Professional Documents
Culture Documents
The Malaysian Legal System, Legal Practice & Legal Education
The Malaysian Legal System, Legal Practice & Legal Education
The Malaysian Legal System, Legal Practice & Legal Education
4
Judicial System and Reforms in Asian Countries (Malaysia)
PREFACE
Institute of
the judicial systems and its reforms in process in Asian countries for further analysis of
dispute resolution process therein.
In order to facilitate the committees activity, IDE organized joint research work
with research institutions in seven Asian countries, namely, China, India, Indonesia,
Malaysia, Philippines, Thailand and Vietnam. This publication is the outcome submitted
from each counter-partners on judicial systems and reforms in Asian Countries. The
purpose of the study was to research and analyze the current situation and reforms of
judicial systems in Asian countries. In order to compare the judicial system and its reforms
among the respective countries, each counter-partner were asked to include the following
common
contents,
i.e.
Judiciary
and
Judge,
Prosecutor/Prosecuting
Attorney,
TABLE OF CONTENTS
3. Jurisdiction of Courts
11
11
13
14
16
9. Other Courts
31
35
1. Procedure
35
36
37
4. Conclusion
38
39
39
41
3. Mediation Rules
44
50
5. Others
53
59
59
60
61
4. Post-graduate courses
62
62
62
64
64
65
66
66
70
70
71
71
75
75
76
77
77
78
79
2. Judgment-in-Default
80
3. Summary Judgment
80
4. Pleadings
81
5. Close of Pleadings
81
82
82
82
83
ii
84
1. Penal Code
84
84
85
85
85
85
85
8. Police Action
86
86
86
87
12. Prosecution
87
87
87
88
16. Sentencing
88
89
89
90
iii
Chapter 1
THE JUDICIARY
The Malaysian legal system is based upon the English common law system
which Malaysia inherited by virtue of a long history of colonization by the British.
Central to the Malaysian legal system is a written Constitution based upon the
Westminster model. The organs of government and administration, together with their
respective powers and functions are to be found within the Malaysian Federal
Constitution.
The Malaysian Judiciary is established under Part IX of the Constitution.
Article 121 establishes the current hierarchy of courts:
Federal Court
Superior
Courts
Subordinate
Courts
Court of Appeal
High Court
(Malaya)
High Court
(Sabah & Sarawak)
Sessions Court
Sessions Court
Magistrates Courts
Magistrates Courts
The Federal Court consists of a President of the Court (styled as the Chief
Justice of the Federal Court), President of the Court of Appeal, Chief Judges of the High
1. APPOINTMENT
COURTS
AND
QUALIFICATION
OF
JUDGES
OF THE
SUPERIOR
The Chief Justice of the Federal Court, the President of the Court of Appeal
and the Chief Judges of the High Courts and the other judges of the Federal Court,
Court of Appeal and High Courts are appointed by the Yang di Pertuan Agong on advice
of the Prime Minister and after consultation with the Conference of Rulers.4 The Prime
Ministers advice must be preceded with consultations made with appropriate parties.
For example, before tendering his advice as to the appointment of a judge other than the
Chief Justice of the Federal Court, the Prime Minister is to consult the Chief Justice.5
Before tendering his advice as to the appointment of a Chief Judge of a High Court, the
Prime Minister is to consult the Chief Judge of each of the High Courts and, if the
appointment is to the High Court in Sabah and Sarawak, the Chief Minister of each of
the States of Sabah and Sarawak.6
Before tendering his advice as to the appointment of a Judge other than the
Chief Justice, President or a Chief Judge, the Prime Minister is to consult, if the
appointment is to the Federal Court, the Chief Justice of the Federal Court; if the
appointment is to the Court of Appeal, the President of the Court of Appeal, and if the
appointment is to one of the High Courts, the Chief Judge of that court.7
A person is qualified for appointment as a Judge of the Federal Court, a judge
of the Court of Appeal or a Judge of any of the High Courts if he is a citizen and for the
ten years preceding his appointment he has been an advocate of those courts or any of
them or a member of the judicial and legal service of the Federation or of the legal
service of a State, or sometimes one and sometimes the other.8
Art. 123.
