocate and Solicitor of Malaysia, one
has to achieve academic qualifications in law from recognized universities and
institutions either local or foreign.
Recognized legal qualifications include qualifications from universities in
Malaysia such as University of Malaya, Universiti Teknologi MARA, International
Islamic University and Universiti Kebangsaan Malaysia which also include passing of
an examination, namely, the Certificate in Legal Practice (CLP) from the Legal
Profession Qualifying Board of Malaysia.
Foreign degrees include degrees from 3 accredited universities from Singapore,
4 Barristers-at- Law degree from the United Kingdom and 1 from the Solicitors'
examination of the Supreme Court of Judicature of England, the Barrister-at-Law
degree from Ireland, several recognized law degrees from accredited universities of
from Australia (14) and 5 recognized law degrees accredited universities from New
Zealand.
64
Besides academic qualifications, and Advocate and Solicitor in Malaysia has to

fulfill certain other conditions before he/she can be considered a "qualified person"
under the Legal Profession Act, 1976 and this includes inter alia the following:
(i)
he/she has attained the age of 18 years;
(ii) he/she is of good character;

(iii) he/she is a Federal citizen or a permanent resident of Malaysia;
(iv) he/she has satisfactorily completed the prescribed period of pupillage in
Malaysia
In addition, pupils are required to attend a compulsory ethics lecture

programme organized by the Bar Council. A certificate will be issued by the Bar
Council to every pupil who has satisfactorily completed the course.
2. CERTIFICATE IN LEGAL PRACTICE COURSE

The Certificate in Legal Practice Course (CLP) conducted by the Legal
Profession Qualifying Board of Malaysia is to enable students from foreign recognised
universities to sit for this examination in the following subjects:
(i)
General Paper
(ii) Civil Procedure

(iii) Criminal Procedure
(iv) Evidence and
(v) Professional Practice.
A person who has passed this examination (CLP) or who possesses a degree
where he/she is exempted from doing the CLP examination has to undergo a 9-month
period of pupillage under a Master of more than 7 years standing as an Advocate and
Solicitor and who has been in continuous active practice for that period of time. Upon
completion of the pupillage, the pupil can apply for admission as an Advocate and
Solicitor of the High Court of Malaysia.
Upon admission as an Advocate and Solicitor, the Registrar of the High Court
keeps a Roll of all Advocates and Solicitors with their respective dates of admission.
65
3. DISCIPLINE AND ETIQUETTE OF ADVOCATES AND SOLICITORS

All Advocates and Solicitors in Malaya (West Malaysia) are governed by the
Legal Profession Act, 1976 and other legislations inter alia:
(i)
Legal Profession (Practice and Etiquette) Rules 1978;
(ii) Legal Profession (Disciplinary Proceedings) (Investigating Tribunal and

(iii) Disciplinary Committee) Rules 1994;
(iv) Solicitors Remuneration Order 1991; and
(v) Legal Profession (Professional Liability) (Insurance) Rules 1992.
The abovementioned legislations generally provide guidelines for the proper

conduct, etiquette and discipline of lawyers.
At this point in time, end of January 2001, the legal profession in Malaysia has
about 10,000 registered lawyers.
Most of the lawyers in active practice have their offices in major towns being
involved in civil litigation, conveyancing practice, corporate practice and criminal
practice whilst some others practice employment law, immigration law, customs law,
international property law copyright, patent and trademark law, etc.
4. LEGAL PROFESSION (DISCIPLINARY PROCEEDINGS)(INVESTIGATING

TRIBUNAL AND DISCIPLINARY COMMITTEE) RULES 1994
The above Rules are made by the Disciplinary Board pursuant to the Legal
Profession Act, 1976. There is a three-tier system with regard to disciplinary matters,
namely:
(i)
Investigating Tribunal;
(ii) Disciplinary Committee; and

(iii) Disciplinary Board.
(1) Complaints
Upon a complaint made in writing by a complainant or his solicitor, the
Director of Complaints shall register the complaint, and where necessary, seek further
information and documents with regard to the complaint. If the complaint satisfies the
necessary requirements, it is then forwarded to the Chairman of the Disciplinary Board
66
for his directions.

The Chairman then appoints an Investigating Tribunal to look into the merits of
the complaint. The members of the Tribunal are appointed from an Investigating
Tribunal Panel which comprises 60 members of whom 40 members shall be advocates
and solicitors of not less than 7 years standing and having valid practising certificate
and 20 members who are lay persons. Every member of the Investigating Tribunal
Panel shall serve for a term of 2 years provided that the Disciplinary Board may extend
this term for a period not exceeding a further 2 years or reappoint him.
(2) Investigating Tribunal
The Investigating Tribunal appointed by the Disciplinary Board consists of 3
members of whom shall be:
(i)
2 advocates and solicitors; and
(ii) 1 lay person appointed from the Investigating Tribunal Panel.

