Professional Documents
Culture Documents
The Malaysian Legal System, Legal Practice & Legal Education
The Malaysian Legal System, Legal Practice & Legal Education
4
Judicial System and Reforms in Asian Countries (Malaysia)
Roy Rajasingham
Vice President
Bar Council Malaysia
March 2001
JAPAN
PREFACE
i
3. Certificate of Legal Practice (CLP) 61
4. Post-graduate courses 62
5. External Degree Programme 62
6. Diploma in Public Law 62
ii
CHAPTER 7: CRIMINAL LITIGATION 84
1. Penal Code 84
2. Criminal Procedure Code 84
3. A Magistrates Court can hear criminal matters:- 85
4. Sessions Court Criminal Jurisdiction 85
5. High Court Criminal Jurisdiction 85
6. Appellate Court Criminal Jurisdiction 85
7. Federal Court Criminal Jurisdiction 85
8. Police Action 86
9. Summary Trials by Magistrates 86
10. Transfer of Cases 86
11. Procedure at a Trial 87
12. Prosecution 87
13. Conduct of Prosecution in Court 87
14. Search Power of the Police 87
15. Evidence Act 88
16. Sentencing 88
iii
Chapter 1
THE JUDICIARY
The Malaysian legal system is based upon the English common law system
which Malaysia inherited by virtue of a long history of colonization by the British.
Central to the Malaysian legal system is a written Constitution based upon the
Westminster model. The organs of government and administration, together with their
respective powers and functions are to be found within the Malaysian Federal
Constitution.
The Malaysian Judiciary is established under Part IX of the Constitution.
Article 121 establishes the current hierarchy of courts:
Federal Court
The Federal Court consists of a President of the Court (styled as the Chief
Justice of the Federal Court), President of the Court of Appeal, Chief Judges of the High
Courts and seven other judges.1
The Court of Appeal consists of a Chairman (styled as the President of the
Court of Appeal), and ten other judges.2
The High Courts consist of a Chief Judge and not less than four other judges.
The number of other judges of the High Court may not exceed forty-seven for the High
Court in Malaya, and ten for the High Court in Sabah and Sarawak.3
The Chief Justice of the Federal Court, the President of the Court of Appeal
and the Chief Judges of the High Courts and the other judges of the Federal Court,
Court of Appeal and High Courts are appointed by the Yang di Pertuan Agong on advice
of the Prime Minister and after consultation with the Conference of Rulers.4 The Prime
Minister’s advice must be preceded with consultations made with appropriate parties.
For example, before tendering his advice as to the appointment of a judge other than the
Chief Justice of the Federal Court, the Prime Minister is to consult the Chief Justice.5
Before tendering his advice as to the appointment of a Chief Judge of a High Court, the
Prime Minister is to consult the Chief Judge of each of the High Courts and, if the
appointment is to the High Court in Sabah and Sarawak, the Chief Minister of each of
the States of Sabah and Sarawak.6
Before tendering his advice as to the appointment of a Judge other than the
Chief Justice, President or a Chief Judge, the Prime Minister is to consult, if the
appointment is to the Federal Court, the Chief Justice of the Federal Court; if the
appointment is to the Court of Appeal, the President of the Court of Appeal, and if the
appointment is to one of the High Courts, the Chief Judge of that court.7
A person is qualified for appointment as a Judge of the Federal Court, a judge
of the Court of Appeal or a Judge of any of the High Courts if he is a citizen and for the
1
Federal Constitution, Art. 122(1).
2
ibid, Art. 122A(1).
3
ibid, Art. 122AA(1).
4
Federal Constitution, Art. 122B(1).
5
ibid, Art. 122B(2).
6
ibid, Art. 122B(3).
7
ibid, Art. 122B(4).
2
ten years preceding his appointment he has been an advocate of those courts or any of
them or a member of the judicial and legal service of the Federation or of the legal
service of a State, or sometimes one and sometimes the other.8
A judge of the Federal Court is to hold office until he attains the age of sixty-
five or such later time, not being later than six months after he has attained that age.9 A
judge of the Federal Court may at any time resign his office by writing under his hand
addressed to the Yang di Pertuan Agong, but he may not be removed from office except
in accordance with provisions of the Constitution. The Yang di Pertuan Agong is
empowered to have a judge removed from office, but representations to that effect must
first of all be made either by the Prime Minister or the Chief Justice after consulting the
Prime Minister.10 Removal from office may be made upon the following grounds, that
is, breach of any provision of the Judges’ Code of ethics or on the ground of inability,
from infirmity of body or mind or any other cause. Upon such representation being
made, the Yang di Pertuan Agong must appoint a tribunal and refer the representation to
it and removal from office may be effected only upon the recommendation of the
tribunal.11
The Tribunal is to consist of not less than five persons who hold or have held
office as Judge of the Federal Court, the Court of Appeal or a High Court or persons
who hold or have held equivalent office in any other part of the Commonwealth.12 The
Tribunal is to be presided over by the Chief Justice of the Federal Court, the President
and the Chief Judges according to their precedence among themselves, and other
members according to the order of their appointment. Pending any reference or report
of the Tribunal, the Yang di Pertuan Agong may on the recommendation of the Prime
Minister and, in the case of any other judge after consulting the Chief Justice, suspend a
8
Art. 123.
9
Art. 125(1).
10
Art. 125(2).
11
Art. 125(3).
12
Art. 12(4).
3
Judge of the Federal Court.13
Remuneration of judges of the Federal Court is provided for by law and
charged on the Consolidated Fund. Such law may also provide for other terms of office
of the judges.14
The conduct of a judge of the Federal Court, Court of Appeal or High Court is
not to be discussed in either House of Parliament except on a substantive motion of
which notice has been given by not less than one quarter of the total number of
members of that House. Neither can the conduct of judges be discussed in the
Legislative Assembly of any state.15
3. JURISDICTION OF COURTS
The jurisdiction and powers of courts 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 High Court) and in the
Subordinate Courts Act 1948 (Act 92) for the subordinate courts (Sessions and
Magistrates’ courts).
13
Art. 125(5).
14
Art. 125(6).
15
Art. 127.
16
Federal Constitution, Art 128(1),
17
ibid, Art 128(2).
4
the proceedings may stay the same on such terms as may be just to await the decision of
the question by the Federal Court.18 An order staying proceedings in the High Court
under this issue may be made by the Judge of his own motion or on the application of
any party and it can be made at such stage of the proceedings as the Judge may see fit.19
The reference of a constitutional question to the Federal Court by the High Court shall
be by way of special case stating the question in a form, which might permit of an
answer being given either in the affirmative or negative.20
The Yang di Pertuan Agong may refer to the Federal Court for its opinion any
question as to the effect of any provision of the Federal Constitution which has arisen or
appears to him likely to arise, and the Federal Court shall then pronounce in open court
its opinion on any question so referred to it.21
In its appellate jurisdiction, the Federal Court is empowered with jurisdiction to
hear and determine any appeal from any decision of the Court of Appeal in its appellate
jurisdiction in respect of any criminal matter decided by the High Court in its original
jurisdiction.22
In a civil case, an appeal shall lie from the Court of Appeal to the Federal Court
with leave of the Federal Court granted in accordance with section 97 of the Courts of
Judicature Act 1964 -(a) from any judgment or order of the Court of Appeal in respect
of any civil cause or matter decided by the High Court in the exercise of its original
jurisdiction, and (b) from any decision as to the effect of any provision of the
Constitution including the validity of any written law relating to such provision.23
18
Court of Judicature Act 1964, section 84(1).
19
ibid, section 84(2).
20
ibid, section 84(3).
21
Federal Constitution, Art 128(2).
22
Courts of Judicature Act 1964, section 87(1).
23
ibid, section 96.
24
ibid, section 50(1).
5
of Appeal in this case is with leave of the Court of Appeal and such appeal is to 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.25
In civil matters, the Court of Appeal has jurisdiction to hear and determine
appeals from any judgment or order of any High Court whether made in the exercise of
its original or appellate jurisdiction.26 There are, however, several matters, which are
non-appeal able to the Court of Appeal:27
(a) where 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;
(b) where the judgment or order is made by consent of parties;
(c) where the judgment or order relates to costs only which by law are left to
the discretion of the court, except with leave of the Court of Appeal, and
(d) 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.
25
ibid, section 50(2).
26
ibid, section 67(1).
27
ibid, section 68(1).
28
ibid, section 22(1)(a).
6
or by any citizen or any permanent resident in any place without and beyond the limits
of Malaysia.29 The High Court may pass any sentence allowed by law.30
The general, civil jurisdiction of the High Court include that of trying all civil
proceedings where the cause of action arose within the local jurisdiction of the court, or
the defendant or one of several defendants resides or has his place of business within
such local jurisdiction, or the facts on which the proceedings are based exist or are
alleged to have occurred, or any land, the ownership of which is disputed is situated
within the local jurisdiction of the court.31
The High Court has specific civil jurisdiction in respect of the following
matters:32
(a) Jurisdiction under any written law relating to divorce and matrimonial
causes
(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 under any written law relating to bankruptcy or to companies;
(d) jurisdiction to appoint and control guardians of infants and generally over
the person and property of infants;
(e) jurisdiction to appoint and control guardians and keepers of the person and
estates of idiots, mentally disordered persons and persons of unsound
mind, and
(f) jurisdiction to grant probates of wills and testaments and letters of
administration of the estates of deceased persons leaving property within
the territorial jurisdiction of the court and to alter or revoke such grants.
The High Court may refer any question arising in any cause or matter other
than a criminal proceeding by the Public Prosecutor, for inquiry or report to any special
referee. The report of a special referee may be adopted wholly or partially by the High
Court and enforced as a decree, judgment or order.33
29
ibid, section 22(1)(b).
