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Tuesday, October 5, 2010

Sistem perundangan di Malaysia

MALAYSIA JUDICIAL SYSTEM

What is judicial?

Judicial also known as judiciary or judicature is a system of court. Judicial relate to the body of judges or to the system that administer a justice. Justice normally enforced by a court of law. Laws can simple defines as a set of rules of conduct. Laws are enacted by federal, state, local lawmakers to control and provide penalty if violated.

Under the doctrine of the separation of powers, the judiciary generally does not make law of enforce law, but rather interprets law and applies it to the facts of each case.


Judiciary of Malaysia
The Judiciary of Malaysia is influence by the British Common Law and minor extent Islamic law and mostly independent from political interfere in spite of Malaysia’s federal constitution.
The judiciary shares power with the executive and legislative branches of government at both state and federal levels. The judges appointed by the Sultan of the state and by Yang DiPertuan Agong at the federal.

Currently there are two separate local jurisdictions of the court which is for Peninsula of Malaysia and East Malaysia (Sabah and Sarawak). The highest position in the judiciary is the Chief Justice of the Federal Court of Malaysia and also known as the Chief Justice of Malaysia. Then follow by the President of the Court of Appeal, The Chief Judge of Malaya, and the Chief Judge of Sabah and Sarawak


1) SUPERIOR COURT 1) COURT FOR CHILDREN
2) NATIVE COURT
- FEDERAL COURT 3) COURT MARTIAL
- COURT OF APPEAL 4) SYARIAH COURT
- HIGH COURTS 5) SPECIAL COURT OF RULERS



HIGH COURT HIGH COURT
OF MALAYA OF SABAH & SARAWAK

2) SUBORDINATE COURT
- SESSION COURT
- MAGISTRATE COURT
- PENGHULU COURT



The Commissioner in Malaysia

Chief Justice of the Federal Court, Malaysia

FIGURE 1 The Right Honourable Tun Dato' Seri Zaki bin Tun Azmi ( SPCM, SPMK, SSM, PSM, SSDK, PJN, DSMT, DSDK,JSM, KMN
President of The Court of Appeal, Malaysia

FIGURE 2 The Right Honourable Tan Sri Dato' Seri Alauddin bin Dato' Mohd. Sheriff
PMN, PSM, SSDK, DPMJ, DSDK, SMJ, PIS

Chief Judge of the High Court in Malaya


FIGURE 3: The Right Honourable Tan Sri Arifin bin Zakaria (Dato' Lela Negara)
PSM, SPSK, SPMP, DPCM, DPMK

Chief Judge of High Court of Sabah and Sarawak

FIGURE 4:The Right Honourable Tan Sri Datuk Seri Panglima Richard Malanjum
PSM, SPSK, SSAP, SIMP, SPDK, PGDK


Malaysia Judicial Structure


Figure 5 : The hierarchy of Malaysia Judicial System
There are two main category courts in Malaysia which is embodying with Superior Courts and Subordinate Courts.
A Superior court is a court of general competence which typically has unlimited jurisdiction with regard to civil and criminal legal cases. The High Court, Court of Appeal and Federal Court are classified as superior court.
In addition to its exclusive jurisdiction, the special court also has the same function and also High Court in Sabah and Sarawak classified as the Superior court.

A Subordinate Courts also known as Inferior Court. These courts are established for the administration of civil and criminal law. The Magistrates Court and Sessions Court are classified as subordinate courts.
There are two types of trials, criminal and civil.
Composition and Jurisdiction of the Courts
Superior court
The details of the jurisdiction of the superior courts are provided under the Courts of Judicature Act 1964 (Act 91). Superior court including The Federal Court, the Court of Appeal and the High Court.

