Topic

Judiciary

LEARNING OUTCOMES
By the end of this topic, you should be able to:
1.

Recognise the seven court hierarchies in Malaysia;

2.

Explain the functions of the Subordinate Courts in Malaysia; and

3.

Assess the importance of Malaysian Superior Courts; and

4.

Summarise the various types of courts in Malaysia.

X INTRODUCTION
The system of courts which is established in Malaysia is modeled substantially on
the system of courts, which existed in England. The Constitution provided for the
powers exercised by the legislative, executive and judiciary.
Criminal and civil matters are heard and determined by the judiciary. It has the
jurisdiction to pronounce on the legality of legislative, executive acts and
interpret the constitutions (Federal and State). The Superior Courts (Federal
Court, Court of Appeal and High Court) have the status of being superior courts
of record. This means that the decision of a superior court is regarded as valid
and unimpeachable unless it is set aside on appeal.
By contrast, the decisions of inferior courts are subject not only to appeal in the
normal manner but also to review as to whether the matter was within the
jurisdiction of that court.

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Figure 5. 1: Hierarchy of the court

5.1

SUBORDINATE COURTS
SELF-CHECK 5.1

Have you attended any court trial before? Before proceeding to the first
topic of the topic, think about the following question. What do you
understand about the function of subordinate courts such as the
Magistrate court and Session court?

Penghulu Courts, Magistrate Courts and Sessions Courts are the subordinate
courts in Peninsular Malaysia.

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The subordinate courts are highlighted in Figure 5.2 as follows:

Figure 5.2: The subordinate courts

5.1.1

Penghulu Court

The Penghulu court is the lowest level of subordinate courts in Peninsular

Malaysia. It deals with civil cases and criminal cases. This court is presided by a
penghulu (a headman). His appointment is done by the State Government for a
district (mukim).
In civil cases, the penghulu hears and determines cases not exceeding RM50.00.
The parties to the proceedings must be of Asian race and must understand and
speak the Malay language.
In criminal cases, the penghulu hears minor offences trials, which are, punishable
by a fine not exceeding RM25.00. The party charged must be of Asian race. Any
persons charged may elect to have the case tried before a Magistrates' Court.

5.1.2

Magistrate Court

The Magistrate court deals with civil cases and criminal cases. This court is
presided by a magistrate where, there are two classes of magistrates. They are:
(a)

First class Magistrate; and

(b) Second class Magistrate.

A first class magistrate has an original and appellate jurisdiction.
Section 85 of the Subordinate Courts Act, 1948 (Revised 1972) amended by the
Subordinate Courts (Amendment) Act, 1978 states that a first class magistrate has
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the jurisdiction to try all types of offences which has a maximum term of
punishment not exceeding ten years imprisonment, or with a fine.

The magistrates may try offences under the Penal Code which is Sections 392
which deals with robbery and S457 which deals with trespass and housebreaking
by night in order to commit an offence. Sentencing by a first class magistrate is
prescribed under Section 87 of the SCA 1948. This section provides that the
magistrate may pass any sentence allowed by law not exceeding:
(a)

five years imprisonment;

(b) a fine of RM10,000;

(c)

whipping up to twelve strokes; or

(d) a combination of any of the sentences above.

Under the civil jurisdiction, the magistrates have the jurisdiction to try all actions
where the amount or value of subject matter does not exceed RM25,000. The
magistrate may exercise a higher amount than RM25,000 if both parties agree in
writing.

In a criminal jurisdiction, under S88 of the SCA, the magistrates may try offences
which the maximum term of imprisonment does not exceed twelve months or
punishable offences with a fine only. A second class magistrate has the power to
pass sentences allowed by law which are:
(a)

not exceeding six months imprisonment;

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(b)

a fine not exceeding RM1,000; or

(c)

any sentencing combining either of these sentences.

S26-S28 CJA 1964 states that appeals both in criminal and civil cases against
decisions of the Magistrate Courts lie with the High court. In the civil case, the
amount disputed must be RM10,000 or less exception if it is on a question of law.
This monetary limit is not applicable to proceedings of maintenance of wives or
children.
First class magistrates may try the entire small claim. The ceiling for small claims
is RM5,000 which also include any other claim than a debt such as damages. This
is a mandatory procedure, if the recovery of claim is below RM5,000.

5.1.3

Juvenile Court

Criminal offenders below the age of eighteen are tried by the juvenile courts. A
first class magistrate sits here and is assisted by two lay advisers, and one shall be
a woman.

The young offender is tried in camera that is closed to public. This is to protect
the offenders from publicity. The offender will be sent to any approved
institutions or correction schools, if he or she is found guilty. The young offender
may be released by bond with or without sureties. The offender must be in good
behaviour and present for sentencing when called upon. This is not applicable to
homicide offences. The offender may appeal to High Court if he or she is
dissatisfied with the finding or order of the court.