30
ibid, section 22(2).
31
ibid, section 23(1).
32
ibid, section 24.
33
ibid, section 24A(1).
7
The High Court shall, in the exercise of its jurisdiction, have all the powers
which were vested in it immediately prior to Malaysia Day and such other powers as
may be vested in it by any written law in force within its local jurisdiction.34
The High Court hears both criminal35 and civil appeals.36 However, 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 RMl0,000 or
less except on a question of law.37 An appeal shall lie from any decision of a subordinate
court in any proceedings relating to maintenance of wives or children, irrespective of
the amount involved.38
The High Court is imbued with special powers of revision of both criminals39
and civil proceedings. 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. 40 In addition, the High
Court is provided with general supervisory and revisionary jurisdiction over all
subordinate courts, and may in particular if it appears desirable in the interests of justice,
either of its own motion or at the instance of any party or person interested, at any stage
in any matter or proceeding, whether civil or criminal, in any subordinate court, call for
the record thereof, and may remove the same into the High Court or may give to the
subordinate court such directions as to the further conduct of the same as justice may
require.41
34
Ibid, section 25(1) inherent jurisdiction of court 'may be defined as being that reserve or fund of powers,
a residual source of powers, which the court may draw upon as necessary whenever it is just or
equitable to do so, and in particular to ensure the observation of the due process of law, to prevent
improper vexation or oppression, to do justice between the parties and to secure a fair trial between
them the source of the inherent jurisdiction of the court is derived from its nature as a court of law; so
that the limits of such jurisdiction are not easy to define, and indeed appear to elude definition: Sir Jack
Jacob; see R Rama Chandran v The Industrial Court [1997] I MU 145; Ngan Tuck Seng & Anar v Ngan
nn Groundnut Factary Sdn Bhd [1999] 5 MLJ 509.
35
ibid, section 26.
36
ibid, section 27.
37
ibid, section 28(1); the ‘amount in dispute or the value of the subject-mater’ must relate to the judgment
sum of a subordinate court and not to the sum claimed by a plaintiff or the combined sum of a clam and
counterclaim Lein Tiam Hock v Arumugam Kandasamy [1999] 2 CLJ 853.
38
ibid, section 28(2).
39
ibid, section 31.
40
ibid, section 32.
41
ibid, section 35(1).
8
(4) Sessions Court
A Sessions Court shall have jurisdiction to try all criminal offences other than
offences punishable with death,42 and may pass any sentence allowed by law other than
the sentence of death.43
In its civil jurisdiction, the Sessions Court shall have unlimited jurisdiction to
try all actions and suits of a civil nature in respect of motor vehicle accidents, landlord
and tenant and distress, and jurisdiction to try all other actions and suits of a civil nature
where the amount in dispute or the value of the subject-matter does not exceed RM250,
000. 44 The exceptions to this, that is, where the Sessions Court will not have civil
jurisdiction, include the following:45
42
Subordinate Courts Act 1948, section 63.
43
ibid, section 64.
44
ibid, section 65(1).
45
ibid, section 69.
46
ibid, section 78A.
9
Agong may appoint any fit and proper person to be a Second Class Magistrate in and for
the Federal Territory (and the State Authority may make the appointment in and for the
State).47
A First Class Magistrate in its criminal jurisdiction may try all offences for
which the maximum term of imprisonment provided by law does not exceed 10 years'
imprisonment or which is punishable with-fine only and offences under sections 392
and 457 of the Penal Code.48
In West Malaysia a First Class Magistrate shall have jurisdiction to hear and
determine criminal appeals by persons convicted by a Penghulu's Court situated within
the local limits of his jurisdiction.49 A First Class Magistrate may pass any sentence
allowed by law not exceeding: (a) 5 years' imprisonment; (b) a fine of RM10,000; (c)
whipping up to 12 strokes, or (d) any sentence combining any of the sentences
aforesaid.50
A second Class Magistrate shall only have jurisdiction to try offences for which
the maximum term of imprisonment does not exceed 12 months or which are punishable
with fine only.51 A Second Class Magistrate may pass any sentence allowed by law not
exceeding 6 months imprisonment; a fine of not more than RM1,000 or any sentence
combining either of the aforesaid.52
In its civil jurisdiction, a First Class Magistrate shall have jurisdiction to try all
actions and suits where the amount in dispute or value of the subject-matter does not
exceed RM25,000,53 and hear civil appeals from Penghulu’s court.54 A Second Class
Magistrate shall only have jurisdiction to try original actions or suits of a civil nature
where the plaintiff seeks to recover a debt or liquidated demand in money payable by
the defendant, with or without interest, not exceeding RM3,000.55
47
ibid, section 79.
48
ibid, section 85.
49
ibid, section 86.
50
ibid, section 87(1).
51
ibid, section 88.
52
ibid, section 89.
53
ibid, section 90.
54
ibid, saection 91.
55
ibid, section 92.
10
4. ADMINISTRATION OF COURTS – PROBLEMS
The main problem facing, not only the Malaysian judiciary, but the justice
system in Malaysia as a whole today, is the rise in the number of litigation, so much so
that cases have piled up within the system, causing a severe backlog (see table below):
It is reported that the backlog is being cleared steadily, and the number of
pending cases have fallen from about 800,000 to 647,000 in the last one-year.56 The
government has initiated a RM20 million computerization project for the courts, which
is due to be implemented soon. Under this project, the courts’ case management system
will be computerized to enable it to monitor the movement of files. Legal clerks will
also be used to prepare immediate transcripts of court proceedings.
On September 22, 2000, the Rules of the High Court were amended. The
amendments governed the administration of civil cases and its main aim is to enable the
56
New Straits Times, 23 February 2001, p. 6.
11
judges to control the proceedings and progress of cases instead of lawyers. It is hoped
that this will help to clear the backlog of cases within the court system.
Briefly, the new Rules have instituted case management and timetables to keep
cases moving. A judge may decide if a case could be resolved only by deciding on a
question of law, and may accept affidavit evidence for examination-in-chief. The new
Rules also shorten the lifespan of a writ from twelve to six months, and only two
renewals of six months each are allowed for writs where previously the renewals were
limitless.
Parties must now move to bring their cases up for case management fourteen
days after pleadings are closed. Through this method, a judge may narrow down the
issues for trial, and issues that can be agreed upon or which are irrelevant may be struck
out. This principle of allowing the court to play a more active role instead of leaving it
to the lawyers or the parties, is keeping with similar moves in Britain and other
countries in the Commonwealth, such as Singapore.57
Lawyers, however, expressed reservations on two main aspects of the changes
– first, the requirement that there must be an attempt to serve a writ within one month of
its issuance, a particularly difficult obligation if the defendant could not be found, is out
of town or overseas; and secondly, the requirement for parties to prepare a list of
documents ahead of time, where failure to include any document may preclude it from
being tendered later in court.58 Another reservation is that litigation costs may actually
rise as lawyers might charge higher fees because they can no longer take as many files
or cases as they used too.
57
The Woolf Reforms – see also New Straits Times, 15 September 1999, and New Sunday Times, 3
December 2000, p.6.
58
According to Datuk Dr Cyrus Das, the Bar Council’s Civil Procedure Committee Chairman, in an
interview with Carolyn Hong – New Sunday Times, 3 December 2000, p. 6.
12
6. COURT DIVISIONS AND NUMBER OF MAGISTRATES, JUDICIAL
COMMISSIONERS AND JUDGES IN MALAYSIA
13
Johore 3 12
Pahang 2 9
Terengganu 2 5
Kelantan 1 9
Sabah 3 8
Sarawak 3 6
In Malaysia, the Attorney General is not the Head of the Judicial and Legal
Service – he is a civil servant. He belongs to the Judicial and Legal Service and is the
highest paid officer in the service. The Attorney General is appointed by the Yang di
Pertuan Agong on the advice of the Prime Minister, and the appointment is made from
14
amongst those qualified to be a judge of the Federal Court.59
His duties include, among others, to advise the Yang di Pertuan Agong or the
Cabinet or any Minister upon any legal matters and to perform such legal duties on
behalf of the government. The Attorney General is conferred discretionary power to
institute, conduct or discontinue any proceedings for an offence, other than proceedings
before a Syariah court, a native court or a court martial.60 The Attorney General is also
empowered to determine the courts in which or the venue at which any legal
proceedings shall be instituted, or to which such legal proceedings shall be transferred.61
The Attorney General holds office at the pleasure of the Yang di Pertuan Agong and may,
at any time, resign his office.
Within the Judicial and Legal Service of the Federation, the Attorney General is
the head of the Department known as the Attorney General’s Chambers. He is assisted
by several senior officers or Senior Federal Counsels, the highest in rank of whom is the
Solicitor General. Deputy Public Prosecutors form part of the corps of legal officers in
the Attorney General’s Chambers.
The work of the Chambers is divided into four divisions, namely:
(i) Criminal Division, which handles all criminal prosecutions;
(ii) Civil Division, which handles all civil cases;
(iii) Drafting Division, responsible for the drafting of statutes, and
(iv) International Division, responsible for the management of international
affairs.
Law Revision, headed by a Commissioner for Law Revision, forms part of the
work of the Chambers as well. While carrying out his duties in criminal matters, the
Attorney General is styled as the Public Prosecutor.
59
Art. 145(1).
60
Art. 145(3).
61
Art. 145 (3A).
15
been or are qualified to be a judge of the Federal Court, Court of Appeal or a High
Court.62
The functions of the Commission include appointing, confirming, emplacing
on the permanent or pensionable establishment, promoting, transferring and exercising
disciplinary control over members of the service. 63 The Commission must prepare
annual reports on its activities and submit them to the Yang di Pertuan Agong. Copies
of those reports must be laid before both Houses of Parliament.64
The Courts established under the Federal Constitution constitute the major civil
court system in Malaysia. Apart from this system of courts, there are at least three other
important court systems running parallel to the main civil court system – the Native
Court System of Sabah and Sarawak, the Syariah Court System and the Industrial Court.
