1.8 Malaysian Judicial System

Customs

 Customs of the local inhabitants in Malaysia are also a source of law.

Generally, customs relating to family law, i.e. marriage, divorce and inheritance, are given legal force by the courts in Malaysia.  ‘Adat’ applies to Malays; Hindu and Chinese customary law applied to the

Hindus and Chinese respectively.  In Sabah and Sarawak, native customary laws apply in land dealings over native customary lands and family matters where natives subject themselves to native customary laws.

1.7.3 Islamic Law

 Islamic law is currently increasing in prominence in Malaysia and is now an important source of law in commerce not only in Malaysia but internationally.  The Federal Constitution provides that states have the power to administer

Muslim or Islamic Law.  The primary sources of Islamic law are the Holy Book (The Quran), The

Sunnah (the traditions or known practices of the Prophet Muhammad), Ijma' (Consensus), and Qiyas (Analogy).  The head of the Muslim religion in a state (except for Penang, Malacca, Sabah,

Sarawak and the Federal Territories) is the Sultan.  In Penang, Malacca, Sabah, Sarawak and the Federal Territories, the Yang di-

Pertuan Negeri is the head of Muslim religion.  The court which enforce Islamic law in the country are the Syariah Courts.  Islamic law applies to Muslims only and does not apply to non-Muslims.

1.8 MALAYSIAN JUDICIAL SYSTEM

 The jurisdiction and power of the courts as well as doctrine of separation of powers that exist between the legislative, the executive and the judiciary, were well pronounced by the Federal Court.

1.8.1 Doctrine of Separation of Powers

 The Federal Government adopts the doctrine separation of powers under

Article 127 of Federal Constitution.  The doctrine of separation of powers is a political doctrine under which the legislative, executive and judicial branches of government are kept distinct, to prevent abuse of power.  The state government in Malaysia also have their respective executive and legislative bodies.  The Federal Constitution provides that power is exercised by the legislative, the executive and the judiciary.

Yang di-Pertuan Agong

Executive

Legislative

Judiciary

Doctrine of Separation of Powers Prime Minister Cabinet

Parliament Dewan Negara Dewan Rakyat

Chief Justice Courts of Law

Legislative

 Legislation refers to laws legislated by the special body responsible from the aspect of the Constitution.  The primary function of the legislative is to legislate, amend or repel laws in accordance with the wishes of the body.  The legislative power in Malaysia is determined in the Constitution of the

Federation of Malaysia.  Legislative matters are divided among Dewan Negara and Dewan Rakyat.

Whereas, the Parliament of Malaysia creates laws.

Executive

 The executive body is led by the Prime Minister who is appointed by the Yang di-Pertuan Agong.  The Prime Minister leads the government (Cabinet) and also the party that holds the majority in Parliament.  The executive power is vested in the Yang di-Pertuan Agong. This means all government matters are carried out in the name of His Highness.  Cabinet is headed by the Prime Minister and consists of Ministers with certain portfolios.

Judiciary

 The judiciary is a body of judges in a constitutional system. Judges are given the power to interpret and execute the law with the authority vested in them.

 The judiciary is the third branch of the government in the balance of power.  The judicial power is vested in Federal Court, Court of Appeal, High Courts and Subordinate Courts.  Courts wield great power in the executive and legislative bodies because they: i. Have the power to interpret the constitution of the country; ii. Interpret a certain law; iii. Declare a written law of the Federation or of a state; and iv. Declare the actions of the government to be illegal

1.8.2 Hierarchy of Courts

 The roles of the court are more concerned with the administration of the law.

The courts have both criminal and civil jurisdictions.  Jurisdiction refers to the cases or matters that a court can hear and is established by statue.  Courts that are higher in the hierarchy of courts will hear and decide in the more serious cases or matters.  A crime, which is an act or conduct by a person that is against the interests of the community as set down by statute and established by case law, will result in criminal proceedings being instituted against the wrongdoer by the public prosecutor or other state enforcement authority.  On the other hand, a civil case is brought before the courts (i.e. within their civil jurisdiction) when an individual or organization commences an action against another individual or organization. The person who brought the case is called plaintiff and the person who is being charged or sue known as defendant.

Hierarchy of Courts in Malaysia

SUBORDINATES COURTS

Magistrates’ Court

 The Magistrates’ Court deals with minor and civil criminal cases.  This court hears all civil matters of which the claim does not exceed

RM100,000 – Section 11, Subordinate Courts (Amendment) Act 2010.  The court is presided over a magistrate.  Magistrates’ Court divided into two which is First Class Magistrates and

Second Class Magistrates.  First Class Magistrate: i. The monetary jurisdiction is RM100,000 ii. 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, or all offences punishable by fines only iii. As regards civil matters, the First Class Magistrate has authority to try all actions suits where the amount in dispute or value of the subjectmatter does not exceed RM100,000 iv. It may also exercise jurisdiction in actions for the recovery of immovable property and for recovery of rent  Second Class Magistrate: i. The monetary jurisdiction is RM10,000 ii. A second class magistrate has jurisdiction to try offences for which the maximum term of imprisonment provided by law does not exceed twelve months’ imprisonment or offences punishable with by fines only. iii. 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 on money payable by the defendant, with or without interest, not exceeding RM10,000

Sessions Court

 The Sessions Court is the highest of the subordinate or inferior courts. It is under the charge of the Sessions Court Judge.  Its criminal jurisdiction extends to all offences other than offences punishable with death.  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 million.  Matters relating to land, specific performance or recession of contracts, injunction, probate and administration of estate, divorce, bankruptcy, trusts, and accounts are excluded from its jurisdiction.

