Courts of Malaysia
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Malaysia is a federation of thirteen states, but judicial power in the Federation is almost exclusively vested in a federal court system.
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[edit] History
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The court system in Malaysia has its origins in the 1807 charter known as the First Charter of Justice whereby the British East India Company obtained from the British Crown the right to establish a permanent Court of Judicature in the settlement of Penang.
Prior to the formation of Malaysia in 1963, there were three Supreme Courts of Judicature in Commonwealth South-east Asia:
- The Supreme Court of the Federation of Malaya
- The Supreme Court of Singapore
- The Supreme Court of Sarawak, North Borneo and Brunei
Each Supreme Court consisted of a High Court and a Court of Appeal, and was headed by a Chief Justice.
[edit] Formation of Malaysia
In 1963 the remaining British territories in Southeast Asia, save Brunei, were incorporated into an enlarged federation of Malaysia. The 1963 Federal Constitution replaced the various Courts of Appeal with a single Federal Court of Malaysia, headed by a Lord President of the Federal Court, with three High Courts, each headed by a Chief Justice, below it:
- The High Court in Malaya
- The High Court in Singapore
- The High Court in Borneo
A separate Supreme Court of Judicature was established in Brunei.
Singapore left the Federation on 9 August 1965, but the High Court in Singapore remained part of the Malaysian judicial system until the Supreme Court of Singapore was reintroduced in 1969: see Law of Singapore.
[edit] Privy Council appeals
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, by an Agreement between Her Majesty The Queen and His Majesty The Yang di-Pertuan Agong, and by Article 131 of the Federal Constitution, the Privy Council continued to function as the highest court in Malaysia, formally advising the Yang-di-Pertuan Agong on the determination of appeals from the Federal Court.
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".
[edit] 1988 constitutional crisis
In 1988, a constitutional crisis occurred after the Lord President and a number of Supreme Court judges were suspended and later dismissed. As a consequence of the crisis, Article 121 of the Constitution was amended. Originally, in line with the doctrine of separation of powers, Article 39 vested the executive authority of the federation in the Yang di-Pertuan Agong (King), Article 44 vested legislative power in Parliament, and Article 121 provided that "the judicial power of the Federation shall be vested in two High Courts of coordinate jurisdiction and statute". This provision was repealed in 1988, removing any reference to the judicial power of the federation in the Constitution. Most legal scholars believe that despite this change, since no mention was made of a new holder of judicial authority, "it may still be presumed to reside in the courts". The motivation for the amendment has been criticised: "Exactly what was intended to be achieved by tampering with the original version that was founded on well established principles remains unclear."[1]
[edit] 1994 reforms
In 1994, in order to restore a second tier in the appellate system which was lost when Privy Council appeals were abolished, the Constitution was amended to establish a Court of Appeal of Malaysia (headed by a President of the Court of Appeal) under the Supreme Court, which once again was renamed the "Federal Court".
As part of the reforms, the High Court in Borneo was renamed the "High Court in Sabah and Sarawak". The office of Lord President of the Supreme Court was replaced by that of "Chief Justice of Malaysia", while the Chief Justices of Malaya and Borneo were re-titled "Chief Judge of Malaya" and "Chief Judge of Sabah and Sarawak" respectively. These changes were seen by many in the Opposition as an attempt to downgrade the prestige of the judiciary.
[edit] Trial by jury
In the former British settlements of Penang and Malacca, the introduction of English law brought about a system of trial by jury (originally twelve, but later seven, men) in all criminal cases on indictment. In the Malay states, Sarawak and North Borneo, trial by jury was not been available, and capital cases were tried by a judge sitting with two assessors.
Due to concerns about miscarriages of justice during the Malayan Emergency, the first prime minister of Malaya, Tunku Abdul Rahman, extended trial by jury to all capital cases in Malaya after independence in 1957.
In Sabah and Sarawak, which did not join the Federation until 1963, capital trials continued to be tried by a judge sitting with two assessors, as they had been before independence.
In 1978, jury trials in Penang and Malacca were restricted to capital cases, bringing them into line with the rest of Malaya. From 1 January 1995, jury trials and trials with assessors were abolished throughout Malaysia.
[edit] Superior Courts
[edit] High Courts
The High Courts have general supervisory and revisionary jurisdiction over all the Subordinate Courts, and jurisdiction to hear appeals from the Subordinate Courts in civil and criminal matters.
