Malaysian Court
Malaysian Court
Malaysian Court
Prepared by :-
Musbri Mohamed
DIL; ADIL ( ITM )
Pursuing MBL ( UKM )
1
The Federal Court of Malaysia is the highest
judicial authority and the final court of appeal in
Malaysia. The country, although federally
constituted, has a single-structured judicial
system consisting of two parts - the superior
courts and the subordinate courts.
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The subordinate courts are the Magistrate
Courts and the Sessions Courts whilst the
superior courts are the two High Courts of
co-ordinate jurisdiction and status, one for
Peninsular Malaysia and the other for the
States of Sabah and Sarawak, the Court of
Appeal and the Federal Court. The Federal
Court, earlier known as the Supreme Court
and renamed the Federal Court vide Act
A885 effective from June 24, 1994, stands at
the apex of this pyramid.
3
Before January 1, 1985, the Federal Court was the highest
court in the country but its decisions were further
appealable to the Privy Council in London.
4
The Special Court was established on March 30, 1993
vide Act A848, now provided for in Article 182 of the
Federal Constitution. All offences committed by the
Rulers (the Rulers being the monarchical heads of the
component states of the Federation of Malaysia)
including His Majesty The Yang di-Pertuan Agong shall
be heard by the Special Court.
5
The Constitution of
Malaysia , or the Federal
Constitution, is the supreme
law of the land. It provides
the legal framework for the
laws, legislations, courts,
and other administrative
aspects of the law. It also
defines the government and
monarch, and their powers,
as well as the rights of the
citizens
6
The dual system of law is provided in Article 121(1A) of the
Constitution of Malaysia. Article 3 also provides that Islamic
law is a state law matter with the exception for the Federal
Territories of Malaysia. Islamic law refers to the sharia law,
and in Malaysia it is known and spelled as syariah. The court
is known as the Syariah Court. Looking at the Malaysian
legal system as a whole, sharia law plays a relatively minimal
role in defining the laws on the country. First and foremost,
sharia law only applies to Muslims. With regards to civil law,
the Syariah courts shall have jurisdiction in personal law
matters, for example, marriage, inheritance, and apostasy. In
some states, there is the sharia criminal laws, for example, the
Kelantan Syariah Criminal Code Enactment 1993. Their
jurisdiction is however limited to imposing fines for an
amount not more than RM 3000, and imprisonment to not
more than 6 months
7
Complications have arisen with regard to the dual
justice system. An example of this will be in the
context of feedom of religion. Article 11 of the
Constitution provides that "Every person has the
right to profess and practice his religion". However
in the case of Lina Joy —a Malay who converted to
Christianity —the Federal Court of Malaysia refused
to allow her to change her religion indicated in her
identity card (MyKad). The judges held that they
had no jurisdiction on the matter—that it was a
matter of the Syariah Court, as indicated in Article
121(1A) of the Constitution.
8
Federal laws are made by legislators (members of
Parliament and senators) sitting in the Parliament
of Malaysia and applies nationwide. State laws
are made by assemblymen sitting in the State
Legislative Assembly (Dewan Undangan Negeri)
and only applies in the particular state. Article 75
of the Constitution states that a federal law shall
prevail over any inconsistent state laws,
including sharia laws.
9
The states of Sabah and Sarawak joined Malaya and Singapore to
form Malaysia in 1963, and there are special laws applicable only
to these two states. An important area in this regard is the
immigration law . Other areas of law peculiar to these two states
is land law . Generally, land matters and natural resource
management is a federal law matter. However, there are special
provisions in the Constitution allowing for the states of Sabah
and Sarawak to create separate legislations. For example, in the
Peninsular , the National Land Code governs most of the laws
relating to land. In Sabah, the main legislation is the Sabah Land
Ordinance; and in Sarawak, the Sarawak Land Code.
10
The application of English law or common law is specified in
the statutes. Section 5 of the Criminal Procedure Code states
that English law shall be applied in cases where no specific
legislation has been enacted. Similarly, in the context of civil
law, Sections 3 and 5 of the Civil Law Act allows for the
application of English common law,equity rules, and statutes in
Malaysian civil cases where no specific laws have been made.
11
In 2007, the then Chief Justice of Malaysia, Tan Sri
Ahmad Fairuz Abdul Halim questioned to need to
resort to the English common law despite Malaysia
having already been independent for 50 years and
proposed to replace it with Islamic law
jurisprudence or sharia law.
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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. 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
coordinate jurisdiction, the High Court in Malaya, and the
High Court in Sabah and Sarawak.
13
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.
14
The current President of the Federal Court is Justice Dato'
Abdul Hamid Mohamad, the President of the Court of
Appeal is Tan Sri Dato' Zaki bin Tun Azmi, and the Chief
Judge of Malaya is Justice Dato' Alauddin Mohamad
Sheriff. The current Chief Judge of Sabah and Sarawak is
Justice Tan Sri Richard Malanjum (appointed 2006).
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Federal Court
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Court of Appeal
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High Courts
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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.
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The Magistrates' Courts and Sessions Courts in Malaysia
have jurisdiction in both criminal and civil matters
Sessions Courts
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Magistrates' Courts
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