COMPOSITION AND JURISDICTION OF SUBORDINATE COURTS IN MALAYSIA (JUNE2019)

Subordinate Courts

Compromise of session courts, the magistrates courts and the penghulu courts. These courts are
establishing for the administration of civil and criminal law.

Penghulu Courts

Is established on west Malaysia. Penghulu court may hear and determine civil cases where the plaintiff
seeks to recover a debt or liquidated demand in money, with or without interest not exceeding fifty
ringgit. The proceedings must between of person of Asian race who speak and understand may
language.

The penghulu courts also has power to do with criminal offences of minor nature involving an Asian
race. Before commencing trial, the Penghulu must inform, any person charged with an offence before
the penghulu’s court that he may elect to the tried by magistrates’ court. The penghulus’ court may
pass a sentence not exceeding a fine of RM25.00

Magistrates' Court

Magistrates' Court may be constituted by order of the Yang di-Pertuan Agong and be assigned local
limits of jurisdiction. The Yang di-Pertuan Agong may on recommendation of and proper person to be
Magistrates for the Federal Territories and the State Authority may on the recommendation of the
Chief Judge appoint any fit and proper persons to be Magistrates in and for the State.

No person shall be appointed a Magistrate unless he is a member of the Judicial and Legal Service of
the Federation.

A First-Class Magistrate shall have jurisdiction to try all offences for which the maximum term of
imprisonment does not exceed ten years imprisonment or which are punishable by fines only.

A First-Class Magistrate may pass any sentence not exceeding five years imprisonment, a fine of ten
thousand ringgits, whipping up to twelve strokes or any sentence combining the sentences aforesaid.
Under section 100 of Subordinate Court Act a First-Class Magistrate may hold enquiries into cases trial
able by the High Court. The First-Class Magistrate shall have jurisdiction to try all actions and suits of
a civil nature where the amount in dispute does not exceed one hundred thousand ringgits.

The Second-Class Magistrate have criminal jurisdiction to try offences for which the maximum term
of imprisonment does not exceed twelve months' imprisonment or which are punishable with fine
only. A Second-Class Magistrate may pass sentence not exceeding six months' imprisonment; a fine of
not more than one thousand ringgit or any sentence combining either of the sentences aforesaid. A
Second-Class Magistrate shall have civil jurisdiction to try actions or suits where the amount involved
with or without interest, is not exceeding ten thousand ringgits.
Session Courts

Under Section 59 of the Subordinate Courts Act 1948 the Yang di-Pertuan Agong may, by order,
constitute as many Session Courts as he may think fit and to assign local limits of jurisdiction. Each
Session Court shall be presided over by a Sessions Court Judge appointed by the Yang di-Portuan
Agong on the recommendation of the Chief Judge Sessions Court shall ordinarily be held at such places
as the Chief Judge may direct but should necessity arise, they can be held at other place within the
limits of their jurisdiction. A person appointed as a Sessions Court Judge must be a member of tree
Judicial and legal service of the Federation. Under section 63 a Session Court have criminal jurisdiction
to try all offences other than offences punishable with death. Under section 64, a Session Court may
pass any sentence allowed by law other than the sentence of death.

Under section 65 the Sessions Court have civil jurisdiction to try actions and suits where the amount
dispute or the value subject matter does not exceed 1Million ringgit. The Sessions Court also have
unlimited jurisdictions and suits in respect of motor accidents, landlord and tenant and distress. A
Sessions Court shall have jurisdiction to issue writs or warrants of distress for rent

Sessions Court have jurisdiction:

(a) in a suit on recovery of immovable property, to issue an order for possession or property relating
to immovable property,

(b) on claims for rent or mesne profits or damages over right of possession,

(c) power of sale in respect of any movable property seized under a writ, warrant or order issued by
the High Court, and may order the proper officer of the court to sell the property claimed and to pay
the proceeds of sale into court.

By virtue of section 54, the Sessions Court Judge may call for and examine the record of any civil
proceedings before a Magistrates' Court or Penghulu's Court within the local jurisdiction of the
Sessions Court for the purpose of satisfying himself as to the correctness, legality or propriety of any
decision recorded or passed and as to the regularity of any proceedings of that court.