These courts are not established by the Federal Constitution but by specific enacted
legislation
62
Art. 138(2).
63
Art. 144(1).
64
Art. 146(1).
65
Art. 161A(a).
16
Sabah, and was born either in Sabah or to a father domiciled in Sabah at the time of
birth. 66 The native customs of these tribes were part of a great oral tradition in the
manner of other native tribes of the world, such as the Indians of North America. The
arrival of the British transformed these oral traditions into written “codes” of native
laws and customs. While this formalization of native customary law has the effect of
making it certain and ensuring its survival through written codes, it also places such
laws now within the formal, secular legal system, with a hierarchical court structure,
appellate system and system of precedent, evidentiary rules and burden of proof.
(a) Sarawak
The Native Courts System of Sarawak is established by state law, that is, the
Native Courts Ordinance, 1992. In order to give effect to the administration of native
laws and customs, the Native Courts Rules 1993 was also enacted.
The Central Registry, headed by a Chief Registrar and located in Kuching is the
Headquarters of the Native Courts. The Chief Registrar is the Chief Administrator of
the Native Courts system and supervises all Native Courts Registrars throughout
Sarawak. The functions of the Central Registry are, among others, the preparation of
yearly financial estimates; consultation with State Attorney General on issues touching
on the interpretation of the Native Courts Ordinance 1992 and Rules; assist in the
enforcement of Native Court judgments; publication of important judgments of Native
Courts; the giving of advice and consultation to persons who have to use the Native
Courts as an avenue to resolve disputes as well as those whose duty is to adjudicate
disputes; and assisting the Majlis Adat Istiadat (Council for Customs and Traditions) in
the revision of native laws.
In addition to the Central Registry, there are also established District Registries
for the many districts and sub-districts of the State of Sarawak. The District Registry is
under the charge, control and supervision of a District Officer or Sarawak
Administrative Office in-charge of the District and sub-district. The functions of a
District Registry include to accept lodgements of claims, complaints, appeals and other
legal applications; to keep records of case registers, to keep case files and records of
proceedings; to transmit case files of appeals to appropriate appellate courts; to assist in
66
Art. 161A(b); this must be read together with section 2(1) Interpretation (Definition of Natives)
Ordinance, 1952 which details the requirements for a “native” of Sabah.
17
the enforcement of court judgments and orders, and to submit periodical returns.
The Native Courts System Sarawak forms a part of the office of the Chief
Minister, and hence its principal officers come under the jurisdiction of the State
Secretary.
The Appellate Structure of Native Courts
Headman’s Court
(presided by a Headman
with two assessors)
18
The jurisdiction of Native Courts is circumscribed by statute, and consists of
the following specified matters:67
(i) cases arising from the breach of a native law or custom (other than the
Ordinan Undang-Undang Keluarga Islam 1991 or the Malay custom of
Sarawak) in which all the parties are subject to the same native system of
personal law;
(ii) cases arising from breach of native law or custom (other than the Ordinan
Undang-Undang Keluarga Islam 1991 or the Malay custom of Sarawak)
relating to any religious, matrimonial or sexual matter where one party is a
native;
(iii) any civil case, not being a case under the jurisdiction of any of the Syariah
Courts constituted under the Ordinan Mahkamah Syariah 1991, in which
the value of the subject matter does not exceed RM2,000 and all the
parties are subject to the same native system of personal law;
(iv) any criminal case of a minor nature which ate specifically enumerated in
the Adat lban or any other customary law by whose custom the court is
bound and which can be adequately punished by a fine not exceeding that
which, under section 11 of the Ordinance, a Native Court may award;
(v) any matter in respect of which it may be empowered by any other written
law to exercise jurisdiction;
A Native Court shall not have jurisdiction over the following matters:68
(i) any proceeding in which a person is charged with an offence in
consequence of which death is alleged to have occurred;
(ii) an offence under the Penal Code;
(iii) any proceeding concerning marriage or divorce regulated by the Law
Reform (Marriage and Divorce) Act 1976 and the Registration of
Marriages Ordinance 1952, unless it is a claim arising only in regard to
bride-price or adultery and founded only on native law and custom;
(iv) any proceeding affecting the title to or any interest in land which , is
67
section 5.
68
section 28.
19
registered, under the Land Code;
(v) any case involving a breach of native law or custom if the maximum
penalty which it is authorized to pass by virtue of section 11 of the
Ordinance is less severe than the minimum penalty prescribed for such
offence;
(vi) cases arising from the breach of Ordinan Undang-Uhdang Keluarga Islam
1991 and rules or regulations made there under, or the Malay custom of
Sarawak;
(vii) any criminal or civil matter within the jurisdiction of any of the Syariah
Courts constituted under the Ordinan Mahkamah Syariah 1991;
(viii)any proceeding taken under arty written law in force in the State.
69
section 20(2)(a).
20
constituted members:70
Although the Native Courts of Sarawak do not form part of the main civil
courts system, the jurisdiction of the High Court is not ousted from examining decisions
of Native Courts. The Native Courts are creatures of statute and the High Court can
exercise its general supervisory powers through judicial review of Native court
decisions, and the grant of prerogative writs, such as the writ of certiorari.73
70
sections 3 and 4(1).
71
section 4(1), proviso (ii).
72
section 11(1).
73
Haji Laungan Tarki bin Mohd Noor v Mahkamah Anak Negeri Penampang [1988] 2 MLJ 85.
21
(b) Sabah
The Native Courts System of Sabah is much less elaborate than that of Sarawak.
The Native Courts are constituted under the Native Courts Enactment 1992, and is made
up of a native court, constituted by a District Chief and two other members; a District
Native Court, constituted by a District Officer and two other members, and a Native
Court of Appeal, made up of a Judge who acts as President, and two other members:
Native Court
74
Native Courts Enactment 1992, s. 6(1).
75
ibid, s. 11.
22
compensation in cash or kind. 76 In default of the payment of the penalty or
compensation, a Native court may order the offender to suffer such period of
imprisonment as will justify the justice of the case.77
76
ibid, s. 12.
77
s. 14(1).
78
Wilkinson, RJ, ‘Papers on Malay Subjects’ (1971) k. Lumpur.
79
See also, Shaik Abdul Latif & Ors v Shaik Elias Bux (1915) 1 FMSLR 204, 214.
80
Federal Constitution, Article 74, Ninth Schedule.
23
While it may be true that the practice of Islamic law differed among the various
Malay States due to the varied influences of custom, British intervention in the affairs of
the Malay States had the effect of formalizing the manner in which Islamic law was
administered. Islamic law was left to be administered by the respective states, with the
Sultans proclaimed as (Head' of Islamic religion in each state, thus giving rise to the
lack pf uniformity in the administration of Islamic law in Malaysia, whereas the uniform
application of English law throughout the land was guaranteed.
81
Act 505.
82
ibid, section 5(3).
83
ibid, section 5(4).
84
ibid.
24
processing, and packing, grading and marketing of products. 85 It may invest in any
authorized investment, establish any scheme for the granting of loans to Muslim
individuals for higher learning and establish, and maintain Islamic schools.86 In pursuit
of the above main objective, the Majlis may so establish companies under the
Companies Act 1965 (with the approval of the Yang di-Pertuan Agong).87
85
ibid, section 7(2)(a).
86
ibid, section 7(2) generally.
87
ibid, section 8A(1).
88
ibid, section 32(1).
89
ibid, section 34(1).
90
ibid, section 34(3).
91
ibid, section 34(4).
25
appointed by the Yang di Pertuan Agong.92
92
ibid, section 41(1).
93
ibid, section 47.
94
Act 505, section 48(1).
95
ibid, section 46(2)(a).
96
ibid, section 51(1).
26
(v) wills or death-bed gifts;
(vi) gifts inter vivos, and settlements made without adequate consideration in
money or money's worth;
(vii) wakaf or nazr;
(viii)division and inheritance of testate or interstate property;
(ix) the determination of the persons entitled to share in the estate of a
deceased Muslim or of the shares to which such persons are respectively
entitled; and
(x) other matters in respect of which jurisdiction is conferred by any written
law.
The Syariah High Court also has supervisory and revisionary jurisdiction over
all Syariah Subordinate Courts and may, if it appears desirable in the interest of justice,
either of its own motion or at the instance of any party or person interested, at any stage
in any matter or proceeding, whether civil or criminal in any Syariah Subordinate Court,
call for and examine any records thereof and give such directions as justice may
require.97
An Appeal from the Syariah High Court
And appeal from the Syariah Court shall lie to the Syariah Appeal Court.98
The Syariah Appeal Court is given the power to determine any question of law
of public interest which has arisen in the course of an appeal in the Syariah High Court,
and which has affected the result of the appeal.99
The Syariah Appeal Court also has supervisory and revisionary jurisdiction
over the Syariah High Court, in the same way that the Syariah High Court has such
jurisdiction over the Syariah Subordinate Courts.100
Prosecution and Representation
A Chief Syariah Prosecution is appointed by the Yang di Pertuan Agong,101
who has the power to institute, conduct or discontinue any proceedings for an offence
before a Syariah Court.
97
ibid, section 51(1).
98
ibid, section 52(1).
99
ibid, section 52(2).
100
ibid, section 53(1).
101
ibid, section 58.
27
The Majlis may admit any person having sufficient knowledge of Islamic law
to be the Peguam Syarie to represent parties in any proceeding before the Syariah
Court.102
102
ibid, section 59.
