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INTRODUCTION TO MALAYSIAN LEGAL SYSTEMBT20403 COMMERCIAL LAW

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OUTLINE• Introduction• What is ‘Law’?• Law as Rules• Legal Concepts• Classification of Law• Settling Disputes• Sources of Malaysian Law• Courts and the Administration of Justice

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INTRODUCTION• Malaysian laws shaped by local history & culture.• Malaysian legal system derives many traditions from English legal system.• A legal system is the framework of rules & regulations within a nation regulating individuals’ relations with each other & with government.

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CONT.• Most important areas of social organizations in a legal system: Political system: the way society is governed Economic system: ownership, production & distribution of society’s resources Moral standards: what constitutes acceptable & unacceptable behaviours Social interactions: relationships between people.

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WHAT IS LAW?• So, what is Law? • Law means different things to different people depending on their experience of it.• E.g.. Throughout history, many people have given their opinion on what law is.• Law has been defined as a body of enacted or customary rules recognized by the community as binding.

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CONT.• According to Aristotle, a Greek philosopher, law represents nature or natural law.• According to Karl Marx, a German socialist, law is an instrument used by capitalists to control the working class.• Emile Durkheim, a sociologist, on the other hand, commented that society is held together by law.• While Lord Devlin, a famous English judge, stated that law is based on morality and religion.

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CONT.• Sir John Salmond defined law as a body of principles recognized and applied by the State in the administration of justice.• Last but not least, John Austin regarded law as a command by a superior being to an inferior being and it is followed by a legal sanction if the law is not obeyed. • It has a coercive( fear) effect. It threatens you to obey it.

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CONT.• From the above views, it seems that law means many things to different people.• However, law does have the following characteristics, namely:

1. Law is normative in character;2. Law is capable of change over time;3. Law carries a sanction or punishment for disobedience.

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CONT.(1) Law is normative in character

• This means that law regulates our behaviour in society.• The most basic way of doing this is through legal rules. Rules tell us what to do and what not to do.

(2) Law is capable of change over time• Law does not remain the same year in year out.• As society changes due to advances in knowledge, like science and technology, the law too must change so that it can regulate the new activities.

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CONT.(3) Law carries a sanction or punishment for disobedience

• In order for people to obey the law, sanction or 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 depend on the type of wrongdoing committed.• Such punishment include death penalty, fine, imprisonment etc.

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DEFINITION OF LAW• Law can generally be described as a set of rules, developed over a long period of time that regulates interactions that people have with each other, and which sets standards of conduct between individuals and between individuals and the government and which are enforceable through sanction.

(Lee, M.P., 2009).

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CONT.• The term ‘law’ is defined by Article 160(2) of the Malaysian Federal Constitution 1957 to include:

a) The written law;b) Common law in so far as it is in operation in the Federation or any part thereof; andc) Any custom or usage having the force of law in the Federation or in any part thereof.

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LAW AS RULES• According to the Oxford dictionary, law is a system of rules that everyone in a country or society must obey.• This means that the law is made up of rules. These rules tell us what we can or cannot do.• E.g. Criminal law tells us that we cannot steal or kill. So, if we commit these crimes, we will be punished by a punishment or sanction such as prison sentence or even death.

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LEGAL CONCEPTS• Besides looking at law as a set of rules which tell us how to behave, we also have to ask ourselves what law is made of.• For people to respect law and obey it, law must satisfy certain basic requirements, namely, it must contain concepts such as: justice, equality, freedom and morality. 14

(1) JUSTICE • A good law is law that is just and fair. It means that the law should include justice as an important element.• Legal justice refers to the way in which the law is just and fair. It has been said that justice is the ultimate aim of the law. • 2 ways for law to achieve justice:1. The rule of law2. Natural justice

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(1) JUSTICE (CONT.) (1) The rule of law

• This legal principle says that nobody is above the law and that everyone is subject to the law. • Thus, every citizen in a country knows that if he does anything wrong, he will be punished and that if he is wronged, the law will protect him and his rights.• The rule of law was formulated in its modern form in the late 19th century by Professor Dicey. 16

(1) The rule of law (cont.)• Dicey suggested that the rule of law involves the following 3 propositions: No person must be punished except for a breach of the law; All persons are equal before the law irrespective of status or position; and The rights or freedoms of citizens are enforceable in the courts.

