The Subordinate Courts (Amendment) Act 2010) came into action in March 2013 (The Selangor Bar, 2019). The amendment has impacted significant change over the subordinate Courts. They can now try all actions and suits that are of a civil nature. The Malaysian Court system works in a hierarchal structure (Krishnan, 2014). However, courts like the Penghulu’s Courts, Native Courts and the Syariah Courts were said to be outside hierarchy. The Penghulu’s Court was abolished by The Subordinate Courts (Amendment) Act 2010 .Magistrate Courts are the lowest ranked courts (Turner, 2016). Above magistrate courts are session courts, High Court, Court of Appeal and the Federal Court of Malaysia which is the most superior of all. Among these courts there two categories; the superior courts and the subordinate courts. There is a general rule on the doctrine of precedents that lower courts shall always be bound to the decision of higher courts (Spohn, & Hemmens, 2011). This means that all subordinate courts in Malaysia have no precedence over superior courts. The superior courts are the Federal Court, the Court of Appeal and the High Court. The Subordinate courts are the Sessions Court, Magistrate Court to include Court of Children. The Juvenile Court is in paralleled jurisdiction with the Magistrate’s Court. The Penghulu’s Court was initially under the Subordinate Courts before being abolished.
The Session Courts are the highest court among the subordinate courts of Malaysia (Karlsgodt, 2012; Yeh & Chang, 2014).They are constituted by The Yang di-Pertuan Agong and he may also give the limitation of their scope of jurisdiction. Under the Subordinate Act of 1948, Session Courts have been given power to hear and give decisions on matters civil and criminal that arise within the local limits of jurisdiction assigned to it under section 59 of the Act. The judges presiding in Session Courts are appointed by Yang di-Pertuan Agong upon the recommendation of the Chief Justice. Section 53 of the Subordinate Courts Act 1948 sets the power of Session judges in calling for civil records of courts subsidiary thereto. For a judge to be appointed as a Session’s Court judge, he is or he must be a member of the judicial and legal service of the Federation. The judges has the capacity to override the decision of a Magistrate Court or Penghulu’s Court, if they consider the decision as illegal or improperly constructed through the High Court (The hierarchy of the malaysian judicial system, 2019). Session Courts can be held in places directed by Chief Judge or other places that are within the limit of their jurisdiction.
Criminal Jurisdiction of Session Courts
The scope of jurisdiction of Malaysian Courts is that they can try all offences other than those that can be punished by death. Section 64 of the Subordinate Courts Act 1948 [Act 92] provides that;
“A Sessions Court may pass any sentence allowed by law other than the sentence of death”.
A Session judge, therefor, whatever the situation will never pass a death sentence on any accused person. The Court can, for example, give sentences of life imprisonment.
Civil Jurisdiction of Session Courts
The civil jurisdiction of Session courts is set out under the section directly after S. 64 (one establishing criminal jurisdiction). Section 65 of the Subordinate Courts Act 1948. Subsection (a) provides that these courts have unrestricted jurisdiction regarding all matters of civil nature regarding motor vehicle accidents, landlord and tenant and distress. Subsection (b) of the same S. 65 states that the Session Courts can preside over all civil matters whose dispute amount does not go above two hundred and fifty thousand ringgit. This particular part was amended by the Subordinate Courts (Amendment) Act 2010 [s. 7(a) (ii) of Act A1382]. The amendment raised the dispute amount from two hundred and fifty thousand ringgit to 1 million ringgit. There is a further provision regarding action and suits. S.7 (a) (iii) of Act A1382 provides that:
“The Sessions Court has been conferred with jurisdiction to try all actions and suits of a civil nature for the specific performance or rescission of contracts or for cancellation or rectification of instruments, within the jurisdiction of the Sessions Court”. This amendment revokes the initial provision under section 69 (b), (c), and (d) of the Subordinate Courts Act 1948.
7(b) of Act A1382 has provision that:
“A Sessions Court may, in respect of any action or suit within the jurisdiction of the Sessions Court, in any proceedings before it – (i) grant an injunction; and (ii) make a declaration, whether or not any other relief, redress or remedy is or could be claimed”.
There are exceptions that exist above the above stated jurisdiction in section 69 of the Subordinate Courts Act 1948. The Sessions Courts lack jurisdiction in matters that relate to immovable property, accounts, declaring decrees, issuance an revocation of grants of estate representation of deceased persons or the administration or distribution thereof, where the legitimacy of a person is in question, where the custody of infants is in question, and when the validity or dissolution of a marriage is in question. The power to deliberate over these issues is in special cases only. For example, Section 70 of the 1948 Act:
“…, a Sessions Court shall have jurisdiction to hear and determine any action or suit for the recovery of immovable property, and thereupon to issue order to the proper officer of the Court to put the plaintiff in possession of the property. (2) In any such action or suit, there may be added a claim for rent or mesne profits and for damages arising to the plaintiff from the defendant holding over or resisting his right of possession or re-entry, and for damages for breach of any covenant, condition or agreement in relation to the premises.”
