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Judiciary of Malaysia is largely centralised despite Malaysia's federal constitution, heavily influenced by the English common law, as well as Islamic jurisprudence.
| | This article needs additional citations for verification .(December 2013) |
Judiciary of Malaysia is largely centralised despite Malaysia's federal constitution, heavily influenced by the English common law, as well as Islamic jurisprudence.
There are generally two types of trials, criminal and civil. The hierarchy of courts begins from the Magistrates' Court, Sessions Court, High Court, Court of Appeal, and finally, the Federal Court. [1] The jurisdiction of the courts in civil or criminal matters are contained in the Subordinate Courts Act 1948 and the Courts of Judicature Act 1964. Article 121 of the Constitution provides for two High Courts of co-ordinate jurisdiction, the High Court in Malaya, and the High Court in Sabah and Sarawak. Thus this creates two separate local jurisdiction of the courts – for Peninsular Malaysia and for East Malaysia. The highest position in the judiciary of Malaysia is the Chief Justice of the Federal Court of Malaysia (also known as the Chief Justice of Malaysia), followed by the President of the Court of Appeal, the Chief Judge of Malaya, and the Chief Judge of Sabah and Sarawak. The superior courts are the High Court, Court of Appeal, and the Federal Court, while the Magistrates' Courts and the Sessions Courts are classified as subordinate courts.
The current Chief Justice of the Federal Court effective 2 May 2019 is Yang Amat Arif Tun Tengku Maimun binti Tuan Mat, the President of the Court of Appeal is Tan Sri Datuk Amar Abang Iskandar bin Abang Hashim, and the Chief Judge of Malaya is Tan Sri Dato' Mohamad Zabidin bin Mohd Diah. The current Chief Judge of Sabah and Sarawak is Tan Sri Dato’ Abdul Rahman bin Sebli.
Since 2003, the two highest courts of the country, namely the Federal Court and the Court of Appeal, have been located at the Palace of Justice, Putrajaya. [2]
The Federal Court is the highest court in Malaysia. The Federal Court may hear appeals of civil decisions of the Court of Appeal where the Federal Court grants leave to do so. The Federal Court also hears criminal appeals from the Court of Appeal, but only in respect of matters heard by the High Court in its original jurisdiction (i.e. where the case has not been appealed from the Subordinate Courts).
The Court of Appeal generally hears all civil appeals against decisions of the High Courts except where against judgment or orders made by consent. In cases where the claim is less than RM250,000, the judgment or order relates to costs only, and the appeal is against a decision of a judge in chambers on an interpleader summons on undisputed facts, the leave of the Court of Appeal must first be obtained. The Court of Appeal also hears appeals of criminal decisions of the High Court. It is the court of final jurisdiction for cases which began in any subordinate courts.
The two High Courts in Malaysia have general supervisory and revisionary jurisdiction over all the Subordinate Courts, and jurisdiction to hear appeals from the Subordinate Courts in civil and criminal matters.
The High Courts have unlimited civil jurisdiction, and generally hear actions where the claim exceeds RM1,000,000, other than actions involving motor vehicle accidents, landlord and tenant disputes and distress. The High Courts hear all matters relating to:
The High Courts have unlimited jurisdiction in all criminal matters other than matters involving Islamic law. The High Courts have original jurisdiction in criminal cases punishable by death.
Cases are heard by a single judge in the High Court, or by a judicial commissioner. While High Court judges enjoy security of tenure, judicial commissioners are appointed for a term of two years, and do not enjoy similar protection under the Constitution.
An application for a judicial review is applied in this court.
The Magistrates' Courts and Sessions Courts in Malaysia have the power in both criminal and civil matters.
Somewhat like the former Quarter Sessions in England, but does not exceed RM1,000,000 as per ss 65(1)(b), 73(b), 93(1) of the Subordinate Courts Act 1948 (SCA). The exception however is in matters relating to motor vehicle accidents, landlord and tenant and distress, where the Sessions Courts have unlimited jurisdiction pursuant to s 65(1)(a)SCA. Also, by virtue of s 65(3) SCA, the parties to a legal action may enter into an agreement in writing to grant jurisdiction to the Sessions Court to try an action beyond its prescribed monetary jurisdiction aforesaid.
Magistrates are divided into First Class and Second Class Magistrates, the former being legally qualified and having greater powers. Second Class Magistrates are normally appointed.
The court of a penghulu, or Malay village head, has the power to hear civil matters of which the claim does not exceed RM50, where the parties are of an Asian race and speak and understand the Malay language.
The Penghulu Court's criminal jurisdiction is limited to offences of a minor nature charged against a person of Asian race which is specially enumerated in his warrant, which can be punished with a fine not exceeding RM25. However, the Penghulu Court has been abolished since 1 March 2013.
