CHAPTER 3:

THE JUDICIAL SYSTEM IN

MALAYSIA

BY

NOOR ZIRA AZLIN BTE MD ZAKI

 OBJECTIVES

This chapter:
• describes the structure of the judicial system in
Malaysia
• aids understanding of the workings of the judiciary
• sets out the hierarchy of the courts, their jurisdiction
and powers
 PREVIEW

• An Overview
• Subordinate Courts in Peninsular Malaysia
• Subordinate Courts in East Malaysia
• Superior Courts in Malaysia
• Alternative Methods of Dispute Resolution
 An overview
• The role of the courts is more concerned with the
administration of the law.
• The courts have both criminal and civil jurisdiction.
• Jurisdiction refers to the cases or matters that a court can
hear, and is established by statute.
• Courts that are higher in the hierarchy of courts will hear and
decide on the more serious cases or matters.
• Federal Constitution 1957, provide power in exercising
power of judiciary in Malaysia. – Part IX Article 121- 131A.
THE COURT SYSTEM IN MALAYSIA
 SUBORDINATE COURTS IN
PENINSULAR MALAYSIA

• the subordinate courts in Peninsular Malaysia are:

1. Magistrates’ Courts
2. Sessions Courts
• A subordinate courts any one of those corts
previously established under Section 3 (2),
Subordinate Courts Act 1948.
• Case: Public Bank Bhd v Chan Tak Kow
 MAGISTRATES’ COURTS

•Is the lowest court under subordinate courts in Malaysia.

•deals with minor civil and criminal cases
•presided over by a magistrate
•Magistrate are divided into First Class and Second Class Magistrate.
•according to section 85 of the Subordinate Courts Act 1948 (Revised
1972) amended by the Subordinate Courts (Amendment) Act 1978, a
first class magistrate possesses jurisdiction to try:
– all offences for which the maximum term of punishment provided by law
does not exceed ten years’ imprisonment
– all offences punishable with fine only
 MAGISTRATES’ COURTS (cont.)

– offences under sections 392 (Punishment for robbery) and 457

(housebreaking), Penal Code where a person is found guilty, the
magistrate may pass any sentence allowed by law not exceeding:
1.Five years’ imprisonment
2.A fine of ten thousand ringgit
3.Whipping of up to twelve strokes
4.A combination of any of the above-mentioned
 MAGISTRATES’ COURTS (cont.)

– Civil Jurisdiction (First Class Magistrate)

• Section 90 Subordinate Courts Act 1948.
• To hear all actions and suits of a civil nature where the amount in
dispute or value of the subject matter does not exceed RM100k.
• It may also exercise jurisdiction in actions for the recovery of
immovable property and for recovery of money claimed does not
exceed RM25 k.
 MAGISTRATES’ COURTS (cont.)

• a second class magistrate: (Criminal)

– has jurisdiction to try offences for which the maximum term of
imprisonment provided by law does not exceed 12 months’
imprisonment – Section 120B, Penal Code – Punishment of
criminal conspiracy.
– may try offences punishable with a fine only
– may pass any sentence allowed by law:
1. Not exceeding 12 months’ imprisonment
2. A fine of not more than one thousand ringgit
3. Any sentence combining either of the aforesaid sentences
 MAGISTRATES’ COURTS (cont.)

• for civil matters, the first class magistrate has authority:

– to try all actions and suits where the amount in dispute or value
of the subject-matter does not exceed RM100,000
– to exercise jurisdiction in actions for the recovery of immovable
property and for recovery of rent, means profits and damages
when the money claimed does not exceed RM25,000 or where
the rent payable in respect of the premises does not exceed
RM24,000 per year or RM2,000 per month
 MAGISTRATES’ COURTS (cont.)

• the second class magistrate:

– jurisdiction to try original actions or suits of a civil
nature where the plaintiff seeks to recover a debt
or liquidated demand on money payable by the
defendant, with or without interest, not exceeding
RM10,000 – Section 92, Subordinate Courts Act
1948.
 COURTS FOR CHILDREN

• set up to deal with criminal offenders below the age of eighteen

• consists of a magistrate who may be assisted by two advisers, one
of whom shall, if practicable, be a woman
• jurisdiction to try all offences except those punishable by death.
• Cases for children is governed under Child Act 2001.
 SESSIONS COURTS

• highest of the subordinate or inferior courts

• under the charge of the Sessions Court judge
• Each session court shall be presided over by a session court judge by the YDPA on
the recommendation of the Chief Judge.
• criminal jurisdiction extends to all offences other than offences punishable by death
Under section 64, Subordinate Courts Act 1948- impose a limit on the powers of a
Session Judge by precluding him from imposing the death sentence. They just only
can pass any sentence including natural life sentence.
• in civil matters, it has jurisdiction to try all actions and suits of a civil nature where
the amount in dispute or value of the subject-matter does not exceed
RM1,000,000.00 – Section 65, Subordinate Courts Act 1948
• matters relating to land, specific performance or recession of contracts, injunction,
probate and administration of estates, divorce, bankruptcy, trusts, and accounts are
excluded from its jurisdiction
 SESSIONS COURTS (Added)