The Jurisdiction and Composition of Magistrate Courts of Malaysia
Like Session Courts, the Yang di-Pertuan Agong has the power to constitute magistrate courts and limit their jurisdiction as provided for in Section 76 (1) of the Subordinate Courts Act 1948. The Courts have be conferred power to preside over any civil or criminal matter that may arise in the confines of its scope of jurisdiction (Glasser, 2010). Again, just like the Session courts, Magistrate courts can be held at places directed by the chief judge or one that is in the scope of their jurisdiction. These courts sit in almost all major towns in Malaysia. The Magistrate Courts are in two categories; First Class; and Second Class. The First Class Magistrates are legally eligible and with higher authority than the latter (Newman, 2010). Second Class Magistrate are appointed.
First Class Magistrate
Criminal Jurisdiction
The First Class Magistrate Court has power to sign any summons, warrant, writ or other process of criminal nature subject to section 83 of the Subordinate Courts Act 1948. Subsection (b) of the same section also provides that a magistrate can
“…make any interlocutory or interim order not involving the final trial and determination of the cause or matter including, but without prejudice to the generality of the foregoing, orders relating to adjournments, remands and bail, execution of judgments and decrees, and transfers of proceedings to Sessions Courts”.
Magistrate courts of the first class have requisite capacity to try all offences with less than 10 years of imprisonment or which can be punished using fine under the provisions of the Penal Code (sections 392 and 457) (IBP, Inc, 2007). Before the Subordinate Courts (Amendment) Act 2010 (Act A1382) came into action, appeals by persons convicted by the Penghulu’s Court could be heard and determined by a First Class Magistrate if it was regarding conviction, reversing the finding, sentence, acquit and appellant’s discharge. The courts may pass sentences of not more than 5 years of imprisonment, a ten thousand ringgit fine or imposing flagellation up to 12 strokes. The abovementioned sentence is not limited to a combination of the sentences aforesaid.
The Civil Jurisdiction of First Magistrate Courts
This has been provided for in Section 90 and 91 of the Subordinate Courts Act 1948. The Subordinate Courts (Amendment) Act 2010 increased the civil jurisdiction limit of this court from RM25 000 (under S 90 of the 1948 Act) to RM 100, 000. Section 91 of the Subordinate Courts Act 1948. Has no weight now as it regards appeals from Penghulu’s Court as the Penghulu’s Courts have been abolished by the amendment to the legislation.
Jurisdiction of Second Class Magistrate
Criminal Jurisdiction
This is provided for in Section 88 of the 1948 Act. These courts can only determine matters in court that attract maximum imprisonment of 12 months or those punishable only by fine. The sentences possible to be passed by these courts are stated in Section 89;
“A Second Class Magistrate may pass any sentence allowed by law–
(a) not exceeding six months’ imprisonment;
(b) a fine of not more than one thousand ringgit; or
(c) any sentence combining either of the sentences aforesaid.
Civil Jurisdiction
Section 92 of the Subordinate Courts Act 1948 has been overran by s. 13 of Act A1382. Now, the civil jurisdiction limit of the courts has been raised to RM 10, 000. This mean a Second Class Magistrate can only listen to a suit where the complainant seeks retrieval to a liability or honored demand in money owed by the respondent, with or without interest that does not exceed RM 10, 000. In cases where the dispute regards an amount of money not exceeding RM 5,000, one can file a claim by acquiescing Form 198 to the small claims division of the Magistrate Courts. In kind of situation, legal consultancy is allowed but not legal representation by a lawyer.
The Jurisdiction and Composition of Courts of Children in Malaysia
Courts of Children in Malaysia are comprised of a First Class Magistrate and two advisers, one of whom must be a woman (IBP, Inc, 2007). The adviser informs the court of any factor to consider with regard to the finding of guilt and related treatment of any child brought before it, and advising the guardian or parent to the child. This court is established in the Malaysian legal system under provisions of Part IV of the Child Act 2001. The jurisdiction they cover regards the hearing and determining cases raised against a child. Any other written law might also affect the exercise of the jurisdiction of the Courts of Children. A child is one with less than 18 years according to Section 2 of the Child Act 2001. For criminal matters, nevertheless, a child is a regarded as person who has not reached the age of ten (Newman, 2010). Words like sentence, convicted or conviction are not to be used when handling cases of children but the alternatives of “child found guilty”, or “finding of guilt are often used”. Courts of children sit in different rooms than in normal courts and on different days from those on which proceedings of the other courts are held. The privacy of children is highly regarded should the proceedings happen in the same building or rooms as the other courts. People allowed to be present when the child is under prosecution are officers of the court, children party to the offence, witnesses, lawyers, parents, or guardians (IBP, Inc, 2007).
