ADMINISTRATION OF JUSTICE

Doctrine of separation of powers

Adjudication of civil and criminal cases, interpretation of statutes, etc.

EXECUTIVE JUDICIARY LEGISLATURE

Plural court system in Malaysia

ORDINARY COURTS OF LAW/CIVIL COURTS

SYARIAH COURTS

Hierarchy of civil courts

FEDERAL COURT

COURT OF APPEAL

HIGH COURT OF MALAYA

HIGH COURT OFSABAH AND SARAWAK

SESSIONS COURT

MAGISTRATE COURT

PENGHULU’S COURT

SESSIONS COURT

MAGISTRATE COURT

SUPERIOR COURTS

Federal Court Court of Appeal High Courts

SUBORDINATE COURTS

Sessions Court Magistrates Court

Courts to be open and public

Courts of Judicature Act 1964 15. (1) The place in which any Court

is held for the purpose of trying any cause or matter, civil or criminal, shall be deemed an open and public court to which the public generally may have access:

Proceedings in camera Provided that the Court shall have power to

hear any cause or matter or any part thereof in camera if the Court is satisfied that it is expedient in the interests of justice, public safety, public security or propriety, or for other sufficient reason so to do.

E.g. Judge can adjourn proceedings in chambers e.g. so as not to cause embarrassment to the victim.

Exception: Court for Children Court for children closed court

Child Act 2001 12. (1) a Court for Children shall, if practicable, sit—

(a) either in a different building or room from that in which sittings of Courts other than Courts for Children are held; or

(b) on different days from those on which sittings of those other Courts are held.

(2) if a Court for Children sits in the same building as other Courts, the Court for Children shall have a different entrance and exit from those of the other Courts to enable children to be brought to and from the Court for Children with privacy.

(3) no person shall be present at any sitting of a Court for Children except—

(a) members and officers of the Court; (b) the children who are parties to the

case before the Court, their parents, guardians, advocates and witnesses, and other persons directly concerned in that case; and

(c) such other responsible persons as may be determined by the Court.

Advocate and solicitorexclusive right to appear and plead in all Courts of Justice

The Judiciary

Court -- Designation

Chief Justice of the Federal Court President of the Court of Appeal Chief Judge of the High Court of

Malaya Chief Judge of the High Court of

Sabah and Sarawak

Appointment of judges of the superior courts FC Articles 121 – 131A

Hold office up to age of 65 Cannot be removed save on grounds of

misconduct or inability arising from infirmity of body or mind

Salary paid from a special fund Conduct of judges may only be discussed in

Parliament under certain circumstances (A 127 FC).

Art 122B: Appointment is by YDPA.

Qualification of judges of the superior courts

Article 123 FC:(a) he is a citizen; and(b) for the ten years preceding his appointment he has been an advocate of those courts or any of them or a member of the judicial and legal service of the Federation or of the legal service of a State.

Appointment of Judicial Commissioner To assist judges in easing the

backlog of cases Tenure is for 3 years – A 122AB Possesses the same power and

immunities as a High Court judge.

Appointment of Sessions Court judges and magistrates Appointed by the Yang di-Pertuan

Agong on the recommendation of the respective Chief Judges (section 59 of the Subordinate Courts Act 1948)..

They are members of the Judicial and Legal Service i.e. public servant – A 132 FC

Jurisdiction of courts

Relevant statutes

Court of Judicature Act 1964 -- CJA Subordinate Courts Act 1948 -- SCA Rules of the Court 2012

Jurisdiction of subordinate courtsRefer to the Subordinate Courts Act 1948 (SCA)

First Class Magistrate

Civil jurisdictionFirst Class Magistrate S90. SCA Subject to the limitations contained

in this Act, a First Class Magistrate shall have 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 one hundred thousand ringgit.

Criminal jurisdictionFirst Class Magistrate S 85 SCA

“…a First Class Magistrate shall have jurisdiction to try all offences for which the maximum term of imprisonment provided by law does not exceed ten years imprisonment or which are punishable with fine only and offences under sections 392 and 457 of the Penal Code.”

