BT20403/Topic1

OUTLINE
INTRODUCTION TO • Introduction

MALAYSIAN LEGAL
• What is ‘Law’?
• Law as Rules

SYSTEM
• Legal Concepts
• Classification of Law
• Settling Disputes
• Sources of Malaysian Law
BT20403 COMMERCIAL LAW • Courts and the Administration of Justice

TOPIC 1
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INTRODUCTION CONT.
• Malaysian laws shaped by local history & culture. • Most important areas of social organizations in a
legal system:
• Malaysian legal system derives many traditions
from English legal system.  Political system: the way society is governed
 Economic system: ownership, production &
• A legal system is the framework of rules & distribution of society’s resources
regulations within a nation regulating  Moral standards: what constitutes
individuals’ relations with each other & with acceptable & unacceptable behaviours
government.
 Social interactions: relationships between
people.

3 4

WHAT IS LAW? CONT.

• According to Aristotle, a Greek philosopher, law
• So, what is Law? represents nature or natural law.

• Law means different things to different people • According to Karl Marx, a German socialist, law is
depending on their experience of it. an instrument used by capitalists to control
the working class.
• E.g.. Throughout history, many people have given
their opinion on what law is. • Emile Durkheim, a sociologist, on the other hand,
commented that society is held together by law.
• Law has been defined as a body of enacted or
customary rules recognized by the community as • While Lord Devlin, a famous English judge, stated
binding. that law is based on morality and religion.
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CONT. CONT.
• Sir John Salmond defined law as a body of • From the above views, it seems that law means
principles recognized and applied by the many things to different people.
State in the administration of justice.

• Last but not least, John Austin regarded law as • However, law does have the following
a command by a superior being to an characteristics, namely:
inferior being and it is followed by a legal
sanction if the law is not obeyed. 1. Law is normative in character;
2. Law is capable of change over time;
• It has a coercive( fear) effect. It threatens you to 3. Law carries a sanction or punishment for
obey it. disobedience.
7 8

CONT. CONT.
(1) Law is normative in character
• This means that law regulates our behaviour in (3) Law carries a sanction or punishment for
society. disobedience
• The most basic way of doing this is through legal • In order for people to obey the law, sanction or
rules. Rules tell us what to do and what not to do. punishment is given if there is a breach of law.
• Punishment ensures that the law is followed or
obeyed.
• There are many types of punishment and these
(2) Law is capable of change over time depend on the type of wrongdoing committed.
• Law does not remain the same year in year out. • Such punishment include death penalty, fine,
• As society changes due to advances in knowledge, imprisonment etc.
like science and technology, the law too must
change so that it can regulate the new activities.
9 10

DEFINITION OF LAW CONT.

• Law can generally be described as a set of rules, • The term ‘law’ is defined by Article 160(2) of
developed over a long period of time that the Malaysian Federal Constitution 1957 to
regulates interactions that people have with include:
each other, and which sets standards of
conduct between individuals and between a) The written law;
individuals and the government and which are b) Common law in so far as it is in operation
enforceable through sanction. in the Federation or any part thereof; and
c) Any custom or usage having the force of
(Lee, M.P., 2009). law in the Federation or in any part thereof.

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LAW AS RULES LEGAL CONCEPTS

• According to the Oxford dictionary, law is a
system of rules that everyone in a country • Besides looking at law as a set of rules which tell
or society must obey. us how to behave, we also have to ask ourselves
what law is made of.
• This means that the law is made up of rules.
These rules tell us what we can or cannot do. • For people to respect law and obey it, law must
satisfy certain basic requirements, namely, it must
contain concepts such as:
• E.g. Criminal law tells us that we cannot steal or  justice,
kill. So, if we commit these crimes, we will be
punished by a punishment or sanction such as  equality,
prison sentence or even death.  freedom and
13
 morality. 14

(1) JUSTICE (1) JUSTICE (CONT.)

