Topic 5: The Judicial System-Superior Court-Subordinate Court*

IntroductionThe 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.The judicial power of Malaysia is vested in the Federal Court, the Court of Appeal, the High Courts and subordinate courts. The head of the judiciary is the Chief Justice.

Court in Msia consist of Subordinate Court and Superior Court.Court of Judicature Act 1964 (CJA) provides the jurisdiction for superior court.Subordinate Court Act 1948 (SCA) provides the jurisdiction for subordinate court.

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Superior Court

Subordinate Court*

Local JurisdictionRefer to the geographical distinction which has the jurisdiction to hear the case.court in whose district the matter arose will have jurisdiction to hear the case.eg: case in Merbuk, so it fall under local jurisdiction of Sg Petani court.*

JurisdictionOriginal Jurisdiction: the right of court to try case at first instance before any other court/ the power to hear case for the first time.

Appellate Jurisdiction: the power to consider a case after the case has been decided by a lower court.

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Magistrates courtEstablished under S.76 SCA 1948.MG court deals with minor civil and criminal cases within the local jurisdiction assigned to them.Presided by 1st class MG or 2nd class MG.Both classes of MG are appointed by YDPA in Federal Territories and by the Ruler or Yang Dipertua Negeri in the state. 1st class MG- are legally qualified and must be a member of the judicial and legal service of the federation. Appointed on recommendation of Chief Judge.2nd class MG-not legally qualified. They are civil servant who do magisterial work in addition to their administrative duties.

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Jurisdiction of 1st Class Magistrates*

Original jurisdiction1) civil jurisdiction:To try all cases where the amount in dispute or value of subject matter not exceed RM100 000 (one hundred thousand ringgit).*

2) Criminal jurisdiction:Offences punishable with up to 10 years imprisonment or ;Offences punishable with fine only; andEg: theft (7year), kidnapping (7years), causing miscarriage (7years), causing hurt (7years), extortion (10years)And offences under S.392 (robbery) and S.457 (housebreaking by night) of Penal Code. The maximum punishment for these offences is 14 years imprisonment. *

Criminal sentencing jurisdictionSentencing power of 1st Class MG.What power does the MG court has?MG may pass any sentence allowed by law not exceeding:5 years imprisonment;Fine up to RM 10 000;Whipping up to 12 strokes;Combination of aboveif MG award more than prescribe, he must record his reason for doing so. usually in grave offence and habitual offender.*

2nd Class MagistratesOnly has original jurisdiction

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1) civil jurisdiction:Monetary jurisdiction: Recovery of debt or liquidated demand in money payable by Defendant not exceeding RM 10 000 (ten thousand ringgit).*

2) Criminal Jurisdiction:Offence which maximum penalty 12 months imprisonment or fine only.Eg: unlawful assembly (6months/fine), does any obscene act or recite obscene song at public place (3months/fine), causing public nuisance (fine RM400)

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Criminal sentencing jurisdiction:

What power does the MG court has?MG may pass any sentence allowed by law not exceeding:1) Imprisonment not exceeding 6 months;2) Fine not exceeding RM 1000;3) Combination of the aboveHowever, if MG think that the accused if convicted, deserves a penalty which exceed his or her power of punishment, the case must be adjourned for trial by 1st Class MG.

NOTE: appeal against decision of the MG court both in civil & criminal lies to HG court.*

Small Claim CourtMsia does not have small claim court. Only small claim procedure introduced into Magistrate court handling of small claim.Since 1st January 1991, all small claim have been tried by 1st Class Magistrates.Less procedure-Total exclusion of legal representative (no lawyer involve) in order to keep the process informal and inexpensive.

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The small claim procedure in Magistrates court is mandatory for recovery of all claim below RM5 000. It is simplified, cheap and speedy procedure. *

Sessions CourtsEstablished under S. 59 SCA 1948Presided by Sessions court judge appointed by YDPA on recommendation of Chief Judge.Must be a member of judicial & legal service of the Federation.*

Jurisdiction of Sessions court Original JurisdictionSupervisory JurisdictionCriminalCivil*

Original Jurisdiction1) Civil jurisdiction:Monetary jurisdiction i.e all actions and suits where amount of dispute or value of subject matter does not exceed RM1,000,000 (one million ringgit).

