Friday, May 2, 2008

Malaysian Judiciary System

MALAYSIAN JUDICIARY SYSTEM

WHO HEADS THE MALAYSIAN JUDICIARY?

The head of the Malaysian Judiciary is the Chief Justice.

HOW ARE JUDGES APPOINTED?

The Chief Justice is appointed by His Majesty the Yang di-Pertuan Agong on the advice of the Prime Minister after consulting the Conference of Rulers. The appointment is similar to those of the President of Court of Appeal, the two Chief Judges, judges of the Federal Court, the Court of Appeal and the High Court.

Under the Federal Constitution, the Prime Minister shall consult the Chief Justice, the President of the Court of Appeal and the two Chief Judges, before he tenders his advice in appointing a judge to the Federal Court, the Court of Appeal and the High Courts.

His Majesty the Yang di-Pertuan Agong may also appoint a person who has held high judicial office in Malaysia to be additional judge of the Federal Court. This must be on the advice of the Chief Justice.

If the interest of justice so require, the Chief Justice may also nominate a Court of Appeal Judge to sit as a Judge of the Federal Court. All judges of the Superior Court retire at the age of 65.

HOW DOES THE MALAYSIAN COURT SYSTEM WORKS?

1) FEDERAL COURT

The Federal Court hears appeals from the Court of Appeal.

2) COURT OF APPEAL

The Court of Appeal hears appeals from the High Court relating to both civil and criminal matters.

3) HIGH COURT

- Civil Jurisdiction

The High Court has jurisdiction to try all civil matters but generally confines itself to matters on which the Magistrates and Sessions Courts have no jurisdiction. These include matters relating to divorce and matrimonial cases, appointment of guardians of infants, the granting of probate of wills and testaments and letters of administration of the estate of deceased persons, bankruptcy, and other civil claims where the amount in dispute exceeds RM250,000.00.

- Criminal Jurisdiction

The High Court may hear all matters but generally confines itself to offenses on which the Magistrates and Sessions Courts have no jurisdiction, for instance, offenses which carry the death penalty.

- Appellate Jurisdiction

The High Court may hear appeals from the Magistrates and Sessions Courts in both civil and criminal matters.

4) SESSIONS COURT

- Civil Jurisdiction

A Sessions Court may hear any civil matter involving motor vehicle accidents, disputes between landlord and tenant, and distress actions. The Sessions Court may also hear other matters where the amount in dispute does not exceed RM250,000.00.

- Criminal Jurisdiction

A Sessions Court has jurisdiction to try all criminal offenses EXCEPT those punishable by death.

5) MAGISTRATES COURT

The Magistrates Courts deal with the vast majority of cases, both civil and criminal, and sit in almost all major towns in Malaysia.

- Civil Jurisdiction

A Magistrates Court may hear a civil case when the amount in dispute does not exceed, 25,000.00.Where the amount claimed does not exceed RM5,000.00 you may wish to file your claim in the "small claims" division of the Magistrates Court. If you do so however, you must be prepared to conduct the case yourself, as legal representation is not permitted.

- Criminal Jurisdiction

A Magistrates Court may hear criminal matters of the following nature:-
where the offense is punishable by a fine only - this would cover the majority of traffic offenses. where the offense provides for a term of imprisonment not exceeding ten years. A Magistrate may not, however, impose a term of imprisonment exceeding five years.

There are also various other courts outside of this hierarchy, including the Special Court. There is the Penghulu's Courts, the Syariah Courts and the Native Courts. A court which is paralleled in jurisdiction with the Magistrates' Court in the Juvenile Court.

WHAT POWER DOES THE MAGISTRATE COURT HAS?

Section 87 of the Subordinate Courts Act 1948 (Malaysia) provides the First Class Magistrate fairly substantial powers in a criminal cases. In addition to the jurisdiction of sentences not exceeding 5 years imprisonment and or fines not exceeding RM10,000, the Magistrate can impose whipping up to a maximum of 12 strokes.

The Magistrate has the power to award punishment for any offense in excess of the powers described above and instead award full punishment authorized by law. This power is given by the proviso in subsection (1).

However, the civil jurisdiction for a First Class Magistrate for action and suits of a civil nature where the amount in dispute or value of the subject matter does not exceed RM25,000 under Section 90.

WHAT POWER DOES THE SESSIONS COURT HAS?

This Court has jurisdiction to try all offenses other than offenses punishable by death penalty. It's jurisdiction is wider than the Magistrate Court. It is under the Section 64 that imposes a limit on the Session Judges' powers by precluding him from imposing the death sentence.
Section 65 provides the Sessions Court :-

-Unlimited jurisdiction to try all actions and suits of a civil nature in respect of motor vehicle accidents, landlords and tenants and distress
-Jurisdiction to try all actions and suits of a civil nature where the amount in dispute or the value of the subject matter does not exceed RM250,000.

However, there is exceptions to the above. The Sessions Court has no jurisdiction with respect to applications for specific performance or rescission of contracts, injunction, enforcement of trust, declaration of decrees and revocation of grants of re presentation of the estates of deceased persons or the administration or distribution thereof. These are all within the jurisdiction of the High Court.

WHAT JURISDICTION DOES THE HIGH COURT HAS?