Art. 125(1).
10
Art. 125(2).
11
Art. 125(3).
12
Art. 12(4).
9
3. JURISDICTION OF COURTS
The jurisdiction and powers of courts under the Malaysian hierarchy of courts
are contained principally in the Courts of Judicature Act 1964 (Act 91) for the superior
courts (that is, the Federal Court, the Court of Appeal and High Court) and in the
Subordinate Courts Act 1948 (Act 92) for the subordinate courts (Sessions and
Magistrates courts).
(1) Federal Court
In the exercise of its original jurisdiction, the Federal Court is empowered to
determine whether a law made by Parliament or by the Legislature of a State is invalid
on the ground that Parliament or the Legislature of the State has no power to make laws,
and as to disputes on any question between States or between the Federation and any
State.16
Where in any proceedings before another court a question arises as to the effect
of any provision of the Constitution, the Federal Court shall have jurisdiction to
determine the question and remit the case to the other court to be disposed of in
accordance with the determination.17 Where in any proceedings in the High Court a
question arises as to the effect of any provision of the Constitution, the judge hearing
13
Art. 125(5).
Art. 125(6).
15
Art. 127.
16
Federal Constitution, Art 128(1),
17
ibid, Art 128(2).
14
the proceedings may stay the same on such terms as may be just to await the decision of
the question by the Federal Court.18 An order staying proceedings in the High Court
under this issue may be made by the Judge of his own motion or on the application of
any party and it can be made at such stage of the proceedings as the Judge may see fit.19
The reference of a constitutional question to the Federal Court by the High Court shall
be by way of special case stating the question in a form, which might permit of an
answer being given either in the affirmative or negative.20
The Yang di Pertuan Agong may refer to the Federal Court for its opinion any
question as to the effect of any provision of the Federal Constitution which has arisen or
appears to him likely to arise, and the Federal Court shall then pronounce in open court
its opinion on any question so referred to it.21
In its appellate jurisdiction, the Federal Court is empowered with jurisdiction to
hear and determine any appeal from any decision of the Court of Appeal in its appellate
jurisdiction in respect of any criminal matter decided by the High Court in its original
jurisdiction.22
In a civil case, an appeal shall lie from the Court of Appeal to the Federal Court
with leave of the Federal Court granted in accordance with section 97 of the Courts of
Judicature Act 1964 -(a) from any judgment or order of the Court of Appeal in respect
of any civil cause or matter decided by the High Court in the exercise of its original
jurisdiction, and (b) from any decision as to the effect of any provision of the
Constitution including the validity of any written law relating to such provision.23
(2) Court of Appeal
The Court of Appeal has appellate jurisdiction in both civil and criminal
matters. In respect of criminal matters the Court of Appeal has jurisdiction to hear and
determine any appeal against any decision made by the High Court in the exercise of its
original jurisdiction, and in the exercise of its appellate or revisionary jurisdiction in
respect of any criminal matter decided by the Sessions Court.24 An appeal to the Court
18
of Appeal in this case is with leave of the Court of Appeal and such appeal is to be
confined only to questions of law which have arisen in the course of the appeal or
revision and the determination of which by the High Court has affected the event of the
appeal or revision.25
In civil matters, the Court of Appeal has jurisdiction to hear and determine
appeals from any judgment or order of any High Court whether made in the exercise of
its original or appellate jurisdiction.26 There are, however, several matters, which are
non-appeal able to the Court of Appeal:27
(a) where 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;
(b) where the judgment or order is made by consent of parties;
(c) where the judgment or order relates to costs only which by law are left to
the discretion of the court, except with leave of the Court of Appeal, and
(d) 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.
