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Malaysian Court and Law

Prepared by :-

Musbri Mohamed
DIL; ADIL ( ITM )
Pursuing MBL ( UKM )
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The Federal Court of Malaysia is the highest
judicial authority and the final court of appeal in
Malaysia. The country, although federally
constituted, has a single-structured judicial
system consisting of two parts - the superior
courts and the subordinate courts.

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The subordinate courts are the Magistrate
Courts and the Sessions Courts whilst the
superior courts are the two High Courts of
co-ordinate jurisdiction and status, one for
Peninsular Malaysia and the other for the
States of Sabah and Sarawak, the Court of
Appeal and the Federal Court. The Federal
Court, earlier known as the Supreme Court
and renamed the Federal Court vide Act
A885 effective from June 24, 1994, stands at
the apex of this pyramid.

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Before January 1, 1985, the Federal Court was the highest
court in the country but its decisions were further
appealable to the Privy Council in London.

However on January 1, 1978, Privy Council appeals in


criminal and constitutional matters were abolished and on
January 1, 1985, all other appeals i.e. civil appeals except
those filed before that date were abolished.

The setting up of the Court of Appeal on June 24, 1994 after


the Federal Constitution was amended vide Act A885
provides litigants one more opportunity to appeal.
Alternatively it can be said that the right of appeal to the
Privy Council is restored, albeit in the form of the Federal
Court.

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The Special Court was established on March 30, 1993
vide Act A848, now provided for in Article 182 of the
Federal Constitution. All offences committed by the
Rulers (the Rulers being the monarchical heads of the
component states of the Federation of Malaysia)
including His Majesty The Yang di-Pertuan Agong shall
be heard by the Special Court.

The Special Court shall also hear all civil cases by or


against them. This Court shall be chaired by the Chief
Justice of the Federal Court and he shall be assisted by
four other members, namely the two Chief Judges of the
respective High Courts and two other persons appointed
by the Conference of Rulers who hold or have held office
as a judge.

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The Constitution of
Malaysia , or the Federal
Constitution, is the supreme
law of the land. It provides
the legal framework for the
laws, legislations, courts,
and other administrative
aspects of the law. It also
defines the government and
monarch, and their powers,
as well as the rights of the
citizens

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The dual system of law is provided in Article 121(1A) of the
Constitution of Malaysia. Article 3 also provides that Islamic
law is a state law matter with the exception for the Federal
Territories of Malaysia. Islamic law refers to the sharia law,
and in Malaysia it is known and spelled as syariah. The court
is known as the Syariah Court. Looking at the Malaysian
legal system as a whole, sharia law plays a relatively minimal
role in defining the laws on the country. First and foremost,
sharia law only applies to Muslims. With regards to civil law,
the Syariah courts shall have jurisdiction in personal law
matters, for example, marriage, inheritance, and apostasy. In
some states, there is the sharia criminal laws, for example, the
Kelantan Syariah Criminal Code Enactment 1993. Their
jurisdiction is however limited to imposing fines for an
amount not more than RM 3000, and imprisonment to not
more than 6 months

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Complications have arisen with regard to the dual
justice system. An example of this will be in the
context of feedom of religion. Article 11 of the
Constitution provides that "Every person has the
right to profess and practice his religion". However
in the case of Lina Joy —a Malay who converted to
Christianity —the Federal Court of Malaysia refused
to allow her to change her religion indicated in her
identity card (MyKad). The judges held that they
had no jurisdiction on the matter—that it was a
matter of the Syariah Court, as indicated in Article
121(1A) of the Constitution.

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Federal laws are made by legislators (members of
Parliament and senators) sitting in the Parliament
of Malaysia and applies nationwide. State laws
are made by assemblymen sitting in the State
Legislative Assembly (Dewan Undangan Negeri)
and only applies in the particular state. Article 75
of the Constitution states that a federal law shall
prevail over any inconsistent state laws,
including sharia laws.

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The states of Sabah and Sarawak joined Malaya and Singapore to
form Malaysia in 1963, and there are special laws applicable only
to these two states. An important area in this regard is the
immigration law . Other areas of law peculiar to these two states
is land law . Generally, land matters and natural resource
management is a federal law matter. However, there are special
provisions in the Constitution allowing for the states of Sabah
and Sarawak to create separate legislations. For example, in the
Peninsular , the National Land Code governs most of the laws
relating to land. In Sabah, the main legislation is the Sabah Land
Ordinance; and in Sarawak, the Sarawak Land Code.

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The application of English law or common law is specified in
the statutes. Section 5 of the Criminal Procedure Code states
that English law shall be applied in cases where no specific
legislation has been enacted. Similarly, in the context of civil
law, Sections 3 and 5 of the Civil Law Act allows for the
application of English common law,equity rules, and statutes in
Malaysian civil cases where no specific laws have been made.