There are 2 High Courts of coordinate jurisdiction in Malaysia. Namely the High Court of Malaya and the High Court of Sabah and Sarawak.

The High Court may act as a court of first instance and appellate court.

The High Court have jurisdiction to try all offenses committed within its local jurisdiction or on a high seas on board any ship or aircraft registered in Malaysia or by any citizen or permanent resident on the high seas on board any ship or aircraft, or by any person on the high seas where the offense is privacy by the law of nations. This is in exercising its original jurisdiction for criminal cases.

The High Court may pass any sentence allowed by law.

Normally, only criminal cases of a serious nature are tried in the High Court. Example, drug trafficking under Section 39B of the Dangerous Drugs Act, murder under Section 302 of the Penal Code, kidnapping of abduction under Section 364 of the Penal Code and offenses under the Firearms (increased penalty) Act where it involves Capital Punishment (death sentence) if the accused is found guilty. The High Court has the power to hear appeals from the Subordinate Courts according to any law for the time being in force within the territorial jurisdiction of the High Court. This is provided under Section 26. Additionally, the High Court may also exercise its revisionary powers with respect to criminal proceedings and matters in the Subordinate Courts.
In civil cases, the High Court has the jurisdiction to try all civil proceedings where the cause of action arose or the defendant or one of the several defendants resides or has his place of business or the facts on which the proceedings are based exists or are alleged to have occurred or any land the ownership of which is disputed is situated within the local jurisdiction of the court. Similarly, in any case where all parties consent in writing, the court can also adjudicate the matter even though they are within the local jurisdiction of the other High Court.

Under the Section 27, the appellate civil jurisdiction of the High Court shall consists of the hearing of appeals from the Subordinate Courts. The High Court also has the power to examine record of proceedings transmitted to it by the Subordinate Courts on any question which arises as to the effect of any provision of the Constitution.

Section 32 provides the High Courts with revisionary power for dealing with civil cases. However, no proceeding by way of revision will be entertained by the High Court at the instance of a party who could have appealed.

Finally, the High Court also has general supervisory and revisionary jurisdiction over all Subordinate Courts.

WHAT IS THE FUNCTION OF THE COURT OF APPEAL?

This court is limited to only perform the function of an Appellate Court. Either in the exercise of its original jurisdiction or in the exercise of its appellate revisionary jurisdiction in respect of any criminal matter decided by the Sessions court, the Court of Appeal has the jurisdiction to hear and determine any appeal against any decision made by the High Court. Appeals for decision made by the Magistrates' Court in any criminal matter shall 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.

An appeal shall be made within 14 days after the date of the decision of the High Court and shall be with the leave of the Court of Appeal. If the notice of appeal by the Public Prosecutor has been given by or with the consent of that officer in writing, no leave is require. An appeal can lie on a question of law, question of mixed fact and law or on question of fact.

In any civil cause or matter, the Court of Appeal also has the jurisdiction to hear and determine an appeal from any judgment or order of any High Court in any civil cause or matter. Notwithstanding, there are matters which are non-appealable to the Court of Appeal. Under the Section 68 the list of cases involve any of the following :-

When 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

Where the Judgment or order is made by consent of parties

Where the Judgment or order relates to costs only, which by law are left to the discretion of the Court, except with the leave of the Court of Appeal

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

WHAT IS A FEDERAL COURT AND IT'S JURISDICTION?

In determining the constitutionality of any law, order or regulations, the Federal Court is the court of last resort.

Next below the Privy Council, the name "Supreme Court" was used to refer to the highest court for Malaysia. That was before 1957. However, with the abolition of the appeal to the Privy Council effective January 1, 1985, the Supreme Court was finally designated the highest court in Malaysia.

Please take note to the material distinction between the constitution of the former "Supreme Court" and that of the present. Effective June 24, 1994, the Supreme Court was renamed the Federal Court of Malaysia and is not the final court of appeal of Malaysia.

Under Article 128(1) and (2), the Federal Court has the same jurisdiction and may exercise the same powers as those exercised by the High Court, in exercising its original jurisdiction.

In criminal cases, in exercising its appellate jurisdiction, the Federal Court has the powers to hear and determine any appeal from any decision of the Court of Appeal in its jurisdiction to hear and determine any civil appeal from the Court of Appeal provided leave is granted.

WHAT'S THE FUNCTION OF A SPECIAL COURT?

The setting up of the Special Court became a major turning point in the legal system in Malaysia.
Article 182(2) of the Federal Constitution states that "any proceeding by or against the Yang di-Pertuan Agong or the Ruler of a State in his personal capacity shall be brought in a Special Court established under clause (1) of Article 182".

Before this amendment was made, no proceeding can be brought in any court against the Yang di-Pertuan Agong or the Ruler of a State in his personal capacity.

The Chairperson of the Special Court shall be Chief Justice of the Federal Court together with the Chief Judges of the High Courts and two other persons who hold or have held office as Judge of the Supreme Court or a High Court appointed by the Conference of Rulers.

The Special Court has exclusive jurisdiction to try all offenses 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.

The court shall have the same jurisdiction and powers as are vested in the lower courts, the Supreme Court and High Court. Under the Article 183, it states that "no action, civil or criminal shall be institute against the Yang di-Pertuan Agong or the Ruler of a State 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".

The registry of Special Court is in Kuala Lumpur.

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