In Sabah and Sarawak, there are no Penghulus' Courts, but there are instead Native Courts (Malay: Mahkamah Anak Negeri) having jurisdiction on matters of native law and custom.
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 18.
The Special Court was established in 1993 to hear cases of offences or wrongdoings made by a Ruler. A Ruler includes the Yang di-Pertuan Agong (King), the sultans of monarchical states in Malaysia, the Yang di-Pertua Negeri, and the Yang di-Pertuan Besar, i.e.: the head of states of Malaysia and its component states. Prior to this, a Ruler was immune from any proceedings brought against them in their personal capacity. [3] Faridah Begum bte Abdullah v Ahmad Shah was the first case to be heard in this court.
There is a parallel system of state Syariah Courts which has limited jurisdiction over matters of state Islamic (sharia) law. The Syariah Courts have jurisdiction only over matters involving Muslims, 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.
The appointment of the Chief Justice is governed by Article 122B of the Constitution of Malaysia whereby the Yang di-Pertuan Agong (King) appoints the Chief Justice on the advice of the Prime Minister of Malaysia after consulting the Conference of Rulers. As for the appointment of the President of the Court of Appeal, the Chief Judge of Malaya, the Chief Judge of Sabah and Sarawak, and other Federal Court judges, similar procedure is taken with the additional requirement of consultation with the Chief Justice. [4]
The appointment of Court of Appeal judges is also governed by the same procedures with the additional requirement for the consultation of the President of the Court of Appeal. As for the appointment of High Court judges, similar procedures are prescribed with the additional requirement of consultation with the respective Chief Judges.
The appointment of Sessions Court judges is governed by Section 59 of the Subordinate Court Act 1948. They are appointed by the Yang di-Pertuan Agong upon the advice of the respective Chief Judges.
Section 78 of the Subordinate Courts Act 1948 provides that the appointment of magistrates are done by the respective state government upon the advice of the respective Chief Judges, except for magistrates in the Federal Territory, where they are appointed by the —Yang di-Pertuan Agong upon the advice of the Chief Judge.
For a list of lord presidents, see Lord President of the Federal Court.
{{cite web}}: CS1 maint: unfit URL (link)The title of Lord President of the Supreme Court was formerly the title of the head of the judiciary in Malaysia, until 1994 when the office was renamed "Chief Justice of the Federal Court".
The Federal Constitution of Malaysia, which came into force in 1957 as the Constitution of the Federation of Malaya and was amended in 1963 to form the Constitution of Malaysia, is the supreme law of Malaysia and contains a total of 183 articles. It is a written legal document influenced by two previous documents, the Federation of Malaya Agreement 1948 and the Independence Constitution of 1957. The Federation was initially called the Federation of Malaya and it adopted its present name, Malaysia, when the states of Sabah, Sarawak and Singapore became part of the Federation. The Constitution establishes the Federation as a constitutional monarchy, having the Yang di-Pertuan Agong as the Head of State with largely ceremonial roles. It provides for the establishment and organisation of three main branches of the government: the bicameral legislative branch called the Parliament, which consists of the House of Representatives and the Senate ; the executive branch led by the Prime Minister and his Cabinet Ministers and the judicial branch headed by the Federal Court.
The Supreme Court of the Australian Capital Territory is the highest court of the Australian Capital Territory (ACT). It has unlimited jurisdiction within the territory in civil matters and hears the most serious criminal matters.
The High Court of Singapore is the lower division of the Supreme Court of Singapore, the upper division being the Court of Appeal. The High Court consists of the chief justice and the judges of the High Court. Judicial Commissioners are often appointed to assist with the Court's caseload. There are two specialist commercial courts, the Admiralty Court and the Intellectual Property Court, and a number of judges are designated to hear arbitration-related matters. In 2015, the Singapore International Commercial Court was established as part of the Supreme Court of Singapore, and is a division of the High Court. The other divisions of the high court are the General Division, the Appellate Division, and the Family Division. The seat of the High Court is the Supreme Court Building.
The Court of Appeal of Singapore is the highest court in the judicial system of Singapore. It is the upper division of the Supreme Court of Singapore, the lower being the High Court. The Court of Appeal consists of the chief justice, who is the president of the Court, and the judges of the Court of Appeal. The chief justice may ask judges of the High Court to sit as members of the Court of Appeal to hear particular cases. The seat of the Court of Appeal is the Supreme Court Building.
The district courts of India are the district courts of the state governments in India for every district or for one or more districts together taking into account of the number of cases, population distribution in the district. They administer justice in India at a district level.