(3) High Court
The High Court has both original and appellate jurisdictions for both civil and
criminal matters. In its original criminal jurisdiction, the High Court is empowered to
try all offences committed within its local jurisdiction; all offences committed on the
high seas on board any ship or on any aircraft registered in Malaysia; all offences
committed by any citizen or any permanent resident on the high seas on board any ship
or aircraft; all offences committed by any person on the high seas where the offence is
piracy by the law of nations.28 In addition, the High Court may also try offences under
Chapter VI of the Penal Code and under any of the written laws specified in the
Schedule to the Extra-territorial Offences Act 1976 or offences under any written law
the commission of which is certified by the Attorney-General to affect the security of
Malaysia committed, as the case may be, on the high seas on board any ship or aircraft
registered in Malaysia; offences by any ship or aircraft registered in Malaysia; offences
by any citizen or any permanent resident on the high seas on board any ship or aircraft,
25
or by any citizen or any permanent resident in any place without and beyond the limits
of Malaysia.29 The High Court may pass any sentence allowed by law.30
The general, civil jurisdiction of the High Court include that of trying all civil
proceedings where the cause of action arose within the local jurisdiction of the court, or
the defendant or one of several defendants resides or has his place of business within
such local jurisdiction, or the facts on which the proceedings are based exist or are
alleged to have occurred, or any land, the ownership of which is disputed is situated
within the local jurisdiction of the court.31
The High Court has specific civil jurisdiction in respect of the following
matters:32
(a) Jurisdiction under any written law relating to divorce and matrimonial
causes
(b) the same jurisdiction and authority in relation to matters of admiralty as is
had by the High Court of Justice in England under the United Kingdom
Supreme Court Act 1981;
(c) jurisdiction under any written law relating to bankruptcy or to companies;
(d) jurisdiction to appoint and control guardians of infants and generally over
the person and property of infants;
(e) jurisdiction to appoint and control guardians and keepers of the person and
estates of idiots, mentally disordered persons and persons of unsound
mind, and
(f)
The High Court may refer any question arising in any cause or matter other
than a criminal proceeding by the Public Prosecutor, for inquiry or report to any special
referee. The report of a special referee may be adopted wholly or partially by the High
Court and enforced as a decree, judgment or order.33
29
The High Court shall, in the exercise of its jurisdiction, have all the powers
which were vested in it immediately prior to Malaysia Day and such other powers as
may be vested in it by any written law in force within its local jurisdiction.34
The High Court hears both criminal35 and civil appeals.36 However, no appeal
shall lie to the High Court from a decision of a subordinate court in any civil cause or
matter where the amount in dispute or the value of the subject-matter is RMl0,000 or
less except on a question of law.37 An appeal shall lie from any decision of a subordinate
court in any proceedings relating to maintenance of wives or children, irrespective of
the amount involved.38
The High Court is imbued with special powers of revision of both criminals39
and civil proceedings. The High Court may call for and examine the record of any civil
proceedings before any subordinate court for the purpose of satisfying itself as to the
correctness, legality or propriety of any decision recorded or passed and as to the
regularity of any proceedings of any such subordinate court. 40 In addition, the High
Court is provided with general supervisory and revisionary jurisdiction over all
subordinate courts, and may in particular if it appears desirable in the interests of justice,
either of its own motion or at the instance of any party or person interested, at any stage
in any matter or proceeding, whether civil or criminal, in any subordinate court, call for
the record thereof, and may remove the same into the High Court or may give to the
subordinate court such directions as to the further conduct of the same as justice may
require.41
34
Ibid, section 25(1) inherent jurisdiction of court 'may be defined as being that reserve or fund of powers,
a residual source of powers, which the court may draw upon as necessary whenever it is just or
equitable to do so, and in particular to ensure the observation of the due process of law, to prevent
improper vexation or oppression, to do justice between the parties and to secure a fair trial between
them the source of the inherent jurisdiction of the court is derived from its nature as a court of law; so
that the limits of such jurisdiction are not easy to define, and indeed appear to elude definition: Sir Jack
Jacob; see R Rama Chandran v The Industrial Court [1997] I MU 145; Ngan Tuck Seng & Anar v Ngan
nn Groundnut Factary Sdn Bhd [1999] 5 MLJ 509.
35
ibid, section 26.
36
ibid, section 27.
37
ibid, section 28(1); the amount in dispute or the value of the subject-mater must relate to the judgment
sum of a subordinate court and not to the sum claimed by a plaintiff or the combined sum of a clam and
counterclaim Lein Tiam Hock v Arumugam Kandasamy [1999] 2 CLJ 853.