1. The Federal Court

The Federal Court of Malaysia is the highest judicial authority and the final court of appeal in Malaysia. It was established pursuant to Article 121(2) of the Federal Constitution. Its decision binds all the courts below.
This court was previously known as the "Supreme Court of the Federation of Malaya" in year 1957 until 1963. When Malaya, Sabah, Sarawak, and Singapore formed Malaysia in 1963, the court was renamed "Federal Court of Malaysia".
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 where the case has not been appealed from the Subordinate Courts.
The Federal Court is located in the Palace of Justice in Putrajaya. It was previously housed in the Sultan Abdul Samad Building in Kuala Lumpur.
Figure 6: The Federal of Court



Members:

According to Article 122(1) of the Federal Constitution, the Federal Court is headed by the Chief Justice (Prior to the amendment the post was known as the Lord President), the President of the Court of Appeal, the two Chief Judges of the two High Courts and seven other judges.
The Chief Justice is appointed by the Yang di-Pertuan Agong (YDPA) on advice of the Prime Minister after consulting the Conference of Rulers.
The current Chief Justice of the Federal Court is The Right Honourable Tun Dato' Seri Zaki bin Tun Azmi. ( see figure 1)
Jurisdiction:
Article 121(2) of the Federal Constitution confers the Federal Court with the following jurisdiction
(a) To determine appeals from decisions of the Court of Appeal, of the High Court or a judge thereof;
(b) such original or consultative jurisdiction as is specified in Articles 128 and 130;
(c) such other jurisdiction as may be conferred by or under federal law.
In the absence of the Chief Justice, the powers shall be had and may be exercised and the duties shall be performed:
(a) by the President of the Court of Appeal; or
(b) where the President is absent, by the Chief Judge of the High Court in Malaya; or
(c) where the President and the Chief Judge of the High Court in Malaya are absent, by the Chief Judge of th High Court in Sabah and Sarawak; or
(d) where the President, the Chief Judge of the High Court in Malaya and the High Court in Sabah and Sarawak are absent, by the Judge of the Federal Court nominated for that purpose by the Yang di-Pertuan Agong.
Criminal Appeals:

The Federal Court may subject to section 87 of the Courts of Judicature Act 1964 hears and determines appeals against decisions of the Court of Appeal relating to any criminal matter decided by the High Court in the exercise of its original jurisdiction.

Civil Appeals:

Section 96 of the Courts of Judicature Act 1964 provides that an appeal against the decision of the Court of Appeal may be made to the Federal Court with the leave of the Federal Court. Leave is only granted if

(a) the decision of the Court of Appeal is in respect of any civil cause or matter decided by the High Court in exercise of its original jurisdiction where it involves a question of general principle of law 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) the decision of the Court of Appeal is as to the effect of any provision of the Federal Constitution including the validity of any written law relating to any such provision.(section 96(a) and (b) Courts of Judicature Act 1964).

Hearing of Cases:

All the cases come from Court of Appeal to the Federal Court for the final determination. Before that, the Rules of the Federal Court must be followed by legal practitioners must comply a case for hearing including preparation of Appeal Record by the appellant’s solicitors. It contains all material which is necessary for the Court to determine the issues raised by the appeal.
Seven days before the hearing, the appellant's solicitor has to submit an outline submission to the Federal Court Registry. During the hearing, counsel representing the parties presents their arguments orally to the Court. In addition, written submissions in skeletal forms may sometimes be submitted.
Written reasons are always given in most cases and distributed by the Federal Court Registry to all judges for indexing and recording purposes, law school and law publishers.
The decisions of the Federal Court are binding on all other courts (excluding Syariah Courts) throughout Malaysia. From decision, the value of subject matter more than RM250, 000. From any decision regarding constitutional provisions or the validity of any written law are in relation with such provision.




2. The Court of Appeal

The court of Appeal is an appellate court of the judiciary system in Malaysia. It is the second highest court in the hierarchy below the Federal Court.
Under Article 121 (1B) of the Federal Constitution this court was established in1994 headed by the President of the Court of Appeal who is second most important person in Malaysia after Chief Justice of Malaysia.
The Court of Appeal generally hears all civil appeals against decisions of the High Court 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, and the appeal is against a decision of a judge in chambers on an interpleaded summons on undisputed facts, the leave of the Court of Appeal must first be obtained.