(3) Investigation
(i)
An Investigating Tribunal shall within 2 weeks after its appointment

commence its investigation into the complaint.
(ii) It shall report its findings not later than 2 months after commencement of
its investigation to the Disciplinary Board.
An advocate and solicitor who fails to produce to the Investigating Tribunal

any information or documents shall be guilty of an offence and shall on conviction be
liable to a fine not exceeding RM2,000/- or to a term of imprisonment not exceeding 3
months or both.
(4) Report of the Investigating Tribunal
The Investigating Tribunal shall determine and recommend to the Disciplinary
Board one of the following recommendations:
(i)
that a formal investigation is not necessary;
(ii) that there is no cause of sufficient gravity for a formal investigation but
that the advocate and solicitor should be ordered to pay a penalty; or
(iii) that there should be a formal investigation by the Disciplinary Committee.
67
If the Investigating Tribunal recommends that there should be a formal

investigation or that a formal investigation is not necessary, then the Board can either
constitute a Disciplinary Committee if it agrees or otherwise the advocate and solicitor
shall be informed accordingly in writing.
(5) Disciplinary Committee
The Disciplinary Committee consists of 3 members of whom shall be:
(i)
2 advocates and solicitors; and
(ii) 1 lay person appointed by the Disciplinary Committee Panel.
The Disciplinary Committee Panel comprises 30 members of whom 20

members shall be advocates and solicitors of not less than 10 years standing and have a
valid practising certificate and 10 members who are lay persons. Every member of the
Disciplinary Committee Panel shall serve for 2 years provided the Disciplinary Board
may extend his term for a period not exceeding a further 2 years or re-appoint him.
The findings of the Disciplinary Committee with recommendations are
forwarded to the Disciplinary Board. The recommendations may include:
(i)
imposition of a fine upon the advocate and solicitor for such sum as the
Disciplinary Committee deems just;
(ii) suspension of the advocate and solicitor concerned from practice as the
Disciplinary Committee deems appropriate; and
(iii) striking off the Roll the advocate and solicitor concerned.
(6) Disciplinary Board
The Disciplinary Board consists of:
(i)
the Chairman who is appointed by the Chief Justice who shall be a Judge
of the High Court, Supreme Court or a retired Judge from the High Court
or Supreme Court or any other person qualified to be a Judge of the High
Court or Supreme Court.
(ii) the President of the Bar Council with the Vice-President as his alternate;
and
(iii) 15 practitioner members of not less than 15 years standing appointed by
the Chief Justice for a period of 2 years provided the Chief Justice may
extend their term for a period not exceeding a further 2 years or re-appoint
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them.
Note: The Supreme Court now refers to the Federal Court;
(7) Powers of the Disciplinary Board
The Disciplinary Board has the power to strike off the Roll, suspend from
practice for any period not exceeding 5 years, any advocate and solicitor found guilty of
misconduct.
Misconduct comes in various forms, which include:
(i)
grave impropriety such as conviction of a criminal offence which makes

him unfit to be a member of the profession;
(ii) breach of duty to the Court including any failure by him to comply with an
undertaking given to the Court;
(iii) dishonest or fraudulent conduct in the discharge of his duties;
breach of any rules of practice and etiquette of the profession made by the Bar
Council;
(iv) being adjudicated a bankrupt;
(v) breach of any provision of the Legal Profession Act of any rules made
there under or any directions or ruling of the Bar Council;
(vi) gross disregard of his clients interest; and
(vii) being guilty of any conduct that is unbefitting of an advocate and solicitor
which brings or is calculated to bring the legal profession into disrepute.
ADVOCATES AND SOLICITORS, MALAYSIA

Year
Admissions
Practising
Female
Male
1995
1052
957
447
510
1996
1159
1057
544
513
1997
1155
1018
509
509
1998
1190
1019
523
496
1999
1134
1027
564
463
2000
1155
934
502
432
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Year
1995
Members
As of to date
5968
1996
6796
1997
7300
1998
8124
1999
8879
2000
9595
Source: Bar Council
5. LEGAL PROFESSION
RULES 1992
(PROFESSIONAL
LIABILITY)(INSURANCE)
Under these Rules which came into force in 1992, the Bar Council shall take
out an insurance policy in the name of the Malaysian Bar and shall maintain a Master
Policy to provide indemnity against classes of professional liability as may be
determined by the Bar Council.
6. OBLIGATION OF AN ADVOCATE AND SOLICITOR

Every advocate and solicitor shall be obliged as follows:
(i)
to be insured under the Master Policy;
(ii) to comply with the terms of the Master Policy with any certificate of
insurance in connection therewith;
(iii) to produce together with any application for a Sijil Annual (annual
certificate) a certificate issued by the brokers certifying that the applicant
is insured under the Master Policy for a period of 12 months with effect
from such date that the Bar Council may determine.
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7. SOLICITORS REMUNERATION ORDER 1991