(Note: S 392 Penal Code robbery S 457 Penal Code house-breaking

and lurking house-trespass)

Sentences within competence of First Class Magistrate S 87 SCA

“A First Class Magistrate may pass any sentence allowed by law not exceeding— (a) five years’ imprisonment; (b) a fine of ten thousand ringgit; (c) whipping up to twelve strokes; or (d) any sentence combining any of the

sentences aforesaid”

Second Class Magistrate

Civil jurisdiction Second Class Magistrate S 92 SCA. 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 in money payable by the defendant, with or without interest, not exceeding ten thousand ringgit.

Criminal jurisdictionSecond Class Magistrate S 88 SCA

“A Second Class Magistrate shall only have jurisdiction to try offences for which the maximum term of imprisonment provided by law does not exceed twelve months’ imprisonment of either description or which are punishable with fine only”

Sentences within competence of Second Class Magistrate S 89 SCA

“A Second Class Magistrate may pass any sentence allowed by law— (a) not exceeding six months’

imprisonment; (b) a fine of not more than one thousand

ringgit; or (c) any sentence combining either of the

sentences aforesaid.”

Sessions Court

Civil jurisdiction Sessions Court S 65

A Sessions Court has– (a) unlimited jurisdiction to try all actions

and suits of a civil nature in respect of motor vehicle accidents, landlord and tenant and distress; and

(b) jurisdiction to try all other actions and suits of a civil nature where the subject matter does not exceed RM1, 000,000.00.

Sessions Court – The exceptions S 69 SCA: Sessions Courts shall have no jurisdiction in actions, suits or proceedings of a civil nature— (a) relating to immovable property except as provided in sections 70 and 71; (b) for the specific performance or rescission of contracts; (c) for an injunction; (d) for the cancellation or rectification of instruments; (e) to enforce trusts; (f) for accounts; (g) for declaratory decrees except in interpleader proceedings under section 73; (h) for the issue or revocation of grants of representation of the estates of deceased persons or the administration or distribution thereof; (i) wherein the legitimacy of any person is in question; *(j) wherein the guardianship or custody of infants is in question; and (k) except as specifically provided in any written law for the time being in force, wherein the validity or dissolution of any marriage is in question.

Criminal jurisdiction

S 63 SCA

“A Sessions Court shall have jurisdiction to try all offences other than offences punishable with death”

Sentences

S 64 SCA

“A Sessions Court may pass any sentence allowed by law other than the sentence of death.”

Jurisdiction of Superior Courts

High Court

1) Original jurisdiction-- general Civil jurisdiction—generalS23 CJA: (1) Subject to the limitations contained in Article 128 of the Constitution the High Court shall have jurisdiction to try all civil proceedings where— (a) the cause of action arose; (b) the defendant or one of several defendants

resides or has his place of business; (c) the facts on which the proceedings are based

exist or are alleged to have occurred; or (d) any land the ownership of which is disputed is

situated,within the local jurisdiction of the Court…

“local jurisdiction” S 3 CJA:

“local jurisdiction” means—

(a) in the case of the High Court in Malaya, the territory comprised in the States of Malaya, namely, Johore, Kedah, Kelantan, Malacca, Negeri Sembilan, Pahang, Penang, Perak, Perlis, Selangor, Terengganu and the Federal Territory* of Kuala Lumpur; and

(b) in the case of the High Court in Sabah and Sarawak, the territory comprised in the States of Sabah, Sarawak and the Federal Territory of Labuan,

Original jurisdiction -- Specific Civil jurisdiction—specific S 24 CJA . Without prejudice to the generality of section 23

the civil jurisdiction of the High Court shall include— (a) jurisdiction under any written law relating to divorce and

matrimonial causes; (b) the same jurisdiction and authority in relation to matters of

admiralty as is had by the High Court of Justice in England under the United Kingdom Supreme Court Act 1981;

(c) jurisdiction under any written law relating to bankruptcy or to companies;

(d) jurisdiction to appoint and control guardians of infants and generally over the person and property of infants;

(e) jurisdiction to appoint and control guardians and keepers of the person and estates of idiots, mentally disordered persons and persons of unsound mind; and

(f) jurisdiction to grant probates of wills and testaments and letters of administration of the estates of deceased persons leaving property within the territorial jurisdiction of the Court and to alter or revoke such grants.