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5.1.4

103

Sessions Court

This court is the highest of the inferior courts. It is presided by a Session court
judge.

Section 69 provides matters relating to:

land,

specific performance or recession of contracts,

injunction, probate and administration of estates,

divorce,

bankruptcy,

trusts; and

accounts.

are excluded from its jurisdiction. It may also hear and determine any action for
the recovery of immovable property and for the recovery of rent or mesne profits
or damages where the money claimed does not exceed RM96,000 or where the
rent payable in respect of the premises does not exceed the sum of RM96,000 per
annum or either RM1000 per mensem.

ACTIVITY 5.1
Abu is a 12 year old boy who was caught stealing in a shopping mall. He
was sent for trial to be sentenced. Try identifying the following;
(i)

Which court will he be tried at?

(ii) Who will be conducting the trial?

(iii) What would be the possible sentence available for him?

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SUBORDINATE COURTS IN EAST

MALAYSIA
SELF-CHECK 5.2

Do you think there are any difference between the Subordinate courts
in West Malaysia and the Subordinate courts in Sabah and Sarawak?

Under the Subordinate Courts Act 1948 and Subordinate Courts Act (Extension)
Order 1980, the Subordinate Courts consists of three courts which are shown in
Figure 5.3 as follows:

Figure 5.3: Subordinates courts in Sabah and Sarawak

5.2.1

Native Courts

The position and jurisdiction of the native courts are unique.

Native courts exists only in Sabah and Sarawak. This court has the jurisdiction to
decide matters pertaining to native law and customs. The parties to the
proceedings must be natives.

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A native in Sarawak is a person who is a citizen and of an indigenous race to

Sarawak. And a native in Sabah is a citizen and is a child or grandchild of an
indigenous race person and born either in Sabah or to a father domiciled in Sabah
at the time of the birth.
(a) Sarawak Court System
The hierarchy of the courts is as illustrated in the following Figure 5.4.

Figure 5.4: Native courts in Sarawak

(i)

Native Court of Appeal

As may be seen in the Figure, the highest court is the Native Court of
Appeal. This court is presided over by a president and one or two
persons who are knowledgeable in customary laws.
This court has an appellate, revisionary and supervisory jurisdiction.
The appeal will be from the Resident's Native court by way of petition
for revision.
In the interest of justice, this court may exercise any powers of revision
vested in the High Court. This can be either by an application of an
aggrieved party or on its own accord.

(ii) Resident's Native Court

This court is presided by a resident who is an ex officio First Class
Magistrate who is assisted by two (minimum) or four (maximum)
assessors. This court exercises original, appellate, revisionary and
supervisory jurisdiction. The appeals is with regards land disputes or
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native states. The revisionary and supervisory role is over the lower
courts.
(iii) District Native Court
This court is presided over an ex officio First Class Magistrate who is
assisted by two assessors who are either appointed by him or by the
resident. This court exercises original, appellate and supervisory
jurisdiction. This court hears cases on appeal from lower courts. These
disputes involve land matters. The supervisory role is the same as other
appellate courts. This court may impose a penalty of imprisonment not
exceeding two years and a fine not exceeding RM5000.
(iv) Chief's Superior Court
This is the highest appellate court for breaches of customs and offences
relating to family matters, all civil matters the value in which not
exceeding RM2000 and minor criminal matters.
This court is presided by a temenggong or pemanca and is assisted by
two assessors or both sitting with one assessor. This court exercises
original, appellate and supervisory jurisdiction.

The supervisory jurisdiction is over lower courts. This court may impose
penalties of imprisonment not exceeding one year and a fine not exceeding
RM3000.
(v) Chief's Court
This court is headed by a penghulu with two assessors. A penghulu
may sits with two tuai rumah to assist him if it concerns Iban system of
personal law. This court exercises original and appellate jurisdiction.
The appellate jurisdiction is from the headman's court. This involves
native law and custom. This court may impose imprisonment not
exceeding 6 months and a fine not exceeding RM2000.
(vi) Headman's Court
This court is headed by a headman and two assessors. In an Iban
community, this court may constitute a tuai rumah without assessors.

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This court has jurisdiction to hear all matter except for land disputes.
This court may impose fine not exceeding RM300.
Under section 11(2) (a) and (b) a native court is entitles to award full
compensation. This is authorized under the various customary laws of
the Dayaks. These courts adopt an inquisitorial system rather than an
accusatorial system.
(b)

Sabah Court System

The hierarchy of the Sabah Court system is as illustrated in Figure 5.5.

