MALAYSIAN LEGAL SYSTEM ILAW431

GROUP ASSIGNMENT

Prepared by :Husna Binti Muhamad Rodzi

2011634234Nur Ainnabila Binti Rosdi

2011612334Siti Zulaikha Binti Ab-Lah

2011Nur Ainaa Binti Mohd Sallehuddin

2011

LWA01F 2011

Prepared for :Puan Fatimatuzzahra' Zulkifli

Lecturer, Faculty of Law, Uitm Shah Alam.

Question 1 part C April 2009With preference to relevant authorities answer the following question:

a) Mek and Awang are a Muslim couple who has been married for ten years. They

live with their three children in Kuala Lumpur where Awang works as a

lecturer. For the last few years, Awang, has been abusive towards Mek and their

children. Mek has decided to apply for a divorce. Explain to Mek:

i) The structure of the court system which have jurisdiction to hear

the case.

(5 marks)

Hierarchy of Syariah Courts

The court that will the case of Mek and Awang is Syariah Subordinate Court of the

Federal Territories. The case will be conducted in Federal Territories' Syariah Court because

Mek and Awang lived in Kuala Lumpur which is a Federal Territory. Syariah Subordinate

Court will hear the case because divorce is a matter which can not be valued in monetary

term. Matter which can not be valued in term of money falls under the jurisdiction of Syariah

Subordiate Courts. Therefore, if Mek is going to file for a divorce, the court that will the case

is Syariah Subordinate Court.

The above diagram is structure of the court that will hear the case of Mek and Awang.

Syariah Courts are established by state law except for the Federal Territories, there are

established by the federal law. Syariah Courts in Federal Territories are established under

Syariah Appeal CourtSyariah Appeal Court

Syariah High Court

Syariah Subordinate Court

Section 40 of the Administration of Islamic Law (Federal Territories) Act 1993 (Act 505)

(AIL(FT) Act 1993). By virtue of the Federal Constitution, Syariah Courts will only have

jurisdiction over persons professing the religion of Islam. Syariah Court has limited territorial

and civil jurisdiction and do not have criminal jurisdiction except conferred by Federal

Constitution in criminal matter relating to Islam and Syariah criminal offences.

Syariah Appeal Court is the highest court in the hierarchy of the Syariah court system.

There is Chief Syariah Judge which will be appointed by the Yang di-Pertuan Agong on the

advice of the minister after consulting with Majlis Agama Islam Wilayah Persekutuan. Every

case in Syariah Appeal Court will be heard by Chief Syariah Judge with two judges selected

by him. There are two jurisdiction of Syariah Appeal Court which is appellate, and

supervisory and revisionary jurisdiction. Appellate jurisdiction is where the Syariah Appeal

Court may hear any appeal against the original jurisdiction of Syariah High Court. Whereas

in supervisory and revisionary jurisdiction, the Syariah Appeal Court may call for and

examine at any stage of any proceedings in Syariah High Court, and give directions as justice

may require.

Next below the Syariah Appeal Court in the hierarchy of Syariah Court is Syariah

High Court. The judges of the Syariah High Court will also be appointed by the Yang di-

Pertuan Agong on the advice of the minister after the consultation with the Majlis. In Syariah

High Court, there are three types of jurisdiction which is original, appellate and supervisory

and revisionary jurisdiction. The original jurisdiction will be divided into civil and criminal.

Whereas the in the appellate jurisdiction the Syariah High Court may hear appeals against

any decision made by Syariah Subordinate Court whether in civil or criminal. In supervisory

and revisionary jurisdiction, Syariah High Court may stick to its own motion or at instance at

any stage in any proceedings in any Syariah Subordinate Court, call for and examine any

records thereof and give such directions as justice may require.

Syariah subordinate court is presided over by Syariah Subordinate Court judge. The

judges are appointed by the Yang di-Pertuan Agong with the recommendation from Chief

Syariah Judge. Section 44(1) of the AIL (FT) 1993 state merely that judges may be appointed

from among members of the general public service of the federation. Syariah Subordinate

Court is different from other courts because it is only have one jurisdiction which is original

jurisdiction. This original jurisdiction is divided into two sections which is civil and criminal.

ii)The identity of the court that would hear her case and the scope of its jurisdiction.