Additional powers

S 25 CJA (2) Without prejudice to the

generality of subsection (1) the High Court shall have the additional

powers set out in the Schedule

-- these and many more (please refer to the Schedule)

2) Appellate jurisdiction

Appellate civil jurisdiction

27. The appellate civil jurisdiction of the High Court shall consist of the hearing of appeals from subordinate courts…

-- requirements for civil appeals to High Court Civil appeals from subordinate courts

28. (1) Subject to any other written law, no appeal shall lie to the High Court from a decision of a subordinate court in any civil cause or matter where the amount in dispute or the value of the subject-matter is ten thousand ringgit or less except on a question of law.

(2) An appeal shall lie from any decision of a subordinate court in any proceedings relating to maintenance of wives or children, irrespective of the amount involved.

3) Revisionary jurisdiction

Power of High Court to call for records of civil proceedings in subordinate courts

32. The High Court may call for and examine the record of any civil proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any decision recorded or passed, and as to the regularity of any proceedings of any such subordinate court.

Powers of High Court on revision of civil proceedings

33. In the case of any civil proceedings in subordinate court the record of which has been called for, or which otherwise comes to its knowledge, the High Court may give such orders thereon, either by directing a new trial or otherwise, as seems necessary to secure that substantial justice is done.

No revision at instance of party who could have appealed

34. Where an appeal lies from any decision in any civil matter, and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of a party who could have appealed

1) Criminal jurisdiction S 22(1) CJA

The High Court shall have jurisdiction to try— (a) all offences committed—

(i) within its local jurisdiction; (ii) on the high seas on board any ship or on any

aircraft registered in Malaysia; (iii) by any citizen or any permanent resident on

the high seas on board any ship or on any aircraft; (iv) by any person on the high seas where the

offence is piracy by the law of nations…

2) Revisionary jurisdiction

Revision of criminal proceedings of subordinate courts

S 31. The High Court may exercise powers of revision in respect of criminal proceedings and matters in subordinate courts in accordance with any law for the time being in force relating to criminal procedure.

Pendakwa Raya lwn Burhanuddin [2006] 6 MLJ 465

Armed robbery at 3:45 cm Accused pleaded guilty. Magistrate

imposed imprisonment 30 month and one stroke rotan.

Abdull Hamid Embong H: “Kes ini telah dipanggil oleh saya setelah

membaca siaran berita tentangnya dalam akhbar tempatan minggu lepas (12 Julai 2006). Selepas mengkaji latar belakang dan fakta kes daripada rekod perbicaraan, saya telah memutuskan untuk membuat semakan terhadap hukuman yang dijatuhkan oleh majistret terhadap tertuduh dalam kes ini, mengikut kuasa mahkamah ini di bawah Kanun Acara Jenayah ss 323 dan 325.”

Held: (1) The facts of this case shows that the armed robbery by the

accused was committed at 3.45am in the complainant's own house. It was clear that this was a heinous and horrid crime. It was made worse because the incident happened in the complainant's own house, i.e. a place where one should assume as the safest place. This country practises a liberal and friendly policy towards foreign workers who come to find work here legally. Nevertheless, there are also foreigners who enter here illegally and involve themselves with crimes such as in this case. The public should be protected against such people. The court should be blamed for not performing its role if it is not aware of the public's desire to be protected by criminals such as the accused. Justice to the victim in this robbery ought to be reflected in a heavy sentence on the accused (see paras 9–10, 12–13).

(2) The 30 month imprisonment on the accused did not reflect this heinous and horrid crime. The sentence was too lenient, light, and could be regarded as an insult to justice. On principle, the sentence was worng and this court should exercise its powers of revision against it (see para 15).

(3) The High Court had imposed a sentence of seven years imprisonment and five strokes of rotan. This sentence should start after the accused had gone through detention under the detention order of the Minister of Internal Security.6 MLJ 465 at 467

After completing his sentence the accused should refer to the Malaysian Immigration Department to manage his exile out of Malaysia (see para 22).