28
in Malaysia, where the dispute is first brought to the attention of the Ministry of Human
Resources in the hope that its officers might be able to settle the dispute through
conciliation and mediation before it is brought for arbitration. Failing conciliatory
measures the dispute is referred to the Industrial Court for arbitration. Once the process
of conciliation and mediation has been started, parties to the dispute, especially trade
unions, are prevented from resorting to industrial action, such as strikes. The Malaysian
industrial relations system is premised upon the doctrine of compulsory arbitration as
opposed to voluntary arbitration, that is, parties must settle all disputes through the
conciliation and arbitration process as quickly as possible without taking industrial
action. Once the Minister or the Court has handed down its decision, such decision
binds all parties to the dispute, and no industrial action may be taken in consequence
thereof.
29
(1) CLAIMS FOR REINSTATEMENT 1995-2000
Particulars 1995 1996 1997 1998 1999 2000
(Jan – June)
1,507 1,812 1,459 2,123 4,275 4,511
Brought forward
from previous years
3,099 3,055 3,524 8,819 5,369 2,482
Reported to Minister
30
9. OTHER COURTS
A Sessions Court or Magistrate’s court may try in a summary way any juvenile
alleged to have committed a petty offence.106 A Sessions Court Judge or a magistrate
exercising jurisdiction over a juvenile must sit in Chambers, or if that is not practicable,
in camera. A Juvenile may be arrested with or without a warrant, but he must be
brought before a Juvenile Court or, failing which, a Sessions Court Judge or Magistrate
who shall inquire into the case and release the person on a bond, with or without
103
Juvenile Courts Act 1947, s. 2(1).
104
ibid, s. 4(2).
105
S. 5.
106
S. 3A(1).
31
sureties.107 This is not applicable if the charge against the juvenile is one of murder or
other grave crime or where his release would defeat the ends of justice.
107
S. 6(1).
108
S. 10.
109
S. 12(1).
32
(v) to make a prohibition order;
(vi) to order the offender to be sent to an approved school or the Henry Gurney
School for boys;
(vii) to order the offender to pay a fine, compensation or costs, and
(viii) where the offender is a young person and the offence is punishable with
imprisonment, the court may impose upon him any term of imprisonment
which could be awarded by a Sessions Court, or commit him to the High
Court for sentence.
110
S. 16.
111
S. 21.
112
S. 34(1).
113
Art. 181(1)..
33
proceedings whatsoever shall be brought in any court against the Ruler of a State in his
personal capacity, except in the Special Court established under Part XV of the
Constitution.
The Special Court consists of the Chief Justice of the Federal Court, who acts
as Chairman, the Chief Judges of the High Courts and two other persons who hold or
have held office as judge of the Federal Court or a High Court appointed by the
Conference of Rulers.
The Special Court shall have exclusive jurisdiction to try all offences
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.114
The Special Court shall have the same jurisdiction and powers as are vested in
the inferior courts, the High Court and the Federal Court, and the practice and procedure
applicable in any proceedings in any inferior court, High Court and the Federal Court
shall apply in any proceedings in the Special Court.115
The proceedings in the Special Court shall be decided in accordance with the
opinion of the majority of the members and its decision shall be final and conclusive
and shall not be challenged or called in question in any court or any ground.116
114
Art. 182(3).
115
Art. 182(4) & (5).
116
Art. 182 (6).
34
Chapter 2
JUDICIAL REVIEW
1. PROCEDURE
It has been long acknowledged that judicial review is not an appeal – in the
process of exercising judicial review over the inferior tribunals, the superior courts
exercise merely a supervisory jurisdiction as opposed to an appellate jurisdiction.117
Application for judicial review requires leave of court. Order 53 rule 1(1) of the
117
Hotel Equatorial (M) Sdn Bhd v Nat. Union of Hotel, Bar & Restaurant Workers [1984] 1 MLJ 363;
Chief Constable of the North Wales Police v Evans [1982] 1 WLR 1155.
35
Rules of the High Court provides that no application for an order of mandamus,
prohibition or certiorari shall be made unless leave has been granted in accordance with
this rule. The procedure for leave is set out under Order 53 rule 1(2), which provides
for the application for leave to be made ex parte and supported by a statement setting
out the name and description of the applicant, the relief sought and the grounds on
which it is sought, and by affidavits to be filed before the application is made, verifying
the facts relied on. This requirement has been judicially interpreted as imposing upon
the party a duty to disclose material facts, the breach of which could result in the order
being set aside.118
Judicial review in Malaysia follows closely the law in the United Kingdom, that
is, through the issue of the prerogative writs of certiorari, mandamus and prohibition
developed by the Court of King’s Bench. Declaration and Injunction, developed by the
Court of Chancery, are also added to the list of prerogative writs.
There are several legal bases upon which the High Court will review the
decision of an inferior tribunal or an administrative body or a member of the executive.
They can be summarized as follows:
(i) Illegality, that is, where a wrong decision has been made, whether due to
taking into account irrelevant matters or not taking into account matters
which are relevant;
(ii) rationality, which refers to unreasonable decisions, the yardstick of the
doctrine of unreasonableness being the English case of Associated
Provincial Picture Houses Ltd. v Wednesbury Corporation,119 and
(iii) Procedural impropriety, which refers to the need to follow the rules of
procedural fairness or natural justice.
Where statute contains an ouster clause, the basis for review had been that
judicial review would not lie except for errors of law, which affects the jurisdiction of
the tribunal or administration (what is commonly known at common law as
118
Tuan Haji Sarip Hamid v Patco Malaysia Bhd [1995] 2 MLJ 442.
119
[1948] 1 KB 223.
36
jurisdictional errors of law). However, since the decision of the House of Lords in
Anisminic v Foreign Compensation Commission,120 this legal basis has been altered –
judicial review will now be effected for mere errors of law (or errors of law on the face
of the record) as opposed to jurisdictional errors of law.121 In Malaysia, there was
initial confusion as Malaysian courts felt bound by a Privy Council decision on appeal
from Malaysia, that is, the case of South East Asia Firebricks Sdn Bhd v Non-Metallic
Mineral Products Manufacturing Employees Union, 122 which decided that judicial
review will only lie for jurisdictional errors of law, and not errors of law on the face of
the record. However, in 1995, the Malaysian Court of Appeal delivered judgment in the
case of Syarikat Kenderaan Melayu Kelantan Bhd v Transport Workers’ Union,123 which
affirmed that judicial review will lie for all errors of law and is not restricted to
jurisdictional errors of law. Since this decision, the Malaysian judiciary has adopted a
pro-active and interventionist approach in judicial review, culminating in the case of R.
Rama Chandran v The Industrial Court,124 which decided that in the exercise of judicial
review, the tribunal’s decision may be reviewed “for substance as well as process”, and
that should the decision be found to be wrong, the court had the power to mould the
appropriate relief and award it to the party concerned instead of remitting the case back
to the tribunal for a re-hearing. This decision has gone much further than the House of
Lords’ decisions, and has greatly expanded the scope of the doctrine of judicial review
in Malaysia, so much so in effect, there is really no difference anymore between a
review and an appeal.
120
[1969] 2 AC 147.
121
Upheld, since then, by other Court of Appeal and House of Lords’ decisions, for example Re A
Company [1980] 1 All ER 284 (CA); Re Racal Communications [1981] AC 374 (HL); Page v Hull
University Visitor [1993] 1 All ER 97 (HL).
122
[1980] 2 MLJ 165.
123
[1995] 2 MLJ 317.
124
[1997] 1 MLJ 145.
125
[1996] 1 MLJ 261.
37
the constitutional guarantee of certain fundamental liberties, “fair and just punishment”
must be imposed, that is, the sentence had to suit the offence and the offender without
being disproportionate as to shock the conscience.
4. CONCLUSION
Post – Rama Chandran and Tan Teck Seng, the Malaysian courts appear to
retreat from their pro-active and interventionist stance. Subsequent decisions on judicial
review had not picked up from where the earlier cases had left off. For example, in the
case of Ng Hock Cheng v Pengarah,126 the Federal Court appeared to disapprove of the
proportionality principle. Similarly, there are decisions, which have not applied the
greatly expanded scope of judicial review formulated in the case of R Rama Chandran.
For example, in Michael Lee v Menteri Sumber Manusia,127 the court observed that the
exercise of discretionary power was vested in the Minister, not the courts, and that when
this discretion is challenged, the court must be vigilant and resist any temptation to
convert the jurisdiction of the court to review into a consideration of the case on its
merits as if on appeal. The result is that there is some uncertainty at the moment
regarding the scope of the doctrine of judicial review.
126
[1998] 1 MLJ 153.
127
[1997] 4 AMR 4258.
38
Chapter 3
The Public Services are outlined under the Federal Constitution as follows: the
armed forces; the judicial and legal service; the general public service of the Federation;
the police force; the joint public services under Article 133; the public service of each
state, and the education service. 128 For the purposes of regulating conduct and
maintaining discipline in the Public Service, the Public Officers (Conduct and
Discipline) Regulations 1993, and the Public Services Disciplinary Board Regulations
1993 have been enacted. The Public Officers (Conduct and Discipline) Regulations
1993 identifies types of conduct unbecoming on the part of civil servants, and provides
for disciplinary procedure. The Public Services Disciplinary Board on the other hand is
entrusted with the responsibility of conducting hearings and making a determination in
each case whether any member of the civil service is guilty of the disciplinary offence,
128
Art. 132.
39
as charged.