Figure 5.5: Native courts in Sabah

(i)

Native Court of Appeal

This court is the highest in the court hierarchy and is presided over by
a President who is a High Court judge and two other members either
district chiefs or native chiefs. They are appointed by the State
Minister. This court exercises appellate jurisdiction. The native court
can:
dismiss an appeal,

set aside or vary an order,

reduce or increase sentencing or punishments,

request a written report or opinion form the District Native Court

or the Native Court upon any point arising form appeal; and

summon witnesses to give evidence on any matter.

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(ii)

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District Native Court

This court is presides by a district officer together with two district
chiefs or native chiefs, a resident within his district. They are appointed
by the State Secretary. This court exercises appellate, revisionary and
supervisory jurisdiction. The appellate jurisdiction concerns appeals
from the Native Court in the local district where the court is
established.

The revisionary jurisdiction is any native court proceedings that are

irregular, improper or unconscionable. In this instance, it may quash or
vary the decision or direct a rehearing of the case. The supervisory role
is over the native courts. In exercising the courts jurisdiction, it has the
power to recall any witness, take further evidence itself, or direct the
native court to do so or summon an assessor to advise the court on the
matter.
(iii) Native Court
This court is the lowest court in the hierarchy and consists of three
native chiefs or heads man form the territorial jurisdiction of the
particular native courts. The state secretary empowers this person to
adjudicate. The Secretary of State may empower a district chief, a native
chief and a headman from another territorial jurisdiction to hear the
case. This is in particular if there is an expert from outside the territory
or if there is a conflict between the resident headman and chief. The
native court has original jurisdiction.

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It hears cases such as shown in Figure 5.6:

Figure 5.6: Cases heard by Native court

The penalties imposed or orders made are divided into two categories, the first
being offences against native law and custom and second being penal offences. In
the former, the court may impose a fine or order imprisonment or order both find
and imprisonment or inflict any mode of punishment authorized by native law
and custom as long as it is within the principle of natural justice and humanity. It
also makes orders of payment of compensation or default of penalty or
compensation and order of imprisonment.

(a) Magistrates' Court

This court operates similarly to the magistrates courts in Peninsular
Malaysia.
(b) Sessions Courts
This court also operate similarly to the counterparts in Peninsular Malaysia.

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Juvenile Courts
This court is also similar to the juvenile court in Peninsular Malaysia.

ACTIVITY 5.2

Identify whether these sentences TRUE (T) or FALSE (F).

TRUE
1.

Native Court of Appeal in Sarawak is presided by

Penghulu with two assessors.

2.

District Native Courts in Sabah are presided by

district officer alone.

3.

Chiefs Superior Court is only available in Sarawak.

4.

Under S471 of the Native Court (Criminal

Jurisdiction Act 1991, Native courts can try criminal
offence that does not exceed a fine of more than RM
50,000 only.

5.

In an Iban community, Headmans Court may

constitute a tuai rumah without assessors.

FALSE

Browse to this website www.jurist.law.pitt.edu/world/Malaysia.htm and

gain more information on subordinate courts system.

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5.3

111

SUPERIOR COURTS IN EAST MALAYSIA

SELF-CHECK 5.3

Do you know where the Federal court in Kuala Lumpur is located? Can
you think of any other superior courts other than the Federal court?

Article 121 of the Federal Constitution established the superior courts. Previously
before 1st Jan 1985, the superior courts formed three tier systems which are
illustrated in Figure 5.7.

Figure 5.7: Superior courts before 1/1/1985

As shown in Figure 5.8, appeals to the Privy Council were abolished in two
stages:

Figure 5.8: The abolishment of appeal in Privacy Council

However, the Supreme Court was subsequently renamed Federal Court and a
Court of Appeal was created. The three tier system of superior court now consists
of Federal Court, the Court of Appeal and the two high courts. These are
exhibited in Figure 5.9.
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Figure 5.9: Superior courts

5.3.1

Federal Court

Article 121(2) of the Federal Constitution established the Federal Court where it
comprises of the Chief Justice of the Federal Court, the President of the Court of
Appeal, the two chief judges of the High Courts, and four other judges and these
additional judges, may be appointed pursuant to clause (1A). Currently the
number of the federal court judges is seven. Federal court has four jurisdictions as
explained in Table 5.1.
Table 5.1: The Federal Court Jurisdictions
JURISDICTION

EXPLANATION

Appellate

This court has jurisdictions to hear criminal and civil appeal from the
High Courts.
This court exercise original jurisdiction on matter on it under Articles
128(1) and (2) of The Federal constitutions ehich provides:
(i)

Original

to determine whether a law made by Parliament or by the

legislature of a state is invalid on the ground that it deals with a
matter in which it has no power to legislate; and

(ii) to decide disputes on any other question between the States and
the Federation or between the Federation and a State; and in
such a dispute the Federal Court may give only a declaratory
judgement.
Referral

The court determines constitutional questions that has arisen in the

High Court but referred to the Federal court for a decision.

