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CHAPTER 3
The Judicial System in
Malaysia

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OBJECTIVES

This chapter:
 describes the structure of the judicial system in
Malaysia
 aids understanding of the workings of the
judiciary
 sets out the hierarchy of the courts, their
jurisdiction and powers

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PREVIEW

 An Overview
 Subordinate Courts in Peninsular Malaysia
 Subordinate Courts in East Malaysia
 Superior Courts in Malaysia
 Alternative Methods of Dispute Resolution

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AN OVERVIEW

 role of the courts – the administration of the law


 courts have both criminal and civil jurisdiction
 jurisdiction refers to the cases or matters that a
court can hear, and is established by statute
 courts that are higher in the hierarchy of courts
will hear and decide on the more serious cases
or matters
 judicial power of Malaysia is vested in:
– the Federal Court
– the Court of Appeal
– the High Courts
– the Subordinate Courts
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AN OVERVIEW (cont.)

 the head of the judiciary is the Chief Justice


 example of the jurisdiction and powers of the
courts, and the doctrine of separation of powers
that exists between the legislative, the executive
and the judiciary – see PP v Kok Wah Kuan
 example of the jurisdiction of the civil courts and
the Syariah courts – see Wan Khairani Wan
Mahmood v Ismail Mohamad & Anor

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THE COURT SYSTEM

The court system may be illustrated as follows:

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SUBORDINATE COURTS IN
PENINSULAR MALAYSIA

 the subordinate courts in Peninsular


Malaysia are:
1. Penghulu’s Courts
2. Magistrates’ Courts
3. Sessions Courts

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PENGHULU’S COURTS

 lowest level of subordinate courts in Peninsular Malaysia


 presided over by a penghulu or headman appointed by
the State Government for a mukim
 normally settle disputes informally
 empowered to hear and determine original proceedings
of a civil
 nature in which the plaintiff seeks to recover a debt or
liquidated demand in money not exceeding RM50 and in
which all the parties to the proceedings are persons of an
Asian race speaking and understanding the Malay
language
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PENGHULU’S COURTS (cont.)

 criminal jurisdiction of a Penghulu’s Court is


restricted to the trial of offences of a minor nature
which are specifically enumerated in his kuasa
and which can be adequately punished by a fine
not exceeding RM25
 can only try criminal charges against persons of
an Asian race
 any person charged with an offence before a
Penghulu’s Court may elect to be tried by a
Magistrates’ Court

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MAGISTRATES’ COURTS

 deals with minor civil and criminal cases


 presided over by a magistrate
 according to section 85 of the Subordinate Courts
Act 1948 (Revised 1972) amended by the
Subordinate Courts (Amendment) Act 1978, a first
class magistrate possesses jurisdiction to try:
– all offences for which the maximum term of
punishment provided by law does not exceed ten
years’ imprisonment
– all offences punishable with fine only
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MAGISTRATES’ COURTS (cont.)

– offences under sections 392 and 457, Penal Code


where a person is found guilty, the magistrate may
pass any sentence allowed by law not exceeding:
1. Five years’ imprisonment
2. A fine of ten thousand ringgit
3. Whipping of up to twelve strokes
4. A combination of any of the above-mentioned

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MAGISTRATES’ COURTS (cont.)

 a second class magistrate:


– has jurisdiction to try offences for which the maximum
term of imprisonment provided by law does not exceed
twelve months’ imprisonment
– may try offences punishable with a fine only
– may pass any sentence allowed by law:
1. Not exceeding six months’ imprisonment
2. A fine of not more than one thousand ringgit
3. Any sentence combining either of the aforesaid sentences

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MAGISTRATES’ COURTS (cont.)

 for civil matters, the first class magistrate has


authority:
– to try all actions and suits where the amount in
dispute or value of the subject-matter does not
exceed RM25,000
– to exercise jurisdiction in actions for the recovery
of immovable property and for recovery of rent,
mesne profits and damages when the money
claimed does not exceed RM25,000 or where the
rent payable in respect of the premises does not
exceed RM24,000 per year or RM2,000 per month
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MAGISTRATES’ COURTS (cont.)

 the second class magistrate:


– jurisdiction to try original actions or suits of a civil
nature where the plaintiff seeks to recover a debt
or liquidated demand on money payable by the
defendant, with or without interest, not exceeding
RM3,000

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‘SMALL-CLAIMS’ COURT

 set up to decide on claims for recovery of


debts or liquidated demands in money, with
or without interest, and not exceeding
RM3,000 at the date of filing
 unique features – it is cheap and no legal
representation is allowed
 his court is heard by second class
magistrates