The Disciplinary board has jurisdiction over all civil servants, except officers
holding or acting in the posts of Chief Secretary of the Government and Director
General of the Public Service. These officers come within the purview of the Public
Services Commission. Further, the Board is not empowered to dismiss or reduce in
rank an officer in the Top Management Group and the Managerial and Professional
Group, which is exercisable only by the Public Services Commission. The Disciplinary
Board in any disciplinary proceedings may not order a dismissal or reduction in rank
unless such officer has been informed in writing of the grounds on which it is proposed
to take action against him and has been afforded a reasonable opportunity of being
heard.129 This requirement will not apply in the following cases:130
(i) where an officer is dismissed or reduced in rank on the ground of conduct
in respect of which a criminal charge has been proved against him;
(ii) where the Board is satisfied for some reason to be recorded in writing, that
it is not reasonably practicable to carry out the requirement;
(iii) where the Yang di Pertuan Agong is satisfied that in the interests of the
security of the Federation it is not expedient to carry out the requirement;
or
(iv) where there has been made against the officer any order of detention,
supervision, restricted residence, banishment or deportation, or where
there has been imposed on such officer any form of restriction or
supervision by bond or otherwise under any law relating to the security of
the Federation.
129
Reg. 10(1).
130
Reg. 10(2).
131
Reg. 11.
132
Reg. 12.
40
on any appeal. An appeal must be made in writing by the officer concerned through his
Head of Department within fourteen days from the date on which the decision of the
Board is communicated to him in writing.133 The Head of Department shall, not later
than thirty days from the date of receipt of the appeal, submit such appeal to the Appeal
Board together with his comments. It is the duty of the Board to prepare a copy of the
records of proceedings, including the grounds on which the Board relied upon in
arriving at its decision. These records must be sent to the Appeal Board not later than
thirty days from the receipt of the appeal by the Board.134
The Appeal Board is to decide an appeal solely on the merits of the grounds of
appeal without receiving any further statement or evidence.135 After considering the
appeal, the Appeal Board may136-
(i) remit the case to the Disciplinary Board for reconsideration;
(ii) confirm the decision of the Disciplinary Board;
(iii) confirm the decision, but vary the punishment to that of a lesser one, or
(iv) reverse the decision and punishment of the Board and acquit the
appellant.
The decision of the Appeal Board is final.137
133
Reg. 15(1).
134
Reg. 15(4).
135
Reg. 16(2).
136
Reg. 16(4).
137
Reg. 16(5).
41
accredited and appointed to the Panel of Mediators of the MMC;
(ii) Assistance and advice on how clients may best look after their interests
in using Alternative Dispute Resolution processes such as mediation;
(iii) Provides training in mediation techniques, accredits and maintains a
panel of mediators;
(iv) Consultancy services in dispute management and conflict avoidance;
(v) Administrative and secretarial support.
At present the MMC accepts only commercial matters but intends to expand its
scope of services to cover civil matters at a later stage. The MMC may accept cases at
any stage, whether pre-trial, commencement of legal proceedings, during proceedings
etc. Cases deemed suitable for mediation include cases where there is a deadlock in the
negotiation process or where parties face obstacles. Majority of cases mediated involve
construction agreement clauses, business agreements etc. Matrimonial and defamation
suits are unsuitable for mediation. The type of mediation offered by the MMC is the
facilitative model of mediation where the mediator is a neutral party who assists the
parties to negotiate a settlement. The mediator will not make a ruling or finding unless
expressly requested by all parties involved.
The Mediator is subject to a Code of Conduct whilst the parties are bound by
the Mediation Agreement, which they enter into. The mediator and all parties are
subject to the Mediation Rules of the MMC.
The Mediation process involves the following steps:
(i) Pre-Mediation Process – where parties sign a mediation agreement
indicating their submission to mediation;
(ii) Preliminaries – an introduction to mediation;
(iii) Mediator’s Opening – ground rules are laid down by the mediator for
the session; Mediators are provided with a brief statement of facts. No
prior in-depth knowledge of the issues at dispute are required;
(iv) Joint session – parties are invited to state their respective cases in each
other’s presence;
(v) Caucuses – optional and usually exercised to enable the parties to vent
emotions and to speak freely. Allows mediator to pick out common
issues and hidden messages;
(vi) Settlement Agreement – parties sign a settlement agreement witnessed
42
by the mediator. Parties are at liberty to pursue court action should
outcome be unsatisfactory. Either parties’ solicitors may draw up
agreement or mediator may do so if assistance is required.
In addition to the above, the following charges are shared by the parties on an
equal basis:
(i) Administrative charge of RM300 per case;
(ii) Room rental rates at RM350 for a full day and RM175 for half a day,
which is defined as a period of 3 hours or less;
(iii) Refreshments/catering; and
(iv) Secretarial services.
Members of the Bar have been encouraged to adopt the Mediation Clause in
contracts and agreements prepared by them, that is where a dispute has arisen, and is not
resolved within fourteen days, the parties must submit the dispute to the Malaysian
Mediation Centre of the Bar Council. If the parties cannot agree on a Mediator, the
Centre shall appoint a Mediator from the Panel of Mediators, and the dispute is to be
mediated in accordance with the Rules of the Centre (see below).
Mediators registered with the Malaysian Mediation Centre must be of at least
seven years’ standing as an Advocate and Solicitor of the High Court, and a member of
43
the Malaysian Bar with a valid practicing certificate. All mediators are required to
complete a minimum of forty hours of training conducted by the centre, and must be
successfully assessed at the end of the training.
3. MEDIATION RULES
44
(4) Request for Mediation
(i) The Joint Submission or the Request for mediation shall contain a brief
statement of the nature of the dispute and the names, addresses, and
telephone numbers of all parties to the dispute and those who will
represent them, if any, in the mediation.
(ii) The initiating party shall simultaneously file two copies of the Request
with the MMC and one copy with every other party to the dispute.
45
(6) Disqualification of Mediator
(i) No person shall serve as a mediator in any dispute in which that person
has any financial or personal interest in the result of the mediation, except
by written consent of all parties.
(ii) Prior to accepting an appointment, the prospective mediator shall disclose
any circumstances likely to create a presumption of bias or prevent a
prompt meeting with the parties.
(iii) Upon receipt of such information, the MMC shall either replace the
mediator or immediately communicate the information to the parties for
their comments.
(iv) In the event that the parties disagree as to whether the Mediator shall serve,
the MMC will appoint another Mediator. The MMC is authorized to
appoint another Mediator if the Mediator is unable to serve promptly.
(8) Vacancies
If any Mediator shall become unwilling or unable to serve, the MMC will
appoint another mediator.
(9) Representation
(i) Individuals should attend the mediation in person. In the case of corporate
entities, the parties shall appoint representatives to the mediation who
have the necessary authority to settle the dispute. The parties will supply
the MMC and the Mediator with the names of the representatives.
(ii) The Mediator will determine the steps to be taken during the mediation
proceedings after consultation with the parties. The parties will be
deemed, upon signing the Mediation Agreement, to have accepted and will
be bound by the terms of this procedure.
46
mediation shall be held at the appropriate office of the MMC or at any other convenient
location as may be determined by the MMC.
(14) Privacy
Mediation sessions are private. The parties and their representatives may
47
attend mediation sessions. Other persons may attend only with the permission of the
parties and with the consent of the Mediator. Where appropriate, the Mediator is
authorized to limit the number of representatives from each party.
(15) Confidentiality
(i) All communications made in the Mediation, including information
disclosed and views expressed are made on a strictly “without prejudice”
basis and shall not be used in any proceedings.
(ii) All records, reports or other documents including anything electronically
or any other information produced or received by a mediator while serving
in that capacity shall be privileged.
(iii) The Mediator or the MMC (or any employee, officer or representative for
or arising in relation to mediation) shall not be compelled to divulge such
records or to testify as a witness, consultant, arbitrator or expert in regard
to the mediation in any arbitral judicial or other proceedings.
(iv) The parties shall maintain the confidentiality of the mediation and shall
not rely on, or introduce as evidence in any arbitral, judicial, or other
proceedings:
(a) Views expressed or suggestions made by another party with respect
to a possible settlement of the dispute;
(b) Admissions made by another party in the course of the mediation
proceedings;
(c) Proposal made or views expressed by the Mediator; or
(d) The fact that another party had or had not indicated willingness to
accept a proposal for settlement made by the Mediator.
48
(18) Termination of Mediation
The mediation shall be terminated:
(i) by the execution of a settlement agreement by the parties;
(ii) by a written declaration of the mediator to the effect that further efforts at
mediation are no longer worthwhile; or
(iii) by a written declaration of a party or parties to the effect that the
mediation proceedings are terminated.
(21) Expenses
The expenses of witnesses for either side shall be paid by the party producing
such witnesses. All other expenses of the mediation including required traveling and
other expenses of the mediation of the Mediator and representatives of the MMC and
the expenses of any witness and the cost of any proofs or expert advice produced at the
direct request of the Mediator, shall be borne equally by the parties unless they agree
otherwise.
(a) Administrative and rental charges and the Mediator’s fees are as
prescribed by the MMC from time to time.
(b) The administrative and rental charges of the MMC and the Mediator’s fees
for the first scheduled session shall be paid at least three days prior to the
first scheduled session. The balance charges and fees, if any, shall be paid
at least three days before the next scheduled session or upon termination
49
or conclusion of the mediation within seven days of receipt of the bill
from the MMC.
(1) Organization of the Kuala Lumpur Regional Centre for Arbitration and its
Functions
The Regional Centre for Arbitration was established in 1978 in Kuala Lumpur
under the auspices of the Asian-African Legal Consultative Committee (an inter-
governmental organization) in co-operation with and with the assistance of the
Government of Malaysia.
The Centre is a non-profit making institution and has been established with the
objective of providing a system for settlement of disputes for the benefit of parties
engaged in trade and commerce and investment with and within the region. The Centre
functions under the supervision of the Asian-African Legal Consultative Committee and
is headed by a Director.