The remuneration of an advocate and solicitor in respect of his business other
than contentious business is specified in the Schedule.
Fees for conveyancing for the sale and transfer of properties are stipulated in
the First Schedule.
No discount on scale fees is permissible unless expressly provided by the
Schedules.
An advocate and solicitor may charge interest at8% per annum on his
disbursements and costs whether by scale or otherwise after expiration of one month
from demand from his client.
8. LEGAL PROFESSION (PRACTICE AND ETIQUETTE) RULES 1978

(1) Obligation of advocate and solicitor to give advice or accept any brief
An advocate and solicitor is obliged to give advice or accept any brief with
regard to his practice in the Courts for which he can demand proper professional fee but
special circumstances may justify his refusal, at his discretion, to accept a particular
brief.
(2) Advocate and solicitor not to accept brief if embarrassed
An advocate and solicitor shall not accept a brief if he is embarrassed in
circumstances where:
(i)
he finds he is in possession of confidential information as a result of

having previously advised another person as regards to the same matter;
and
(ii) there is some personal relationship between him and a party or a witness
in the proceedings.
(3) No advocate and solicitor to accept brief if professional conduct is likely to
be impugned
No advocate and solicitor shall accept a brief in a case where he knows or has
reason to believe that his own professional conduct is likely to be impugned.
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(4) Circumstances where an advocate and solicitor shall not accept a brief
(i)
An advocate and solicitor shall not accept a brief unless he is reasonably

certain of being able to appear and represent the client on the required
day; and
(ii) he shall not ordinarily withdraw from an engagement once accepted,

without sufficient cause and unless reasonable and sufficient notice is
given to the client.
(5) Undertaking with regard to a defence
(i)
An advocate and solicitor who undertake the defence of a person in a

criminal matter shall by all fair and honourable means present every
defence that the law permits.
(ii) An advocate and solicitor shall undertake the defence of a person accused
of an offence regardless of his personal opinion as to the guilt or otherwise
of the accused.
(6) Fees of an advocate and solicitor
In determining the amount of fee for litigious or contentious matters involving
representation of a client in Court, consideration shall be given to the following:
(i)
time, labour and skill required;
(ii) the novelty and difficulty of the question involved;

(iii) the customary charges of the profession for similar services;
(iv) the amount in issue; and
(v) the special position or seniority of the particularly advocate and solicitor.
(7) Advocate and solicitors to uphold interest of client, justice and dignity of
profession
An advocate and solicitor shall act with all due courtesy, fearlessly uphold the
interest of his client, the interest of justice and dignity of the profession without regard
to any unpleasant consequences either to himself or any other person.
(8) Binding position to be put before Court
(i)
An advocate and solicitor shall put before the Court any relevant binding
decision of which he is aware which is immediately in point, whether it be
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for or against his contention.

(ii) An advocate and solicitor shall not appear in Court on a matter in which
he has reason to believe that he will be a witness in respect of a material
and disputed question of fact before the Court.
(9) Advocate and solicitor to uphold dignity of profession
Every advocate and solicitor shall at all times uphold the dignity and high
standing of his profession.
(10) Advocate and solicitor to prevent client from wrongful conduct towards
Courts, etc.
An advocate and solicitor shall use his best efforts to prevent his client from
doing things, which the advocate and solicitor himself ought not to do, particularly with
reference to his conduct towards Courts, witnesses and parties, etc. Where a client
persists in such wrongdoing, the advocate and solicitor shall terminate the relationship.
(11) Advocate and solicitor not to stand surety
An advocate and solicitor shall not stand as a surety or bailor for his client
required for the purpose of any legal proceedings.
(12) Advocate and solicitor not to stir up strife and litigation
No advocate and solicitor shall volunteer advice to bring an action or to stir up
strife and litigation.
(13) Advocate and solicitor not to actively carry on any trade
(i)
An advocate and solicitor shall not actively carry on any trade which is
unsuitable for an advocate and solicitor to engage in; and
(ii) He shall not be a full-time salaried employee of any person or corporation

so long as he continues to practice.
(14) Advocate and solicitor not to advertise
(i)
An advocate and solicitor shall not solicit work or advertise either directly
or indirectly procuring his photographs to be published in connection with
cases in which he has been engaged or concerned.
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(ii) It is contrary to etiquette for an advocate and solicitor to:

(a) advertise his address or the address of his firm in any book, pamphlet,
newspaper, periodical or other publication; and
(b) sanction the publication either in the press or elsewhere of notices or
articles referring to his professional qualifications or merits with
certain
exceptions,
e.g.
particulars
appearing
in
approved
publications.
(15) Judgment by Default
No advocate and solicitor shall enter judgment by default against the client or
another advocate and solicitor where there is a delay in filing documents unless notice
of his intention to do so has been given to the other advocate and solicitor in writing and
seven days have elapsed after the delivery of such notice to the other advocate and
solicitor.
(16) Advocate and solicitors branch office
(i)
No advocate and solicitor shall maintain a branch office unless the same
is:
(a) in the name of his firm; and
(b) continuously manned by the advocate and solicitor himself or any of
the partners of his firm or by an advocate and solicitor wholly
employed by him or his firm.
(ii) The branch office shall not be in the same office as that of any other firm
of advocates and solicitors.
(iii) No advocate and solicitor shall practise his profession in the States of
Malaya in or as a partner of more than one firm at any time without the
consent of the Bar Council.
(iv)
No advocate and solicitor shall practice his profession unless

he maintains an office within the States of Malaya.
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9. THE ROLE OF THE MALAYSIAN BAR

Under the Legal Profession Act 1976, the Malaysian Bar is a body corporate
and the management of the Malaysian bar is governed by a Council known as the Bar
Council. The Bar Council consists of 36 members who are elected by the entire
practicing members of the Bar throughout the country.
The Council consists of the President, Vice-President, Secretary, Treasurer, the
immediate past President, past Vice-President, the Chairman of each State Bar
Committee and a Representative of each State Bar Committee. The members of the Bar
Council hold office for 1 year but are eligible for re-election.
Under the objects and powers of the Malaysian Bar, the Malaysian Bar inter
alia is to:
(i)
to uphold the cause of justice without regard to its own interest or that of
its members, uninfluenced by fear or favour;
(ii) to maintain and improve the standards of conduct and learning of the legal
profession in Malaysia;
(iii) to express its view on matters affecting legislation and the administration
and practice of the law in Malaysia where so requested to do;
(iv) to represent, protect and assist members or of the legal profession in
Malaysia and to promote in any proper manner the interests of the legal
profession in Malaysia;
(v) to protect and assist the public in all matters touching ancillary or
incidental to the law;
(vi) to encourage, establish and maintain good relations with professional
bodies of the legal profession in other countries and to participate in the
activities of any local or international association and become a member
thereto or, etc.
10. EXTERNAL RELATIONS

The Malaysian Bar through the Bar Council is affiliated and is a member of
several international legal bodies and law associations. They include:
(i)
Commonwealth Law Association (CLA);

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(ii) The Presidents of Law Associations in Asia (POLA);

(iii) The International Union of Advocates (UIA) ;
(iv) Lawasia; and
(v) Inter-Pacific Bar Association (IPBA).
11. LEGAL AID PROGRAMME

The Bar Council has a very active legal aid programme for the poor and for
those litigants who cannot afford to pay legal fees to engage a lawyer of their own.
Legal Aid Centres are located in almost all the cities and towns of Peninsular
Malaysia. The Legal Aid Centres provide representations in criminal matters except
offences punishable by death and life sentences. The Centres also provide
representations legal assistance in civil matters.
The legal aid provided by the Bar Council supplements a programme of legal
aid by the government under the Government Legal Aid Bureau.
The qualification for legal aid under the Bar Council Legal Aid Scheme is that
a person in order to obtain legal aid must pass a "Means Test " .
Criteria for disqualification will be any of the following
(i)
House (exclude low cost house and

squatter or settlement house)
>
RM25,000
(ii)
Car
>
RM7,000
(iii)
Motorcycle
>
RM4,500
(iv)
Cash and/or securities value together
>
RM5,000
at more than RM5,000.00 (e.g. cash in

bank, stocks, etc. savings in Tabung Haji
not taken into consideration)
(v)
Disposable income more than RM500 for

single person and RM800 for married
couple. Couple are allowed fixed deductions
of RM250 for themselves and RM150 per
dependent. Then they are allowed further
deductions for the items stated in the
new form.
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12. LANGUAGE USED IN THE COURTS

The official language used in the courts is Bahasa Malaysia and all documents
are filed in Bahasa Malaysia English can be used after application is made to the court
for use of the English language. English is still used extensively in the Superior Courts,
namely, the Federal Court and Court of Appeal.
13. LEGAL PRACTICE IN SABAH AND SARAWAK (EAST MALAYSIA)

Sabah and Sarawak have a similar judicial system as West Malaysia and have
Magistrate, Sessions and High Courts. Appeals are heard in the common Court of
Appeal and Federal Court of Malaysia.
Lawyers in Sabah and Sarawak are governed by their respective Solicitors
Ordinance. In Sabah, the lawyers belong to the Sabah Law Association. In Sarawak, the
lawyers belong to the Advocates Association of Sarawak.
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Chapter 6
CIVIL LITIGATION
Civil litigation in Malaysia and practice is governed by the:

(i)
Subordinate Court Rules 1980 for matters tried at the Magistrates and
Sessions courts.
(ii) Rules of the High Court 1980 for matters before the High Courts of
Malaysia.
(iii) Rules of the Court of Appeal 1994 for matters before the Court of
Appeal of Malaysia.
(iv) Rules of the Federal Court 1995 for matters before the Federal Court of
Malaysia.
(v) The Court of Judicature Act 1964.
(vi) The Civil Law Act 1956.
The common form of civil litigation pertains to:

(i)
commercial matters;
(ii) hire purchase;

(iii) matrimonial matters including divorce, custody and maintenance,
(iv) administration of estate including granting of probate of wills and letters
of administration;
(v) bankruptcy;
(vi) insurance; and
(vii) other civil claims including recovery of payment for goods sold and
delivered.
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1. ORIGINATING PROCESS OF CIVIL LITIGATION

There are 4 types of originating process, namely, by:
(i)
Writs
(ii) Originating Summons

(iii) Originating Notices of Motions
(iv) Petitions
The party making the Claim (who is the plaintiff) chooses which form of
process to use and the relevant documents are then filed in the proper division of the
court.
Previously the writ was valid for a period of 12 months by which time it has to
be served on the other party, (the defendant) but by virtue of a recent amendment, the
writ is only valid for 6 months but can be extended twice for a period of 6 months each.
The major source of procedure are found in the Rules of the High Court 1980,
Rules of the Court of Appeal 1994, Rules of the Federal Court 1995 and the Courts of
Judicature Act 1964 (CJA) and for matters before the Magistrates and Sessions Courts,
the source for procedure to be found in the Subordinate Court Rules 1980. Other forms
of legislation with regard to procedure that are adopted in Civil Litigation include the
Civil Law Act 1956 and the Evidence Act 1950.
In order to bring a civil proceeding in the court, there must be a "cause of
action" which means simply that the plaintiff has to prove his action before an order or
judgment can be given in his favour.
The plaintiff' s claim must disclose a "cause of action" so as to enable the court
to proceed to adjudicate the actionable dispute. of action" , the court cannot provide any
remedy.
The party in addition to the "cause of action" must also have locus standi. If the
party has no locus standi, the court will also dismiss the action inlimine.
Generally, actions filed on contracts or on torts have to brought within 6 years
from the date on which the "cause of action" arose under the Limitation Act 1963.
In the case of dependency claims, a claim for loss of support by the dependent
relative shall be brought within 3 years after the death of the deceased under the Civil
Law Act 1956.
Where a writ has been issued by the court and served on the defendant, the
79
defendant is required to enter an appearance in the action and defend it by a solicitor or

in person.
In the case of an action where the defendant is a body corporate then the action
can only be defended by a solicitor for the defendant.
An appearance is normally filed by way of a memorandum in a specific form as
provided under the Rules of the High Court 1980 or the Subordinate Court Rules 1980
as the case may be. If he does not enter into an appearance it may mean that he does not
wish to defend the cause of action in which case the plaintiff can apply to the court for
a judgment-in-default.
2. JUDGMENT-IN-DEFAULT
A writ is normally indorsed with a statement of claim and failure to enter into
appearance may result in the plaintiff proceeding to enter judgment-in-default against
the defendant.
Ordinarily where a defendant has filed an appearance and also a statement of
defence subsequent to other procedures of filing of documents in support, the matter
would be set for trial.
3. SUMMARY JUDGMENT
Where a statement of claim has been served on the defendant and the defendant
has entered a appearance and where there is no defence to the plaintiffs claim, the
plaintiff may apply to the court for judgment against the defendant.
An application for summary judgment is made by way of a summons supported
by an affidavit verifying the facts on which the claim is made. The defendant in such a
case may then apply to defend with the leave of the court in respect of the claim.
The defendant may also in filing a defence to a writ served on him file a
counter-claim as against the plaintiff.
The court can also give directions as regards further conduct of the action. This
process of summary judgment is made under Order 14 of the Rules of the High Court
1980 or Order 26A of the Subordinate Court Rules 1980.
80
The court may upon application of a party or on its own motion determine any
question of law or construction of any document arising in any cause or matter at any
stage of the proceeding where (a) such a question is suitable for determination without
the full trial of an action or (b) such determination will finally determine the entire
cause or matter or any claim or issue therein. Upon such determination the court may
discuss the cause or matter or make such order or judgment as it thinks fit
4. PLEADINGS
Pleadings are statements in writing filed by each party to an action giving such
details that are necessary. It is a cardinal rule that parties are bound by the pleadings and
are not allowed to adduce facts, which they had not pleaded.
The objectives of the pleadings are: (i)
to define with clarity and precision the issue in dispute;
(ii) to require each party to give fair and proper notice to its opponent in order
to enable him to prepare his case; and
(iii) to inform the court the issues which are required to be determined by the
court
A vital issue not raised in the pleadings would not be allowed to be argued if so
decided by the court.
Law is not pleaded. It must only contain material facts on which the party
pleading relies for this claim on defence.
5. CLOSE OF PLEADINGS
Pleadings in an action are deemed to be closed at the expiration of 14 days after
the service of the defence. However, if there is a reply or a defence to the counter-claim,
pleadings are deemed to be closed after 14 days of the service of the reply or defence to
the counter-claim
81
6. SETTING ASIDE JUDGMENT IN DEFAULT OF DEFENCE