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(1) JUSTICE (CONT.) (2) Natural justice

• Natural justice is a legal philosophy used in some jurisdictions in the determination of just, or fair processes in legal proceedings.• The concept is very closely related to the principle of natural law (Latin: jus naturale) which has been applied as a philosophical and practical principle in the law in several common law jurisdictions, particularly the UK and Australia. According to Roman law, certain basic 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. 18

(1) JUSTICE (CONT.)

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(2) Natural justice (cont.)• This legal principle consists of 2 legal rules i.e.: The rule against bias or nemo judex in 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 be suspected to be, biased. This principle embodies the basic concept of impartiality. The right to a hearing or audi alteram partem, which states that when a person is accused of any wrongdoing, he must be given an opportunity to give his side of the story.

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(1) JUSTICE (CONT.) • A good law must have some moral element in it.• E.g. we say that stealing is a crime because we recognize that it is immoral to steal.• Morality is a value concept which states that some things are right or wrong, good or bad based on our religious beliefs.• In this way, we can say that the law reflects morality.

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(2) MORALITY

• However, not everything immoral is against the law. E.g. lying is immoral but we can't go around suing or jailing everyone who lies.• However, under the law, a person who lies in certain situations can be punished. • E.g. The case of a witness who lies while giving evidence at a trial. Once a person has taken an oath or made a promise to tell the truth and does not, such a person can be punished for the crime of perjury.

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(2) MORALITY (CONT.) • A good law protects the rights and freedoms of people.• Freedom refers to a person’s right to do what he wishes. However, under the law, we are not totally free to do whatever we wish.• Legal freedom, therefore, refers to the idea of limited freedom, not absolute freedom.

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(3) FREEDOM

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CLASSIFICATIONS OF LAWLaw

Private Law

CriminalLaw

Public Law

Family LawContract

AdministrativeLaw

ConstitutionalLaw

Property Law

CompanyLawTrustTort

Sale of Goods

HirePurchase Partnership Insurance Agency

InternationalLaw

CONT.• Law can be classified into public and private law.• Public law is concerned with any matter which involves the relations of citizens with the state or government and between states themselves (public international law). • Areas of law that deal with the state and its relationship with others are criminal law, constitutional law, administrative law and international law. Criminal law deals with crimes while constitutional law covers matters involving the rights of citizens as guaranteed under the Federal Constitution. 24

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• Private or civil law, on the other hand, is concerned with the rights and liabilities of individual parties or citizens among themselves. • Areas of law include the law of contract, law of torts or civil wrongs, family law and law of property. • The law of contract deals with agreements made between parties which are enforceable under the law. The law of torts deals with legal responsibilities the law places on individuals in society. If they do not live up to these responsibilities, they may be sued. 25

CONT.• In some instances, an act can give rise to both a crime and a civil wrong. • For example, in an accident, the victim will lodge a police report on the accident. The person who 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 death of anyone involved in the accident. Furthermore, the victim can also sue the wrongdoer under the tort of negligence for causing damage to his car and claim damages in compensation.

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CONT.

COMPARISON BETWEEN CRIMINAL LAW & CIVIL LAW

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CRIMINAL LAW CIVIL LAWSources Statute-based Penal Code Case law or judicial decisionsAims Protect persons or property Suppress anti-social behaviorPunish offenders

Control or regulate dealings between private individualsCompensate injured party who has suffered loss or harm to person or propertyWho takes action The State represented by the Public Prosecutor or Attorney General

Individual / company or organizationLitigants/parties PP/AG v Defendant Plaintiff v DefendantPleadings Defendant plead guilty or not guilty Defendant defends against claim against himCourt Criminal jurisdiction Civil jurisdiction

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CRIMINAL LAW CIVIL LAWSources Statute-based Penal Code Case law or judicial decisionsBurden and standard of proof

Burden of proof is on the state or PP.The State has responsibility to prove that the defendant committed the crime.The standard or amount of proof required is beyond reasonable doubt.