If the Sessions Court Judge considers the decision of a Magistrates' Court or Penghulu’s Court is illegal
or improper or irregular, he shall forward the, record, with such remarks as he thinks fit, to the High
Court.

The Subordinate Courts also has the power to punish for contempt of itself. Under section 100 of the
Subordinate Courts Act 1948 Sessions Courts have jurisdiction to hold preliminary enquiries into cases
triable by the High Court.

A Session Court Judge shall have jurisdiction in any criminal cause, whether or not he has jurisdiction
finally to hear and determine the same to order where the interests of justice so require, the matter
or cause be transferred to any other Sessions Court.

Protection of Judicial Officers

No Sessions Court Judge, Magistrate or other person acting judicially shall be liable to be sued in any
civil court for any act done or ordered to be done by him in the discharge of his judicial duty, provided
that he at the time in good faith believed himself to have jurisdiction to do or order the act complained
of.
APPLICATION OF ISLAMIC LAW AS A SOURCE OF LAW IN MALAYSIA (DEC2018)

Position of Islam In the Federal Constitution

Article 3(1) of the Federal Constitution of Malaysia provides "Islam is the religion of the Federation;
but other religions may be practised in peace and harmony in any part of the Federation "

The Yang di-Pertuan Agong will be Head of the religion of Islam for stat that does not have a Ruler and
for Federal territories of Kuala Lumpur and Labuan. The Ruler will be Head of the religion of Islam in
his state in the manner and to the extent acknowledged and declared by the constitution of the state.
According to the Ninth Schedule on Legislative lists, Islamic law is enlisted under List II-State List.

The State’s Legislative Assemblies are empowered to make law relating to succession, testate and
intestate, betrothal, marriage, divorce, dower maintenance, adoption, legitimacy, guardianship, gifts,
partitions and non-charitable trusts, wakafs, charitable and religions trusts; zakat fitrah Baitumal or
similar religious revenue mosques or any Islamic public places workship.

The Federal Legislature however has power to make laws on constitution, organization and
procedures of the Syariah courts, the control of propagate doctrine among persons professing the
Islamic faith

Article 11(4) of the Federal Constitution provides

“State law and in respect of the Federal Territories of Kuala Lumpur and Labuan federal law
may control or restrict the propagation of any religious doctrine or belief among persons
professing the religion of Islam "

Article 12(3) states:

“No person shall be required to receive instruction in or to take part in any ceremony or act
worship of a religion other than his own”

Article 12(4) provides:

“The religion of a person under the age of eighteen years shall be decided by his parent or
guardian”

Sources of Islamic Law

The primary sources of Islamic Law is the Al-Quran and Al-Sunnah. The Al-Quran or Holy Book of Allah
contains verses of revelation on the laws of conduct that Muslims should follow and abide by. Al-
Sunnah consists of traditions or reports of the actions and sayings of Prophet Muhammad that
supported and elaborated the laws of the Quran.

The secondary sources are Ijmak (Consensus). Ijtihad (Analogy). Qiyas (Deduction). Isteshan (Equity)
and almusalah wal mursaleh (Common or public Good).
Codification of Islamic Law

Examples of Islamic law that have been codified by Parliament for the Federal Territories are:

• Administration of Islamic Law (Federal Territories) Act 1993 (Act 505)

Administration of Islamic Law

1. Majlis Agama Islam

According to Section 4 of Selangor Administration of Islamic Law Enactment 1989, Islamic Law in the
State of Selangor is administered by a body corporate called Majlis Agama Islam Selangor. The
members consist of the Chairman, Deputy Chairman, the Mufti, State Advisor, State Financial Officer,
State Chief Police Officer and ten (10) other members of which at least five (5) are alim ulamak. These
members who are Muslims shall be appointed by his Royal Majesty on the advice of the Menteri Besar
for a term of not exceeding three (3) years. The Director of the Islamic Religious Department of
Selangor shall be the Secretary. The Majlis will appoint committees to assist it in the performance of
its duties or powers. The Majlis shall advise the Sultan in respect of all matters relating to the religion
of Islam, except matters of Hukum Syarak and those relating to the administration of justice. The
Majlis also has power to register and control the running of Islamic religious schools in the State of
Selangor.