Judgment in default of defence is judgment given to the plaintiff without the
court hearing the merits of the plaintiff's claim.
Upon the application of the defendant, the court has an absolute discretion to
set aside the judgment.
Further, the court may set aside or vary the judgment on the application of
either party.
7. STRIKING OUT PLEADINGS

The court may at any stage of the proceedings order to be struck out or
amended any matter in any pleadings, which is found by the court to be an abuse of the
process of the court.
The Magistrates Court and Sessions Court fall under the Subordinate Court
System of Malaysia.
8. PRE-TRIAL CASE MANAGEMENT

Pre-trial case management refers to action begun by writ. The plaintiff shall
not later than 14 days after the close of pleadings cause to be issued a notice from the
court requiring the parties to the action to attend before the judge. Failure to attend by
the plaintiff may entail in the court issuing a notice to the plaintiff to show cause why
the action should not be struck out.
The judge has absolute discretion to make any order as meets the ends of
justice including striking out the action or any defence or counter-claim.
The judge can at the pre-trial case management give such direction as to the
future conduct of the action to ensure its just, expeditious and economical disposal.
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9. SECURITY FOR COSTS

Security for Costs is a situation where it appears that the plaintiff is ordinarily
resident out of the courts jurisdiction or where the plaintiff is suing for some other
person and that there is reason to believe that he will be unable to pay the costs of the
defendant if ordered to do so.
83
Chapter 7
CRIMINAL LITIGATION
1. PENAL CODE
In Malaysia criminal offences are codified under the Penal Code under various
chapters for various offences relating to:(i)
offences affecting the human body (murder, etc.);
(ii) offences relating to properties;

(iii) offences relating to documents and currency or banknotes;
(iv) offences relating to criminal breach of contracts of services;
(v) offences relating to marriage;
(vi) offences relating to criminal conspiracy of abetment;
(vii) offences relating to public servants, etc.
Other offences quasi criminal in nature are tried under specific law, e.g. the
Corruption Act, Dangerous Drugs Act, etc
All offences under the Penal Code are inquired into and tried according to the
provisions of the Criminal Procedure Code.
2. CRIMINAL PROCEDURE CODE

Criminal trials are held in the Magistrates Courts, Sessions Courts, High Courts
and appeals from the High Courts are then made to the Court of Appeal and the apex
court, namely, the Federal Court.
84
3. A MAGISTRATES COURT CAN HEAR CRIMINAL MATTERS:A Magistrate Court can hear criminal matters:
(i)
Where the offence is punishable by a fine only which should cover most
traffic offences; and
(ii) Where the offence provides for a term of imprisonment not exceeding 10
years. A Magistrate may not, however, impose a term of imprisonment
exceeding 5 years.
4. SESSIONS COURT CRIMINAL JURISDICTION

A Sessions Court has jurisdiction to hear all criminal offences except those
punishable by death.
5. HIGH COURT CRIMINAL JURISDICTION

High Court may hear all matters including offences which carry the death
penalty. A High Court can also hear appeals from the Magistrates Court and Sessions
Court.
6. APPELLATE COURT CRIMINAL JURISDICTION

The Court of Appeal is an Appellate Court and hears appeals from the High
Court relating both civil and criminal matters.
7. FEDERAL COURT CRIMINAL JURISDICTION

The Federal Court is an apex court in Malaysia and hears appeals from the
Court of Appeal on matters involving the Federal Constitution, points of law and public
interest.
85
8. POLICE ACTION
Upon a report being lodged with the police, the police investigate on the
alleged offence(s) and take all necessary action to apprehend where possible the
offender if not the culprit of the offence.
The police may arrest a suspect for an alleged offence(s) and shall grant bail
before the offender is brought to court to be formally charged (arraigned) in court for
boilable offences. For crimes which capital punishment, e.g. murder, rape and
kidnapping, no bail is granted, as they are non-boilable offences.
9. SUMMARY TRIALS BY MAGISTRATES