The Attorney General of Malaysia is the principal legal adviser of Malaysia. The Attorney General is also the highest ranking public prosecutor in the country and is also known as the Public Prosecutor, or simply PP. The powers with regard to prosecution is contained in Article 145(3) of the Federal Constitution. For instance, exercisable at his discretion, the Attorney General may institute, conduct or discontinue any proceedings for an offence, other than proceedings before a Syariah court, a native court or a court-martial.
The judiciary of Pakistan is the national system of courts that maintains the law and order in the Islamic Republic of Pakistan. Pakistan uses a common law system, which was introduced during the colonial era, influenced by local medieval judicial systems based on religious and cultural practices. The Constitution of Pakistan lays down the fundamentals and working of the Pakistani judiciary.
The Government of Malaysia, officially the Federal Government of Malaysia, is based in the Federal Territory of Putrajaya, with the exception of the legislative branch, which is located in Kuala Lumpur. Malaysia is a federation composed of the 11 States of Malaya, the Borneo States of Sabah and Sarawak, and 3 Federal Territories operating within a constitutional monarchy under the Westminster system and is categorised as a representative democracy. The federal government of Malaysia adheres to and is created by the Federal Constitution of Malaysia, the supreme law of the land.
The chief justice of Malaysia, also known as the chief justice of the Federal Court, is the office and title of the head of the Malaysian judiciary system. The title has been in use since 1994, and prior to this it was known as the lord president of the Federal Court. The chief justice is the head of the Federal Court, the apex court of Malaysia. It is the highest position in Malaysian judicial system followed by the president of the Court of Appeal of Malaysia, chief judge of Malaya, and the chief judge of Sabah and Sarawak.
The Federal Court of Malaysia is the highest court and the final appellate court in Malaysia. It is housed in the Palace of Justice in Putrajaya. The court was established during Malaya's independence in 1957 and received its current name in 1994.
The Court of Appeal is an appellate court of the judiciary system in Malaysia. It is the second highest court in the hierarchy below the Federal Court. This court was created in 1994 as part of reforms made to the judiciary to create a second tier appellate court after the right to appeal to the Privy Council of the United Kingdom was abolished in 1985. The court is headed by the President of the Court of Appeal of Malaysia, who is the second most senior post in Malaysian judiciary after the Chief Justice of Malaysia.
The high courts in Malaysia are the third-highest courts in the hierarchy of courts, after the Federal Court and the Court of Appeal. Article 121 of the Constitution of Malaysia provides that there shall be two high courts of co-ordinate jurisdiction—the High Court in Malaya and the High Court in Sabah and Sarawak. Before 1969, the High Court in Singapore was also part of the Malaysian courts system.
The chief judge of Sabah and Sarawak, formerly the chief justice of Borneo, is the office and title of the head of the High Court of Sabah and Sarawak. The title has been in use since 24 June 1994, when the High Court of Sabah and Sarawak was renamed from the High Court of Borneo.
The state governments in Malaysia are the governments ruling the 13 states in the federation of Malaysia. All 13 states adopts the Westminster Parliamentary system and each has a unicameral state legislative assembly. Each of the States of Malaya is run by an EXCO, while Sabah and Sarawak have their respective Cabinet and Ministry. The state government structure in all 13 states is similar to the government system of the federal government of Malaysia and that the state legislatures consist of only a single chamber.
Tan Sri Datuk Seri Panglima David Wong Dak Wah is a Malaysian lawyer and judge who served as the fifth Chief Judge of Sabah and Sarawak.
Tun Dato' Seri Utama Tengku Maimun binti Tuan Mat is a Malaysian lawyer who has served as the 10th Chief Justice of Malaysia since May 2019. She is the first woman to ascend to the highest judicial office of the country.
Rohana binti Yusuf is the eleventh President of the Court of Appeal of Malaysia (PCA). She is the first woman to have been appointed into the office since its inception in 1994.
Tan Sri Datuk Amar Abang Iskandar bin Abang Hashim is a Malaysian jurist and lawyer who serves as the twelfth President of the Court of Appeal. He previously served as the Chief Judge of Sabah and Sarawak (CJSS).
Nik Elin Zurina bt Nik Abdul Rashid & Anor v. Kerajaan Negeri Kelantan, [2024] 2 MLJ 140 is a landmark decision of the Federal Court of Malaysia in which the court held that the Kelantan State Legislative Assembly did not have the power to enact 16 Sharia laws pertaining to criminal matters, which were deemed null, void and unconstitutional. The Federal Court followed its decision in Iki Putra Mubarrak v. Kerajaan Negeri Selangor & Anor, [2021] 2 MLJ 323, another case which laid out the emphasis of federalism and the division between state and federal powers, that the State Legislative Assembly can only make laws on matters enumerated in the State List of the Federal Constitution of Malaysia.
