lalJURISDICTION OF THE COURT 1. 0 INTRODUCTION The jurisdiction and powers of court 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 the High Courts, and in the Subordinate Courts Act 1948 (Act 92) for the subordinate courts that is the Sessions, Magistrate’s and Penghulu’s Courts. 2. 0 MALAYSIAN JUDICIAL STRUCTURE Malaysian judicial structure can be divided into 2 section which are : 1) Superior Courts Federal Court, Special Court, Court of Appeal and High Court 2) Subordinate Courts
Sessions Court, Magistrates’ Court and Court for Children “Promotion of judges, wherever such a system exists, should be based on objective factors, in particular ability, integrity and experience. ” — Clause 13 of the United Nations Basic Principles on the Independence of the Judiciary — 3. 0 THE SUPERIOR COURTS 3. 1 THE FEDERAL COURT The Federal Court is the highest judicial authority in the country. It was established pursuant to Article 121(2) of the Federal Constitution. Its decision binds all the courts below. Prior to 1st January 1985, the superior courts system in Malaysia was three-tiered, namely : 1) The Privy Council ) The Supreme Court 3) The High Court Malaya and the High Court Borneo. The Privy Council was the highest court of appeal for Malaysia until 31st December 1984. On 1st January 1985, all appeals from Malaysia to the Privy Council were abolished. In its place, the Supreme Court was established making it the final court of appeal in the country. The abolishment of appeals to the Privy Council resulted in a change from the three-tiered system of superior courts to a two-tiered system, which was the Supreme Court and the two (2) High Courts.
In 1994, a significant change took place in the Judiciary when Parliament amended the Federal Constitution. With the amendment, the Court of Appeal was established. The Supreme Court was renamed the Federal Court. As a consequence, the three-tiered system of the superior courts was restored. The Federal Court is headed by the Chief Justice. Prior to the amendment the post was known as the Lord President. Members According to Article 122(1) of the Federal Constitution, the Federal Court shall consist of the Chief Justice, the President of the Court of Appeal, the two Chief Judges of the two High Courts and seven other judges.
Appointment of Judges Article 122B of the Federal Constitution provides for the appointment of the Chief Justice, the President of the Court of Appeal, the Chief Judges of the High Courts and the other judges of the Federal Court by the Yang di-Pertuan Agong, acting on the advice of the Prime Minister, after consulting the Conference of Rulers. Before tendering his advice, the Prime Minister shall, except for the appointment of the Chief Justice, consult the Chief Justice.
Appointment of Additional Judges Article 122(1A) of the Federal Constitution, allows the Yang di-Pertuan Agong, acting on the advice of the Chief Justice, to appoint any person who has held high judicial office in Malaysia to be an additional judge of the Federal Court. This appointment may be for such purposes or for such period as may be determined by the Yang di-Pertuan Agong. Composition Every proceeding in the Federal Court is according to section 74 of the Courts of Judicature Act 1964, heard and disposed off by three judges or such greater uneven number of judges as the Chief Justice may in any particular case determine.
In the absence of the Chief Justice the most senior member of the Court shall preside. Article 122(2) of the Federal Constitution provides that the Chief Justice, if he considers that the interests of justice so require, may nominate a judge of the Court of Appeal other than the President of the Court of Appeal to sit as a judge in the Federal Court. Sittings The Court sits on such dates and at such places as the Chief Justice may from time to time direct. Normally the Federal Court sits at the Palace of Justice in Putrajaya.
However the Federal Court also goes on circuit to the major towns of Penang, Ipoh, Kota Bharu, Johor Bahru, Alor Setar, Kuantan, Malacca, Kuching and Kota Kinabalu (section 75 of the Courts of Judicature Act 1964). Jurisdiction Article 121(2) of the Federal Constitution confers the Federal Court with the following jurisdiction– (a) to determine appeals from decisions of the Court of Appeal, of the High Court or a judge thereof; (b) such original or consultative jurisdiction as is specified in Articles 128 and 130; and (c) such other jurisdiction as may be conferred by or under federal law.