2. Mufti

Section 29 of the Selangor Administration of Islamic Law Enactment 1989 provides that the Sultan will
appoint a Mufti for the State. The Mufti shall aid and advise the Sultan in respect of all matters of
Hukum Syarak and in all such matters he shall be the chief authority in the State of Selangor after His
Royal Highness the Sultan.

Under Section 31 of the Selangor Administration of Islamic Law Enactment 1989, the Mufti may on his
own initiative or on the request of any person made by letter addressed to the Mufti, and shall on the
direction of His Royal Highness the Sultan make and publish in the Gazette fatwa or opinion on any
unsettled or controversial question of or relating to Hukum Syarak. No statement made by the Mufti
shall be taken as fatwa until it is published in the Gazette. Upon publication a fatwa shall be binding
on every Muslim residing in the State of Selangor as a dictate of his religion and it shall be his religious
duty to abide by and uphold the fatwa, unless he is permitted by Hukum Syarak to depart from the
fatwa in matters of personal observance, belief or opinions. A fatwa shall be recognized by all Court
in the State of Selangor as authoritative of all matters laid down therein. Under Section 33. the Mufti
may amend, modify or revoke any fatwa that has been issued earlier by him or by any previous Mufti.
3. Islamic Legal Consultative Committee

The Islamic Legal Consultative Committee is constituted under Section 34 of the Selangor
Administration of Islamic Law Enactment 1989. The Committee consists of the Mufti (as Chairman),
the Deputy Mufti, the State Legislative Adviser of Selangor, an officer of the Islamic Religious
Department of Selangor and at least two, but not more than five persons appointed by the Majils
Agama Islam. The Committee that will conduct a study or research and prepare the working paper on
Fatwa. The issuance of any fatwas is after discussion and consensus of accepted views by reference to
views of Mazhab Syafie. Hanafi. Maliki or Hanbali. At the National level, Majlis Fatwa Kebangsaan sits
to consider and decide on fatwas that should be implemented.

4. Prosecution and Religious Enforcement

The Sultan on advice of the Majlis will appoint the Chief Syariah Prosecutor who shall have powers
exercisable at his discretion to prosecute, conduct and not to continue any proceedings for an offence
before a Syariah Court. The Majlis may appoint Religious Enforcement Officer to assist in the
investigation of offences under the Enactment.

5. Baitulmal and Mosques

Baitulmal shall be the trustee of all mosques in the State of Selangor and every mosque together with
the land on which it stands shall upon registration under the National Land Code 1965, be vested in
Baitulmal for purposes of, the Enactment. No person shall, without the permission in writing of the
Majlis, erect any building to be used as a mosque, or dedicate any building to be used as a mosque.
The Majlis shall ensure that all mosques in the State of Selangor are kept in proper state of repair and
that the compounds thereof are maintained in a proper state of cleanliness; and the Majlis may raise
and I apply, or authorize the raising and application of, special funds for the purpose of such repairs
and maintenance. The Imam and Bilal shall be appointed by the Majlis from among persons serving in
the Religious Administration. The Majlis make rules for the establishment and functions of I the
jawatankuasa kariah which is responsible for the administration of the mosque and the Muslim burial
grounds within its kariah.

6. Religious Teaching Advisory Committee

This committee which is appointed by the Majlis shall consists of the Mufti (as Chairman) and not less
than three ulamaks. The Secretary of the Majlis shall I be the Secretary of the Committee and will be
responsible for implementing I the decision of the Committee. The Committee shell have power to
grant a tauliah for purposes of teaching of any aspect of reigion of islam and to withdraw such tauliah.

7. Pusat Zakat Selangor

Pusat Zakat Selangor manages the collection of zakat for the State of Selangor.
8. Register of Mualaf

The conversion of persons to the Islamic religion Is allowed if he is of the age of majority and of sound
mind. The person's conversion needs to be registered in the Register of Mualaf which is kept by the
Registrar. A certificate of conversion to Islam shall be conclusive proof of the conversion. The
converted person will be treated as a Muslim. If any question arises within the State of Selangor
whether the person is a muallaf, the question shall be decided by the Syariah Court.

9. Svariah Courts

Under Section 37. Syariah Subordinate Courts. Syariah High Court and Syariah Appeal Court are
constituted to administer Islamic law in Selangor. The Chief Syarie Judge. Syariah Appeal Court Judge
and Syariah High Court Judge shall be appointed by the Sultan on advice of the Majlis (Further
information on the jurisdiction of the Syariah Court Is in Chapter 4).