The High Courts have unlimited civil jurisdiction, and generally hear actions where the claim exceeds 250,000 Malaysian ringgit (RM), other than actions involving motor vehicle accidents, landlord and tenant disputes and distress. The High Courts hear all matters relating to:
- the validity or dissolution of marriage (divorce) and matrimonial causes,
- bankruptcy and matters relating to the winding-up of companies,
- guardianship or custody of children,
- grants of probate, wills and letters of administration of estates,
- injunctions, specific performance or rescissions of contracts,
- legitimacy of persons.
The High Courts have unlimited jurisdiction in all criminal matters other than matters involving Islamic law.
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.
[edit] Court of Appeal
The Court of Appeal generally hears all civil appeals against decisions of the High Courts except where against judgment or orders made by consent. In cases where:
- the claim is less than RM250,000,
- the judgment or order relates to costs only,
- the appeal is against a decision of a judge in chambers on an interpleader summons on undisputed facts,
the leave of the Court of Appeal must first be obtained.
The Court of Appeal also hears appeals of criminal decisions of the High Court.
[edit] Federal Court
The Federal Court may hear appeals of civil decisions of the Court of Appeal where the Federal Court grants leave to do so.
The Federal Court also hears criminal appeals from the Court of Appeal, but only in respect of matters heard by the High Court in its original jurisdiction (i.e. where the case has not been appealed from the Subordinate Courts).
[edit] Subordinate courts
The Magistrates' Courts and Sessions Courts in Malaysia have jurisdiction in both criminal and civil matters.
[edit] Sessions Courts
Somewhat like the former Quarter Sessions in England, the Sessions Courts have jurisdiction to try offences which are not punishable by death. They are presided over by Sessions Court judges (formerly Sessions Court Presidents).
The Sessions Courts also hear all civil matters of which the claim exceeds RM25,000 but does not exceed RM100,000, except in matters relating to motor vehicle accidents, landlord and tenant and distress, where the Sessions Courts have unlimited jurisdiction.
[edit] Magistrates' Courts
Magistrates are divided into First Class and Second Class Magistrates, the former being legally qualified and having greater powers. Second Class Magistrates are now not normally appointed.
The Magistrates' Courts hear all civil matters of which the claim does not exceed RM25,000.
In criminal matters, First Class Magistrates' Courts generally have power to try all offences of which the maximum term of imprisonment does not exceed 10 years or which are punishable with fine only, but may pass sentences of not more than five years imprisonment, a fine of up to RM10,000, and/or up to twelve strokes of the cane.
The Magistrates' Courts also hear appeals from the Penghulu's Courts.
[edit] Other courts
The court of a penghulu, or Malay village head, has the power to hear civil matters of which the claim does not exceed RM50, where the parties are of an Asian race and speak and understand the Malay language.
The Penghulu's Court's criminal jurisdiction is limited to offences of a minor nature charged against a person of Asian race which is specially enumerated in his warrant, which can be punished with a fine not exceeding RM25.
In Sabah and Sarawak, there are no Penghulus' Courts, but there are instead Native Courts having jurisdiction on matters of native law and custom.
There exist also Juvenile Courts for cases involving minors.
[edit] Syariah Courts
There is a parallel system of state Syariah Courts which has limited jurisdiction over matters of state Islamic (shariah) law. The Syariah Courts have jurisdiction only over matters involving Muslims, and can generally only pass sentences of not more than three years imprisonment, a fine of up to RM5,000, and/or up to six strokes of the cane.
[edit] Controversy
The Malaysian judiciary has suffered from diminished public confidence since the 1988 Malaysian constitutional crisis, when the Lord President and two other Supreme Court judges were dismissed by the Government of the day. Subsequent constitutional amendments disvested the courts of the judicial power of the Federation, granting them only such power as Parliament might provide. The courts have also since then faced public perceptions of corruption and undue favour towards government interests.
In addition, the courts are often perceived as being backlogged with old cases. Some have cited the low number of judges as a reason; in 2006, it was estimated that there were 2.4 judges for every million people in Malaysia, as opposed to about four times this number in India, and substantially higher ratios in more developed countries.[2]
[edit] List of Chief Justices of the Federal Court
For a list of Lord Presidents, see Lord President of the Federal Court.
- Tun Abdul Hamid Omar 1994, previously Lord President
- Tun Mohamed Eusoff Chin 1994 – 2000
- Tun Mohamed Dzaiddin Abdullah 2000 – 2003
- Tun Ahmad Fairuz Abdul Halim 2003 – present
[edit] See also
[edit] Notes and references
- ^ Wu, Min Aun & Hickling, R. H. (2003). Hickling's Malaysian Public Law, pp. 35–36. Petaling Jaya: Pearson Malaysia. ISBN 983-74-2518-0.
- ^ "Injudicious numbers", p. 24. (Sep. 1, 2006). New Straits Times.