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In 2007, the then Chief Justice of Malaysia, Tan Sri
Ahmad Fairuz Abdul Halim questioned to need to
resort to the English common law despite Malaysia
having already been independent for 50 years and
proposed to replace it with Islamic law
jurisprudence or sharia law.

However, the Malaysian Bar Council responded by


saying that the common law is part of Malaysian
legal system and that there is no basis to replace it.

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There are generally two types of trials, criminal and civil.
The hierarchy of courts begins from the Magistrates' Court,
Sessions Court, High Court, Court of Appeal, and finally,
the Federal Court. The jurisdiction of the courts in civil or
criminal matters are contained in the Subordinate Courts
Act 1948 and the Courts of Judicature Act 1964. Article 121
of the Constitution provides for two High Courts of
coordinate jurisdiction, the High Court in Malaya, and the
High Court in Sabah and Sarawak.

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Thus this creates two separate local jurisdiction of the
courts – for Peninsular malaysia and for East Malaysia .
The highest position in the judiciary of Malaysia is the
Chief Justice of the Federal Court of Malaysia (also known
as the Chief Justice of Malaysia), followed by the President
of the Court of Appeal, the Chief Judge of Malaya, and the
Chief Judge of Sabah and Sarawak. The superior courts are
the High Court, Court of Appeal, and the Federal Court,
while the Magistrates' Courts and the Sessions Courts are
classified as subordinate courts.

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The current President of the Federal Court is Justice Dato'
Abdul Hamid Mohamad, the President of the Court of
Appeal is Tan Sri Dato' Zaki bin Tun Azmi, and the Chief
Judge of Malaya is Justice Dato' Alauddin Mohamad
Sheriff. The current Chief Judge of Sabah and Sarawak is
Justice Tan Sri Richard Malanjum (appointed 2006).

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Federal Court

The Federal Court is the highest court in Malaysia. The Federal


Court may hear appeals of civil decisions of the Court of Appeal
where the Federal Court grants leave to do so. The Federal Court
also hears criminal appeals from the Court of Appeal, but only in
respect of matters heard by the High Court in its original
jurisdiction (i.e. where the case has not been appealed from the
Subordinate Courts).

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Court of Appeal

The Court of Appeal generally hears all civil appeals against


decisions of the High Courts except where against judgment or
orders made by consent. In cases where the claim is less than RM
250,000, the judgment or order relates to costs only,and the
appeal is against a decision of a judge in chambers on an
interpleader summons on undisputed facts, the leave of the Court
of Appeal must first be obtained.The Court of Appeal also hears
appeals of criminal decisions of the High Court. It is the court of
final jurisdiction for cases which began in any subordinate courts.

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High Courts

The two High Courts in Malaysia have general supervisory and


revisionary jurisdiction over all the Subordinate Courts, and
jurisdiction to hear appeals from the Subordinate Courts in civil
and criminal matters.
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 rescissions of contracts,
legitimacy of persons.

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The High Courts have unlimited jurisdiction in all criminal
matters other than matters involving Islamic law . The High
Courts have original jurisdiction in criminal cases punishable by
death .
Cases are heard by a single judge in the High Court, or by a
judicial commissioner . While High Court judges enjoy security of
tenure, judicial commissioners are appointed for a term of two
years, and do not enjoy similar protection under the Constitution.
An application for a judicial review is applied in this court.

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The Magistrates' Courts and Sessions Courts in Malaysia
have jurisdiction in both criminal and civil matters

Sessions Courts

Somewhat like the former Quarter Sessions in England, the


Sessions Courts have jurisdiction to try offences which are
not punishable by death. They are presided over by Sessions
Court judges (formerly Sessions Court Presidents).
The Sessions Courts also hear all civil matters of which the
claim exceeds RM25,000 but does not exceed RM250,000,
except in matters relating to motor vehicle accidents,
landlord and tenant and distress, where the Sessions Courts
have unlimited jurisdiction.

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Magistrates' Courts

Magistrates are divided into First Class and Second Class


Magistrates, the former being legally qualified and having
greater powers. Second Class Magistrates are now not normally
appointed.
The Magistrates' Courts hear all civil matters of which the claim
does not exceed RM25,000.
In criminal matters, First Class Magistrates' Courts generally
have power to try all offences of which the maximum term of
imprisonment does not exceed 10 years or which are punishable
with fine only, but may pass sentences of not more than five
years imprisonment, a fine of up to RM10,000, and/or up to
twelve strokes of the cane.
The Magistrates' Courts also hear appeals from the Penghulu's
Courts.

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