• A good law is law that is just and fair. It means (1) The rule of law
that the law should include justice as an important
element. • This legal principle says that nobody is above
the law and that everyone is subject to the law.
• Legal justice refers to the way in which the law is
just and fair. It has been said that justice is the • Thus, every citizen in a country knows that if
ultimate aim of the law. he does anything wrong, he will be punished
and that if he is wronged, the law will protect
him and his rights.
• 2 ways for law to achieve justice:
1. The rule of law • The rule of law was formulated in its modern
2. Natural justice form in the late 19th century by Professor
15
Dicey. 16

(1) JUSTICE (CONT.) (1) JUSTICE (CONT.)

(2) Natural justice
(1) The rule of law (cont.) • Natural justice is a legal philosophy used in
some jurisdictions in the determination of just,
• Dicey suggested that the rule of law involves or fair processes in legal proceedings.
the following 3 propositions:
• The concept is very closely related to the
 No person must be punished except for a principle of natural law (Latin: jus naturale)
breach of the law; which has been applied as a philosophical and
 All persons are equal before the law practical principle in the law in several common
irrespective of status or position; and law jurisdictions, particularly the UK and
 The rights or freedoms of citizens are Australia. According to Roman law, certain basic
enforceable in the courts. legal principles are required by nature, or so
obvious that they should be applied universally
without needing to be enacted into law by a
legislator.
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(1) JUSTICE (CONT.) (2) MORALITY

(2) Natural justice (cont.) • A good law must have some moral element in it.
• This legal principle consists of 2 legal rules i.e.:
• E.g. we say that stealing is a crime because we
 The rule against bias or nemo judex in recognize that it is immoral to steal.
causa sua or nemo judex in res sua, which
says that a person is barred from deciding any
case in which he or she may be, or may fairly • Morality is a value concept which states that some
be suspected to be, biased. This principle things are right or wrong, good or bad based on
embodies the basic concept of impartiality. our religious beliefs.

 The right to a hearing or audi alteram • In this way, we can say that the law reflects
partem, which states that when a person is morality.
accused of any wrongdoing, he must be given
an opportunity to give his side of the story. 20

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(2) MORALITY (CONT.) (3) FREEDOM

• However, not everything immoral is against the • A good law protects the rights and freedoms of
law. E.g. lying is immoral but we can't go around people.
suing or jailing everyone who lies.
• Freedom refers to a person’s right to do what he
• However, under the law, a person who lies in wishes. However, under the law, we are not
certain situations can be punished. totally free to do whatever we wish.

• E.g. The case of a witness who lies while giving • Legal freedom, therefore, refers to the idea of
evidence at a trial. Once a person has taken an limited freedom, not absolute freedom.
oath or made a promise to tell the truth and does
not, such a person can be punished for the crime
of perjury.
21 22

CLASSIFICATIONS OF LAW CONT.

• Law can be classified into public and private law.
Law
• Public law is concerned with any matter which
involves the relations of citizens with the state or
Public Law Private Law government and between states themselves (public
international law).
Constitutional Criminal
Contract Tort Trust
Property Company Family
• Areas of law that deal with the state and its
relationship with others are criminal law,
Law Law Law Law Law

constitutional law, administrative law and

Administrative international law. Criminal law deals with crimes
Law Sale of Hire while constitutional law covers matters involving the
rights of citizens as guaranteed under the Federal
Partnership Insurance Agency
Goods Purchase
International
Law
23 Constitution. 24

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CONT. CONT.
• Private or civil law, on the other hand, is
concerned with the rights and liabilities of individual • In some instances, an act can give rise to both a
parties or citizens among themselves. crime and a civil wrong.

• Areas of law include the law of contract, law of • For example, in an accident, the victim will lodge a
torts or civil wrongs, family law and law of police report on the accident. The person who
property. caused the accident may be prosecuted for
dangerous driving, which is a criminal offence if he
caused the victim to suffer injuries or even the
• The law of contract deals with agreements made death of anyone involved in the accident.
between parties which are enforceable under the Furthermore, the victim can also sue the
law. The law of torts deals with legal responsibilities wrongdoer under the tort of negligence for causing
the law places on individuals in society. If they do damage to his car and claim damages in
not live up to these responsibilities, they may be compensation.
sued. 25 26

COMPARISON BETWEEN CONT.