(10 marks)

Mek and Awang is a Muslim couple and due to abusive Awang, Mek now has

decided to apply for a divorce. Under the Federal Constitution, Syariah Courts have

jurisdiction only over persons professing the religion of Islam. Because Mek and Awang is a

Muslim couple, which definitely professing the religion of Islam, therefore, their case will be

heard by a syariah court. As there are three level of Syariah Court, the Court that would hear

the case would be the Syariah Subordinate Court. This is because; divorce is a dispute which

can not be valued in money. As the monetary value of divorce can not be estimated, this

matter falls under the jurisdiction of Syariah Subordinate Court. The scope of its jurisdiction

is discussed below.

A Syariah Subordinate Court has only one type jurisdiction which is original

jurisdiction and this jurisdiction are divided into civil and criminal. In the civil jurisdiction of

the Syariah Subordinate Court, it covers all the proceedings as the Syariah High Court but the

jurisdiction is limited. The limitation is that the amount of the subject-matter can not exceed

RM50, 000 or the monetary value of the subject matter cannot be estimated. This limitation is

conferred in Section 47(2)(b) Administration of Islamic Law (Federal Territories) Act 1993.

Hence, Mek's case will fall under the original civil jurisdiction of the Syariah Subordinate

Court.

While in the criminal jurisdiction of Syariah Subordinate Court, they will have the

jurisdiction over offences under the Syariah Criminal Offences (Federal Territories) Act 1997

(Act 559) or any other written law prescribing offences against the precepts of Islam for

which the maximum punishment does not exceed RM2000 or imprisonment for a term of one

year, or both. This is enumerated in Section 47(2)(a) Administration of Islamic Law (Federal

Territories) Act 1993.

In short, there is only one type of jurisdiction that is original jurisdiction for the

Syariah Subordinate Court. It is divided into civil and criminal original jurisdiction as

conferred in Section 47(2)(b) and Section 47(2)(a) Administration of Islamic Law (Federal

Territories) Act 1993 respectively. Mek'case falls under this court jurisdiction as divorce can

not be valued in monetary term.

(b) Meng and Ong were good friends. During a heated argument, Ong lost his

temper and repeteadly stabbed Meng with a Rambo knife. Meng died two days later

and Ong is now charged with his murder.

i) State the jurisdiction of the court where the murder case will first be mentioned

before it is transferred to the trial court. (5 marks)

The court that will hear the first mention of this case is the Magistrate Court. This is

as laid down in Article 5(4) of the Federal Constitution and also Section 177A of Criminal

Procedure Code. There are First Class and Second Class Magistrate's Court.

The first class magistrate has the original jurisdiction in civil cases to try all actions

where the amount in dispute or value of the subject matter does not exceed RM25 000, unless

both parties consented in writing allowing their case to be tried before the magistrate

although the amount in dispute is more than RM25 000.

In criminal matter, the magistrate's court has an original jurisdiction to try all offences

punishable with up to ten years imprisonment or fine only. He or she may also try offences

under Section 392 of the Penal Code that concern robbery and Section 457 that deals with

lurking, house trespass, or housebreaking by night in order to commit offences punishable

with imprisonment.

The sentencing power of a magistrate is limited under Section 87(1) of Subordinate

Courts Act 1948. The sentences allowed is not exceeding five years imprisonment, a fine of

RM10 000, whipping up to twelve strokes or any sentence combining any of the above-

mentioned sentences. However, under the Dangerous Drugs Act 1952, Customs Act 1967

and Betting Act 1953 the Magistrate may impose a fine higher than RM10,000.00.

. The first class magistrate courts also have the appellate jurisdiction. He or she has

jurisdiction to hear and determine both civil and criminal appeals from any decision of the

Penghulu's Court, within its jurisdiction. The first class magistrate may reduce or vary, but

not enhance the sentence and in an appeal against any other order, alter or reverse the order.

The second class magistrate on the other hand, has only original jurisdiction. In civil

cases, the amount in dispute must not exceed RM3000 as provided in Section 92 of

Subordinate Court Act 1948 and in criminal case; the maximum penalty of the offence is up

only to penalty of 12 months imprisonment or fine only.

ii) Identify the trial court that will hear the case and state jurisdiction of that court.