One of the principal functions entrusted to the Centre is the provision of
facilities for arbitration under the rules of the Centre for settlement of disputes in
matters arising out of commercial transactions including investment disputes through
fair, expeditious and inexpensive procedures, so that resort to arbitration institutions
outside the region may no longer become necessary.
The facilities for arbitration under the auspices of the Centre can be availed of
by the parties who may request for it, whether government, individuals or bodies
corporate, provided the dispute is of an international character, that is to say, the parties
belong to or are resident in two different jurisdictions, or the dispute involves
international commercial interests.
50
Such an agreement may be incorporated in a contract between the parties out of
which the disputes and differences have arisen or by a separate agreement which the
parties may enter into.
(4) Arbitrators
The parties are free to choose their own arbitrators in the manner indicated in
the UNCITRAL Rules but where they have failed to agree on the choice of the sole
arbitrator or the presiding arbitrator in the case of a three member tribunal, the
appointment shall be made by an “appointing authority” chosen by the parties.
If the parties appoint the Centre as the appointing authority or where the parties
have failed to nominate an appointing authority, the sole arbitrator or the presiding
arbitrator shall be appointed by the Centre.
51
The Director of the Centre shall, at the request of the arbitral tribunal or either
party, make available or arrange for such facilities and assistance for the conduct of
arbitral proceedings as may be required including suitable accommodation for sittings
of the arbitral tribunal, secretarial assistance and interpretation facilities.
52
with which arrangements have been made.
5. OTHERS
138
The New Straits Times, 12 September 1999.
139
The New Straits Times, 12 September 1999.
53
cards and guarantors. The bulk of cases so far comprise of ATM withdrawals. A case is
normally resolved within two to three months and matters, which have gone to court,
cannot be mediated by the Bureau. A case may be initiated by letter, but the Mediator
must meet the parties. Such sessions normally take only about two hours.
Once again, the service is free and while the complainant may engage counsel,
costs will not be awarded. The mediator’s decision is binding on the bank but not the
complainant. The mediator is limited in his jurisdiction to awards of up to RM25,000.
The Bureau handled about 144 cases in 1999.
In both the IMB and the Banking Mediation Bureau, the procedures established
are flexible and informal and strict rules of evidence do not apply.
140
Act 599, s 86(1).
141
ibid, s. 97.
142
S. 108(2).
143
S. 108(3).
144
S. 112(1).
145
S. 107(3).
54
is deemed an order of a Magistrate’s court and is to be enforced accordingly.146
The Tribunal’s jurisdiction however is limited to where the total amount in
respect of which an award is sought does not exceed RM10, 000.147 The Tribunal does
not have jurisdiction over matters in respect of land, wills or settlement, goodwill, any
chose in action or any trade secret or other intellectual property.148
146
S. 116(a) & (b).
147
S. 98(1).
148
S. 99(1); see also s. 100(1), where the Tribunal may have jurisdiction to hear and determine the claim
even if the value of the subject matter exceeds ten thousand ringgit; and s. 101(1), where a claimant
may abandon so much of a claim that exceeds ten thousand ringgit in order to bring the claim within
the jurisdiction of the Tribunal.
149
The New Straits Times, 15 September 2000.
150
Section 28.
151
The New Straits Times, 15 September 2000.
55
assessment was made, a written notice of appeal in the prescribed form stating the
grounds of appeal and containing such other particulars.152 There is a right, given under
section 100(1), to ask for an extension of the period within which notice of appeal
against the assessment may be given.
On receipt of the notice of appeal, the Director General may review the
assessment against which the appeal is made, and for that purpose may –
(a) require the appellant to furnish such particulars as the Director General
may think necessary with respect to the income to which the assessment
relates and any other matter relevant to the assessment in the Director
General’s opinion;
(b) require the appellant to produce all books or other documents in the
appellant’s custody or under the appellant’s control relating to any
source to which the assessment relates or any other matter relevant to
the assessment in the Director General’s opinion;
(c) summon any person who in the Director General’s opinion is able to
give evidence respecting the assessment to attend before the Director
General, and
(d) examine any person so attending on oath or otherwise.
Where, as the result of the review the Director General and the appellant has
come to an agreement in writing either as to the amount of the chargeable income and
the tax chargeable thereon or the amount of tax or additional tax, or that there is no
chargeable income or tax, the assessment against which the appeal is made shall be
treated as having been confirmed, reduced, increased or discharged in accordance with
the agreement.
As a result of the review, the appellant and the Director General may come to
an oral agreement, which the Director General may have confirmed in writing and
which will be regarded as an “agreement”, unless repudiated earlier by the appellant.153
Where there is deemed to be an agreement between the Director General and the
appellant, one of the Special Commissioners on the application of the appellant made to
the Special Commissioners within a period of thirty days after the agreement is deemed
152
Income Tax Act, 1967, s. 99(1).
153
Income Tax Act, 1967, s. 101(4).
56
to be come to may, after giving the Director General an opportunity to make oral or
written representations, set the agreement aside if he thinks it just and equitable to do so
in the circumstances. The decision of one of the Special Commissioners on an
application to set aside the agreement shall be notified by the clerk in writing to the
applicant and the Director General and shall be final.154
The Director General may send an appeal forward to the Special
Commissioners at any time if he is of the opinion that there is no reasonable prospect of
coming to an agreement with the appellant, and where he sends an appeal forward under
this provision, he must give the appellant written notice that he has done so.155 Where
an appeal has been sent forward to the Special Commissioners, the Director General and
the appellant at any time before the hearing of the appeal by the Special Commissioners
is completed may come to an agreement with regard to the assessment to which the
appeal relates, and where they do so, the proceedings before the Special Commissioners
shall abate, and the agreement shall have effect.
154
ibid, s. 101(6).
155
Income Tax Act 1967, s. 102(1).
156
Land Acquisition Act 1960, s. 40A.
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In a case before the court as to the amount of compensation or as to the amount
of any of its items the amount of compensation to be awarded shall be the amount
decided upon by the two assessors. Where the assessors have each arrived at a decision
which differs from each other, then the Judge, having regard to the opinion of each
assessor, shall elect to concur with the decision of one of the assessors and the amount
of compensation to be awarded shall be the amount decided upon by that assessor. Any
decision made under this provision is final and there shall be no further appeal to a
higher court on the matter.157
157
ibid, s. 40D(3).
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Chapter 4
LEGAL EDUCATION
The Philosophy behind the need for legal education in Malaysia is clearly
outlined in the Report of the Board of Studies prepared for the establishment of the
Faculty of Law at the University of Malaya. Among others, it states the following:
(i) As an independent country, Malaysia should have a Faculty of Law
where its Constitution and laws can be studied and from which
knowledge about its Constitution and laws can be disseminated.
(ii) The study of law needs to be oriented to the needs of Malaysia.
Students who study law in the United Kingdom or Australia only study
the basic English law. While students in the University of Singapore
are required to study Singapore and Malaysian Law, the coverage of
Malaysian law especially in regard to Muslim law and Customary law
is insufficient for the needs of Malaysia. It is essential to build up a
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Malaysian consciousness in law studies as in other fields.
(iii) Malay is the national language of Malaysia and it will be necessary to
train legally qualified men and women who are also proficient in
Bahasa Malaysia. If our laws and the proceedings in our courts are to
be in Bahasa Malaysia in future it will be necessary to train our legally
qualified men and women in Bahasa Malaysia. The institution of a
Faculty of Law in Malaysia is a necessary step for the implementation
of the use of Bahasa Malaysia in the courts and in the legal
departments.
(iv) Malaysia has hitherto been largely dependant an universities and
professional organisations (the Inns of Court and the Law Society) in
the United Kingdom and Australia and on the University of Singapore
for the training of legally qualified persons. It is estimated that the
total number of students who seek to read law from Malaysia is about
120 annually and this number is likely to increase in future.
(v) There is a great need for research into Malaysian law, not only as
regards the reception of the common law but also in the fields of
Muslim Law and Customary Law.”
60
the conclusion of each semester. A semester runs for approximately 14 weeks,
exclusive of a one-week mid-semester break.
Legal studies at the University of Malaya is made up of two components: (i) a
three-year academic legal studies course, leading to the award of a Bachelor of
Jurisprudence degree, and (ii) a one-year professional legal studies course, at the end of
which, the Bachelor of Law s (LLB) degree is awarded. This structure became
operational from the 1996/97 academic years. Previously, the Faculty of Law offered a
four-year course, combining both academic and professional elements, leading to the
LLB degree. The split in structure is to enable students to make a choice, that is,
whether they wish to exit after the conclusion of the academic degree, or whether they
wish to continue with the professional component and obtain the LLB degree. The
professional component would be important and is required if the student wishes to
pursue a career in the Judicial and Legal Service, or to serve as advocates and solicitors.
Otherwise, it is not really a necessity to have the professional component.
The academic component is offered in three Parts – with Part I (the beginning
stage) comprising of courses such as the Malaysian Legal System, Constitutional Law,
Contract and Tort as well as Islamic Law. The second stage, Part II or the Middle Stage
comprises of courses such as Criminal Law, Administrative Law, Land Law, Equity and
Trusts and Moots. The Third Stage or Part III consists of courses such as Jurisprudence,
Company Law and three other elective courses such as International Law, Family Law,
Commercial Transactions, Environmental Law, Intellectual Property, Landlord and
Tenant, Media Law, Banking Law, Cyber Laws, and Medical Law. A student could also
opt to do a minor dissertation or project paper in a chosen field. At the Professional
level, the courses offered include Evidence, Criminal Procedure, Civil Procedure,
Professional Practice, Remedies and Ethics.