CRIMINAL LAW & CIVIL LAW
CRIMINAL LAW CIVIL LAW
CRIMINAL LAW CIVIL LAW Sources Statute-based Penal Code Case law or judicial
Sources Statute-based Penal Case law or judicial decisions
Code decisions Burden and Burden of proof is on the state Burden of proof is on the
Aims Protect persons or property Control or regulate dealings standard of or PP. plaintiff.
Suppress anti-social between private individuals proof The State has responsibility to The plaintiff who has brought
behavior Compensate injured party prove that the defendant the complaint or suit must
Punish offenders who has suffered loss or committed the crime. prove that the defendant is
harm to person or property The standard or amount of liable or responsible for the
proof required is beyond plaintiff’ s harm or loss.
Who takes The State represented by Individual / company or
reasonable doubt. The standard of proof is on a
action the Public Prosecutor or organization
balance of probabilities.
Attorney General
Decision of Verdict – guilty or not guilty Decision – liable or not liable
Litigants/parties PP/AG v Defendant Plaintiff v Defendant
the court
Pleadings Defendant plead guilty or Defendant defends against
Outcome of Punishment – imprisonment, Remedy – compensation for
not guilty claim against him
27 trial death sentence, fine, whipping loss or harm suffered. 28
Court Criminal jurisdiction Civil jurisdiction

SETTLING DISPUTES CONT.

• There are many ways of settling disputes • Negotiations – sometimes called
which can either involve the law or not, “table-talk”, is an effective way for
including: parties to clear up a dispute. By
negotiation on agreed facts, parties are
free to give and take on issues they
• Self help – this method involves a disagree on until they can reach a
person settling a dispute on his own consensus or middle ground.
initiative using whatever resources
available .
• Mediation – a 3rd party (mediator)
helps the parties to the dispute to
• Use of force – in the past, this was a negotiate an agreement. Ultimately, it is
common way to settle a dispute based on the parties to the dispute who will make
the belief that “might is right”. the decision to settle and the terms of
the settlement.
29 30

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CONT. CONT.
• Litigation – involves going to court, which can
• Conciliation – is similar to mediation but cost a lot of money and takes time. The judge
here, the 3rd party (conciliator) takes a more will hear both sides of the disputes and make a
active role in suggesting the terms of binding decision based on the evidence
settlement or even gives opinion on the presented in court and according to the rules of
dispute. procedure. Any party unhappy with the decision
may appeal to a higher court.
• Arbitration – a 3rd party called an
arbitrator settles the dispute by making a • Ombudsman – are independent, impartial
decision which binds the parties. It is a adjudicators of complaints about bad or
formal process and the arbitrator is a person maladministration in government departments
who has special knowledge of the dispute. and particular services in the public and private
sectors. They do fact-finding, mediation and
adjudication in various levels through which
complaints by consumers are settled.
31 32

SOURCES OF MALAYSIAN SOURCES OF MALAYSIAN

LAW LAW
• The Malaysian legal system reflects its social and
SOURCES OF MALAYSIAN LAW

political history. Local and foreign influences like the

English, Dutch, Portuguese, Indians, Chinese and
Arabs have effects on the Malaysian legal system. Written Law Unwritten Law Islamic Law

 The main sources of Malaysian law are as follows:

• Historical sources
• Legal sources
Federal State
Constitution Constitution
• Writings and books
Custom English Law