Criminal Appeals The Federal Court may subject to section 87 of the Courts of Judicature Act 1964 hears and determines appeals against decisions of the Court of Appeal relating to any criminal matter decided by the High Court in the exercise of its original jurisdiction. Civil Appeals Section 96 of the Courts of Judicature Act 1964 provides that an appeal against the decision of the Court of Appeal may be made to the Federal Court with with the leave of the Federal Court.
Leave is only granted if– (a) the decision of the Court of Appeal is in respect of any civil cause or matter decided by the High Court in exercise of its original jurisdiction where it involves a question of general principle of law decided for the first time or a question of importance upon which further argument and a decision of the Federal Court would be to public advantage; or (b) the decision of the Court of Appeal is as to the effect of any provision of the Federal Constitution including the validity of any written law relating to any such provision. section 96(a) and (b) Courts of Judicature Act 1964). Original The Federal Court has the exclusive jurisdiction to determine– (a) any question whether a law made by Parliament or by the Legislature of a State is invalid on the ground that it makes provision with respect to a matter with respect to which Parliament or, the Legislature of the State has no power to make laws; and (b) disputes on any other question between States or between the Federation and any State. (Article 128(1) of the Federal Constitution). Referral
The referral jurisdiction of the Federal Court is provided for in Article 128(2) of the Federal Constitution which reads— “Without prejudice to any appellate jurisdiction of the Federal Court, where in any proceedings before another court a question arises as to the effect of any provision of this Constitution, the Federal Court shall have jurisdiction (subject to any rules of court regulating the exercise of that jurisdiction) to determine the question and remit the case to the other court to be disposed of in accordance with the determination. Advisory The advisory jurisdiction of the Federal Court is provided for in Article 130 of the Federal Constitution which reads— “The Yang di-Pertuan Agong may refer to the Federal Court for its opinion any question as to the effect of any provision of this Constitution which has arisen or appears likely to arise, and the Federal Court shall pronounce in open court its opinion on any question so referred to it. ” 3. 2 THE SPECIAL COURT Constitution
The Special Court was established pursuant to Article 182 of the Federal Constitution to hear any action civil or criminal instituted by or against the Yang di-Pertuan Agong or any of the nine Malay Rulers. However, by Article 183 of Federal Constitution no action, civil or criminal, shall be instituted against the Yang di-Pertuan Agong or any of the Rulers of States in respect of anything done or omitted to be done by him in his personal capacity except with the consent of the Attorney General personally.
Members Article 182(1) of the Federal Constitution provides that the Special Court shall consist of the Chief Justice of the Federal Court, who shall be the Chairman, the Chief Judges of the two High Courts and two other persons who hold or have held office as judges of the Federal Court or the High Court appointed by the Conference of Rulers. Jurisdiction
Article 182(3) of the Federal Constitution stipulates that the Special Court has an exclusive jurisdiction to try all offences committed in the Federation by the Yang di-Pertuan Agong or any of the Rulers of the States and all civil cases by or against the Yang di-Pertuan Agong or any of the Rulers of the States notwithstanding where the cause of action arose. In addition to its exclusive jurisdiction, the Special Court also has the same jurisdiction and powers as are vested in the subordinate courts, the High Court and the Federal Court by the Federal Constitution.
Proceedings The procedure (including the hearing of proceedings in camera) in civil or criminal cases and the law regulating evidence and proof in civil and criminal proceedings, the practice and procedure applicable in any proceedings in any subordinate court, the High Court and the Federal Court shall apply in any proceedings before the Special Court. The proceedings of the Special Court is decided by the opinion of the majority of the members.