Court of Appeal

Appellate jurisdiction only

1. Appellate jurisdiction – criminal appeals

2. Appellate jurisdiction – civil appeals

1) Appellate jurisdiction -- criminal appeals S 50 CJA “…the Court of Appeal shall have

jurisdiction to hear and determine any appeal against any decision made by the High Court— (a) in the exercise of its original jurisdiction;

and (b) in the exercise of its appellate or

revisionary jurisdiction in respect of any criminal matter decided by the Sessions Court”

Powers of Court of Appeal S 60(2) CJA

“At the hearing of an appeal the Court of Appeal may, if it thinks that a different sentence should have been passed, quash the sentence passed, confirmed or varied by the High Court and pass such other sentence warranted in law (whether more or less severe) in substitution therefor as it thinks ought to have been passed.”

2) Appellate jurisdiction – civil appeals S 67. (1) The Court of Appeal shall have

jurisdiction to hear and determine appeals from any judgment or order of any High Court in any civil cause or matter, whether made in the exercise of its original or of its appellate jurisdiction, subject nevertheless to this or any other written law regulating the terms and conditions upon which such appeals shall be brought

Federal Court

1. Appellate jurisdiction – criminal and civil appeals

2. Original jurisdiction3. Referral jurisdiction4. Advisory jurisdiction

1) Appellate jurisdiction -- criminal appeals S 87(1) CJA

The Federal Court shall have jurisdiction to hear and determine any appeal from any decision of the Court of Appeal in its appellate jurisdiction in respect of any criminal matter…

Powers of Federal Court S 92(2) CJA

At the hearing of an appeal the Federal Court may, if it thinks that a different sentence should have been passed, quash the sentence passed, confirmed or varied by the Court of Appeal and pass such other sentence warranted in law (whether more or less severe) in substitution therefor as it thinks ought to have been passed.

Appellate jurisdiction – civil appealsS 96. Subject to any rules regulating the proceedings of the Federal Court in respect of appeals from the Court of Appeal, an appeal shall lie from the Court of Appeal to the Federal Court with the leave of the Federal Court—

(a) from any judgment or order of the Court of Appeal in respect of any civil cause or matter decided by the High Court in the exercise of its original jurisdiction involving a question of general principle decided for the first time or a question of importance upon which further argument and a decision of the Federal Court would be to public advantage; or

(b) from any decision as to the effect of any provision of the Constitution including the validity of any written law relating to any such provision.

Leave to appeal

S 97. (1) An application under section 96 for leave to appeal to the Federal Court shall be made to the Federal Court within one month from the date on which the decision appealed against was given, or within such further time as may be allowed by the Court.

2) Original Jurisdiction

S 81 CJA

“Save as hereinafter in this Act provided the Federal Court for the purposes of its jurisdiction under Article 128(1) and (2) of the Constitution (herein called the “original jurisdiction”) shall have the same jurisdiction and may exercise the same powers as are had and may be exercised by the High Court.”

Article 128(1) FC

…the Federal Court shall, to the exclusion of any other court, have jurisdiction to determine in accordance with any rules of court regulating the exercise of such jurisdiction— (a) any question whether a law made by parliament or

by the Legislature of a State is invalid on the ground that it makes provision with respect to a matter with respect to which parliament or, as the case may be, the Legislature of the State has no power to make laws; and

(b) disputes on any other question between States or between the Federation and any State.”

Judgment to be declaratory S 82 CJA

“The Federal Court in the exercise of its original jurisdiction under Article 128(1)(b) of the Constitution in respect of a dispute between States or between the Federation and any State shall not pronounce any judgment other than a declaratory judgment.”

3) Referral jurisdiction (2) without prejudice to any appellate

jurisdiction of the Federal Court, where in any proceedings before another court a question arises as to the effect of any provision of this Constitution, the Federal Court shall have jurisdiction (subject to any rules of court regulating the exercise of that jurisdiction) to determine the question and remit the case to the other court to be disposed of in accordance with the determination.

4) Advisory jurisdiction

Article 130 FC

“The Yang Di-Pertuan Agong may refer to the Federal Court for its opinion any question as to the effect of any provision of this Constitution which has arisen or appears to him likely to arise, and the Federal Court shall pronounce in open court its opinion on any question so referred to it.”