38
ibid, section 28(2).
39
ibid, section 31.
40
ibid, section 32.
41
ibid, section 35(1).
42
Agong may appoint any fit and proper person to be a Second Class Magistrate in and for
the Federal Territory (and the State Authority may make the appointment in and for the
State).47
A First Class Magistrate in its criminal jurisdiction may try all offences for
which the maximum term of imprisonment provided by law does not exceed 10 years'
imprisonment or which is punishable with-fine only and offences under sections 392
and 457 of the Penal Code.48
In West Malaysia a First Class Magistrate shall have jurisdiction to hear and
determine criminal appeals by persons convicted by a Penghulu's Court situated within
the local limits of his jurisdiction.49 A First Class Magistrate may pass any sentence
allowed by law not exceeding: (a) 5 years' imprisonment; (b) a fine of RM10,000; (c)
whipping up to 12 strokes, or (d) any sentence combining any of the sentences
aforesaid.50
A second Class Magistrate shall only have jurisdiction to try offences for which
the maximum term of imprisonment does not exceed 12 months or which are punishable
with fine only.51 A Second Class Magistrate may pass any sentence allowed by law not
exceeding 6 months imprisonment; a fine of not more than RM1,000 or any sentence
combining either of the aforesaid.52
In its civil jurisdiction, a First Class Magistrate shall have jurisdiction to try all
actions and suits where the amount in dispute or value of the subject-matter does not
exceed RM25,000,53 and hear civil appeals from Penghulus court.54 A Second Class
Magistrate shall only have jurisdiction to 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 RM3,000.55
47
10
Magistrates
Court
(civil)
(criminal)
(civil)
(criminal)
(civil)
(criminal)
(civil applications)
(civil appeals)
(criminal applications)
(criminal appeals)
(civil applications)
(civil Appeals)
(criminal appeals)
No of cases
cleared
140,248
749,399
71,149
4,876
45,812
2,265
1,867
3,629
101
552
421
3,216
43
No of active
cases
159,163
338,218
84,329
3,121
54,235
1,803
1,181
4,432
27
458
163
13
20
It is reported that the backlog is being cleared steadily, and the number of
pending cases have fallen from about 800,000 to 647,000 in the last one-year.56 The
government has initiated a RM20 million computerization project for the courts, which
is due to be implemented soon. Under this project, the courts case management system
will be computerized to enable it to monitor the movement of files. Legal clerks will
also be used to prepare immediate transcripts of court proceedings.
56
11
judges to control the proceedings and progress of cases instead of lawyers. It is hoped
that this will help to clear the backlog of cases within the court system.
Briefly, the new Rules have instituted case management and timetables to keep
cases moving. A judge may decide if a case could be resolved only by deciding on a
question of law, and may accept affidavit evidence for examination-in-chief. The new
Rules also shorten the lifespan of a writ from twelve to six months, and only two
renewals of six months each are allowed for writs where previously the renewals were
limitless.
Parties must now move to bring their cases up for case management fourteen
days after pleadings are closed. Through this method, a judge may narrow down the
issues for trial, and issues that can be agreed upon or which are irrelevant may be struck
out. This principle of allowing the court to play a more active role instead of leaving it
to the lawyers or the parties, is keeping with similar moves in Britain and other
countries in the Commonwealth, such as Singapore.57
Lawyers, however, expressed reservations on two main aspects of the changes
first, the requirement that there must be an attempt to serve a writ within one month of
its issuance, a particularly difficult obligation if the defendant could not be found, is out
of town or overseas; and secondly, the requirement for parties to prepare a list of
documents ahead of time, where failure to include any document may preclude it from
being tendered later in court.58 Another reservation is that litigation costs may actually
rise as lawyers might charge higher fees because they can no longer take as many files
or cases as they used too.
57
The Woolf Reforms see also New Straits Times, 15 September 1999, and New Sunday Times, 3
December 2000, p.6.
58
According to Datuk Dr Cyrus Das, the Bar Councils Civil Procedure Committee Chairman, in an
interview with Carolyn Hong New Sunday Times, 3 December 2000, p. 6.