Members:
Article 122A(1) of the Federal Constitution provides that the Court of Appeal shall consist of the President of the Court of Appeal and ten Court of Appeal judges.
Under Article 122B, the members appointed by the Yang di-Pertuan Agong on advice of the Prime Minister after consulting the Conference of Rulers. Before that, Prime Minister shall consult the Chief Justice and the President of Court of Appeal.
The current President of the Court of Appeal is The Right Honorable Tan Sri Dato' Seri Alauddin bin Dato' Mohd. Sheriff. (see figure 2)



Jurisdiction:
The court has appellate jurisdiction over criminal and civil cases from the High Court.
a) in the exercise of its original jurisdiction
b) in the exercise of its appellate and revisionary jurisdiction in respect of any criminal matters decided by the Session Court.
c) also consider appeals decided by the High Court relating to the matter decided by the Magistrates Court but it will be confine only to questions of law, which is arisen in the appeal or revision which was determined by the High Court

Criminal Appeals:
The Court of Appeal has the jurisdiction to hear and determine any criminal appeal against any decision by the High Court—
(a) made in the exercise of its original jurisdiction; and
(b) in the exercise of its appellate or revisionary jurisdiction on any criminal matter decided by the Sessions Court.
However, if it is an appeal from a decision of the High Court exercising its appellate or revisionary jurisdiction on any criminal matter that originated from a Magistrates’ Court then no further appeal to the Court of Appeal is permissible without leave of the Court of Appeal and such appeal must be confined only to questions of law which may have arisen in the course of the appeal or revision and the determination of which by the High Court has affected the event of the appeal or revision (section 50(1) & (2) Courts of Judicature Act 1964).


Civil Appeals:
Under section 67 of the Courts of the Judicature Act 1964 the Court of Appeal has the 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.
The subject referred to any written law regulating the terms and conditions upon which such appeals are brought. However, no appeal shall be brought to the Court of Appeal in the following cases:
(a) if the amount or value of the subject matter of the claim is less than RM250,000 except with the leave of the Court;
(b) the judgment or order is made by consent of parties;
(c) the judgment or order relates to costs only; and
(d) where by virtue of any written law the judgment or order of the High Court is final.

Hearing of Cases:
Proceedings in the Court of Appeal are heard and disposed of by a panel of three judges or such greater uneven number of judges as the President of the Court of Appeal may determine (section 38 Courts of Judicature Act 1964).
Appeal generally must be made within fourteen days after judgment was given. Every notice of appeal shall state briefly the substance of the judgment appeal against. The documents relate to the appeal may be served upon the appellant.
At the hearing of case, the court may hear the appellant, confirm, reverse, or vary the decision of the High Court or make any orders. The court may also dismiss the appeal if it considers that substantial miscarriage of justice has occurred.
The court also has a power to order that the new trial be held of any cause tried by the High Court in the exercise of its original or appellant jurisdiction. The new order may be ordered on any question without interfering with the finding or decision of the court below-upon any question.



3. The High Courts
In Malaysia there are two High Courts having coordinate jurisdiction and status. Under Article 121 (1) of the Federal Constitution states that is the High Court in Malaya and the High Court in Sabah and Sarawak are the High court which is the third highest court in the hierarchy after Federal Court and the Court of Appeal.
The High Court functions both as a court of original jurisdiction as well as an appellate court.
The High Court in Malaya has its principal registry in Kuala Lumpur, with other registries to be found in all states in peninsular Malaysia, while the High Court in Sabah and Sarawak has its principal registry in Kuching, with other registries elsewhere in Sabah and Sarawak.