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Exception i.e unlimited jurisdiction in respect of road accident, landlord and tenant and distress (the seizure of goods as security for the performance of an obligation eg, the siezing of a tenants goods by landlord to secure payment of rent arrears. If tenant fails to pay the rent arrears after distress has been levied, the landlord may sell the goods and keep the amount due.) *

In all civil case, the jurisdiction is covers matters where the amount in dispute does not exceed RM1,000 000.Pf may relinquish any portion of his claim if his claim exceed RM1,000 000, but he may not afterwards sue for the balance in any court. Eg: if PF claim RM1,010 000 and he may relinquish RM10 000 and cannot claim the portion relinquished afterwards.*

Pf cannot split the claim into two concerning the same cause of action and the same party.Eg; if a creditor is owed RM1,020 000, he may not split the claim into two claims of RM510,000 each and bring two suits against the debtor. If he wants to claim the full amount he must go to High court. *

Court also has jurisdiction to try all actions and suits of a civil nature for the specific performance or rescission or for cancellation or rectification of instruments.A sessions court may, in respect of any action or suit within the jurisdiction of the sessions court, in any proceeding before it, grant injunction and make a declaration.

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2) Criminal Jurisdictioncan try all offences other than punishable with death.

Sentencing jurisdiction: may pass any sentence allowed by law except death penalty.*

Supervisory jurisdictionS.54 - Sessions court has supervisory role over MG court and Penghulu court.Sessions court judge may call for and examine the record of any civil proceeding before MG court or Penghulu court to satisfy the himself as to the correctness, legality, or propriety of any decision recorded or passed and as to the regularity of any proceeding of that court.*

If in the opinion that the decision are wrong/illegal/improperly/irregularity in procedure, court must forward the record to HG court. then HG court may give such order as are necessary to ensure that justice is done. *

High CourtIn Malaysia there are two High Courts having coordinate jurisdiction and status, that is the High Court in Malaya and the High Court in Sabah and Sarawak. The High Court in Malaya consists of a Chief Judge and not exceed sixty judges whilst High Court in Sabah and Sarawak consists of a Chief Judge and not exceed thirteen judges. (Articles 121(1) and 122AA(1) of the Federal Constitution).*

Jurisdiction of HCJurisdictionappellateoriginalsupervisoryrevisionarycivilcriminal

criminal

civil

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Original jurisdictionHC has unlimited jurisdiction in both civil and criminal matters.It can try any civil case of any value and any criminal case no matter how grave.However HC normally tries only cases outside the jurisdiction of the subordinate courts. *

Civil jurisdictionHC has jurisdiction to try all civil matters regardless of value within its local jurisdiction i.e:a) where cause of action arose;b) where the DF or one of several DF resides or has place of business;c) where any land, the ownership of which is disputed is situated. In practice HC tries cases where the amount involved exceeds RM1,000,000-00

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Each HC tries only cases that arise from its own territory, but if the parties consent in writing, the court may try cases from the territory of other HC.

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HC has specific jurisdiction in matters enumerated in S.24 CJA which includes:a) divorce and matrimonial causes;b) bankruptcy and winding-up of companies;c) guardianship or custody of children;d)Wills and probate;e) injunctions, specific performance or rescissions; *

Criminal jurisdiction of HCHas jurisdiction over people (citizen and non citizen ) and offences committed within its territory. May impose the maximum sentence allowed by law under S.22 (2) CJAAll sentence including death penalty. *

Appellate jurisdictionHear an appeals from subordinate court in both civil and criminal cases.*

Civil Criminal No appeal to HC from a decision of Subordinate court in civil matter where the amount in dispute less than RM10 000 except on a question of law.-No appeal if offence punished only with a fine of RM25 or less.

-a person who pleaded guilty and been convicted cannot appeal except as to the extent or legality of the sentence.