In Soon Singh al Bikar Singh v. Pertubuhan Kebajikan Islam Malaysia (PERKIM) Kedah & Anor (1999)
1 MLJ 489, (Federal Court), the appellant, who was brought up as a Sikh, converted to Islam without
the knowledge and consent of his widowed mother, while he was still a minor. Upon reaching 21 years
old, he went through a baptism ceremony into the Sikh faith, thereby renouncing Islam. He then
executed a deed poll in which he declared; he was a Sikh. Subsequently, he filed for a declaration in
the High Court of Kuala Lumpur; that he was no longer a Muslim. Counsel for Jabatan Agama Islam
Kedah raised a preliminary objection against the application contending that the High Court has no
jurisdiction on the matter as it was under the jurisdiction of the High Court.
SOURCES OF UNWRTITTEN LAW

1. ENGLISH LAW

English law means both principles of common law and equity; made by the superior courts of United
Kingdom.

"Common Law" means rules of law that were made by royal judges based on the customary laws that
were commonly applied by the people. According to the English legal history the early Courts in
England were established by William the Conqueror. The courts sold writs to those who wished to
take their case before the court. With the sale of writs, the King was able to collect revenue that were
determined by the courts were decided on the customary laws that were used by the local people.
With Centralisation of courts the principles of law were commonly applied onto the people. Among
the common law courts established were Hundred Courts. Country Courts. Justices of Eyre, Itinerant
judges. Assizes. Star Chamber. King's Bench. Court of Exchequer and Court of Common Pleas. Equity
are principles of law that were made by the Lord Chancellor of the Court of Chancery. Equity is to
Supplement the common law. Equity does not contradict the common law but aims to correct its
rigidity. The following maxims reflect the intention and spirit of Equity:

• Equity follows the law

Application of English Law in Malaysia

Section 3(1) of Civil Law Act 1956 (Revised 1972) provides.

(a) In West Malaysia or any part thereof apply the common law of England and the rules of equity as
administered in England on 7th day of April

(b) In Sabah, apply the common law of England and the rules of equity, together with statutes of
general application, as administered or in force in England on 1st day of December 1951

(c) In Sarawak, apply the common law of England and the rules of equity together with statutes of
general application, as administered or enforce in England on the 12th day of December 1949.

In Jamil bin Harun v. Yang Kamsiah (1984) 1 MLJ 217, where a seven-year old child has suffered severe
injuries in a road accident. The Federal Court had awarded the plaintiff after categorising and
classifying all the injuries. Privy Council held the Malaysian Courts could follow and applied English
court decisions but in circumstances that is permitted and render necessary by local circumstances.
The application of common law and equity is allowed if there is lacuna in the local law.

In summary, the application of common law and equity is allowed subject to the provisions of Section
3(1) namely of there is absence of local statutes and if the local circumstances permit and render
necessary.
2. CUSTOMARY LAW

Malay customary law or adat can be defined as customs and traditions in the Malay community which
in the course of time have obtained the character of laws and as such can be enforced by the chiefs
or elders. Being the living law at a certain time in a certain place adat is elastic and adaptable to social
needs and as such is not suitable for codification. The chiefs however are not given a free hand to
make decisions. When the Malays became Muslims, they adopted variations to suit their local
circumstances. The enforcement of selected customs by the council of elders give it the legal status of
law. Many writers claim that the personal law of the Malays are a mixture of Hindu law and Islamic
laws.

Malay Customary Law in West Malaysia

According to RJ. Wilkinson in his book "Papers on Malay subjects", there are two legal systems in the
Malay community: Adat Temenggung and Adat Perpatih.