• These sources can be classified into written Legislation and Subsidiary

sources and unwritten sources. 33
Legislation Judicial Precedents
34

(1) WRITTEN SOURCES (A) FEDERAL CONSTITUTION

• Written sources refer to law created by bodies • A Constitution can be described as the backbone of
that are authorized to pass laws, namely: a country’s legal system. It is the framework from
which laws are made.
1. The Federal Constitution;
2. The State Constitutions; • A Constitution does a number of things, including:
3. Legislations i.e.. Federal laws passed by the  It establishes the form of Government
Parliament and State laws passed by the State  It details the power to make laws
Legislative Assemblies;  It divides power between the State and Federal
4. Federal & State’s subsidiary / delegated Governments
legislations made by persons or bodies  It separates powers between different bodies
under powers conferred by Acts of
Parliaments or Enactments of State
Assemblies, respectively. 35 36

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CONT.. CONT..
• The doctrine of Separation of Powers reflects • 3 arms or bodies of power:
the view “absolute power corrupts absolutely” by
Lord John Acton in 1887.  Legislative power _ the power to make laws

• Separation of powers allows a system of checks  Executive power – the power to govern and
and balances to take place so that one arm or enforce the law to ensure that it is
body of power can check the other in such a way implemented and followed
that there is a balance or peace in society.
 Judicial power – the power to interpret the
law made by the Parliament and to settle any
disputes about the law.
37 38

CONT.. CONT..
• Art. 4(1) of the Malaysian Federal • Repco Holdings Bhd v Public Prosecutor
Constitution provides that: [1997] 3 MLJ 681.

“This Constitution is the supreme law of the • The court declared both s. 126(2) of the Securities
Federation and any law passed after Merdeka Industry Act and s. 39(2) of the Securities
Day which is inconsistent with this Commission Act to be unconstitutional, null
Constitution shall, to the extent of the and void as they wholly contravene Art. 145 (3)
inconsistency, be void.” of the Federal Constitution.

• R Rethana v The Government of Malaysia

and Anor [1988] 1 MLJ 133
39 40

CONT.. (B) LEGISLATION

• The most common source of laws today.
• Art. 159 of the Malaysian Federal
Constitution contains provisions to allow the
Constitution to be amended with the condition of • Legislation refers to Statutes or Acts (made or
two thirds’ (2/3) majority of members in both enacted by Parliament as the law-making body).
houses of Parliament (the Senate or “Dewan
Negara” and the House of Representatives or • Legislation can also be called enactments or
“Dewan Rakyat” agreeing to the amendment). ordinances. Enactments refer to those laws
enacted by the State legislative assembly as
the law-making body whereas, ordinances refer
to those laws made prior Independence Day in
1957.
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(C) SUBSIDIARY/DELEGATED
CONT.. LEGISLATION
• It is an important source of laws because it allows • Subsidiary legislation or delegated legislation
law reform to take place; and that (sometimes is referred to as by-laws) refers to a
codification and consolidation can easily be law made or passed by a body or agency
carried out. other than the Parliament or state
legislative assembly (e.g. Ministers, statutory
bodies, district councils, etc.).

• Subsidiary legislation is defined in Interpretation

Act 1967 to include any proclamation, rule,
regulation order, notification or other instrument
made under any Act, Enactment or Ordinance and
having legislative effect.
43 44

(2) UNWRITTEN SOURCES (A) JUDICIAL DECISIONS

(JUDGE-MADE LAWS)
• The unwritten sources of law refer to laws which
are not created by Parliament or found in the • Judges play an important role in interpreting the law
constitution. Thus, such laws may be in writing but and settling disputes. Therefore, when judges make
are not enacted by the legislature, e.g.: a decision in a case, the decision may add to the
 Judicial decisions by the highest court (“judge law as found in legislation. The decision may explain
made laws or common law”); the application of the statutes in a clear way or it
 English common law and rules of equity i.e.. may even explain what the words in the statute
principles of English law so far as they were suitable mean.
to local conditions;
 Islamic laws /Syariah applicable to Muslims; and • The term ‘common law’ is also used to describe
 Customary law (customary law practised in judge-made law.
Sabah, Sarawak, Adat Temenggung & Adat Perpatih
in West Malaysia.
• Case law arises in 2 ways: judicial precedent and
45
statutory interpretation. 46

