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Judiciary of Malaysia
Transcript of Judiciary of Malaysia
The system of law courts that administer justice and constitute the judicial branch of government
Judiciary of malaysia
WHAT IS JUDICIARY?
Malaysia Judiciary Hierarchy
ROLE OF JUDICIARY
To defend justice for everyone regardless of the status, special rights, color, political ideology, religion, size of organization or its influence
APPOINTMENT OF JUDGES
The judges is appointed by the Yang di-Pertuan Agong on the advice of the PM, after consultation with the Council of Rulers.
Chief justice is the title for Head of Judge
Also known as Subordinate court
Consist of Sessions court, Magistrate court, Child court, Small Claim Court
In Malaya, it has Penghulu’s Court, while in Sabah & Sarawak, it has Native’s court
Covers the jurisdiction in criminal & civil matters
Act as the highest court in Subordinate Courts or Lower Courts
Hears matters such as transportation accident, landlord & tenant distress
Try all offenses except punishable to death
For civil offense hear all offenses that the dispute amount is not more than RM 250,000 and also recovery of immovable property & rent
Divided into Magistrate Court 1 & Magistrate Court 2
Punishment under Magistrate Court 1: imprisonment for not more than 5 years, fine with amount that not more than RM 10,000, flog not more than 12 strokes or combination of any of it
Punishment under Magistrate Court 2: imprisonment for not more than 6 months, amount of fine is not more than RM 1,000 or any combination from it
For child age between 10 to 18 years old
Hear, determine or dispose any charges against the child
Hear all offenses except punishable with death
Small Claim Court
Hears offenses that amount in dispute is RM 5,000
Does not need legal representation
Will be heard in Magistrate Court 1
• Established by the Federal Constitution (March 20, 1993)
• Has the jurisdiction to try civil or criminal action instituted by or against Yang Di-Pertuan Agong (the King) or H.R.H Sultans and Raja, the Head of the Malaysia’s states or State Ruler
• Pursuant to Article 182
• By Article 183 of federal Constitution, no action, civil or criminal, shall be instituted against the Yang Di-Pertuan Agong or any of the Rulersof 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.
• Solely to hear the proceedings cases brought by or against the Yang Di-Pertuan Agong or a Ruler of a state.
• However, it must be noted that proceedings in the Special Court can be brought against the Yang Di-Pertuan Agong or a Ruler of a state in his personal capacity only.
• It means that no proceedings in the Special Court can be brought against the Yang Di-Pertuan Agong or a Ruler of a state in his official capacity.
• Special Court is not actually part of the hierarchy of Courts in Malaysia, notwithstanding to the fact that as a constitutional court, a brief mention of it has to be made in discussing the judicial system in Malaysia
• Article 182 (3) of the Federal Constitution provides that:
- The Special Court shall have exclusive jurisdiction to try all offences committed in the Federation by the Yang Di-Pertuan Agong or a Ruler of a state and all civil cases by or against the Yang Di-Pertuan Agong or a Ruler of a state notwithstanding where the cause of action arose.
• Article 192 (4)
- Special Court shall have the same jurisdiction and powers as are vested in the inferior courts, the High Court and the Federal Court by the Federal Constitution or any Federal Law and shall have its registry in Kuala Lumpur.
- Article 182 (5) Until the Parliament by law makes Special Provision to the contrary in respect of procedure (including the hearing of proceedings in camera) in civil or criminal cases and the law regulating evidence and proof in civil and criminal proceedings, the practice and procedure applicable in any proceedings in any inferior court, any High Court and Federal Court applies in any proceedings in the Special Court
- Article 183 provides for an important procedural requirement before any action can be instituted against the Yang Di-Pertuan Agong or the Ruler State in the Special Court.
- Article 183 provides that no action, civil or criminal shall be instituted against the Yang Di-Pertuan Agong or the Ruler State 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.
Decision of Special Court
The decision of Special Court is final and conclusive and cannot be challenged or called into questions in any court on any ground settings.
The Special Court may convene at the premises of the Federal Court located at the Palace of Justice (Putrajaya) on such dates and at such times as the Chief Justice may from time to time.
Handles personal and family law of persons professing the religion of Islam, including the Islamic Law that related to betrothal, marriage, divorce, dower, maintenance, adoption, legitimacy, and guardianship. Also handles inheritance if deceased leave RM 2 Million without will.
Criminal law is generally under the jurisdiction of the federal government, but at the same time, state governments can create their own laws to cover the “offences by persons professing the religion of Islam against precepts of that religion (except in regard to the matter of the Federal List)
Many states have used their power to create ”Islamic Offences” covering a range of immoral behaviors. State laws prohibit incest, prostitution, procuring prostitutes, sexual intercourse out of wedlock, acts preparatory to sexual intercourse out of wedlock, sodomy, sexual relations between women, women and men found together in circumstances which give rise suspicion that they are engaged in immoral acts, men wearing women’s attire and posing as woman for immoral purposes, and indecent acts in public places.