When an accused appears or is brought before the court, a charge(s) containing
particulars of the offence of which he is accused is framed, read and explained to him
and he shall be asked whether he is guilty of the charge preferred against him or
whether he chooses to be tried.
If the accused pleads guilty and there is sufficient
evidence to support the charge preferred against him, me may be convicted thereon
provided the accused understands the nature and consequence of his plea (unequivocal).
If the accused chooses to be tried, the court would then be required to call witnesses to
give evidence as may be produced by the prosecution.
After the witnesses have given evidence (evidence in chief) the accused
through his counsellor if undefended by himself cross-examine his witnesses. The
prosecution can also re-examine his witnesses after cross-examination. Witnesses are
called by the prosecution by means of subpoenas that are applied for and obtained by
the court.
The Magistrate in a boilable offence can offer bail to the accused which
discretion is reasonable pending hearing of pending trial.
10. TRANSFER OF CASES

A Magistrate can transfer a case to a court of higher jurisdiction in consequence
stay of proceedings before him.
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11. PROCEDURE AT A TRIAL

At a trial, if the prosecution makes a prima facie case and proves its case
beyond reasonable doubt then the accused is called upon to make his defence. He may
then call his own witnesses to prove that he is innocent. At the end of the defence case,
the Magistrate can either convict him or acquit him. Same procedure is adopted in the
Sessions Court.
12. PROSECUTION
The public prosecutor who initiates criminal prosecution is the Attorney
General. The Solicitor-General has all the powers of a Deputy Public Prosecutor and
shall act as a Public Prosecutor in the absence or inability to act of the Attorney-General.
The Public Prosecutor may appoint fit and proper persons to be Deputy Public
Prosecutors.
13. CONDUCT OF PROSECUTION IN COURT

Criminal prosecutions are conducted by the Public Prosecutors and Deputy
Public Prosecutors or by a police officer not below the rank of a police inspector acting
on behalf of Public Prosecutors.
An arrest may be made by a police officer if he has reasonable suspicion that
an offence is being committed by that person. Resisting or obstructing the lawful arrest
of a person is an offence.
14. SEARCH POWER OF THE POLICE

The police have power to search any person against whom he has reasonable
suspicion of having committed an offence.
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15. EVIDENCE ACT

Evidence in court is given pursuant to the Law of Evidence by accused persons
and witnesses. The admissibility and relevancy is made pursuant to the provisions of
the Evidence Act. The admissibility of admission and confessions are also subject to
the rule of evidence. Hearsay evidence are generally not admissible in evidence safe for
certain exceptions.
For a statement that is recorded by the prosecution from an accused person to
be made admissible in court in a trial it must be shown by a prosecution that the
admission or confession was made by the accused voluntarily, that is, without
inducement, threat or promise.
16. SENTENCING
Sentencing of accused persons, that is, the imposition of fines and
imprisonment and/or both are meted out by the presiding judge in the Magistrates Court,
Sessions Court and High Court according to the provisions in respect of the offences
committed pursuant to the provisions in the statute.
The death penalty is only imposed for capital offences including murder, rape
and trafficking of drugs of a quantity as prescribed by law.
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Chapter 8
RECENT DEVELOPMENTS
1. THE NATIONAL COMMISSION ON HUMAN RIGHTS (SUHAKAM)

The National Commission on Human Rights, or SUHAKAM going by its
abbreviated Malay name, was formed to protect and promote human rights of all
Malaysians, irrespective of their racial, religious or cultural origins.158 The human
rights appear to be confined to those fundamental rights enshrined under the Federal
Constitution. 159 Among the objectives of the Commission would be the study and
verification of human rights infringement and to assist the government studies various
international instruments that Malaysia has yet to ratify and make recommendations.160
At the moment, the Commission is looking into allegations of police brutality
committed against peaceful protestors.
Among the responsibilities, which the Commission had undertaken, is law
reform. The Commission will be looking into laws, which have been criticized as being
repressive, such as the Internal Security Act, the Official Secrets Act, the Printing
Presses and Publications Act, and the Police Act.
The Commission will make
recommendations for law reform, after consultation with the government, non-
158
New Straits Times, 3 November 1998, p. 2.

Part II of the Federal Constitution: liberty of the person; prohibition against slavery and forced labour;
protection against retrospective criminal laws and repeated trials; equality before the law; prohibition
of banishment and freedom of movement; freedom of speech, assembly and association; freedom of
religion; educational rights and rights to property.
160
Malaysia has so far ratified six of the 25 conventions on human rights: (i) convention against apartheid
in sports; (ii) convention on the prevention and punishment of the crime of genocide; (iii) convention
on the rights of the child; (iv) convention on the elimination of all forms of discrimination against
women; (v) convention on the nationality of married women, and (vi) convention against slavery.
159
89
governmental organizations and the Bar Council.161
2. PROPOSED FAMILY COURT