Burden of proof is on the plaintiff.The plaintiff who has brought the complaint or suit must prove that the defendant is liable or responsible for the plaintiff’ s harm or loss.The standard of proof is on a balance of probabilities.Decision of the court Verdict – guilty or not guilty Decision – liable or not liableOutcome of trial Punishment – imprisonment, death sentence, fine, whipping Remedy – compensation for loss or harm suffered.

SETTLING DISPUTES• There are many ways of settling disputes which can either involve the law or not, including:

• Self help – this method involves a person settling a dispute on his own initiative using whatever resources available .• Use of force – in the past, this was a common way to settle a dispute based on the belief that “might is right”.

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• Negotiations – sometimes called “table-talk”, is an effective way for parties to clear up a dispute. By negotiation on agreed facts, parties are free to give and take on issues they disagree on until they can reach a consensus or middle ground.• Mediation – a 3rd party (mediator) helps the parties to the dispute to negotiate an agreement. Ultimately, it is the parties to the dispute who will make the decision to settle and the terms of the settlement.

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CONT.

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• Conciliation – is similar to mediation but here, the 3rd party (conciliator) takes a more active role in suggesting the terms of settlement or even gives opinion on the dispute.• Arbitration – a 3rd party called an arbitrator settles the dispute by making a decision which binds the parties. It is a formal process and the arbitrator is a person who has special knowledge of the dispute.

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CONT.• Litigation – involves going to court, which can cost a lot of money and takes time. The judge will hear both sides of the disputes and make a binding decision based on the evidence presented in court and according to the rules of procedure. Any party unhappy with the decision may appeal to a higher court.• Ombudsman – are independent, impartial adjudicators of complaints about bad or maladministration in government departments 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. 32

CONT.

• The Malaysian legal system reflects its social and political history. Local and foreign influences like the English, Dutch, Portuguese, Indians, Chinese and Arabs have effects on the Malaysian legal system.The main sources of Malaysian law are as follows:

• Historical sources• Legal sources• Writings and books

• These sources can be classified into written sources and unwritten sources. 33

SOURCES OF MALAYSIAN LAW SOURCES OF MALAYSIAN LAW

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SOURCES OF MALAYSIAN LAW

English LawCustom

Islamic LawWritten Law

StateConstitution

Legislation and Subsidiary Legislation

Unwritten Law

Federal Constitution

Judicial Precedents

(1) WRITTEN SOURCES• Written sources refer to law created by bodies that are authorized to pass laws, namely:

1. The Federal Constitution;2. The State Constitutions;3. Legislations i.e.. Federal laws passed by the Parliament and State laws passed by the State Legislative Assemblies;4. Federal & State’s subsidiary / delegated legislations made by persons or bodies under powers conferred by Acts of Parliaments or Enactments of State Assemblies, respectively. 35

(A) FEDERAL CONSTITUTION• A Constitution can be described as the backbone of a country’s legal system. It is the framework from which laws are made.• A Constitution does a number of things, including: It establishes the form of Government It details the power to make laws It divides power between the State and Federal Governments It separates powers between different bodies

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CONT..• The doctrine of Separation of Powers reflects the view “absolute power corrupts absolutely” by Lord John Acton in 1887. • Separation of powers allows a system of checks and balances to take place so that one arm or body of power can check the other in such a way that there is a balance or peace in society.

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• 3 arms or bodies of power: Legislative power _ the power to make laws Executive power – the power to govern and enforce the law to ensure that it is implemented and followed Judicial power – the power to interpret the law made by the Parliament and to settle any disputes about the law.

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CONT..

• Art. 4(1) of the Malaysian Federal Constitution provides that:“This Constitution is the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void.”

• R Rethana v The Government of Malaysia and Anor [1988] 1 MLJ 13339

CONT..• Repco Holdings Bhd v Public Prosecutor[1997] 3 MLJ 681.• The court declared both s. 126(2) of the Securities Industry Act and s. 39(2) of the Securities Commission Act to be unconstitutional, null and void as they wholly contravene Art. 145 (3) of the Federal Constitution.