Islamic Court System: the Mufti (the chairman of the state of fatwa) and the Prosecutor.
Shariah law is an Islamic Law which applies to Muslim
Every state in Malaysia is free to enact their own version of Islamic Law, meaning they are free to establish their own state in Islamic Court
Also known as Superior court
Consist of Federal Court, Court of Appeal and High Court according to hierarchy.
High Court is further divided into two different courts; High Court of Malaya and High Court of Sabah and Sarawak
The Federal Court is the highest court in Malaysia
Hear appeals of civil and criminal decisions of the Court of Appeal
Determine validity of federal or state legislation
Determine dispute between state and federal government
Determine constitutional issues referred by High Court
Determine constitutional issues referred by Yang Di-Pertuan Agong
Court of Appeal
The Court of Appeal generally hears all civil appeals against decisions of the High Courts except where against judgement or orders made by consent
Section 68 of the Courts of Judicature Act 1964 [Act 91], the list of cases involves any of the following:
When the amount or value of the subject matter of the claim (exclusive of interest) is less than RM250,000, except with leave of the Court of Appeal;
Where the judgment or order is made by consent of parties;
Where the judgment or order relates to costs only, which by law are left to the discretion of the Court, except with the leave of the Court of Appeal; and
Where by any written law for the time being in force, the judgment or order of the High Court is expressly declared to be final.
The High Courts in Malaysia are the third-highest court in the hierarchy of court, after the Federal Court and Court of Appeal.
Article 121(The judiciary) of the Constitution of Malaysia provides that there shall be two High Courts of co-ordinate jurisdiction; the High Court in Malaya and the High Court in Sabah and Sarawak
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.
The High Courts also have specific jurisdiction including any written law relating to–
(a) divorce or matrimonial causes;
(b) bankruptcy or companies;
(c) matters of admiralty;
(d) guardians of infants and keepers of the property of infants;
(e) guardians and keepers of the person and estates of idiots, mentally disordered persons and persons of unsound mind; and
(f) grant and revocation of probates of will and testaments, and letters of administration of estates of deceased persons.
The High Court has jurisdiction to try all offenses 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 (e.g. is death penalty) 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).
When Civil and Syariah courts collide
- The couple tied the knot in a Hindhu marriage in 2003 under Civil Law
[Law Reform (Marriage & Divorce) Act 1976]
- Father, Izwan Abdullah converted to Islam.
- Izwan also converts his two children, Nur Nabila @ V.Sharmila, 9, and Nabil @ V. Mithran, 6, without his wife’s knowledge.
[Article 12(4) Federal Constitution and Section 5 of the Guardianship Infant Act 1961 recognises equal rights of both parents under the law. “any one parent” have the right to determine the religion of a child under 18.]
1. Custodial dispute between S Deepa and Izwan Abdullah
- Upon conversion, Izwan is recognized as a Muslim and turned to the Syariah Court for custody.
[Syariah Court’s threshold for custody was that the parent were a Muslim and the biological father]
- Deepa was reluctant to partake in any Syariah process and turned to the Civil Court.
- Seremban High Court grants divorce and custody to Deepa.
- Regrettably, two days later, Izwan takes the boy away with him.
- Despite the civil court orders to retrieve the son, the Attorney-General has yet to take actions as the Syariah Court ruling over Izwan’s custody also proves to be valid.
- M. Moorthy became paralyzed after an accident during his training and later fell from his wheelchair on 11 November 2005 and ultimately died in a coma on the 20th December 2005.
- Prior to his death, his wife states that Moorthy’s mental capabilities had declined in parallel to his physical condition.
- Records of the Malaysian Armed Forces found that Moorthy had filed an application to be registered as an Islam on 11 October 2004.
- However, Moorthy’s identity card was not updated to his status.
- It was reported that Moorthy continued to partake in traditional Hindu practices.
- Upon his death in the Intensive Care Unit of the Kuala Lumpur Hospital, his widow filed for a court order to claim his body on 21st December, which was denied release from the hospital due to the Syariah Court ruling.
- She failed to present herself in the Syariah Court to offer any testimony.
2. Death case of M. Moorthy / Muhammad Abdullah
- She turns to the High Court to seek an order that the hospital releases her husband’s body to her.
- On the advice of the Ministry of Health, the hospital retained the body.
- On 28th December, the High Court dismissed the application as the Syariah High Court had already ruled on the matter of Moorthy’s conversion to Islam.
- Upon the ruling, Moorthy’s body was released to the Federal Territory Islamic Affairs Department. He was buried in the Taman Ibukota Muslim Cemetery in Gombak, Selangor. The funeral was only attended by his elder brother, a fellow muslim, Mohammad Hussein.
- Under Islamic inheritance law, the immediate family practicing Islam had the right to claim the death benefit summed in RM110,000 and the sergeant pension of RM947.33 per month.
- Mohammad Hussein signed a written undertaking to give up his rights, so that Moorthy’s widow and child could receive the full benefits.