Another important development to have taken place recently relates to the
proposal for the establishment of a Family Court. This was proposed by the National
Advisory Council for the Integration of Women in Development (NACIWID).
Basically, the call for a separate Family Court is related to the problems with the judicial
system where there is a huge backlog of unsettled family dispute cases, as well as long
processes and delays in reaching settlements.
The problems are compounded when the parties are Muslims, as some issues
pertaining to family law fall within the jurisdiction of the Syariah Court, while others
may fall within the jurisdiction of the civil courts. Hence, women and children are
being thrown back and forth between the Syariah, civil and magistrate courts to settle
the different issues of property, custody, divorce, maintenance and social welfare.162
The idea, therefore, is to have a one-stop centre to deal with all the issues. Previously,
the High Court in Kuala Lumpur heard family matters through its Family and Property
Division (only for Kuala Lumpur).
There seem to be agreement on some aspects of the character of this new court:
first, that the court be people-friendly, paying particular attention to the needs of
children. Therefore, places such as playrooms are proposed, as well as childcare and
counseling services.163
Secondly, that the system adopted should emphasize conciliation and cooperation, rather than conflict and contention. Mediation and counseling of parties are
to play an important role.
Other problems are more difficult to resolve, for example, the issue of
jurisdiction. In Malaysia, the Syariah laws are matters of state and as such, they may
vary or differ from state to state. The Federal government, under whose jurisdiction the
civil court system vests, does not have jurisdiction in respect of Islamic or Syariah laws,
including the Syariah Court System.
161
New Straits Times, 21 February 2001, p. 6.

Prof. Puan Sri Dr Fatimah Hamid Don, NACIWIDs vice-chairman, quoted in New Straits Times, 25
September, 2000.
163
Bar Council Seminar on the Setting up of a Family Court in Malaysia 9 and 10, November, 2000.
162
90
At the time of writing, it remains unclear precisely what shape the proposed
Family Court would take, and how the thorny issues pertaining to jurisdiction are going
to be resolved. What is clear is that Malaysian family law and Malaysian court system
is in urgent need of reform.164
164
YN Foo, of the Malaysian Bar.
91
Published by Institute of Developing Economies (IDE), JETRO

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2001 Institute of Developing Economies

Malaysian Law

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Malaysian Law

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IDE Asian Law Series No.

The Malaysian Legal System,

Sharifah Suhanah Syed Ahmad

INSTITUTE OF DEVELOPING ECONOMIES (IDE-JETRO)

Due to the evolution of market-oriented economy as well as the increase of

Developing Economies (IDE-JETRO) established two research committees in FY 2000:

The latter committee studied

Advocate/Lawyer, Legal Education, Procedure/Proceedings, ADR etc., together with

Institute of Developing Economies

CHAPTER 1: THE JUDICIARY

1. Appointment and Qualification of Judges of the Superior Courts

2. Terms of office and remuneration of Judges of the Federal Court

4. Administration of Courts Problems

5. Case-management as a method of resolving problem

6. Court Divisions and Number of Magistrates, Judicial

Commissioners and Judges in Malaysia

8. Parallel Court Systems

CHAPTER 2: JUDICIAL REVIEW

2. Legal bases for review by High Court

3. The doctrine of Proportionality

CHAPTER 3: ALTERNATIVE DISPUTE RESOLUTION

1. The Public Services Tribunals

2. Malaysian Mediation Centre

4. The Kuala Lumpur Regional Centre for Arbitration

CHAPTER 4: LEGAL EDUCATION

1. Philosophy of Legal Education

2. Courses and Structure of Legal Studies

3. Certificate of Legal Practice (CLP)

5. External Degree Programme

6. Diploma in Public Law

CHAPTER 5: PRACTICE AT THE MALAYSIAN BAR

1. Practice as an Advocate and Solicitor

2. Certificate in Legal Practice Course

3. Discipline and Etiquette of Advocates and Solicitors

4. Legal Profession (Disciplinary Proceedings)(Investigating

Tribunal and Disciplinary Committee) Rules 1994

6. Obligation of an advocate and solicitor

7. Solicitors' Remuneration Order 1991

8. Legal Profession (Practice and Etiquette) Rules 1978

9. The Role of the Malaysian Bar

10. External Relations

11. Legal Aid Programme

12. Language Used In the Courts

13. Legal Practice In Sabah and Sarawak (East Malaysia)

CHAPTER 6: CIVIL LITIGATION

1. Originating Process of Civil Litigation

6. Setting Aside Judgment in Default of Defence

7. Striking Out Pleadings

8. Pre-Trial Case Management

9. Security For Costs

CHAPTER 7: CRIMINAL LITIGATION

2. Criminal Procedure Code

3. A Magistrates Court can hear criminal matters:-

4. Sessions Court Criminal Jurisdiction

5. High Court Criminal Jurisdiction

6. Appellate Court Criminal Jurisdiction

7. Federal Court Criminal Jurisdiction

9. Summary Trials by Magistrates

10. Transfer of Cases

11. Procedure at a Trial

13. Conduct of Prosecution in Court

14. Search Power of the Police

15. Evidence Act

CHAPTER 8: RECENT DEVELOPMENTS