12
State
Sessions Court
Magistrates Court
Perlis
Kedah
11
Penang
Perak
18
Selangor
11
Negri Sembilan
Malacca
13
Johore
12
Pahang
Terengganu
Kelantan
Sabah
Sarawak
State
High Court
No of judges
Perlis
Kedah
Penang
Perak
Selangor
Negri Sembilan
Malacca
Johore
Pahang
Terengganu
Kelantan
Sabah
Sarawak
Law Revision, headed by a Commissioner for Law Revision, forms part of the
work of the Chambers as well. While carrying out his duties in criminal matters, the
Attorney General is styled as the Public Prosecutor.
(1) The Judicial and Legal Service Commission
The Judicial and Legal Service is governed by the Judicial and Legal Service
Commission, which consists of the Chairman of the Public Services Commission (who
also acts as the Chairman of the Judicial and Legal Service Commission); the Attorney
General, and one or more members appointed from among persons who are or have
59
Art. 145(1).
Art. 145(3).
61
Art. 145 (3A).
60
15
been or are qualified to be a judge of the Federal Court, Court of Appeal or a High
Court.62
The functions of the Commission include appointing, confirming, emplacing
on the permanent or pensionable establishment, promoting, transferring and exercising
disciplinary control over members of the service. 63 The Commission must prepare
annual reports on its activities and submit them to the Yang di Pertuan Agong. Copies
of those reports must be laid before both Houses of Parliament.64
62
Art. 138(2).
Art. 144(1).
64
Art. 146(1).
65
Art. 161A(a).
63
16
Sabah, and was born either in Sabah or to a father domiciled in Sabah at the time of
birth. 66 The native customs of these tribes were part of a great oral tradition in the
manner of other native tribes of the world, such as the Indians of North America. The
arrival of the British transformed these oral traditions into written codes of native
laws and customs. While this formalization of native customary law has the effect of
making it certain and ensuring its survival through written codes, it also places such
laws now within the formal, secular legal system, with a hierarchical court structure,
appellate system and system of precedent, evidentiary rules and burden of proof.
(a) Sarawak
The Native Courts System of Sarawak is established by state law, that is, the
Native Courts Ordinance, 1992. In order to give effect to the administration of native
laws and customs, the Native Courts Rules 1993 was also enacted.
The Central Registry, headed by a Chief Registrar and located in Kuching is the
Headquarters of the Native Courts. The Chief Registrar is the Chief Administrator of
the Native Courts system and supervises all Native Courts Registrars throughout
Sarawak. The functions of the Central Registry are, among others, the preparation of
yearly financial estimates; consultation with State Attorney General on issues touching
on the interpretation of the Native Courts Ordinance 1992 and Rules; assist in the
enforcement of Native Court judgments; publication of important judgments of Native
Courts; the giving of advice and consultation to persons who have to use the Native
Courts as an avenue to resolve disputes as well as those whose duty is to adjudicate
disputes; and assisting the Majlis Adat Istiadat (Council for Customs and Traditions) in
the revision of native laws.
In addition to the Central Registry, there are also established District Registries
for the many districts and sub-districts of the State of Sarawak. The District Registry is
under the charge, control and supervision of a District Officer or Sarawak
Administrative Office in-charge of the District and sub-district. The functions of a
District Registry include to accept lodgements of claims, complaints, appeals and other
legal applications; to keep records of case registers, to keep case files and records of
proceedings; to transmit case files of appeals to appropriate appellate courts; to assist in
66
Art. 161A(b); this must be read together with section 2(1) Interpretation (Definition of Natives)
Ordinance, 1952 which details the requirements for a native of Sabah.
17
the enforcement of court judgments and orders, and to submit periodical returns.
The Native Courts System Sarawak forms a part of the office of the Chief
Minister, and hence its principal officers come under the jurisdiction of the State
Secretary.