Members:
The judges are appointed under Article 122B (2) and (4) of the Federal Constitution by the Yang di-Pertuan Agong, acting on the advice of the Prime Minister after consulting the Conference of Rulers. Before the Prime Minister tenders his advice to the Yang di-Pertuan Agong, the Prime Minister shall consult the Chief Justice and the Chief Judge of that Court.
The current Chief Judge of the High Court in MalayaThe Right Honourable Tan Sri Arifin bin Zakaria (Dato' Lela Negara) (see figure 3)

The current Chief Judge of Sabah and Sarawak is The Right Honourable Tan Sri Datuk Seri Panglima Richard Malanjum appointed 2006. (see figure 4)
The Chief Judges of Malaya and Sabah and Sarawak are the third and fourth highest positions in Malaysian judiciary after the Chief Justice of the Federal Court and the President of the Court of Appeal.

Jurisdiction:
In its original jurisdiction, the Court can both criminal and civil jurisdiction.

Civil jurisdiction:
The High Court has jurisdiction to try all civil matters but generally confines itself to matters on which the Magistrates and Sessions Courts have no jurisdiction.
The High Court has jurisdiction to try all 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 and notwithstanding anything contained in section 23 of the Courts of Judicature Act 1964, in any case where all parties consent in writing within the local jurisdiction of the other High Court.


The High Courts also have specific jurisdiction including: -
(a) jurisdiction under any written law relating to divorce, matrimonial causes, bankruptcy or companies;
(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 to appoint and control guardians of infant and generally over the person and property of infants;
(d) jurisdiction to appoint and control guardians and keepers of the person and estates of idiots, mentally disordered persons and persons of unsound mind; and
(e) jurisdiction to grant probates of will and testaments and letters of administration of estates of deceased persons leaving property within the territorial jurisdiction of the Court and to alter or revoke such grants.
(Section 24 of the Courts of Judicature Act 1964).
Criminal Jurisdiction:
The High Court has jurisdiction to try all offences committed: a) within local jurisdiction;
(b) on the high seas on board any ship or on any aircraft registered in Malaysia;
(c) by any citizen or any permanent resident on the high seas on board any ship or on any aircraft;
(d) by any person on high seas where the offence is piracy
by the law of nations; and
(e) offences under Chapter VI of the Penal Code and those
offences of extra-territorial in nature.
(Section 22 of the Courts Judicature Act 1964).
The High Court may pass any sentence allowed by law (section 22(2) of the Courts of Judicature Act). Cases involving capital punishment are tried in the High Court. However, under special circumstances cases not involving capital punishment may
be heard in the High Court on the application by the Public Prosecutor (section 418A Criminal Procedure Code).
Hearing of Cases:
In criminal cases, the court will heal appeals from Subordinate Courts according to the law in force within the territorial jurisdiction of the High Court.
In civil cases, the High Court shall listen to appeals from the subordinate court involving question of law or appeal relating to sustain of wives or children irrespectively of the amount involved.
The High Court has the jurisdiction to hear civil cases in respect of :
(a) divorce and matrimonial causes;
(b) admiralty;
(c) bankruptcy and company cases;
(d) appointment and control of guardians of infants and their property;
(e) appointment and control of guardians of disabled persons and their estate;
(f) grant of probates of wills and letters of administration.

Subordinate Courts
Subordinate also known as Inferior Court. It consists of the Sessions Court, the Magistrate’s Court and the Penghulu Court. In Sabah and Sarawak, Subordinate Court consist their own Session Courts and Magistrate Court.

1. Sessions Court
A Sessions Court has the jurisdiction to hear both criminal and civil cases. It is established under section 59 of Subordinate Court Act 1948.

Members:
Under section 59 of the Subordinate Court Act 1948, Sessions Court judge is appointed by the Yang di-Pertuan Agong on the recommendation of the respective Chief Judges. A Sessions Court are presided by a Sessions Court judges and must be a members of the Judicial and legal services of the Federation. At present there are eighty seven Sessions Court judges throughout Malaysia.