• However, there are exceptions to the above. The Sessions Court has no
jurisdiction in actions, suits or proceedings:
relating to immovable property;
• for accounts;
• for declaration of decrees;
• for the issue and revocation of grants of representation of the estates of
deceased persons or the administration or distribution thereof;
• wherein the legitimacy of any person is in question;
• wherein the guardianship or custody of infants is in question; and
• wherein the validity or dissolution of any marriage is in question.
- Section 69, Subordinate Courts Act 1948.

These are all within the jurisdictions of the High Court.

 SESSIONS COURTS (cont.)

• application must be made to the High Court:

1. Most land matters
2. Enforcement of trusts
3. Accounts
4. Declaratory decrees except interpleader proceedings
5. Issue or revocation of grants of representation of the estates
of deceased persons or the administration or distribution of
estates
6. Legitimacy
7. Guardianship or custody of infants
8. Validity or dissolution of marriage
 SESSIONS COURTS (cont.)
• the Sessions Court may exercise jurisdiction to hear and
determine any action:
 for the recovery of immovable property
 And to issue writs or warrants of distress for rent
– All the above jurisdiction only can be hear by Session Courts if
there is request made by the Parties to brought to Session
Court. – Section 72, Subordinate Courts Act 1964.
 NATIVE COURTS
• peculiar only to Sabah and Sarawak
• exercises jurisdiction over matters affecting ‘native
customs’ where the parties are natives
• previously, the Native Court also possessed jurisdiction
over matters concerning Muslim law. Muslim law in
Sabah and Sarawak is now administered by a separate
system of Muslim courts, the Shariah Courts
 NATIVE COURTS (cont.)

• Native Courts are empowered to try civil and criminal

matters such as:
– cases arising from breach of native law or custom
– cases involving land where there is no title issued by the Land
Office and in which all the parties are subject to the same native
system of personal law
– civil cases (excluding land) where the value of the subject-matter
does not exceed RM50 and all parties are subject to the same
native system of personal law
 NATIVE COURTS (cont.)

• in Sarawak, there are three Native Courts

exercising original jurisdiction:
1. District Native Court
2. Native Officer’s Court or Chief’s Court

Appeals are made to:

3. Resident’s Native Court
4. Native Court of Appeal
 SUPERIOR COURTS IN MALAYSIA

• comprises:
– High Courts – the High Court of Malaya and the High Court in Sabah and
Sarawak
– Industrial Court
– Court of Appeal
– Federal Court
• the jurisdiction of the High Court is original, appellate and
supervisory
• in the exercise of its original jurisdiction, it has unlimited criminal
and civil powers
• any civil matter which cannot be determined in the subordinate
courts is heard before the High Court
 THE HIGH COURT

• High Court consists of 2 Chief Judges – 1 in Peninsular

Malaysia and 1 in Sabah & Sarawak.
• Case : Badan Peguam Negara v Kerajaan Malaysia.
• High Court have general supervisory and revisionary
jurisdiction over all subordinate court in Malaysia.
(Civil and Criminal matters).
• Hear any matters relating to validity of dissolution of
marriage (divorce) and matrimonial causes,
bankruptcy and companies winding up.
 THE HIGH COURT

• has the jurisdiction to try all civil proceedings where:

1. The cause of action arose within Malaysia
2. The defendant(s) resides or has his place of business within
Malaysia
3. The facts on which the proceedings are based, exist or are
alleged to have occurred within Malaysia
4. Any land the ownership of which is disputed is situated within
Malaysia
HIGH COURT IN
MALAYSIA
 THE HIGH COURT (cont.)

• has the power to refer any points of law arising in the

appeal for the decision of the Court of Appeal
• general supervisory and revisionary jurisdiction over all
subordinate courts
• High Court of Malaya in Kuala Lumpur is reorganized into:
1. Commercial Division
2. Appellate and Special Powers Division
3. Civil Division
4. Criminal Division
 THE HIGH COURT (cont.)

Original Jurisdiction
• Section 22, CJA 1964 – Criminal jurisdiction
• Section 23, CJA 1964 – Civil Jurisdiction General
• Section 24, CJA 1964 – Civil Jurisdiction Specific
• Section 24A, CJA 1964 – Reference under order of court
• Section 25, CJA 1964 – Power of the High Court.
 THE HIGH COURT (cont.)