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which, upon passing, will enable them to be called to the Malaysian Bar. This course is
actually under the auspices of the Qualifying Board of the Bar, but since 1984, the
Faculty of Law University of Malaya had been helping the Qualifying Board to conduct
the course and examination. About 300 students are admitted into this course each year.
4. POST-GRADUATE COURSES
Like other Law Faculties throughout the world, the Faculty of Law at the
University of Malaya also offers post-graduate courses such as the Doctor of Philosophy
and Masters in Law.
The Masters in Law (LLM) programme consists of that by pure dissertation,
coursework and dissertation and pure coursework. Some of the courses offered at the
Masters level include Comparative Constitutional Law, International Human Rights and
Humanitarian Law, Law of the Sea, Securities Regulation, Copyright, Employment Law,
International Environmental Law and Comparative Administrative Law. Candidates
have to take four courses for the pure coursework course, and two courses for the
coursework and dissertation course. The minimum period of completion is two
semesters, and maximum is six semesters.
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Public Law course. The course is the result of a request from the Royal Malaysian
Police Council for the Faculty to offer a Diploma specifically tailored for the needs of
police officers. The first twenty candidates enrolled in the 1997/98 academic session.
The course includes many subjects offered by the Faculty for the Bachelor of
Jurisprudence/LLB degree. The Diploma entitles the holder to continue his or her
studies in the Bachelor of Jurisprudence/LLB degree by transferring the credits obtained
for the Diploma course.
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Chapter 5
The Malaysian legal system is very much inherited from the British as
Malaysia was once under British rule. The British system of administration of justice
based on statute law and common law has been incorporated into the Malaysian system
with modifications to suit local conditions. Since the attainment of independence in
1957, several changes have been made in Malaysia with regard to laws and procedures
pertaining to civil jurisdiction, criminal jurisdiction and appellate jurisdiction, etc.
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Besides academic qualifications, and Advocate and Solicitor in Malaysia has to
fulfill certain other conditions before he/she can be considered a "qualified person"
under the Legal Profession Act, 1976 and this includes inter alia the following:
(i) he/she has attained the age of 18 years;
(ii) he/she is of good character;
(iii) he/she is a Federal citizen or a permanent resident of Malaysia;
(iv) he/she has satisfactorily completed the prescribed period of pupillage in
Malaysia
A person who has passed this examination (CLP) or who possesses a degree
where he/she is exempted from doing the CLP examination has to undergo a 9-month
period of pupillage under a Master of more than 7 years standing as an Advocate and
Solicitor and who has been in continuous active practice for that period of time. Upon
completion of the pupillage, the pupil can apply for admission as an Advocate and
Solicitor of the High Court of Malaysia.
Upon admission as an Advocate and Solicitor, the Registrar of the High Court
keeps a Roll of all Advocates and Solicitors with their respective dates of admission.
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3. DISCIPLINE AND ETIQUETTE OF ADVOCATES AND SOLICITORS
All Advocates and Solicitors in Malaya (West Malaysia) are governed by the
Legal Profession Act, 1976 and other legislations inter alia:
(i) Legal Profession (Practice and Etiquette) Rules 1978;
(ii) Legal Profession (Disciplinary Proceedings) (Investigating Tribunal and
(iii) Disciplinary Committee) Rules 1994;
(iv) Solicitors Remuneration Order 1991; and
(v) Legal Profession (Professional Liability) (Insurance) Rules 1992.
The above Rules are made by the Disciplinary Board pursuant to the Legal
Profession Act, 1976. There is a three-tier system with regard to disciplinary matters,
namely:
(i) Investigating Tribunal;
(ii) Disciplinary Committee; and
(iii) Disciplinary Board.
(1) Complaints
Upon a complaint made in writing by a complainant or his solicitor, the
Director of Complaints shall register the complaint, and where necessary, seek further
information and documents with regard to the complaint. If the complaint satisfies the
necessary requirements, it is then forwarded to the Chairman of the Disciplinary Board
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for his directions.
The Chairman then appoints an Investigating Tribunal to look into the merits of
the complaint. The members of the Tribunal are appointed from an Investigating
Tribunal Panel which comprises 60 members of whom 40 members shall be advocates
and solicitors of not less than 7 years’ standing and having valid practising certificate
and 20 members who are lay persons. Every member of the Investigating Tribunal
Panel shall serve for a term of 2 years provided that the Disciplinary Board may extend
this term for a period not exceeding a further 2 years or reappoint him.
(3) Investigation
(i) An Investigating Tribunal shall within 2 weeks after its appointment
commence its investigation into the complaint.
(ii) It shall report its findings not later than 2 months after commencement of
its investigation to the Disciplinary Board.
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If the Investigating Tribunal recommends that there should be a formal
investigation or that a formal investigation is not necessary, then the Board can either
constitute a Disciplinary Committee if it agrees or otherwise the advocate and solicitor
shall be informed accordingly in writing.
68
them.
Note: The Supreme Court now refers to the Federal Court;
69
Year Members
As of to date
1995 5968
1996 6796
1997 7300
1998 8124
1999 8879
2000 9595
Under these Rules which came into force in 1992, the Bar Council shall take
out an insurance policy in the name of the Malaysian Bar and shall maintain a Master
Policy to provide indemnity against classes of professional liability as may be
determined by the Bar Council.
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7. SOLICITORS’ REMUNERATION ORDER 1991
(1) Obligation of advocate and solicitor to give advice or accept any brief
An advocate and solicitor is obliged to give advice or accept any brief with
regard to his practice in the Courts for which he can demand proper professional fee but
special circumstances may justify his refusal, at his discretion, to accept a particular
brief.
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(4) Circumstances where an advocate and solicitor shall not accept a brief
(i) An advocate and solicitor shall not accept a brief unless he is reasonably
certain of being able to appear and represent the client on the required
day; and
(ii) he shall not ordinarily withdraw from an engagement once accepted,
without sufficient cause and unless reasonable and sufficient notice is
given to the client.
(7) Advocate and solicitors to uphold interest of client, justice and dignity of
profession
An advocate and solicitor shall act with all due courtesy, fearlessly uphold the
interest of his client, the interest of justice and dignity of the profession without regard
to any unpleasant consequences either to himself or any other person.
72
for or against his contention.
(ii) An advocate and solicitor shall not appear in Court on a matter in which
he has reason to believe that he will be a witness in respect of a material
and disputed question of fact before the Court.
(10) Advocate and solicitor to prevent client from wrongful conduct towards
Courts, etc.
An advocate and solicitor shall use his best efforts to prevent his client from
doing things, which the advocate and solicitor himself ought not to do, particularly with
reference to his conduct towards Courts, witnesses and parties, etc. Where a client
persists in such wrongdoing, the advocate and solicitor shall terminate the relationship.
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(ii) It is contrary to etiquette for an advocate and solicitor to:
(a) advertise his address or the address of his firm in any book, pamphlet,
newspaper, periodical or other publication; and
(b) sanction the publication either in the press or elsewhere of notices or
articles referring to his professional qualifications or merits with
certain exceptions, e.g. particulars appearing in approved
publications.
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9. THE ROLE OF THE MALAYSIAN BAR
Under the Legal Profession Act 1976, the Malaysian Bar is a body corporate
and the management of the Malaysian bar is governed by a Council known as the Bar
Council. The Bar Council consists of 36 members who are elected by the entire
practicing members of the Bar throughout the country.
The Council consists of the President, Vice-President, Secretary, Treasurer, the
immediate past President, past Vice-President, the Chairman of each State Bar
Committee and a Representative of each State Bar Committee. The members of the Bar
Council hold office for 1 year but are eligible for re-election.
Under the objects and powers of the Malaysian Bar, the Malaysian Bar inter
alia is to:
(i) to uphold the cause of justice without regard to its own interest or that of
its members, uninfluenced by fear or favour;
(ii) to maintain and improve the standards of conduct and learning of the legal
profession in Malaysia;
(iii) to express its view on matters affecting legislation and the administration
and practice of the law in Malaysia where so requested to do;
(iv) to represent, protect and assist members or of the legal profession in
Malaysia and to promote in any proper manner the interests of the legal
profession in Malaysia;
(v) to protect and assist the public in all matters touching ancillary or
incidental to the law;
(vi) to encourage, establish and maintain good relations with professional
bodies of the legal profession in other countries and to participate in the
activities of any local or international association and become a member
thereto or, etc.
The Malaysian Bar through the Bar Council is affiliated and is a member of
several international legal bodies and law associations. They include:
(i) Commonwealth Law Association (CLA);
75
(ii) The Presidents of Law Associations in Asia (POLA);
(iii) The International Union of Advocates (UIA) ;
(iv) Lawasia; and
(v) Inter-Pacific Bar Association (IPBA).
The Bar Council has a very active legal aid programme for the poor and for
those litigants who cannot afford to pay legal fees to engage a lawyer of their own.
Legal Aid Centres are located in almost all the cities and towns of Peninsular
Malaysia. The Legal Aid Centres provide representations in criminal matters except
offences punishable by death and life sentences. The Centres also provide
representations legal assistance in civil matters.
The legal aid provided by the Bar Council supplements a programme of legal
aid by the government under the Government Legal Aid Bureau.
The qualification for legal aid under the Bar Council Legal Aid Scheme is that
a person in order to obtain legal aid must pass a "Means Test " .
Criteria for disqualification will be any of the following
(i) House (exclude low cost house and
“squatter” or settlement house) > RM25,000
(ii) Car > RM7,000
(iii) Motorcycle > RM4,500
(iv) Cash and/or securities value together
at more than RM5,000.00 (e.g. cash in
bank, stocks, etc. savings in Tabung Haji
not taken into consideration) > RM5,000
(v) Disposable income more than RM500 for
single person and RM800 for married
couple. Couple are allowed fixed deductions
of RM250 for themselves and RM150 per
dependent. Then they are allowed further
deductions for the items stated in the
new form.
