MALAYSIAN JUDICIARY (COURTS)

1. INTRODUCTION

This is a very important topic. This topic explains very clearly how law is enforced. Law is a command by a superior being to an inferior being and it is followed by a legal sanction if the law is not obeyed. It has a coercive(fear) effect, It threatens you to obey it. In Malaysia , the Federal Constitution is the highest law of the land. It sets out the legal framework of law, it spells out the right and duties of the citizens and it also sets the duties and powers of the Federal and State Governments. Eg. You are standing at a traffic light junction and your's is the only car at a red traffic light. Q: Do you beat the traffic light knowing that there is no traffic police man or do you diligently obey the traffic rules set out in our traffic regulations? A: Based entirely on your opinion and how fearful you are at disobeying the rules of law Assuming that you beat the light, who is going to enforce the sanction? Sanction means punishment which takes the form of imprisonment (jail term) or fine. The courts. The role of the courts is to ensure that law and order are followed, that justice is done, and criminals are punished according to law. 2. HISTORY OF MALAYSIAN COURTS

This is for knowledge purpose, it is not examinable. a) Prior to 1963

3 Supreme courts - SC of Malaya - SC of Spore - SC of Sarawak, Borneo & Brunei b) Post 1963

Federal court - HC of Malaya - HC of Spore - Spore left the federation of malaya in 1965 - HC of Borneo

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Current system (This is very important for exams)

1) Article 121 Federal Constitution (FC) provides for 2 High Court (HC) of co-ordinate jurisdiction ie HC of Malaya and HC of Sabah & Sarawak. - These are 2 separate local jurisdiction for Peninsula Malaysia and East Malaysia. ** Pls note there is no longer HC of Borneo, Brunei and Spore. 2) Article 121 (1A) FC provides for dual justice system: - Secular laws (Public and Private) - Shariah laws (only applicable to Muslims)

3) In Malaysia there are 2 types of trials ie criminal and civil.(secular laws) Criminal eg. A rapes B. B can be tried for the CRIMINAL offence of rape.Who brings the action? It is the State. Why??

Civil eg. A offers his car for sale. B buys the car for RM150,000. A does not deliver the car A has breached the terms of contract and B can sue A for breach of contract. Why?

4) The courts structure is divided into Superior Courts?Higher and Inferior/ Lower/ Subordinate Courts. Superior courts consist of Federal Court, Court of Appeal and High Court Subordinate courts consist of Sessions court, Magistrates Court and Penghulu court

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FEDERAL COURT

a) Role - It is the highest court in Malaysia - Art 121 (1) FC provides that Federal Court shall have appellate,original, consultative/advisory role, but does not cover Shariah law. - Governed by the Courts of Judicature Act 1964 b) Appointment - The Federal Court judges are appointed by the YPA (Agung) acting on the advise of the PM - Federal Court judges are known as Chief Justices. c) Jurisdiction

i) Original - Federal court has the EXCLUSIVE jurisdiction to determine any question regarding the validity of the law made by Parliament. - Federal court hears disputes on any questions concerning the Federal and State Consitution. ii) Appellate - Appellate means to hear and determine appeals made by the Court of Appeal - Art 121 (2) FC Criminal appeal - automatic right to hear Civil appeal - Court of Appeal must obtain leave from Federal court. Leave simple means permission. iii) Advisory - The Agong can refer to the Federal court for advise and opinion on any question relating to the constitution. Special court was established by Art 182 Federal Constitution, to hear any civil or criminal action instituted by or against the the YPA or any of the State Rulers. Art 183 FC states that no civil and criminla action can be insituted against the YPA or State Rulers without the consent of the Attorney General. Eg. Sultan of Johor slaps a traffic policeman for putting a road block. Can the policeman sue the Sultan? Why?

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COURT OF APPEAL

i) Role Art 121(1B) - to hear and determine appeals from High court ii) Appellate jurisdiction It is the final court of appeal from decisions of the High court It hears both civil and criminal appeals. iii) Appointment The COA judges are appointed by the YPA (Agung) acting on the advise of the PM The COA judges are known as Lord Presidents 3. HIGH COURT

i) Role The HC has both original jurisdiction and appellate jurisdiction ii) Appointment Appointed by YPA on PM's advise iii) Jurisdiction

Original jurisdiction Means the case starts at the HC for the first time. 2 types: Criminal jurisdiction The High Courts have unlimited jurisdiction in all criminal matters. The High Courts have original jjurisdiction in criminal cases punishable by death Civil jurisdiction The High Courts have unlimited civil jurisdiction, and generally hear actions where the claim exceeds RM250,000, other than actions involving motor vehicle accidents, landlord and tenant disputes and distress. The High Courts hear all matters relating to: the validity or dissolution of marriage,divorce and matrimonial causes, bankruptcy and matters relating to the winding-up of companies, guardianship or custody of children, grants of probate, wills and letters of administration of estates, injunctions. specific performance or rescission of contracts Appellate jurisdicition Means that HC can hear and determine appeals against the decisions of the lower courts

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SESSIONS COURT Role

Sessions Court has the jurisdiction to hear both criminal and civil cases. At present there are 87 Sessions Court judges throughout Malaysia. ii) 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). Criminal cases The Sessions Court has the jurisdiction to try all offences other than offences punishable with death. Means that it cannot impose a death sentence. Civil Cases The Sessions Court has unlimited jurisdiction to hear : (a) running down cases, landlord and tenant, and distress; (b) to try other suits where the amount in dispute does not exceed RM250,000.00 The Sessions Court does not have jurisdiction for the following cases: the validity or dissolution of marriage,divorce and matrimonial causes, bankruptcy and matters relating to the winding-up of companies, guardianship or custody of children, grants of probate, wills and letters of administration of estates, injunctions. specific performance or rescission of contracts

Why??

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Magistrates' Court

i) Role of MC Magistrates are divided into First Class and Second Class Magistrates, the former being legally qu qualified and having greater powers. Second Class Magistrates are now not normally appointed. Magistrates have the powers to hear both criminal and civil matters ii) 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). iii) Jurisdiction

Criminal cases i) Trial jurisdiction In criminal matters, First Class Magistrates' Courts generally have power to try all offences a) maximum term of imprisonment does not exceed 10 years or b) which are punishable with fine only, ii) Sentencing jurisdiction A First Class Magistrate may pass any sentence allowed by law not exceeding : (a) 5 years imprisonment; (b) a fine of RM10,000.00; (c) whipping up to 12 strokes; or (d) any sentence combining any of the sentence aforesaid. However, in some cases e.g under the Dangerous Drugs Act 1952, Customs Act 1967 and Betting Act 1953 the Magistrate may impose a fine higher than RM10,000.00. Civil cases A First Class Magistrate Court has the jurisdiction to try all actions and suits of a civil nature where the amount in dispute does not exceed RM25,000.00 The Magistrates' Courts also hear appeals from the Penghulu's Court 6. Court For Children (not relevant for exam ) 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). 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).