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JUVENILE COURTS

 set up to deal with criminal offenders below the age of


eighteen
 consists of a first class magistrate who is assisted by
two lay advisers, one of whom shall, if practicable, be a
woman
 jurisdiction to try all offences except those punishable by
death
 closed to members of the public in order to protect the
young offender from publicity
 if the offender is aggrieved by any finding or order of the
court, he may appeal to the High Court against the
finding or order
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SESSIONS COURTS

 highest of the subordinate or inferior courts


 under the charge of the Sessions Court judge
 criminal jurisdiction extends to all offences other than
offences punishable by death
 in civil matters, it has jurisdiction to try all actions and
suits of a civil nature where the amount in dispute or
value of the subject-matter does not exceed RM100,000
 matters relating to land, specific performance or
recession of contracts, injunction, probate and
administration of estates, divorce, bankruptcy, trusts, and
accounts are excluded from its jurisdiction
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SESSIONS COURTS (cont.)

 application must be made to the High Court:


1. Most land matters
2. Specific performance or recession of contracts
3. Injunction
4. Cancellation or rectification of instruments
5. Enforcement of trusts
6. Accounts
7. Declaratory decrees except interpleader proceedings
8. Issue or revocation of grants of representation of the estates
of deceased persons or the administration or distribution of
estates
9. Legitimacy
10. Guardianship or custody of infants
11. Validity or dissolution of marriage
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SESSIONS COURTS (cont.)

 the Sessions Court may exercise


jurisdiction to hear and determine any
action:
– for the recovery of immovable property and for the
recovery of rent or mesne profits or damages
where the money claimed does not exceed
RM96,000
– where the rent payable in respect of the premises
does not exceed the sum of RM96,000 per annum

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SUBORDINATE COURTS IN
EAST MALAYSIA

 prior to 1 June 1981, the subordinate courts in East


Malaysia consisted of the Native Courts and the
Magistrates’ Courts
 with effect from 1 June 1981 when the Subordinate
Courts Act (Extension) Order 1980 came into force,
the Subordinate Courts Act 1948, with some
modifications, was extended to Sabah and Sarawak
 with this extension, the subordinate courts now
consist of Native Courts, Sessions Courts, and
Magistrates’ Courts
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NATIVE COURTS

 peculiar only to Sabah and Sarawak


 exercises jurisdiction over matters affecting
‘native customs’ where the parties are natives
 previously, the Native Court also possessed
jurisdiction over matters concerning Muslim law.
Muslim law in Sabah and Sarawak is now
administered by a separate system of Muslim
courts, the Syariah Courts

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NATIVE COURTS (cont.)

 Native Courts are empowered to try civil and


criminal matters such as:
– cases arising from breach of native law or custom
– cases involving land where there is no title issued by the
Land Office and in which all the parties are subject to the
same native system of personal law
– civil cases (excluding land) where the value of the subject-
matter does not exceed RM50 and all parties are subject
to the same native system of personal law

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NATIVE COURTS (cont.)

 in Sarawak, there are three Native Courts


exercising original jurisdiction:
1. District Native Court
2. Native Officer’s Court or Chief’s Court
3. Headman’s Court

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NATIVE COURTS (cont.)

 in Sabah:
– original jurisdiction is exercised by the Native Court with
the District Officer acting in a supervisory-cum-appellate
capacity
– in his appellate capacity, the District Officer hears appeals
from any order of a Native Court
– an appeal from any order of the District Officer lies to a
Native Court of Appeal presided over by a judge of the
High Court
– the Appeal Court also comprises the Resident of the
residency in which the original proceedings took place
and one native chief duly appointed
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NATIVE COURTS (cont.)

 in Sarawak:
– Headman’s Court consists of a headman and two
assessors
• has the power to impose a fine not exceeding RM50
– The Native Officer’s or Chief’s Court consists of a
Native Officer or Chief and two assessors
• has the power to impose a term of imprisonment not
exceeding six months and a fine not exceeding RM100
– District Native Court, comprising a Magistrate, a Native
Officer and two assessors, possesses the widest
jurisdiction
• may impose a term of imprisonment not exceeding two years
and a fine not exceeding RM200
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SESSIONS COURTS (cont.)

 any party who is aggrieved by the decision of any


Native Court may appeal to a higher court – see
the Native Court System below:
Native Court of Appeal

Resident’s Native Court

District Native Court

Native Officer’s/Chief’s Court

Headman’s Court

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SESSIONS COURTS (cont.)