Finality of decision The decision of the Special Court is final and conclusive and cannot be challenged or called into question in any court on any ground. Sittings The Special Court may sit at the premises of the Federal Court located at the Palace of Justice, Putrajaya Wilayah Persekutuan on such dates and at such times as the Chief Justice may from time to time appoint. 3. 3 THE COURT OF APPEAL The Court of Appeal was established in 1994. It has– a) the jurisdiction to determine appeals from decisions of a High Court or a judge thereof; and (b) such other jurisdiction as may be provided for under any federal law. (Article 121(1B) of the Federal Constitution). As from 1st January 2002 the number of judges was increased to fifteen by order of the Yang di-Pertuan Agong (Article 122A(1) Federal Constitution). Members Article 122A(1) of the Federal Constitution provides that the Court of Appeal shall consist of the President of the Court of Appeal and fifteen Court of Appeal judges. Appointment of Judges
Article 122B (2) and (4) of the Federal Constitution provides that the President of the Court of Appeal and the Court of Appeal judges shall be appointed by the Yang di-Pertuan Agong acting on the advice of the Prime Minister, after consulting the Conference of Rulers. Before tendering his advice the Prime Minister shall consult the Chief Justice and the President of Court of Appeal. Composition Proceedings in the Court of Appeal are heard and disposed of by a panel of three judges or such greater uneven number of judges as the President of the Court of Appeal may determine (section 38 Courts of Judicature Act 1964).
In accordance with Article 122A(2) of the Federal Constitution a judge of a High Court may sit as a judge of the Court of Appeal where the President of the Court of Appeal considers that the interests of justice so require. The judge shall be nominated for the purpose by the President after consulting the Chief Judge of that High Court. Sittings The Court of Appeal sits at the Palace of Justice in Putrajaya, Wilayah Persekutuan. However, the President may, when he deems expedient, direct that any appeal proceeding be heard at any time and in any place in Malaysia (section 39 of the Courts of Judicature Act 1964).
Final Court The Court of Appeal is the final court of appeal on matters decided by the High Court in its appellate or revisionary jurisdiction (sections 87 and 96 of the Courts of Judicature Act 1964). Jurisdiction Criminal The Court of Appeal has the jurisdiction to hear and determine any criminal appeal against any decision by the High Court— (a) made in the exercise of its original jurisdiction; and (b) in the exercise of its appellate or revisionary jurisdiction on any criminal matter decided by the Sessions Court.
However, if it is an appeal from a decision of the High Court exercising its appellate or revisionary jurisdiction on any criminal matter that originated from a Magistrates’ Court then no further appeal to the Court of Appeal is permissible without leave of the Court of Appeal and such appeal must be confined only to questions of law which may 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 (section 50(1) ; (2) Courts of Judicature Act 1964). Civil
The Court of Appeal has the jurisdiction to hear and determine appeals from any judgment or order of any High Court in any civil cause or matter, whether made in the exercise of its original or of its appellate jurisdiction, subject to any written law regulating the terms and conditions upon which such appeals are brought (section 67 of the Courts of the Judicature Act 1964). However, no appeal shall be brought to the Court of Appeal in the following cases— (a) if the amount or value of the subject matter of the claim is less than RM250,000/- except with the leave of the Court; (b) the judgment or order is made by consent of parties; c) the judgment or order relates to costs only; and (d) where by virtue of any written law the judgment or order of the High Court is final. No appeal shall lie from a decision of a Judge in Chambers in a summary way on an inter pleader summons, where the facts are not in dispute, except with leave of the Court section 68 Courts of Judicature Act 1964). Specialized Panels As appeals to the Court of Appeal are on the upsurge each year, sittings of the Court have also been increased. In order to expedite the disposal of appeals specialized panels have been constituted. The panels are as follows– • Criminal Panel • Commercial Panel Civil Panel • Interlocutory Panel • Leave to Appeal Panel • Prerogative Writs Panel Registry The principal registry of the Court of Appeal is located at the Palace of Justice, Putrajaya, Wilayah Persekutuan. It is headed by a Registrar and assisted by Deputy and Senior Assistant Registrars. Although all appeals from the High Courts are filed in the respective High Courts they are registered in the Court of Appeal Registry at the Palace of Justice in Putrajaya. 3. 4 THE HIGH COURTS In Malaysia there are two High Courts having coordinate jurisdiction and status, that is the High Court in Malaya and the High Court in Sabah and Sarawak.