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• Art. 159 of the Malaysian Federal Constitution contains provisions to allow the Constitution to be amended with the condition of two thirds’ (2/3) majority of members in both houses of Parliament (the Senate or “Dewan Negara” and the House of Representatives or “Dewan Rakyat” agreeing to the amendment).

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CONT..• The most common source of laws today.• Legislation refers to Statutes or Acts (made or enacted by Parliament as the law-making body). • Legislation can also be called enactments or 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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(B) LEGISLATION

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• It is an important source of laws because it allows law reform to take place; and that codification and consolidation can easily be carried out.

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CONT..• Subsidiary legislation or delegated legislation (sometimes is referred to as by-laws) refers to a law made or passed by a body or agency 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.

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(C) SUBSIDIARY/DELEGATED LEGISLATION

• The unwritten sources of law refer to laws which are not created by Parliament or found in the constitution. Thus, such laws may be in writing but are not enacted by the legislature, e.g.: Judicial decisions by the highest court (“judge made laws or common law”); English common law and rules of equity i.e.. principles of English law so far as they were suitable to local conditions; Islamic laws /Syariah applicable to Muslims; and Customary law (customary law practised inSabah, Sarawak, Adat Temenggung & Adat Perpatih in West Malaysia.

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(2) UNWRITTEN SOURCES (A) JUDICIAL DECISIONS(JUDGE-MADE LAWS)• Judges play an important role in interpreting the law and settling disputes. Therefore, when judges make a decision in a case, the decision may add to the law as found in legislation. The decision may explain the application of the statutes in a clear way or it may even explain what the words in the statute mean.• The term ‘common law’ is also used to describe judge-made law.• Case law arises in 2 ways: judicial precedent and statutory interpretation. 46

(i) Judicial precedent When a judge makes a decision, his decision will be followed by other judges in similar cases later (this is known as binding judicial precedent or doctrine of stare decisis). However, judges may have to apply the law to a new situation in a case. When they do this, they may find that the law as it is does not cover this particular situation. They will then have to create new legal reasoning or principles to apply in this case (this is known as ratio decidendi) and this will then become the precedent for future cases involving the same issues although the facts may be different. 47

CONT..(ii) Statutory interpretation When judges interpret statutes, they may have to give meaning to the words in a statute because it is not clearly stated in the statute/Act itself. Sometimes, it may not be clear if the Act applies to a particular case. The judge will then interpret the Act in question. The meaning given to the words in the statute adds to the law. In this way, the judge is said to be creating law.

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CONT..

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(B) COMMON LAW/ PRINCIPLES OF ENGLISH LAW• Common law refers to law which resulted from the decisions of judges and legal rules and principles of law which were applied in common throughout the UK.• Common law includes rules of equity which are rules developed to counter harshness of the law – based on principles of fairness and justice.• This type of law is received and applied in the Malaysian legal system because of the application of the Civil Law Act 1956 (CLA) which came into force on 1 April 1972. 49

• S.3(1) CLA provides that except where other provision has been made, or may be made by any written law in force in Malaysia, the Court shall: in Peninsular Malaysia (West Malaysia), apply the English common law and rules of equity as administered in England on the 7th April 1956(s.3(1)(a)) ; in Sabah, apply the English common law and rules of equity, together with statutes of general application, as administered in England on the 1st December 1951 (s.3(1)(b));

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in Sarawak, apply the English common law and rules of equity, together with statutes of general application, as administered in England on the 12th December 1949 (s.3(1)(c)).

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CONT..• The application of the law of England throughout Malaysia is subject to 2 limitations: 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); andOnly that part of English law which is suited to local circumstances will be applied.

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CONT..