Native Court

 The Native Court is peculiar only to Sabah and Sarawak. It exercises jurisdiction over matters affecting ‘native customs’ where the parties are natives.  In relation to Sarawak, a native is a person who is a citizen and is of a race indigenous to Sarawak (Iban, Bidayuh, Kayan, Penan ect).  In relation to Sabah, a native is a person (such as the Kadazan and Dusun), and was born either in Sabah or to a father domiciles in Sabah at the time of birth.  Native Courts are empowered to try civil and criminal matters including the following: i. Cases arising from breach of native law or custom, e.g. those relating to religious or matrimonial matters, ii. Cases involving land where there is no title issue by the Land Office iii. Civil cases (excluding land) where the value of the subject matter does not exceed RM50

Court for Children

 The Court for Children, previously known as the Juvenile Court, hears cases involving minors except cases carrying the death penalty, which are heard in

High Courts instead.  Cases for children are governed by the Child Act 2001. A child is defined as any person below the age of eighteen.  Court for Children are courts constituted in accordance with the Child Act 2001 and sitting for the purpose of: i. Hearing, determining or disposing of any charge against a child; ii. Exercising any other jurisdiction conferred or to be conferred on Courts for Children by or under the Child Act 2001 or by any other written law.

SUPERIOR COURTS

Syariah Court

 Syariah Courts in Islamic religious law deals with exclusively Islamic laws, having jurisdiction upon every Muslim in Malaysia.  There is a parallel system of state Syariah Courts, which has limited jurisdiction over matters of state Islamic law.  Unlike the civil courts in Malaysia, which is a federalised court system, the

Syariah Court is primarily established out of state law.  Similarly syariah or Islamic law is a matter of state law, with the exception of the Federal Territories of Malaysia, as provided in Article 3 of the Constitution.  Thus syariah law in one state might differ to that of another state. There are 13 state syariah law departments and 1 syariah law department for the

Federal Territories.

 The Syariah Courts have jurisdiction only over Muslim in the matters of family law and religious observances, and can generally only pass sentences of not more than three years imprisonment, a fine of up to RM5,000, and/or up to six strokes of the cane.

High Court

 The jurisdiction of the High Court is original, appellate and supervisory. 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 has the jurisdiction to try all civil proceedings where: i. The cause of action arose within Malaysia, or ii. The defendant(s) resides or has his place of business within Malaysia, or iii. The facts on which the proceedings are based, exist or are alleged to have occurred within Malaysia, or iv. Any land the ownership of which is disputed is situated within Malaysia  The High Court’s civil jurisdiction includes: i. Most land matters ii. Enforcement of trusts iii. Accounts iv. Declaratory decrees except interpleader proceedings v. Legitimacy vi. Guardianship or custody of infants vii. Validity or dissolution of marriage  In the exercise of its appellate jurisdiction, the High Court hears civil and criminal appeals from the Magistrates’ and Sessions Courts.  Under Section 35(1) of the Courts of Judicature Act 1964, the High Court has been conferred general supervisory and revisionary jurisdiction over all subordinate courts.

Court of Appeal

 Court of Appeal hears all civil appeals against decisions of the High Court except appeals against judgement or orders made by consent.  The Court of Appeal also hears criminal appeals against decision of the High

Court.  The Court of Appeal has jurisdiction to hear and determine civil appeal generally for cases where the amount or value of the subject matter of the claim is at least RM250,000.  Where an appeal has been heard and disposed of by the Court of Appeal, the

Court of Appeal has no power to review the case. That is, the said Court has neither power to re-open, re-hear nor re-examine its decision for whatever purpose.

Federal Court

 The Federal Court is the highest court in Malaysia.  The Federal Court consists of the Chief Justice, the President of the Court of

Appeal, the Chief Judge of Malaya and Chief Judge of Sabah and Sarawak, and seven Federal Court Judges.  Every proceeding in the Federal Court shall be heard and disposed of by three judges or such greater uneven number of judges as the Chief Justice may in any particular case determine.  The Federal Court has jurisdiction in matters including the following: i. To hear civil and criminal appeals from the Court of Appeal ii. To exercise exclusive original jurisdiction on those matters conferred on it under Article 128(1) and (2) of the Federal Constitution. It can hear dispute between any State and the Federal Government. iii. To determine constitutional questions which have arisen in the proceedings of the High Court but referred to the Federal Court for decision. iv. To give its opinion on any question referred to it by the Yang di-Pertuan Agong

1.8.3 Roles of Judges in Interpretation of Statutes

 Parliament makes the law but is the roles of judges to interpret parliament’s words. They have a measure of discretion and creative power in the manner in which they interpret legislation.  Judges interpret the law, assess the evidence presented, and control how hearings and trials unfold in their courtrooms.  Like many other form of communication, legislation can include words that have more than one meaning, or words whose meaning changes depending on its context.  Judges in such circumstances need to provide legislation with effective meaning. There are two contrasting views as to how judges should go about determining the meaning of a statute – literal approach and purposive approach.

Literal Approach

 This view of judicial interpretation holds that the judges should look primarily to the words of the legislation in order to construe its meaning and, except in very limited circumstances, should not look outside of, or behind, the legislation in an attempt to find its meaning.

 The literal approach is dominant in the English legal system

Purposive Approach

 This approach rejects the limitation of the judges’ search for the meaning to a literal construction of words of legislation itself.

 This purposive approach is typical of civil law systems, where legislation sets out general principles and judges fill in the finer detail.