The High Court in Malaya consists of a Chief Judge and forty-seven judges whilst High Court in Sabah and Sarawak consists of a Chief Judge and ten judges. (Articles 121(1) and 122AA(1) of the Federal Constitution). Appointment of Judges The judges are appointed under Article 122B (2) and (4) of the Federal Constitution by the Yang di-Pertuan Agong, acting on the advice of the Prime Minister after consulting the Conference of Rulers. Before the Prime Minister tenders his advice to the Yang di-Pertuan Agong, the Prime Minister shall consult the Chief Justice and the Chief Judge of that Court.
A person is qualified for appointment as a judge of any High Courts if he is a citizen and for the 10 years preceding his appointment he has been an advocate of those courts or has been a member of the judicial and legal service of the Federation or of the legal service of a State. The appointment of a judicial commissioner is provided for under Article 122AB of the Federal Constitution. A judicial commissioner who is appointed by the Yang di-Pertuan Agong on the advice of the Prime Minister after consulting the Chief Justice shall have the same powers and enjoy the same immunities as if he had been a judge of the High Court. Sittings
The High Courts sit at such times and at such places as the Chief Judges shall from time to time appoint (section 19 of the Courts of Judicature Act 1964). Jurisdiction Criminal The High Court has jurisdiction to try all offences committed– (a) within local jurisdiction; (b) on the high seas on board any ship or on any aircraft registered in Malaysia; (c) by any citizen or any permanent resident on the high seas on board any ship or on any aircraft; (d) by any person on high seas where the offence is piracy by the law of nations; and (e) offences under Chapter VI of the Penal Code and those offences of extra-territorial in nature. Section 22 of the Courts Judicature Act 1964). The High Court may pass any sentence allowed by law (section 22(2) of the Courts of Judicature Act). Cases involving capital punishment are tried in the High Court. However, under special circumstances cases not involving capital punishment may be heard in the High Court on the application by the Public Prosecutor (section 418A Criminal Procedure Code). Civil The High Court has jurisdiction to try all proceedings where – (a) the cause of action arose; b) the defendant or one of several defendants resides or has his place of business; (c) the facts on which the proceedings are based exist or are alleged to have occurred; or (d) any land the ownership of which is disputed is situated, within the local jurisdiction of the Court and notwithstanding anything contained in section 23 of the Courts of Judicature Act 1964, in any case where all parties consent in writing within the local jurisdiction of the other High Court.
The High Courts also have specific jurisdiction including– (a) jurisdiction under any written law relating to divorce, matrimonial causes, bankruptcy or companies; (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 to appoint and control guardians of infant and generally over the person and property of infants; (d) jurisdiction to appoint and control guardians and keepers of the person and estates of idiots, mentally disordered persons and persons of unsound mind; and (e) jurisdiction to grant probates of will and testaments and letters of administration of estates of deceased persons leaving property within the territorial jurisdiction of the Court and to alter or revoke such grants. (Section 24 of the Courts of Judicature Act 1964). Appellate The High Court has the power to hear appeals from the subordinate courts.
However not all decisions of the subordinate courts are appealable to the High Court. No appeal shall lie to the High Court from a decision of a subordinate court in any civil cause or matter where the amount in dispute or the value of the subject matter is ten thousand ringgit or less except where it involves a question of law (sections 26-29 of the Courts of Judicature Act 1964). Revisionary Power The High Court may exercise powers of revision in respect of criminal proceedings and matters in the subordinate courts in accordance with any law for the time being in force relating to criminal procedure.
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 (sections 31 and 32 of the Courts of Judicature Act 1964). Specialization The courts in Malaysia are heading towards specialization. This move is fuelled by the desire to provide the best service to the public, in the form of dispensing justice fairly, speedily and effectively.