• With regards to commercial law, s.5(1)provides that all questions or issues which arise or have to be decided in Peninsular Malaysia (except Penang and Malacca) with respect to commercial matters (law of partnership, corporations, banking, principal and agent, carriers by air, land and sea, marine insurance, life and policy insurance and with respect to mercantile law generally), the law to be applied shall be the same as administered in England at the date of the coming into force of this Act, which is 7 April 1956.53

CONT..• Whereas for Penang, Malacca, Sabah and Sarawak, s.5(2) provides that the English commercial law shall applicable shall be the same as administered in England, in the like case at the corresponding period.• As a result of s.3 and s.5 of the Civil Law Act, English principles continue to apply in Malaysia until today.

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CONT..

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• A custom is a practice or a way of doing things among a certain group of people which has become accepted by the law (and that is why it is considered to be a source of law.• Customs of the local people of a country or their personal law usually concerns family, land and religious matters.• Customary laws in Malaysia eg. Native laws in Sabah and Sarawak, and Adat Temenggung & Adat Perpatih in West Malaysia.

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(C) CUSTOMS FEDERAL SYSTEM OF GOVERNMENT• The Federal Constitution (Constitution) is the legal framework of the country which tells us what type of government we have, its powers and the rights of the citizens.• The Federal Constitution has the following features: It lays down the powers of the Federal and State Government; It follows the principles of the separation of powers; It outlines the fundamental rights of citizens (known as fundamental liberties or human rights or freedom of people). 56

CONT.• As the Federal Constitution is really a backbone of our legal system, it cannot easily be changed or amended.• This is why in order to change or amend the Constitution, a two thirds’ (2/3) majority of the members of the Parliament must agree to it (Art.159). • Acts or statutes, on the other hand, can be amended by a simple majority.

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• The Federal Constitution is divided into different parts and each part of the Constitution contain Articles which provides the following: The name, States and territories of the Federation; Religion of the Federation; Supreme law of the Federation; Fundamental liberties; Citizenship; The Federation – the Yang Dipertuan Agong, Conference of Rulers, the Executive, Federal Legislature (Parliament), legislative procedures; The States – Rulers and Yang Dipertuan Negeri, Legislative Assembly; 58

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Relations between the Federation and the States; Financial provisions; Elections; The Judiciary; Public services; Special powers against subversion, emergency powers; General and miscellaneous, e.g. national language, federal capital, amendment of constitutions; Additional protection for Sabah and Sarawak; Temporary and transitional provisions; and Savings for Ruler’s sovereignty, etc. 59

CONT.• Each state in the Federation of Malaysia has its own constitution regulating the government of that State.• The provisions of the State Constitution have been clearly outlined and enumerated in the 8th

Schedule to the Federal Constitution.• Some of the matters, which State Constitutions deal with, concerns the Ruler, the Executive Council, the legislature, namely the Legislative Assembly, financial provisions and the amendment of the constitution. 60

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• If any provision is missing in a State Constitution, or if it is inconsistent with the Federal Constitution, then only the Parliament can remove this inconsistency.

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CONT. COURTS & THE ADMINISTRATION OF JUSTICE• The Federal Constitution provides that power is exercised by the legislative, the 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 legislative or executive acts. 62

CONT.• The head of the judiciary is the Chief Justice.• The judicial power of Malaysia is vested in:

1) The Superior courts, namely the Federal Court, the Court of Appeal, the High Courts, and 2) The Subordinate courts, namely the Sessions Court, the Magistrate’s Court, and other court(s).63

• The hierarchy of the courts is actually a description of the court structure from the lowest court to the highest court. It is part of the judicial system.• The general rule about the doctrine of precedents is that the decisions of the higher court bind the lower courts and some courts are bound by their own decisions.

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• Thus the hierarchy of the courts would explain how precedents work.• The Federal Court, the Court of Appeal (COA) and the High Court are the superior courts and are therefore in the higher hierarchy than the subordinate or lower courts.• Lower courts, such as the Magistrate Court and the Sessions Court, are bound by the decisions of the superior courts.

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CONT. (1) SUPERIOR COURTS• The Superior Courts of Malaysia comprises the Federal Court, the Court of Appeal (COA), the 2 High Courts – the High Court of Malaya and the High Court in Sabah and Sarawak.• Federal Court - This is the highest court of the land and the highest court of appeal in Malaysia. It consists of the Chief Justice, the President of the Court of Appeal, the Chief Judge of Malaya and the Chief Judge of Sabah and Sarawak. Proceeding of the Federal Court must be heard by 3 or such greater uneven number of judges.