The Malaysian legal system has a regard of Islamic law which has been stated to be among the main sources of law in the country (Stilt, 2015). Despite being a source of law in the Federation, it is not the supreme law of the land (Ahmad, 2007). Islam has a special position under Art. 3 (1) of the Federal Constitution. Islamic law has been enacted under the Federal Constitution and it is only applicable to Muslims. The law is administered only by a separate court system called the Syariah Courts (IBP, Inc, 2007). The legislature of Malaysia has authority over the structure, organization and practice of the Syariah Courts. The legislature also has the capacity to make Islamic law that pertains to persons professing the Islam religion.
In Islamic sharia courts, Muslim Malays are tried on religious and moral grounds (Hays, 2013). Family matters for Muslims are well covered under this Islamic law. They include matters of marriage, divorce and inheritance. There is an Islamic Affairs department that was established after independence and even given more power in the 1990’s. The body is called Jabatan Agama Islam (Hays, 2013).
Examples of the applicability of the Islamic laws is when one does not attend Friday prayers for 3 consecutive weeks, he or she is to be punished by 6 months imprisonment. Drinking, eating and smoking during the Holy month of Ramadan attracts a punishment of up to 1 year. Having sexual intercourse out of wedlock is punishable by two years’ imprisonment. Caning is a predominant punishment for muslins especially the male gender caught drinking or engaging in adultery. Some acts like hugging and holding hands in public constitute indecent behavior and is punishable by 6 months imprisonment (Hays, 2013). The Sharia system gives decisions under Islamic law and is composed of a high court and court in each state. Higher and superior courts have been given the mandate to deal with civil and criminal law. These are two High Courts, Federal Court, and the Court of Appeals. Syariah Courts exclusively manage the individual affairs of Muslims. The courts, however, operate parallel to civil courts. These Islamic courts have authority over Malaysian Muslims. Islamic law applies selectively and those with the duty to enforce it are local officials in all of the 13 federal states of Malaysia. It is sometimes an offence for two unmarried people of the opposite gender to be caught in a hotel. Syariah law is not selective. This can be seen from the case of Syariah High Court Judge who was charged with taking bribes (Hays, 2013).
References
Ahmad, S. S. (2007). Malaysian legal system. Malayan Law Journal Sdn. Bhd.; Charlottesville, Va.: Lexis Law Pub.
Glasser Jr, C. J. (2010). International libel and privacy handbook: A global reference for journalists, publishers, webmasters, and lawyers (Vol. 37). John Wiley & Sons.
Hays, J. (2013). ISLAMIC LAW IN MALAYSIA | Facts and Details. Factsanddetails.com. Retrieved 15 March 2019, from https://factsanddetails.com/southeast-asia/Malaysia/sub5_4d/entry-3677.html
IBP, Inc, (2007). Malaysia Justice System and National Police Handbook Volume 1 Strategic Information and Regulations. Lulu.com.
Karlsgodt, P. G. (Ed.). (2012). World Class Actions: A Guide to Group and Representative Actions Around the Globe. Oxford University Press.
Krishnan, J. K. (2014). Asian Courts in Context (edited by Jiunn-rong Yeh and Wen-Chen).
Newman, G. R. (Ed.). (2010). Crime and Punishment around the World [4 volumes]:[Four Volumes]. Abc-clio.
Spohn, C., & Hemmens, C. (2011). Courts: A text/reader (Vol. 4). Sage.
Stilt, K. (2015). Contextualizing constitutional Islam: the Malayan experience. International Journal of Constitutional Law, 13(2), 407-433. doi:10.1093/icon/mov031 Subordinate Courts Act 1948 [Act 92]
The Child Act 2001 [Act 611]
The hierarchy of the malaysian judicial system. (2019). Lawteacher.net. Retrieved 15 March 2019, from https://www.lawteacher.net/free-law-essays/contract-law/the-hierarchy-of-the-malaysian-judicial-system-are-bound-to-follow-the-decision-contract-law-essay.php
The Selangor Bar, (2019), Subordinate Courts (Amendment) Act 2010 (Act A1382) Retrieved 15 March 2019, from https://www.selangorbar.org/content_dtl.php?id=36110
The Subordinate Courts (Amendment) Act 2010 (Act A1382)
Turner, B. (Ed.). (2016). The Statesman’s Yearbook 2015: The Politics, Cultures and Economies of the World. Springer.
Yeh, J. R., & Chang, W. C. (Eds.). (2014). Asian courts in context. Cambridge University Press.
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