In the major towns where there are two or more High Court judges, specialization had already taken place. Specialization in the Kuala Lumpur High Courts In the High Court in Malaya at Kuala Lumpur, specialization is done by categorising the High Court into Criminal, Civil, Commercial, Appellate and Special Powers and Family Divisions. (i) Criminal Division The Criminal Division hears cases in the exercise of its original, appellate or revisionary jurisdiction on any criminal matter from the subordinate courts. (ii) Civil Division The Civil Division hears among others, actions on foreclosure, tort and contracts for services. iii) Commercial Division The Commercial Division hears among others, admiralty, insurance, companies winding-up, agency, banking, intellectual property and Specific Relief Act cases. There is further specialization in the Commercial Division, in that, all Islamic Banking (Muamalat) cases are heard by a judge in this Division, who in addition, also hears other commercial cases. (iv) The Appellate and Special Powers Division The Appellate and Special Powers Division hears appeals from the subordinate courts, cases under the Legal Profession Act 1976 and judicial review of administrative actions and under specific Acts. v) Family Division Formerly, the Family Court was part of the Civil Division. Now, it is a Division by itself and hearing matrimonial cases under the Law Reform (Marriage and Divorce) Act 1976. Deputy Registrars and Senior Assistant Registrars High Court judges are assisted by Deputy Registrars and Senior Assistant Registrars who are appointed under section 10 of the Courts of Judicature Act 1964, by the Yang di-Pertuan Agong, on the recommendation of the Chief Justice.
The Deputy Registrars and Senior Assistant Registrars hear interlocutory matters in Chambers, do research for the judges, and also perform administrative duties, such as overseeing the running of their respective courts’ registries. 4. 0 THE SUBORDINATE COURTS Subordinate courts consist of the Sessions Court, the Magistrate’s Court and the Court for Children. A Sessions Court is presided by a Sessions Court judge while a Magistrate’s Court and a Court for Children are presided by magistrates. 4. 1 SESSION COURT A Sessions Court has the jurisdiction to hear both criminal and civil cases.
At present there are eighty seven Sessions Court judges throughout Malaysia. Appointment A Sessions Court judge is appointed by the Yang di-Pertuan Agong on the recommendation of the respective Chief Judges (section 59 of the Subordinate Courts Act 1948). Sittings The court sits everyday except on public holidays. Jurisdiction Criminal A Sessions Court has the jurisdiction to try all offences other than offences punishable with death. Except for the sentence of death, a Sessions Court may pass any sentence including natural life sentence (sections 63 and 64 of the Subordinate Courts Act 1948). . 2 MAGISTRATE’S COURT The Magistrates’ Courts have jurisdiction to hear both criminal and civil cases. At present there are one hundred and fifty one Magistrates throughout Malaysia. Appointment For the Federal Territory, magistrates are appointed by Yang di-Pertuan Agong on the recommendation of the Chief Judge. In each of the States, magistrates are appointed by the State Authority on the recommendation of the respective Chief Judges (section 78 of the Subordinate Courts Act 1948). Sittings The court sits everyday except on public holidays.
Jurisdiction Criminal A First Class Magistrate has jurisdiction to try all offences for which the maximum sentence does not exceed ten years imprisonment or with fine only (section 85 of the Subordinate Courts Act 1948). Civil A First Class Magistrate has the jurisdiction to hear all actions and suits of a civil nature where the amount in dispute or value of the subject matter does not exceed RM25,000. 00 (section 90 of the Subordinate Courts Act 1948). 4. 3 COURT FOR CHILDREN A Court for Children was established under the Child Act 2001.
Section 2 of the Act defines “Child” as a person under the age of eighteen years, and for the purposes of criminal proceedings, means a person who has attained the age of ten. Composition The Court shall consist of a magistrate and shall, as the case may require, be assisted by two advisors (section 11(2) Child Act 2001). Sittings No person shall be present in any sitting of this court except among others members and officers of the court and the children who are parties to the case including their parents or guardians (section 12 of the Child Act 2001).
Sentence or Orders If a child is found guilty of an offence, he shall not be imprisoned, but among others, may either be sent to an approved school or released on bail. For capital offences, the child shall be detained in prison at the pleasure of the Ruler (sections 91-97 of the Child Act 2001). 5. 0 REFERENCES 1- http://www. kehakiman. gov. my/courts/judicialEN. shtml 2- Raw and Kumar, General Principles of The Malaysian Legal System, 2006, International Law Book Services. 3- http://en. wikipedia. org/wiki/Courts_of_Malaysia