Appellate Jurisdiction
• Section 26, CJA 1964 – Appellate criminal jurisdiction
• Section 27, CJA 1964 – Appellate civil jurisdiction
• Section 28, CJA 1964 – Civil appeals from subordinate courts
• Section 29, CJA 1964 – Civil appeals to be by way of re-hearing
• Section 30, CJA 1964 – Reference of constitutional question by
subordinate court.
 THE HIGH COURT (cont.)

Revision
• Section 31, CJA 1964 – Revision of criminal proceedings of
subordinate court.
• Section 32, CJA 1964 – Power of High Court to call for records of
civil proceedings in Subordinate Court
• Section 33, CJA 1964 – Powers of High Court on revision of civil
proceeding.
• Section 35, CJA 1964 – General supervisory and revisionary
jurisdiction of High Court.
 INDUSTRIAL COURT

• exercise judicial or quasi-judicial functions

• constituted under the Industrial Relations Act 1967
• deals primarily with trade disputes and therefore has jurisdiction over
matters concerning employers, employees and trade unions
• reference may be made to the High Court on questions of law
• see Cheek Hong Leong v Kym Industries (M) Sdn Bhd, Mas Golden
Boutique Sdn Bhd v Md Zain Abu, Johor v Mohd Zain bin Haji Idris
 COURT OF APPEAL

• jurisdiction to hear and determine any appeal against any

High Court decision on criminal matters
• jurisdiction to hear and determine civil appeals generally
for cases where the amount or value of the subject-
matter of the claim is at least RM250,000
• has no power to re-open, rehear nor to re-examine its
decision for whatever purpose
• see Lye Thai Sang & Anor v Faber Merlin (M)
Sdn Bhd & Ors
 JURISDICTION C.O.A
• Section 50(1), CJA 1964 - Jurisdiction to hear and determine criminal
appeals from High Court.
• Section 67 (1), CJA 1964 - Jurisdiction to hear and determinecivil appeals
Procedure
• Section 50(2A), CJA 1964 - An application for leave under
subsection (2) shall be made within fourteen days after the date
of the decision of the High Court.
• Section 51, CJA 1964 - Notice of appeal need to be submit to
registrar of Court of Appeal.
• Section 52, CJA 1964 - Appellant must write a substances (ground)
to appeal to Court of Appeal.
FEDERAL COURT
& COURT OF
APPEAL IN
MALAYSIA
 FEDERAL COURT

• the highest court in Malaysia

• Establishment under Article 121(2) Federal Constitution 1957.
• has the jurisdiction to:
1. Hear civil and criminal appeals from the Court of Appeal
2. Exercise exclusive original jurisdiction on those matters conferred on it
under Art 128(1) and (2), Federal Constitution
3. Determine constitutional questions which have arisen in the
proceedings of the High Court but referred to the Federal Court for a decision
4. Give its opinion on any question referred to it by the Yang di-Pertuan
Agong concerning the effect of any provision of the Constitution
 Jurisdiction Federal Court

• Section 84, CJA 1964 - Reference of constitutional question by High

Court
• Section 86, CJA 1964 - Jurisdiction and powers
• Section 87, CJA 1964 - Jurisdiction to hear and determine criminal
appeals
• Section 97(3), CJA 1964 - an application for leave to appeal to the
Federal Court may be heard by a Judge of the Court, and any
direction or order that could be given or made by the Court on
such application may be given or made by such Judge.
 ALTERNATIVE METHODS OF
DISPUTE RESOLUTION
• 3 methods:
1. Mediation
2. Conciliation
3. Arbitration

Examples:
– Small Claims Court
– Consumer Claims Tribunals
– Financial Mediation Bureau
 MEDIATION

• facilitative process for resolving disputes

quickly and cheaply

• role of the mediator is a determinative one

 CONCILIATION

• conciliator may exercise an advisory or directive

role in assisting the parties to identify the dispute
in question, develop options, determine what
alternatives are available, and try to reach an
agreement
 ARBITRATION
• means of settling commercial disputes
• a formal dispute resolution process which involves the hearing
of a dispute by an independent third party (an arbitrator). At
the end of the hearing the arbitrator will make an award unless
the parties have expressed a contrary intention, and the award
will be final and binding on the parties
– is a determinative process
– Arbitration Act 2005, section 9(1):
• ‘arbitration agreement’ – “an agreement by the parties to submit to
arbitration all or certain disputes which have arisen or which may arise
between them in respect of a defined legal relationship, whether contractual
or not”
 REVIEW

• Overview of the Judicial System

• Subordinate Courts in Peninsular Malaysia
– Magistrates’ Courts
– Courts for Children
– Sessions Courts
• Subordinate Courts in East Malaysia
– Native Courts
– Magistrates’, Courts for Children and Sessions Courts