CONT.. CONT..
(i) Judicial precedent (ii) Statutory interpretation
 When a judge makes a decision, his decision will be  When judges interpret statutes, they may have
followed by other judges in similar cases later (this to give meaning to the words in a statute
is known as binding judicial precedent or because it is not clearly stated in the statute/Act
doctrine of stare decisis). itself.
 However, judges may have to apply the law to a  Sometimes, it may not be clear if the Act applies
new situation in a case. When they do this, they to a particular case. The judge will then interpret
may find that the law as it is does not cover this the Act in question.
particular situation. They will then have to create  The meaning given to the words in the statute
new legal reasoning or principles to apply in this adds to the law. In this way, the judge is said to
case (this is known as ratio decidendi) and this be creating law.
will then become the precedent for future cases
involving the same issues although the facts may
be different.
47 48

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(B) COMMON LAW/ CONT..

PRINCIPLES OF ENGLISH LAW
• S.3(1) CLA provides that except where other
• Common law refers to law which resulted from the provision has been made, or may be made by any
decisions of judges and legal rules and principles of written law in force in Malaysia, the Court shall:
law which were applied in common throughout the
UK.  in Peninsular Malaysia (West Malaysia), apply
the English common law and rules of equity as
• Common law includes rules of equity which are rules administered in England on the 7th April 1956
developed to counter harshness of the law – based (s.3(1)(a)) ;
on principles of fairness and justice.
 in Sabah, apply the English common law and
• This type of law is received and applied in the rules of equity, together with statutes of general
Malaysian legal system because of the application of application, as administered in England on the
the Civil Law Act 1956 (CLA) which came into 1st December 1951 (s.3(1)(b));
force on 1 April 1972.
49 50

CONT.. CONT..
 in Sarawak, apply the English common law and • The application of the law of England throughout
rules of equity, together with statutes of Malaysia is subject to 2 limitations:
general application, as administered in England
on the 12th December 1949 (s.3(1)(c)).  It is applied only in the absence of local
statutes on a particular subject, and the
local law takes precedence over English law
(only applicable whenever there is lacunae in
the law); and

 Only that part of English law which is suited

to local circumstances will be applied.
51 52

CONT.. CONT..
• With regards to commercial law, s.5(1) • Whereas for Penang, Malacca, Sabah and
provides that all questions or issues which arise Sarawak, s.5(2) provides that the English
or have to be decided in Peninsular Malaysia commercial law shall applicable shall be the
(except Penang and Malacca) with respect to same as administered in England, in the like
commercial matters (law of partnership, case at the corresponding period.
corporations, banking, principal and agent,
carriers by air, land and sea, marine insurance, • As a result of s.3 and s.5 of the Civil Law Act,
life and policy insurance and with respect to English principles continue to apply in Malaysia
mercantile law generally), the law to be applied until today.
shall be the same as administered in
England at the date of the coming into force
of this Act, which is 7 April 1956.

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(C) CUSTOMS FEDERAL SYSTEM OF

GOVERNMENT
• A custom is a practice or a way of doing
things among a certain group of people • The Federal Constitution (Constitution) is the legal
which has become accepted by the law (and framework of the country which tells us what type of
that is why it is considered to be a source of law. government we have, its powers and the rights of the
citizens.
• Customs of the local people of a country or their
personal law usually concerns family, land and • The Federal Constitution has the following features:
religious matters.  It lays down the powers of the Federal and State
Government;
• Customary laws in Malaysia eg. Native laws in  It follows the principles of the separation of powers;
Sabah and Sarawak, and Adat Temenggung & Adat  It outlines the fundamental rights of citizens (known
Perpatih in West Malaysia. as fundamental liberties or human rights or freedom
55 of people). 56