Civil jurisdiction:
Under section 65, . The Sessions Court may also hear other matters where the amount in dispute exceeds RM25, 000 but does not exceed RM150, 000. Other than that, all the offences will punishable by death, penalty and maximum penalty or punishment provided by law except death penalty.
The Sessions Court also may hear any civil matter involving motor vehicle accidents, disputes between landlord and tenant, and distress actions.


Criminal Jurisdiction:
Under section 63 and 64, the Sessions Court has the jurisdiction to try all offences other than offences punishable with death. Except for the sentence of death, a Sessions Court may pass any sentence including natural life sentence.

Hearing of Cases:
The Session Court may hear cases from Magistrate Court and Penghulu Court. The court may call for examine the record of any proceeding before a Magistrate Court or Penghulu Court for to make a correctness , legality of any decision or passed and as the regularity of any proceeding of that court.
If the Session Court judges consider the decision of a Magistrates Court and Penghulu Court is illegal or improper, they may forward the record to the High Court. So indirectly the Session Court has a connection with the High Court.



2. Magistrate Court
It was established under section 76 of Subordinate Court Act 1948.
Members:
There are two classes of Magistrate which is First Class of Magistrate and Second Class of Magistrate. All of them are appointed by Sultan/State Authority on recommendation of Chief Judge.
In Federal Territories, the Yang di-Pertuan Agong may appoint the Magistrate on recommendation of Chief Judge.
.At present there are one hundred and fifty one Magistrates throughout Malaysia.
Jurisdiction:
The Magistrates’ Courts have jurisdiction to hear both criminal and civil cases
In First Class Magistrate Court, maximum civil jurisdiction is RM 25, 000 or more if both parties agree.

Generally, the maximum criminal jurisdiction may pass any sentence allowed by law not exceeding:
(a) 5 years imprisonment;
(b) a fine of RM10,000.00;
(c) whipping up to 12 strokes; or
(d) any sentence combining any of the sentence aforesaid.
In Second Class Magistrate Court, maximum civil jurisdiction is RM3000 and maximum criminal jurisdiction is not exceed twelve month imprisonment or fine only
3. Penghulu Court
Penghulu Court also known as Headman Court established under part vii of Subordinate Court Act 1948. It presided by the Penghulu appointed by the Sultan at the states and by the Yang di-Pertuan Agong in Federal Territories.
The Penghulu’s Court is established only in West Malaysia. In Sabah and Sarawak, there are no Penghulus' Courts, but there are instead Native Courts having jurisdiction on matters of native law and custom
Jurisdiction:
In the Penghulu court, 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 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 RM50.

Other Courts with Special Jurisdiction
1. Court for Children
A Court for Children was established under the Child Act 2001. Section 2 of the Act defines “Child” as a person under the age of eighteen years, and for the purposes of criminal proceedings, means a person who has attained the age of ten.
It previously known as the Juvenile Court hears cases involving minors except cases carrying the death penalty.
It presided by a magistrate of the first class assisted by two advisers.
Jurisdiction:
The cases may be admitted to hearing are the officers of the court, parties of the case, parents, guardians, witnesses and other specialize persons. It is not to pulicity. That why it is closed to the publics.
The juvenile courts have a similar jurisdiction with the Magistrate Court and hear cases for the offenders aged 18 and below.
If the offender is found guilty may be sent to the School to make any “corrective education” for example Hendry Gurney School until the age 21.






2. Syariah Court
Syariah law is equivalent with Islamic law. The jurisdictions of the law are practically for Muslims. In Article 121 of the Federal Constitution stated that secular of Malaysia do not have jurisdiction over matters that fall into the jurisdiction of the Syariah Court. All the judges appointed from YDPA.

There are 3 level of Syariah Court:
1. Syariah Subordinate Court –
It has a criminal jurisdiction, to try any offence committed by a Muslim under the Enactment or any other written law. The maximum punishment does not exceed RM2000 or imprisonment one year or both.