Adat Temenggung

Adat Temenggung is practised by most Malay states of the Peninsula exc^H for Melaka and Negri
Sembilan. Most of the customary laws related to patterns of response in situations of conflicts or
breach of the law. The traditional practices of the community are importance because it reveals the
rules of laws of the Malay society. There are rules relating to title to land, succession to property, rules
to marriage and divorce or election of the officials’ 39

In adat temenggung, proprietary right over land is created by clearing of the land and continuous
occupation of it. In adar temenggung, property could be inherited by both male and female but the
portion of the male will be more than the female. The property inherited by man will be based upon
strength or energy needed to work the land, and the female might inherit the house and its fillings.
Among the Ninety-nine Laws of Perak, there are many verses that glorified the status of the ruler. A
Malay raja is personally sacred, he has powers to perform miracles. He was the source of all honour
and the fountain of justice. The king could do whatever he deems best in his own eyes. In I theory the
Sultan has absolute power but the Malays did not believe, in primogeniture or rights of first bom of
the royal house. A younger brother may take over the post of the unworthy elder brother.

Criminal law under adat temenggung is characterized by the principle of retaliation (lex. Talionis) the
offender shall lose the limb that was used in committing the offence, unless he is of a higher status in
the social order.

In Laton v. Ramah (1927) 6 FM SLR 116 the Chief Kathi of Selangor gave evidence in the Supreme
Court and stated that where a husband and wife acquired property and when one of them dies, such
property is divided equally between the survivors and heirs of the deceased. He admitted that this
rule is not provided in the Al-Quran.
Adat Perpatih

Is practised in Negeri Sembilan and Naning. According to adat perpatih, customary land is inherited by
woman only. A man will generally live on his wife's land, he cultivated the soil and was entitled to his
maintenance out of the proceeds. When the man moved into his wife's relations become responsible
for him.

There are three kinds of property:

(1) Ancestral property (harta pusaka) which is entrusted to the woman. On death the property passes
on the female descendants of the deceased.

(2) Property of husbands (harta pembawa) and property of wife (harta dapatan) are property acquired
before marriage and on death goes back to the family.

(3) Property jointly acquired during marriage (harta sepencarian). on divorce will be equally divided.
On death, however it devolves to the surviving partner if there is no issue.

Hooker in his book entitled "Adat Laws in Moderm Malaya' considers adat perpatih as a system of
social organisation, a matrilineal social system. The most important kinship tie is the 'perut'. The
relationship with the woman covers matters such as inheritance, land tenure, and election of the
chiefs(buapak, lembaga, undang and Yang di-Pertuan Besar). Traditionally, there are twelve clans in
Negri Sembilan. Under adat, marriage within the clan is prohibited, especially marriage between the
children of sisters and that of brothers. These persons are members of the same descent group (the
lineage) and such marriage is regarded as incest (sumbang).

In Dato' Mentri Othman bin Baginda v. Dato' Ombi Syed bin Syed Idrus (1981) 1 MLJ 29, the seat of
the Undang of Jelebu became vacant with the death of the fourteenth Undang in November 1979. The
appointment of the fifteenth Undang was challenged on the ground that he lacked the proper adat
lineage. The court was asked to declare the appointment as void. On appeal the Federal Court declared
that the appropriate body to decide the matter was the Dewan Keadilan Undang-undang, the adat
constitutional body under the Constitution of Negri Sembilan.

Customary Land Tenure

The owner of ancestral land is required to endorse "customary law' on the title to ancestral land and
such endorsement would restrict the transferability of ancestral property. The Customary Tenure
Enactment (FMS Cap 215) was passed to replace in whole or in part the unwritten law of customs by
the written law of the enactment.

In Re Mansur bin Duseh (1940) MLJ 110, where mukim registers have not been endorse it is open to
the collector to hold an inquiry under section 4 of the enactment and to decide whether or not land
is occupied subject to the custom; his recorded decision is the only conclusive evidence that the land
is or is not occupied according to custom.
Malay Customary Law in Sarawak and Sabah

In Sabah, Malay adat is a mixture of Islamic law and adapt and is applicable in matters concerning
marriage, inheritance, division of property, betrothal etc.

In Sheripah Unci and Sheripah Ta'siah v. Mas Poeti and Anor (1949) SCR 5, a child adopted under
adat was recognised as the legitimate child of the couple though contrary to Islamic law.

Hindu and Chinese Customary Law

The Indians and Chinese who arrived as traders of settlers brought along with them their customary
laws. The British administrators had to deal with customary laws related to inheritance.

In the case of Regina v. William (1856) 3 Ky. Maxwell R stated:

"If a Mohammedan or Hindu or Chinese marriage celebrated here according to the religious
ceremonies of the parties be valid it is not because the Charters make it so-but because the Law of
England recognises it "