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12. LANGUAGE USED IN THE COURTS
The official language used in the courts is Bahasa Malaysia and all documents
are filed in Bahasa Malaysia English can be used after application is made to the court
for use of the English language. English is still used extensively in the Superior Courts,
namely, the Federal Court and Court of Appeal.
Sabah and Sarawak have a similar judicial system as West Malaysia and have
Magistrate, Sessions and High Courts. Appeals are heard in the common Court of
Appeal and Federal Court of Malaysia.
Lawyers in Sabah and Sarawak are governed by their respective Solicitors’
Ordinance. In Sabah, the lawyers belong to the Sabah Law Association. In Sarawak, the
lawyers belong to the Advocates’ Association of Sarawak.
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Chapter 6
CIVIL LITIGATION
78
1. ORIGINATING PROCESS OF CIVIL LITIGATION
The party making the Claim (who is the plaintiff) chooses which form of
process to use and the relevant documents are then filed in the proper division of the
court.
Previously the writ was valid for a period of 12 months by which time it has to
be served on the other party, (the defendant) but by virtue of a recent amendment, the
writ is only valid for 6 months but can be extended twice for a period of 6 months each.
The major source of procedure are found in the Rules of the High Court 1980,
Rules of the Court of Appeal 1994, Rules of the Federal Court 1995 and the Courts of
Judicature Act 1964 (CJA) and for matters before the Magistrates and Sessions Courts,
the source for procedure to be found in the Subordinate Court Rules 1980. Other forms
of legislation with regard to procedure that are adopted in Civil Litigation include the
Civil Law Act 1956 and the Evidence Act 1950.
In order to bring a civil proceeding in the court, there must be a "cause of
action" which means simply that the plaintiff has to prove his action before an order or
judgment can be given in his favour.
The plaintiff' s claim must disclose a "cause of action" so as to enable the court
to proceed to adjudicate the actionable dispute. of action" , the court cannot provide any
remedy.
The party in addition to the "cause of action" must also have locus standi. If the
party has no locus standi, the court will also dismiss the action inlimine.
Generally, actions filed on contracts or on torts have to brought within 6 years
from the date on which the "cause of action" arose under the Limitation Act 1963.
In the case of dependency claims, a claim for loss of support by the dependent
relative shall be brought within 3 years after the death of the deceased under the Civil
Law Act 1956.
Where a writ has been issued by the court and served on the defendant, the
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defendant is required to enter an appearance in the action and defend it by a solicitor or
in person.
In the case of an action where the defendant is a body corporate then the action
can only be defended by a solicitor for the defendant.
An appearance is normally filed by way of a memorandum in a specific form as
provided under the Rules of the High Court 1980 or the Subordinate Court Rules 1980
as the case may be. If he does not enter into an appearance it may mean that he does not
wish to defend the “cause of action” in which case the plaintiff can apply to the court for
a judgment-in-default.
2. JUDGMENT-IN-DEFAULT
A writ is normally indorsed with a statement of claim and failure to enter into
appearance may result in the plaintiff proceeding to enter judgment-in-default against
the defendant.
Ordinarily where a defendant has filed an appearance and also a statement of
defence subsequent to other procedures of filing of documents in support, the matter
would be set for trial.
3. SUMMARY JUDGMENT
Where a statement of claim has been served on the defendant and the defendant
has entered a appearance and where there is no defence to the plaintiff’s claim, the
plaintiff may apply to the court for judgment against the defendant.
An application for summary judgment is made by way of a summons supported
by an affidavit verifying the facts on which the claim is made. The defendant in such a
case may then apply to defend with the leave of the court in respect of the claim.
The defendant may also in filing a defence to a writ served on him file a
counter-claim as against the plaintiff.
The court can also give directions as regards further conduct of the action. This
process of summary judgment is made under Order 14 of the Rules of the High Court
1980 or Order 26A of the Subordinate Court Rules 1980.
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The court may upon application of a party or on its own motion determine any
question of law or construction of any document arising in any cause or matter at any
stage of the proceeding where (a) such a question is suitable for determination without
the full trial of an action or (b) such determination will finally determine the entire
cause or matter or any claim or issue therein. Upon such determination the court may
discuss the cause or matter or make such order or judgment as it thinks fit
4. PLEADINGS
Pleadings are statements in writing filed by each party to an action giving such
details that are necessary. It is a cardinal rule that parties are bound by the pleadings and
are not allowed to adduce facts, which they had not pleaded.
The objectives of the pleadings are: -
(i) to define with clarity and precision the issue in dispute;
(ii) to require each party to give fair and proper notice to its opponent in order
to enable him to prepare his case; and
(iii) to inform the court the issues which are required to be determined by the
court
A vital issue not raised in the pleadings would not be allowed to be argued if so
decided by the court.
Law is not pleaded. It must only contain material facts on which the party
pleading relies for this claim on defence.
5. CLOSE OF PLEADINGS
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6. SETTING ASIDE JUDGMENT IN DEFAULT OF DEFENCE
The court may at any stage of the proceedings order to be struck out or
amended any matter in any pleadings, which is found by the court to be an abuse of the
process of the court.
The Magistrates Court and Sessions Court fall under the Subordinate Court
System of Malaysia.
Pre-trial case management refers to action begun by writ. The plaintiff shall
not later than 14 days after the close of pleadings cause to be issued a notice from the
court requiring the parties to the action to attend before the judge. Failure to attend by
the plaintiff may entail in the court issuing a notice to the plaintiff to show cause why
the action should not be struck out.
The judge has absolute discretion to make any order as meets the ends of
justice including striking out the action or any defence or counter-claim.
The judge can at the pre-trial case management give such direction as to the
future conduct of the action to ensure its just, expeditious and economical disposal.
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9. SECURITY FOR COSTS
Security for Costs is a situation where it appears that the plaintiff is ordinarily
resident out of the court’s jurisdiction or where the plaintiff is suing for some other
person and that there is reason to believe that he will be unable to pay the costs of the
defendant if ordered to do so.
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Chapter 7
CRIMINAL LITIGATION
1. PENAL CODE
In Malaysia criminal offences are codified under the Penal Code under various
chapters for various offences relating to:-
(i) offences affecting the human body (murder, etc.);
(ii) offences relating to properties;
(iii) offences relating to documents and currency or banknotes;
(iv) offences relating to criminal breach of contracts of services;
(v) offences relating to marriage;
(vi) offences relating to criminal conspiracy of abetment;
(vii) offences relating to public servants, etc.
Other offences quasi criminal in nature are tried under specific law, e.g. the
Corruption Act, Dangerous Drugs Act, etc
All offences under the Penal Code are inquired into and tried according to the
provisions of the Criminal Procedure Code.
Criminal trials are held in the Magistrates Courts, Sessions Courts, High Courts
and appeals from the High Courts are then made to the Court of Appeal and the apex
court, namely, the Federal Court.
84
3. A MAGISTRATES COURT CAN HEAR CRIMINAL MATTERS:-
A Sessions Court has jurisdiction to hear all criminal offences except those
punishable by death.
High Court may hear all matters including offences which carry the death
penalty. A High Court can also hear appeals from the Magistrates Court and Sessions
Court.
The Court of Appeal is an Appellate Court and hears appeals from the High
Court relating both civil and criminal matters.
The Federal Court is an apex court in Malaysia and hears appeals from the
Court of Appeal on matters involving the Federal Constitution, points of law and public
interest.
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8. POLICE ACTION
Upon a report being lodged with the police, the police investigate on the
alleged offence(s) and take all necessary action to apprehend where possible the
offender if not the culprit of the offence.
The police may arrest a suspect for an alleged offence(s) and shall grant bail
before the offender is brought to court to be formally charged (arraigned) in court for
boilable offences. For crimes which capital punishment, e.g. murder, rape and
kidnapping, no bail is granted, as they are non-boilable offences.
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11. PROCEDURE AT A TRIAL
At a trial, if the prosecution makes a prima facie case and proves its case
beyond reasonable doubt then the accused is called upon to make his defence. He may
then call his own witnesses to prove that he is innocent. At the end of the defence case,
the Magistrate can either convict him or acquit him. Same procedure is adopted in the
Sessions Court.
12. PROSECUTION
The police have power to search any person against whom he has reasonable
suspicion of having committed an offence.
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15. EVIDENCE ACT
16. SENTENCING
88
Chapter 8
RECENT DEVELOPMENTS
158
New Straits Times, 3 November 1998, p. 2.
159
Part II of the Federal Constitution: liberty of the person; prohibition against slavery and forced labour;
protection against retrospective criminal laws and repeated trials; equality before the law; prohibition
of banishment and freedom of movement; freedom of speech, assembly and association; freedom of
religion; educational rights and rights to property.
160
Malaysia has so far ratified six of the 25 conventions on human rights: (i) convention against apartheid
in sports; (ii) convention on the prevention and punishment of the crime of genocide; (iii) convention
on the rights of the child; (iv) convention on the elimination of all forms of discrimination against
women; (v) convention on the nationality of married women, and (vi) convention against slavery.
89
governmental organizations and the Bar Council.161
161
New Straits Times, 21 February 2001, p. 6.
162
Prof. Puan Sri Dr Fatimah Hamid Don, NACIWID’s vice-chairman, quoted in New Straits Times, 25
September, 2000.
163
Bar Council Seminar on the Setting up of a Family Court in Malaysia – 9 and 10, November, 2000.
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At the time of writing, it remains unclear precisely what shape the proposed
Family Court would take, and how the thorny issues pertaining to jurisdiction are going
to be resolved. What is clear is that “Malaysian family law and Malaysian court system
is in urgent need of reform.”164
164
YN Foo, of the Malaysian Bar.
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