2. Syariah High Court –
It has criminal jurisdiction to try any offence committed by a Muslim and punishable under the Enactment of Islamic Family law to determine and hear all cases related to matter related to husband and wife, claim of property, custody, wakaf, division inheritance, etc.

3. Syariah Appeal Court –
It have a supervisory and revisionary jurisdiction over the Syariah High Court to hear and determine any appeal against any decision made by the Syariah Court in exercise of its original jurisdiction.
Jurisdiction:
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.

3. Native Court
In Sabah and the native court has jurisdiction over matters related to native law and customs in which both parties are native and involve religious, matrimonial or sexual issues.

The Native Courts is the same function with Penghulu Court in peninsular of Malaysia. It governed by own State Enactment.

Jurisdiction:

For civil cases, this particular court can hear that involve dispute not exceeding RM50. It is under security of the District Officer. Under criminal case, punishment does not exceed a fine of more than RM 5000 or imprison 2 years.
4. Courts- Martial
It can say that this is law of armed forces including reservists and volunteers on duty, and civilians employed by or accompanying regular on active services. The Court-Martial is under Section 2 of the Armed Forces Act 1972.

Section 2 also provides that “Regular Force” includes the Malaysian Army, the Royal Malaysian Navy, and the Royal Malaysian Air Force.
It consists of a President and at least two Officers who must present during a trial. An officer who convenes a court-martial may appoint as members of the court-martial officer of Army, the Navy, or the Air Force or any officers of any foreign force who are attached, seconded or on loan to the regular forces.



Jurisdiction:
The Court-Martial has jurisdiction over any member of the various military forces in the country. The punishment that can be awarded to an officer included death, fine, reprimand, dismissal of an officer from the ship to which he belong, etc

5. Special Court
Special Court actually has a Special Jurisdiction under specific statutes. However it placed under Superior Court and important as well as other Superior Court.(see figure 5)
Under Article 182 of the Federal Constitution, the Special Court was established in 1993 to hear any action civil or criminal institutes by or against the Yang di-Pertuan Agong or any of nine Malay Rulers.
However, by Article 183 of Federal Constitution no action, civil or criminal, shall be instituted against the Yang di-Pertuan Agong or any of the Rulers of States in respect of anything done or omitted to be done by him in his personal capacity except with the consent of the Attorney General personally.
Members:
Special Court stand with a Rulers included the Yang di-Pertuan Agong, the Sultan of states, the Yang di-Pertuan Negeri, and Yang di-Pertuan Besar.
in Article 182(1) of the Federal Constitution provides that the Special Court shall consist of the Chief Justice of the Federal Court, who shall be the Chairman, the Chief Judges of the two High Courts and two other persons who hold or have held office as judges of the Federal Court or the High Court appointed by the Conference of Rulers.
The current Yang di-Pertuan Agong is Seri Paduka Baginda Yang di-Pertuan Agong Sultan Mizan Zainal Abidin. (see figure 7)

Hearing of cases:
The cases and the law regulating evidence and proof in civil and criminal proceeding, the practice and procedure applicable in any proceedings comes first from any subordinate court, the High Court and the Federal Court before hearing at the Special Court at any premises of the Federal Court.
The proceedings of the Special Court are decided by the opinion of the majority of the members. The decision of the Special Court is final and conclusive and
cannot be challenged or called into question in any court on any ground.



References:

i. http://www.nationsencyclopedia.com/Asia-and-Oceania/Malaysia
ii. http://www.lawyerment.com/library/kb/Legal_Institutions/Judiciary/1002.htm
iii. /portal/index.php?option=com_content&view=article&id=66&Itemid=33&lang=en
iv. http://www.lawyerment.com/library/kb/Legal_Institutions/Judiciary/1002.htm
v. www.wiki.com
vi. http://www.elearnportal.com/courses/criminal-justice/judicial-systems-what-is-law

vii. http://www.elearnportal.com/courses/criminal-justice/judicial-systems-what-is-law
viii. Malaysia Legal sysyem/uitm

note: LAW245

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