Brief Overview of the Malaysian Legal System

‍INTRODUCTION

Anyone conducting or intending to conduct business in Malaysia should know and understand the Malaysian legal system. In line with our commitment to improve societal legal knowledge and awareness, this overview aims to provide the reader a better understanding of the subject.

 SOURCES OF LAW

 The Federal Constitution

 Malaysia is a constitutional monarchy. Hence, the Federal Constitution is the supreme law ofthe land. Any law inconsistent with the Federal Constitution is void to the extent of the inconsistency. [1]

 The Federal Constitution covers a diverse range of topics. This includes a citizen’s fundamental liberties (including one’s rights to liberty[2],equality[3],freedom of speech, assembly, association and religion[4],and property[5]),citizenship[6],as well as the powers conferred on the executive, legislative and judicial arms of state.

 Types of law

 The laws of Malaysia can be divided into three types[7]:

 1.     Written law. This refers to Acts of Parliament or Enactments passed by any State Legislative Assembly. Written law also includes the Federal Constitution and the Constitution of any State.

 2.     Common Law. Malaysia is a common law jurisdiction, meaning that judicial precedent is a source of law. One of the most influential common law systems globally is English common law. Many legal systems around the world (including Malaysia) model their legal systems on the English Common law system. A central feature of any common law system is the doctrine of stare decisis, meaning “to stand by things decided”. Under the doctrine of stare decisis, a superior court's ratio decidendi (meaning rationale behind the decision) binds all courts below it.

 3.     Custom or usage which has “the force of law in the Federation”. These become law if they are recognised by statute or common law. It is noteworthy that under Article 160(2) of the Federal Constitution, religion, ethics, morality and custom are not law perse on their own strength or quality.

 THE COURTS

The hierarchy of Malaysian Courts, in ascending order is as follows:

The Magistrates’ and Sessions Court are classified as subordinate courts, whilst the High Court, Court of Appeal and Federal Court are classified as superior courts. The respective jurisdictions of these courts are contained in the Subordinate Courts Act 1948 and the Courts of Judicature Act 1964. The essential qualities of these jurisdictions are explored below.

 Magistrate’s Court

 A Magistrate’s Court may bepresided by a First Class Magistrate or a Second Class Magistrate.[8]

Criminal jurisdiction

A First Class Magistrate may try all offences for which the maximum term of imprisonment provided by law does not exceed 10 years imprisonment, or which are punishable by fine only. Further, a First Class Magistrate may try offences under sections 392 (robbery) and 457 (Lurking house-trespass or housebreaking in order to commit an offence punishable with imprisonment) of the Penal Code.[9]

 A Second Class Magistrate may only try offences for which the maximum term of imprisonment provided by law does not exceed 12 months' imprisonment of either description or which are punishable by fine only.[10]

Civil jurisdiction

 A First Class Magistrate may decide all civil matters where the amount or value of the subject-matter does not exceed RM100,000.[11]

 A Second Class Magistrate may only try original actions or suits of a civil nature where the plaintiff seeks to recover a debt or liquidated demand in money payable by the defendant, with or without interest, not exceeding RM10,000.[12]

 Sessions Court

 Criminal jurisdiction

 A Sessions Court Justice may decide on all criminal matters other than those which are punishable by death.[13]

Civil jurisdiction

Generally, a Sessions Court Judge may try civil actions where the amount in dispute or the value of the subject-matter does not exceed RM1,000,000.[14]There are some matters that are solely the jurisdiction of the High Court, however, irrespective of monetary value (discussed below). Also, matters relating to motor vehicle accidents, landlord and tenant, and distress, the Sessions Court possesses unlimited jurisdiction. The Sessions Court also has thepower to give orders for specific performance, injunctions and declarations[15].

High Court

The High Court has both an original jurisdiction (meaning the proceedings are first commenced in that court) as well as appellate jurisdiction (to hear appeals against decisions made by subordinate courts). The High Court also has a general supervisory and revisionary jurisdiction over all the Subordinate Courts and hears appeals from the Subordinate Courts.[16]

Criminal jurisdiction

The High Court has jurisdiction to try all offences committed within its local jurisdiction and may mete out any sentence allowed by law.[17]

Civil jurisdiction

The High Court has unlimited civil jurisdiction and is able to hear all matters. However, in practice, the High Court usually only hears matters where the amount of the claim or the value of the subject-matter exceeds RM1,000,000.  Some matters are heard in the High Court regardless of the amount in dispute, including judicial review applications, land acquisition disputes, bankruptcy and proceedings relating to the winding-up of companies, grants probates of wills and letter of administrations of deceased persons.

Court of Appeal

The Court of Appeal has no original jurisdiction. It only has jurisdiction to hear and determine criminal and civil appeals.[18]However, some matters are non-appealable at all, whilst others are only appealable with leave of the court.[19]

Each Court of Appeal panel comprises at least 3 judges. In some cases, leave is required before an appeal can be lodged. 

If an unsuccessful party is dissatisfied with the decision of the High Court, it must act promptly to lodge his appeal. This is because in all cases, he must file his notice of appeal within 30 days of the High Court decision. The appellant must file and serve the record of appeal, including the memorandum of appeal setting out the grounds of appeal, within 90 days file of the High Court decision.

Federal Court

 The Federal Court is Malaysia’s apex court. A Federal Court panel ordinarily comprises 5 Federal Court Justices, but in important cases, the panel could comprise 7 judges. It must be noted that an appeal to the Federal Court is not as of right and leave to appeal must be obtained before the Federal Court hears an appeal. The threshold for leave to appeal is high and is only granted in cases which involve a novel question of law or where a decision of the Federal Court would be to public advantage.

‍THE LANGUAGE OF COURT PROCEEDINGS

Section 8 of the National Language Acts 1963/67 state that all court proceedings “shall be in the national language” (that is, the Malay language). Accordingly, all cause papers have to be filed in the Malay language. However, it is common for cause papers to be accompanied with an English translation, especially in the superior courts, for the convenience of parties and the court. Superior court proceedings are also quite commonly conducted in English. Witnesses have the right to give evidence in the language of their choice. In the event awitness speaks in a language other than Malay or English, an interpreter willbe required.

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This article is written by  Raja Nadhil Aqran (Partner) and only contains general information. It does not constitute legal advice nor an expression of legal opinion and should not be relied upon as such.

For further information, kindly contact info@aqranvijandran.com.

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[1]Article 4(1) of the Federal Constitution.

[2]Article 5 of the Federal Constitution.

[3]Article 8 of the Federal Constitution.

[4]Articles 10 and 11 of the Federal Constitution.

[5]Article 13 of the Federal Constitution.

[6]Articles 14 to 31 of the Federal Constitution.

[7]Article 160 of the Federal Constitution – definition of “law”.

[8] Section 81 of the Subordinate Courts Act 1948.

[9] Section 85 of the Subordinate Courts Act 1948.

[10] Section 88 of the Subordinate Courts Act 1948.

[11] Section 90 of the Subordinate Courts Act 1948.

[12] Section 92 of the Subordinate Courts Act 1948.

[13] Section 63 of the Subordinate Courts Act 1948.

[14] Section 65 of the Subordinate Courts Act 1948.

[15] Subordinate Courts (Amendment) Act 2010.

[16] Sections 31 and 33 of the Courts of Judicature Act 1964.

[17] Section 22 of the Courts of Judicature Act 1964.

[18] Sections 50 and 67 of the Courts of Judicature Act 1964.

[19] Section 68 of the Courts of Judicature Act 1964.

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