CONT. CONT.
• The Federal Constitution is divided into different
• As the Federal Constitution is really a backbone of parts and each part of the Constitution contain
our legal system, it cannot easily be changed or Articles which provides the following:
amended.  The name, States and territories of the Federation;
 Religion of the Federation;
• This is why in order to change or amend the  Supreme law of the Federation;
Constitution, a two thirds’ (2/3) majority of the
members of the Parliament must agree to it  Fundamental liberties;
(Art.159).  Citizenship;
 The Federation – the Yang Dipertuan Agong,
Conference of Rulers, the Executive, Federal
• Acts or statutes, on the other hand, can be Legislature (Parliament), legislative procedures;
amended by a simple majority.
 The States – Rulers and Yang Dipertuan Negeri,
57 Legislative Assembly; 58

CONT. CONT.
 Relations between the Federation and the States; • Each state in the Federation of Malaysia has its own
 Financial provisions; constitution regulating the government of that
 Elections; State.
 The Judiciary;
 Public services; • The provisions of the State Constitution have
 Special powers against subversion, emergency been clearly outlined and enumerated in the 8th
powers; Schedule to the Federal Constitution.
 General and miscellaneous, e.g. national
language, federal capital, amendment of • Some of the matters, which State Constitutions deal
constitutions; with, concerns the Ruler, the Executive Council, the
 Additional protection for Sabah and Sarawak; legislature, namely the Legislative Assembly,
 Temporary and transitional provisions; and financial provisions and the amendment of the
 Savings for Ruler’s sovereignty, etc. 59 constitution. 60

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COURTS & THE

CONT. ADMINISTRATION OF
• If any provision is missing in a State Constitution,
JUSTICE
or if it is inconsistent with the Federal • The Federal Constitution provides that
Constitution, then only the Parliament can remove power is exercised by the legislative, the
this inconsistency. executive and the judiciary.

• The judiciary has the power to hear and

determine civil and criminal matters. It can
interpret the Federal and State
Constitutions.

• It can even pronounce on the legality of

61 legislative or executive acts. 62

CONT. CONT.
• The head of the judiciary is the Chief Justice. • The hierarchy of the courts is actually a description
of the court structure from the lowest court to the
• The judicial power of Malaysia is vested in: highest court. It is part of the judicial system.

1) The Superior courts, namely the Federal • The general rule about the doctrine of
Court, the Court of Appeal, the High Courts, precedents is that the decisions of the higher
and court bind the lower courts and some courts
are bound by their own decisions.
2) The Subordinate courts, namely the
Sessions Court, the Magistrate’s Court, and
other court(s).

63 64

(1) SUPERIOR COURTS

CONT.
• The Superior Courts of Malaysia comprises the
• Thus the hierarchy of the courts would explain how Federal Court, the Court of Appeal (COA), the 2
precedents work. High Courts – the High Court of Malaya and the
High Court in Sabah and Sarawak.
• The Federal Court, the Court of Appeal (COA) and
the High Court are the superior courts and are • Federal Court - This is the highest court of the
therefore in the higher hierarchy than the land and the highest court of appeal in Malaysia. It
subordinate or lower courts. consists of the Chief Justice, the President of the
Court of Appeal, the Chief Judge of Malaya and the
• Lower courts, such as the Magistrate Court and Chief Judge of Sabah and Sarawak. Proceeding of
the Sessions Court, are bound by the decisions the Federal Court must be heard by 3 or such
of the superior courts. greater uneven number of judges.

65 66

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CONT. CONT.
• The Federal Court has jurisdiction in matters 4. To give its opinion on any question
including: referred to it by the Yang Di Pertuan
Agong (YDPA) concerning the effect of any
1. To hear civil and criminal appeals from provision of the Constitution which has
decisions of the COA; already arisen or appears likely to arise –
2. To exercise exclusive original Government of Malaysia v Government
jurisdiction on those matters conferred to it of Kelantan [1968] 1 MLJ 129.
under Art. 128(1) and (2) of the Federal
Constitution;
3. To determine constitutional questions
which have arisen in the proceedings of the
High Court but referred to the Federal Court
for a decision;
67 68