(10 marks)

The court that will try the case between Meng and Ong is the High Court. The High

Court will hear the case because the offence committed by Ong is a murder which carried a

death sentence if found guilty. Offences which carried the maximum penalty of death

sentence falls under the jurisdiction of High Court. Other jurisdiction of High Court is

discussed below.

The High Court has the original, appellate and also revisionary and supervisory

jurisdictions. The original jurisdiction means the case starts at the High Court for the first

time. High Courts have unlimited civil and criminal jurisdiction. However, the High Court

normally tries only cases outside the jurisdiction of subordinate courts

The general civil jurisdiction of the High Court is set out in Section 23 of Court of

Judicature Act 1964. It has unlimited jurisdiction to try all civil matter regardless of values

where; the cause of action arose, the defendant or one of several defendants resides or has his

place of business, the facts on which the proceedings are based exist or are alleged to have

occurred and any land, the ownership of which is disputed, is situated within the local

jurisdiction. However, these jurisdictions are subject to limitation in article 128 of Federal

Constitution. High Courts generally hear actions where the claim exceeds RM250, 000, other

than actions involving motor vehicle accidents, landlord and tenant disputes and distress. The

High Court's specific jurisdiction is in 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, and also injunctions, specific performance or rescission of

contracts. This is as enumerated in Section 24 of Court of Judicature Act 1964.

On the other hand, in criminal jurisdiction, The High Court may hear all matters but

generally confines itself to offences on which the Magistrates and Sessions Courts have no

jurisdiction, for instance, offences which carry the death penalty. It also have the extra

territorial jurisdiction which the Attorney General may extent the jurisdiction of the court to

offences committed abroad by Malaysian's citizen that affect the security of the country. By

virtue of Section 22(1)(a) of 1964, the High Courts can try all offences relating to ship or any

aircraft registered in Malaysia.

For appellate jurisdiction, High Courts can hear appeals against the decisions of the

lower courts. Hence, the High Court may hear appeals from the Magistrates and Sessions

Courts in both civil and criminal matters. The appellate civil jurisdiction of the High Court is

laid down in Section 27 of Court of Judicature Act 1964. There is no appeal to the High

Court from a decision of subordinate courts in any civil cause or matter where the amount in

dispute is less that RM10 000, except on a question of law and proceeding concerning

maintenance of wives or children.

In criminal appellate jurisdiction, the High Court can hear appeal from subordinate

courts according to any law then in force within the territorial jurisdiction of High Court.

However, no appeal can be made to High Court from a subordinate court concerning any

offence punishable with fine not exceeding RM25, or when the offender had pleaded guilty

and been convicted, except as to the extent or legality of the sentence.

The High Court has revisionary jurisdiction over criminal and civil proceeding in the

subordinate courts. Section 31 of Court of Judicature Act 1964 laid down the power of the

High Court to revise criminal proceedings in the subordinate courts in accordance with any

law for the time being in force concerning criminal procedure. Under Section 32 of the said

act, the High Court can call for and examine the record of any civil proceedings before any

subordinate courts to satisfy itself as to correctness, legality, or propriety of any decision

recorded or passed, and as to regulate correct proceedings.

Section 35 of the Court of Judicature Act 1964 confers the High Court with general

supervisory jurisdiction. It can supervise all subordinate court in the interest of justice. High

Court can call for record of any proceeding either of its own motion or at the instance of any

interested party. Then, High Court can either transfer the case whether civil and criminal to

High Court itself or give directions to the lower court for further conduct of the case.

Lastly, the High Court also has jurisdiction to review decisions of quasi judicial

bodies or administrative tribunals as provided by Section 25(2) of the Court of Judicature Act

1964 read together with Section 1 of the Schedule to the Act. These confer power on the High

Court to issue orders or writs including writs of the nature of habeas corpus, mandamus,

prohibition, quo warranto and certiorari. High Court can also supervise and control the Native

Courts.

In short, the High Court has the original, appellate and also revisionary and

supervisory jurisdiction. Besides, the High Court also have unlimited civil and criminal

jurisdiction including criminal offence which carry death sentence such as murder. Hence,

Ong will be tried in High Court.