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CONT.• The Federal Court has jurisdiction in matters including:

1. To hear civil and criminal appeals from decisions of the COA; 2. To exercise exclusive originaljurisdiction on those matters conferred to it under Art. 128(1) and (2) of the Federal Constitution;3. To determine constitutional questionswhich have arisen in the proceedings of the High Court but referred to the Federal Court for a decision;

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4. To give its opinion on any question referred to it by the Yang Di Pertuan Agong (YDPA) concerning the effect of any provision of the Constitution which has already arisen or appears likely to arise –Government of Malaysia v Government of Kelantan [1968] 1 MLJ 129.

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CONT.

• The Court of Appeal – The COA constitutes the President of the Court of Appeal and up to 10 COA judges. It is heard by 3 judges or such greater uneven number of judges. The COA hears appeals from decisions of the High Court:• Any appeal against a High Court decision on criminal matters;• Any civil appeal which involves a claim of at least RM250,000.Where an appeal has been heard and disposed of by the COA, it has no power to review the case, i.e.. it has no power to re-open, re-hear nor to re-examine its decision for whatever purpose – Lye Thai Sang & Anor v Faber Merlin SB [1986]. 69

CONT.• The High Courts - The High Court has 2 Chief Justices, one in Peninsular Malaysia and one in Sabah and Sarawak. The High Court is the court of original, appellate and supervisory jurisdiction.

1. In its original jurisdiction, it has unlimited civil and criminal power. It can hear any matter which can be heard by a lower court and where the cause of action arose in Malaysia or where a party has a place of business here. In criminal matters, however, no case may be brought to the High Court unless the offender has been committed for a trial after the preliminary hearing in the Magistrate Court.70

CONT.

2. In its appellate jurisdiction, the High Court can hear appeals in civil and criminal matters from the Subordinate Courts.3. Under s.35(1) of the Courts of Judicature Act 1964, the High Court has been conferred general supervisory and revisionary jurisdiction over all subordinate courts. In the interest of justice and when it appears desirable, the High Court may call for the records of any proceedings of the subordinate courts. It may also remove the case to the High Court or give such directives to the subordinate courts as it thinks necessary.

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CONT.• The subordinate courts in Malaysia consist of the Sessions Courts, the Magistrate’s Courts and the Penghulu’s Courts.• A subordinate court is any one of those courts established under s.3(2) of the Subordinate Courts Act 1948 –There shall be established the following subordinate courts for the administration of civil and criminal law:

(a) Sessions Courts;(b) Magistrate’s Courts; and(c) In West Malaysia only, Penghulu’s Court. 72

(2) SUBORDINATE COURTS

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• Sessions Courts – The Sessions Court is the highest of the subordinate courts, and is headed by a Sessions Court judge. • Its criminal jurisdiction includes all offences other than those involving death sentences. • It is also empowered to hear civil cases where the amount or the subject matter in dispute does not exceed RM250,000. Cases involving sum larger than this must be tried in the High Court. • Generally the following matters cannot be dealt with by a Sessions Court – injunctions, specific performance or rescission of contracts, probate, divorce, bankruptcy etc. 73

CONT.• Magistrate’s Courts – The Magistrate’s Court is presided over by a magistrate (1st-class or 2nd-class magistrate). • A 1st-class magistrate is legally qualified and must be a member of the Judicial and Legal Service of the Federation while a 2nd-class magistrate is usually a civil servant and court official who is not legally qualified.• A 1st-class magistrate can hear matters in which the maximum term of imprisonment provided by law does not exceed 10 years imprisonment or which are punishable with fine only and offences under s.392 and s.457 of the Penal Code.

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CONT.

• In civil matters, it can hear cases where the amount or the value of the subject matter in dispute does not exceed RM25,000. A 1st-class magistrate has jurisdiction to hear both criminal and civil appeals from any decision of the Penghulu’s Court.• A 2nd-class magistrate can hear criminal matters for 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 RM3 thousand.