-no appeal against an acquittal except with writen sanction of Public Prosecutor.

Supervisory jurisdictionS.35(1) CJA: HC shall have general supervisory and revisionary jurisdiction over all subordinate court.Supervisory jurisdiction is where HC has power in the interest of justice to call for the record of any proceeding whether civil or criminal in any subordinate court, at any stage of such proceeding and either transfer the same to the HC or give to subordinate direction for further conduct of the case.

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Revisionary jurisdictionHC may revise the decision of any subordinate court in respect of criminal and civil matters for the purpose of satisfying itself as to the correctness, legality or propriety of any decision recorded or passed and regularity of any proceeding of subordinate court.Case that had been decided by lower court.Purpose: to check, to satisfy itself legality and correctness. S.33 CJA: HC may give such order either by directing a new trial or otherwise as seems necessary to secure that justice is done.*

Court of AppealGoverned under part III of CJA 1964Presided by COA judges and in every proceeding in the COA is heard and disposed of by three judges or such greater uneven numbers (3,5,7)Decision will be made by a majority of judgesCOA only has appellate jurisdiction i.e to hear an appeal from HC in both civil and criminal matters. *

Civil appealCOA has jurisdiction to hear and determine appeals from HC in any civil cause or matter whether made in exercise of its original or its appellate jurisdiction.No appeal is allowed where the amount or value of subject matter of the claim is less that RM250000 unless with leave from COA.

OriginalHCCOA

Appellate (eg:SC)*

An appeal to COA is by way of rehearing a case, and it has all powers and duties of HC together with full discretionary power to receive further evidence by oral examination, or by affidavit etc.COA may:a) order a new trial (eg: in case of substantial wrong or there is miscarriage of justice) b) reverse or vary the decision of HC (eg: amount of compensation etc) *

Criminal appeal COA may hear any appeal against any decision made by HC in exercise of its:a) original jurisdictionb) appellate jurisdiction in respect of any criminal matters decided by session court. (if from MG court, cannot except by leave of COA)Original HCCOAAppellate (eg:SC)*

COA has power to:a) dismiss the appeal;b) confirm, reverse or vary the decision;c) order retrial or remit the matter with its opinion thereon to trial court; COA also may quash the sentence passed by trial court and pass new sentence if it think that a different sentence should be passed. *

Federal CourtHighest court in Msia.Consist of Chief Justice, President of COA, Two Chief Judge of the HG court and eight other judges of FCThere is only one FC for peninsula Msia and Sabah & Sarawak.Every proceeding shall be heard and disposed of by 3 judges or greater uneven number of judges as the Chief Justice may determine.*

Jurisdiction *

Original Has the same original jurisdiction as the HC. (Unlimited jurisdiction)In addition FC has exclusive jurisdiction i.e:1) decide dispute btw state and state;2) decide dispute btw state GV and Federal GV.3) determine whether a law was validly made by Parliament or any SLA. 4) a question on the effect of a constitutional provision (reference made by HC)*

Appellate The bulk of the FCs work is hearing and determining civil and criminal appeals.*

Civil Appeal Appeal can be made from COA to FC with the leave of the FC.Appeal shall lie to FC from judgment of COA in respect of any matter decided by HC in its original jurisdiction in any matter. *

Criminal appeal To hear and determine any appeal against any decision from COA in its appellate jurisdiction concerning any criminal matter decided at first instance by HC. (an appeal from HC)Eg: murder case (decided by HC at 1st instance)HCappealCOA appeal FC*

FC may summarily dismiss an appeal. It may also confirm, or vary the decision of COA or order retrial. *

Referral HC may refer the case to FC i.e to determine constitutional provision which have arisen in proceeding in the HC for a decision by way of special case.When FC has decided, it remit back the case to HC to be disposed accordance with that decision.Pending decision by FC, HC may stay proceeding.*

Advisory FC may give its opinion on any question which has arisen or appears likely to arise, and which has been referred to it by YDPA concerning the effect of any provision of constitution. Rarely invoke.Constitutionally AG is legal advisor to the King.*

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