CONT. CONT.
• The Court of Appeal – The COA constitutes the • The High Courts - The High Court has 2 Chief
President of the Court of Appeal and up to 10 COA Justices, one in Peninsular Malaysia and one in
judges. It is heard by 3 judges or such greater Sabah and Sarawak. The High Court is the court of
uneven number of judges. The COA hears appeals original, appellate and supervisory jurisdiction.
from decisions of the High Court:
• Any appeal against a High Court decision on 1. In its original jurisdiction, it has unlimited
criminal matters; civil and criminal power. It can hear any
• Any civil appeal which involves a claim of matter which can be heard by a lower court and
at least RM250,000. where the cause of action arose in Malaysia or
where a party has a place of business here. In
Where an appeal has been heard and disposed of by criminal matters, however, no case may be
the COA, it has no power to review the case, i.e.. it brought to the High Court unless the offender
has no power to re-open, re-hear nor to re-examine has been committed for a trial after the
its decision for whatever purpose – Lye Thai Sang preliminary hearing in the Magistrate Court.
& Anor v Faber Merlin SB [1986]. 69 70

CONT. (2) SUBORDINATE COURTS

2. In its appellate jurisdiction, the High Court
can hear appeals in civil and criminal matters • The subordinate courts in Malaysia consist of the
from the Subordinate Courts. Sessions Courts, the Magistrate’s Courts and the
Penghulu’s Courts.
3. Under s.35(1) of the Courts of Judicature
Act 1964, the High Court has been conferred • A subordinate court is any one of those courts
general supervisory and revisionary established under s.3(2) of the Subordinate
jurisdiction over all subordinate courts. In Courts Act 1948 –
the interest of justice and when it appears There shall be established the following
desirable, the High Court may call for the subordinate courts for the administration of civil
records of any proceedings of the subordinate and criminal law:
courts. It may also remove the case to the (a) Sessions Courts;
High Court or give such directives to the
subordinate courts as it thinks necessary. (b) Magistrate’s Courts; and
71 (c) In West Malaysia only, Penghulu’s Court. 72

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CONT. CONT.
• Sessions Courts – The Sessions Court is the • Magistrate’s Courts – The Magistrate’s Court is
highest of the subordinate courts, and is headed by presided over by a magistrate (1st-class or 2nd-class
a Sessions Court judge. magistrate).
• Its criminal jurisdiction includes all offences other • A 1st-class magistrate is legally qualified and must be
than those involving death sentences. a member of the Judicial and Legal Service of the
• It is also empowered to hear civil cases where Federation while a 2nd-class magistrate is usually a
the amount or the subject matter in dispute civil servant and court official who is not legally
does not exceed RM250,000. Cases involving qualified.
sum larger than this must be tried in the High • A 1st-class magistrate can hear matters in which the
Court. maximum term of imprisonment provided by
• Generally the following matters cannot be dealt with law does not exceed 10 years imprisonment
by a Sessions Court – injunctions, specific or which are punishable with fine only and
performance or rescission of contracts, probate, offences under s.392 and s.457 of the Penal
divorce, bankruptcy etc. Code.
73 74

CONT. CONT.
• In civil matters, it can hear cases where the • Penghulu’s Court – In Peninsular Malaysia, this is
amount or the value of the subject matter in the lowest subordinate court. It is headed by a
dispute does not exceed RM25,000. A 1st-class Penghulu (the head of the village), appointed by a
magistrate has jurisdiction to hear both criminal state government for a particular province (mukim).
and civil appeals from any decision of the
Penghulu’s Court.
• The power of the Penghulu is exercised informally.
His jurisdiction to hear and determine proceedings is
•A 2nd-classmagistrate can hear criminal matters for limited to cases involving amounts of up to RM50.
which the term of imprisonment is not more
than 12 months or only a fine. For civil matters,
it can try original actions or suits not exceeding • The criminal jurisdiction of the Penghulu Court is
RM3 thousand. restricted to the trial of offences of a minor nature,
which are listed in “Penghulu’s Kuasa” and are
punishable with a fine of not more than RM25.
75 76

3) OTHER COURTS CONT.