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CONT.• Penghulu’s Court – In Peninsular Malaysia, this is the lowest subordinate court. It is headed by a Penghulu (the head of the village), appointed by a state government for a particular province (mukim). • The power of the Penghulu is exercised informally. His jurisdiction to hear and determine proceedings is limited to cases involving amounts of up to RM50. • The criminal jurisdiction of the Penghulu Court is 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.

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CONT.

• Court for Children (formerly known as the Juvenile Courts) – The Court for Children was established under the Child Act 2001. S.2 CA defines a ‘child’ as a person under the age of 18 years. • The court is closed to members of the public in order to protect the young offender from publicity. • If the offender is found guilty, he or she may be sent to one of the approved institutions or schools where he or she is given corrective education. For capital offences, the child will be detained in prison at the pleasure of the YDPA (s.91-s.97 CA)

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3) OTHER COURTS• Native Courts – The Native Court is peculiar only to Sabah and Sarawak. It exercises jurisdiction over matters affecting ‘native customs’ where the parties are natives. • Native Courts are empowered to try:

1. cases arising from breach of native law or custom, e.g. those relating to religious or matrimonial matters; 2. cases involving land where there is no titled issued by the Land Office;3. civil cases (excluding land) where the value of the subject matter does not exceed RM50and all parties are subject to the same native system of personal law. 78

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• Syariah Courts – There is a parallel system of state Syariah Courts which has limited jurisdiction over matters of state Islamic (Syariah) law (Art.121(1A) of the Federal Constitution).• The Syariah Courts have jurisdiction only over matters involving Muslims. • The Syariah Court can generally only pass sentences of not more than 3 years imprisonment, a fine of up to RM5,000, and/or up to 6 strokes of the cane.

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CONT.• The Industrial Courts – In addition to the ordinary law courts, there are also other tribunalssuch as the Industrial Court which exercise judicial or quasi-judicial functions. • The Industrial Court, constituted under the Industrial Relations Act 1967, deals primarily with trade disputes and therefore has jurisdiction over matters concerning employers, employees and trade unions. It consists of a President appointed by the YDPA and a panel of persons appointed by the Minister of Law. This panel consists of a group representing employers and a group representing workmen. 80

CONT.

HIERARCHY OF THE COURTS

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Federal Court

Court of Appeal

High Court(Sabah & Sarawak)High Court(Malaya)

Sessions CourtMagistrate’sCourtPenghulu’sCourt

Sessions CourtMagistrate’sCourt

*Court for Children*Courtfor Children

*NativeCourt

*SyariahCourt*SyariahCourt

SUPERIOR COURTS

SUBORDINATE COURTS*IndustrialCourt

*IndustrialCourt

PREVIOUS COURT SYSTEM :BETWEEN 1 JANUARY 1985 AND 23 JUNE 1994

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Supreme Court

High Court(Sabah & Sarawak)High Court(Malaya)

Sessions CourtMagistrate’sCourtSmall ClaimsCourt

Sessions Court

Magistrate’sCourt

NativeCourt

SyariahCourtSyariahCourt

Penghulu’sCourt

Small ClaimsCourt

SUPERIOR COURTS

SUBORDINATE COURTS

PREVIOUS COURT SYSTEM : PRIOR 1 JANUARY 1985

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Privy Council

Federal Court

High Court(Sabah & Sarawak)High Court(Malaya)

Sessions CourtMagistrate’sCourtPenghulu’sCourt

Sessions CourtMagistrate’sCourt

NativeCourt

SyariahCourtSyariahCourt

SUPERIOR COURTS

SUBORDINATE COURTS

CONT.Privy Council • During the colonial era, decisions of the Malayan courts could be taken on appeal to the Queen-in-Council, advised by the Judicial Committee of the Privy Council in London.• Upon independence in 1957, by an agreement between Her Majesty The Queen and His Majesty The YDPA, and by virtue of Art. 131 of the Federal Constitution, the Privy Council continued to function as the highest court in Malaysia, formally advising the YDPA on the determination of appeals from the Federal Court.84

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• 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.

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CONT.