Advisory

Article 130of the Federal Constitution states that the court can give
its opinion on any question which has arisen or appears likely to
arise and which has been referred to it by the Yang di pertuan Agong
concerning the effect of any provision of the constitution.
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Palace of Justice
Source: http://www.i-putra.com.my/sites/site.cfm?jd=21

5.3.2

Court of Appeal

Article 121 (1B) established the court of appeal. This court is comprised of the
President of the Court of Appeal and ten other judges. It has the jurisdiction to
determine appeals from the High Court or a judge thereof and any other
jurisdiction as may be conferred by or under federal law.

S68 of the same Act however, puts restriction on the appeals to the Court of
Appeal. Appeals cannot be made where:
(a) The amount or value of the subject matter is less than RM250,000 except with
leave of the court of appeal.
(b) The judgment or order made is by consent of the parties.
(c) The judgment or order relates to costs only.
(d) Where by any written law for the time being in force, the judge or order of the
high court is expressly declared to be final.
Court of Appeal will re-hear the case if it is appealed to the court. It has the
power to order a new trial or reverse or vary the decisions of the high court.
The Court of Appeal in a criminal jurisdiction can hear and determine any criminal
appeal against decision made by the High Court in the exercise of its original
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jurisdiction and appellate or revisionary jurisdiction in respect of any criminal

matter decided by the Session's court. The Court of Appeal may summarily dismiss
appeals; confirm, reverse or vary the decisions of the trial courts, order a retrial or
remit the matter with its opinion thereon to the trial court; or make such other
order as may seem just and may by that order exercise any power which the trial
court might have exercised.

5.3.3

High Court

There are two High courts which are the High Court in Malaya and the High Court
in Sabah and Sarawak. The power and jurisdiction of this court is conferred by the
federal law. The High Court comprises of a Chief Judge and not less than four other
judges. A judicial commissioner may be appointed to either of the high courts.
The high court has jurisdiction to exercise these are explained in Table 5.2.
JURISDICTION

EXPLANATION

Original
Jurisdiction

This court has unlimited criminal and civil powers. In criminal matter,
no case may be brought to the High Court unless an offence has been
properly committed for trial after preliminary hearing in a Magistrate
court. In civil matters, any matter which cannot be determined in the
subordinate courts is heard before the High Court.

Appellate
Jurisdiction

This court hears civil and criminal appeals from the Magistrates and
Sessions court.

Revisionary
Jurisdiction

This court has the power to refer any points of law arising in the appeal
from the decision of the Court of Appeal if in its opinion it is of public
interests and of paramount importance.

Supervisory
Jurisdiction

S35(1) of the Courts of Judicature Act 1964 states that this court has
been conferred general supervisory and revisionary jurisdiction over
all subordinate courts. The court may call for the records of any
proceeding in the subordinate courts if it is considered to be in the
interest of justice. It may remove the case to the High Court or give
such directives to the subordinate courts as it thinks necessary.
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5.4

115

THE INDUSTRIAL COURT

This court was developed under the Industrial Relations Act 1967 and it deals
with trade disputes and has jurisdiction on matters concerning employees,
employers and trade unions. The court comprises of a President appointed by the
Yang Di Pertuan Agong and a panel of person appointed by the Minister of Law.
S33A (1) provides that Reference may be made to the High court on a question of
law.

Among the questions of law are:

(a)

questions which arose in the court of the proceedings;

(b) the determination of which by the court has affected the award;
(c)

which, in the opinion of the court , is of sufficient importance to merit such

reference; and

(d) the determination of which the by the court raises, in the opinion of the
court, a sufficient doubt to merit such reference.

ACTIVITY 5.3
Explain briefly the composition of the superior courts.

ACTIVITY 5.1
Describe the hierarchy of court and jurisdictions of courts in Malaysia.

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The courts play a role in law making. Malaysia has court hierarchies at the
federal and state levels. The highest court in the Federal hierarchy is the
Federal Court. It also forms part of the State court hierarchies and is the
highest court in these hierarchies. This court has an original and an appellate
jurisdiction. The Court of Appeal and the High Courts also forms part of the
superior court hierarchy. Magistrates Court, Juvenile Court, Sessions Court
and Penghulu Court (in Peninsular Malaysia) are part of the subordinate
hierarchy.

In East Malaysia, the native courts are the subordinate courts. It consists of
Native Courts, Sessions Court and Magistrates Court. Beyond the issues of
the interface between state and federal jurisdictions, the court system in
Malaysia has had to face many other challenges. One of these is the pressure
on the courts from the number of cases which they are called upon to decide.
Long delays in cases reaching trial in intermediate and superior courts has led
to pressure for improved efficiencies in the court system and better
management of cases.

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