• Court for Children (formerly known as the Juvenile • Native Courts – The Native Court is peculiar only
Courts) – The Court for Children was established to Sabah and Sarawak. It exercises jurisdiction over
under the Child Act 2001. S.2 CA defines a ‘child’ matters affecting ‘native customs’ where the
as a person under the age of 18 years. parties are natives.

• The court is closed to members of the public in • Native Courts are empowered to try:
order to protect the young offender from publicity. 1. cases arising from breach of native law or
custom, e.g. those relating to religious or
matrimonial matters;
• If the offender is found guilty, he or she may be sent
to one of the approved institutions or schools where 2. cases involving land where there is no titled
he or she is given corrective education. For capital issued by the Land Office;
offences, the child will be detained in prison at the 3. civil cases (excluding land) where the value of
pleasure of the YDPA (s.91-s.97 CA) the subject matter does not exceed RM50
and all parties are subject to the same native
system of personal law.
77 78

13
 BT20403/Topic1

CONT. CONT.

• Syariah Courts – There is a parallel system of • The Industrial Courts – In addition to the
state Syariah Courts which has limited jurisdiction ordinary law courts, there are also other tribunals
over matters of state Islamic (Syariah) law such as the Industrial Court which exercise
(Art.121(1A) of the Federal Constitution). judicial or quasi-judicial functions.

• The Syariah Courts have jurisdiction only over • The Industrial Court, constituted under the
matters involving Muslims. Industrial Relations Act 1967, deals primarily
with trade disputes and therefore has jurisdiction
over matters concerning employers, employees and
• The Syariah Court can generally only pass sentences trade unions. It consists of a President appointed by
of not more than 3 years imprisonment, a fine of up the YDPA and a panel of persons appointed by the
to RM5,000, and/or up to 6 strokes of the cane. Minister of Law. This panel consists of a group
representing employers and a group representing
79 workmen. 80

HIERARCHY OF THE COURTS PREVIOUS COURT SYSTEM :

BETWEEN 1 JANUARY 1985 AND 23 JUNE 1994
Federal Court
SUPERIOR Supreme Court
COURTS SUPERIOR
Court of Appeal COURTS
High Court High Court
(Malaya) (Sabah & Sarawak)
High Court High Court
(Malaya) (Sabah & Sarawak) Syariah Syariah
Court Court
Sessions Sessions
*Syariah *Syariah Court Court Native
Court Court Court
Sessions Sessions *Native Magistrate’s
*Court for Court Court Magistrate’s
Children Court Court Court

*Industrial Magistrate’s Magistrate’s *Court Small Claims SUBORDINATE

Court Court for Children Court Small Claims
Court Court COURTS
*Industrial81
SUBORDINATE Penghulu’s Court Penghulu’s 82

COURTS Court Court

PREVIOUS COURT SYSTEM : PRIOR 1 JANUARY

1985
Privy Council
CONT.
SUPERIOR Privy Council
• During the colonial era, decisions of the Malayan
Federal Court COURTS
courts could be taken on appeal to the Queen-in-
Council, advised by the Judicial Committee of the
Privy Council in London.
High Court High Court
(Malaya) (Sabah & Sarawak)

Syariah Syariah
• Upon independence in 1957, by an agreement
between Her Majesty The Queen and His Majesty
Court Court
Sessions
The YDPA, and by virtue of Art. 131 of the
Court Sessions Native
Court Court
Federal Constitution, the Privy Council
Magistrate’s
Magistrate’s continued to function as the highest court in
Malaysia, formally advising the YDPA on the
Court SUBORDINATE
Court

Penghulu’s
COURTS
83
determination of appeals from the Federal Court. 84
Court

14
 BT20403/Topic1

CONT.
• Privy Council appeals on criminal and
constitutional matters were abolished on 1
January 1978. Civil appeals were abolished
on 1 January 1985, whereupon the Federal
Court was renamed the ‘Supreme Court of
Malaysia’.

• Later, the Supreme Court was renamed the

Federal Court of Malaysia effective from
June 24, 1994, and is now the final court of
appeal for Malaysia.

85

15