 the Resident’s Native Court and the Native


Court of Appeal exercise only appellate
jurisdiction
 the Native Court of Appeal is presided over by a
judge with powers similar to those of a High
Court judge
 see Ongkong anak Salleh v David Panggau
Sandin & Anor

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MAGISTRATES’, JUVENILE AND
SESSIONS COURTS

 basically operate in a way similar to their


counterparts in Peninsular Malaysia and are
governed by the same statutes

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SUPERIOR COURTS IN
MALAYSIA
 comprises:
– High Courts – the High Court of Malaya and the High
Court in Sabah and Sarawak
– Industrial Court
– Court of Appeal
– Federal Court
 the jurisdiction of the High Court is original,
appellate and supervisory
 in the exercise of its original jurisdiction, it has
unlimited criminal and civil powers
 any civil matter which cannot be determined in the
subordinate courts is heard before the High Court
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THE HIGH COURT

 has the jurisdiction to try all civil proceedings


where:
1. The cause of action arose within Malaysia
2. The defendant(s) resides or has his place of
business within Malaysia
3. The facts on which the proceedings are based, exist
or are alleged to have occurred within Malaysia
4. Any land the ownership of which is disputed is
situated within Malaysia

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THE HIGH COURT (cont.)

 has the power to refer any points of law arising in


the appeal for the decision of the Court of Appeal
 general supervisory and revisionary jurisdiction
over all subordinate courts
 High Court of Malaya in Kuala Lumpur is
reorganized into:
1. Commercial Division
2. Appellate and Special Powers Division
3. Civil Division
4. Criminal Division
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FEDERAL COURT

 the highest court in Malaysia


 has the jurisdiction to:
1. Hear civil and criminal appeals from the Court of Appeal
2. Exercise exclusive original jurisdiction on those matters
conferred on it under Art 128(1) and (2), Federal
Constitution
3. Determine constitutional questions which have arisen in
the proceedings of the High Court but referred to the
Federal Court for a decision
4. Give its opinion on any question referred to it by the
Yang di-Pertuan Agong concerning the effect of any
provision of the Constitution
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INDUSTRIAL COURT

 exercise judicial or quasi-judicial functions


 constituted under the Industrial Relations Act 1967
 deals primarily with trade disputes and therefore has
jurisdiction over matters concerning employers,
employees and trade unions
 reference may be made to the High Court on
questions of law
 see Cheek Hong Leong v Kym Industries (M) Sdn
Bhd, Mas Golden Boutique Sdn Bhd v Md Zain Abu,
Johor v Mohd Zain bin Haji Idris
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COURT OF APPEAL

 jurisdiction to hear and determine any appeal


against any High Court decision on criminal
matters
 jurisdiction to hear and determine civil appeals
generally for cases where the amount or value of
the subject-matter of the claim is at least
RM250,000
 has no power to re-open, rehear nor to re-
examine its decision for whatever purpose
 see Lye Thai Sang & Anor v Faber Merlin (M) Sdn
Bhd & Ors
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ALTERNATIVE METHODS OF
DISPUTE RESOLUTION
 3 methods:
1. Mediation
2. Conciliation
3. Arbitration

Examples:
– Small Claims Court
– Consumer Claims Tribunals
– Financial Mediation Bureau

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MEDIATION

 facilitative process for resolving disputes


quickly and cheaply

 role of the mediator is a determinative one

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CONCILIATION

 conciliator may exercise an advisory or


directive role in assisting the parties to identify
the dispute in question, develop options,
determine what alternatives are available,
and try to reach an agreement

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ARBITRATION

 means of settling commercial disputes


 a formal dispute resolution process which involves the
hearing of a dispute by an independent third party (an
arbitrator). At the end of the hearing the arbitrator will
make an award unless the parties have expressed a
contrary intention, and the award will be final and
binding on the parties
– is a determinative process
– Arbitration Act 2005, section 9(1):
• ‘arbitration agreement’ – “an agreement by the parties to submit to
arbitration all or certain disputes which have arisen or which may
arise between them in respect of a defined legal relationship,
whether contractual or not”
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REVIEW

 Overview of the Judicial System


 Subordinate Courts in Peninsular Malaysia
– Penghulu’s Courts
– Magistrates’ Courts
– Juvenile Courts
– Sessions Courts
 Subordinate Courts in East Malaysia
– Native Courts
– Magistrates’, Juvenile and Sessions Courts

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REVIEW (cont.)

 Superior Courts in Malaysia


– The High Court
– The Industrial Court
– The Court of Appeal
– The Federal Court
 Alternative Methods of Dispute Resolution

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