Matters
involving
land disputes
Chief s Court
(presided by a Penghulu
with two assessors)
Headmans Court
(presided by a Headman
with two assessors)
18
Matters involving
breaches of native
law and custom
cases arising from the breach of a native law or custom (other than the
Ordinan Undang-Undang Keluarga Islam 1991 or the Malay custom of
Sarawak) in which all the parties are subject to the same native system of
personal law;
(ii) cases arising from breach of native law or custom (other than the Ordinan
Undang-Undang Keluarga Islam 1991 or the Malay custom of Sarawak)
relating to any religious, matrimonial or sexual matter where one party is a
native;
(iii) any civil case, not being a case under the jurisdiction of any of the Syariah
Courts constituted under the Ordinan Mahkamah Syariah 1991, in which
the value of the subject matter does not exceed RM2,000 and all the
parties are subject to the same native system of personal law;
(iv) any criminal case of a minor nature which ate specifically enumerated in
the Adat lban or any other customary law by whose custom the court is
bound and which can be adequately punished by a fine not exceeding that
which, under section 11 of the Ordinance, a Native Court may award;
(v) any matter in respect of which it may be empowered by any other written
law to exercise jurisdiction;
A Native Court shall not have jurisdiction over the following matters:68
(i)
67
68
section 5.
section 28.
19
for the purposes of section 9 of the Land Code, the question whether any
non-native has become identified with a particular native community and
subject to the native system of personal law of such community;
section 20(2)(a).
20
constituted members:70
Chief s Court
Headmans Court
Although the Native Courts of Sarawak do not form part of the main civil
courts system, the jurisdiction of the High Court is not ousted from examining decisions
of Native Courts. The Native Courts are creatures of statute and the High Court can
exercise its general supervisory powers through judicial review of Native court
decisions, and the grant of prerogative writs, such as the writ of certiorari.73
70
21
(b) Sabah
The Native Courts System of Sabah is much less elaborate than that of Sarawak.
The Native Courts are constituted under the Native Courts Enactment 1992, and is made
up of a native court, constituted by a District Chief and two other members; a District
Native Court, constituted by a District Officer and two other members, and a Native
Court of Appeal, made up of a Judge who acts as President, and two other members:
Native Court
74
75
22
In default of the
compensation, a Native court may order the offender to suffer such period of
imprisonment as will justify the justice of the case.77
(2) The Syariah Courts System
It has been argued, that if colonization had not been responsible for the
introduction and application of English law, Islamic law would have developed to
become the law of the land. 78 Islamic law, coupled with the customary law of the
various races, indeed represent the indigenous sources or basic foundation upon which
the eventual growth of a legal system could have been founded.79 However, the grant of
the Charters of Justice to the Straits Settlements, and the eventual application of English
law both through the judicial process and through legislation in the Malay States had
effectively displaced Islamic law from its premier position. The role, which Islamic law
now plays in the system, is extremely limited.
Under the Federal Constitution, Islamic law is a matter falling within the State
List, that is, it is a matter over which the State Legislature has jurisdiction, and not the
Federal Legislature. 80 In this regard, matters over which the State Legislatures have
been permitted to make laws have been stated to be 'Islamic law and personal and
family law of persons professing the religion of Islam', and this includes matters such as,
inter alia, succession, betrothal, marriage, divorce, maintenance, adoption, guardianship,
trusts, Islamic religious revenue and mosques. With regard to offences, or Islamic
criminal law, the Federal "Constitution goes on to provide that the State Legislature may
make laws 'for the creation and punishment of offences by persons professing the
religion of Islam against precepts of that religion, except in regard to matters included in
the Federal List. Likewise, the State Legislature has jurisdiction over the (constitution,
organization and procedure of Syariah courts which shall have jurisdiction only over
persons professing the religion of Islam and in respect only of any of the matters
included in this paragraph, but shall not have jurisdiction in respect of offences except
in so far as conferred by federal law.'
76
ibid, s. 12.
s. 14(1).
78
Wilkinson, RJ, Papers on Malay Subjects (1971) k. Lumpur.
79
See also, Shaik Abdul Latif & Ors v Shaik Elias Bux (1915) 1 FMSLR 204, 214.
80
Federal Constitution, Article 74, Ninth Schedule.
77
23
While it may be true that the practice of Islamic law differed among the various
Malay States due to the varied influences of custom, British intervention in the affairs of
the Malay States had the effect of formalizing the manner in which Islamic law was
administered. Islamic law was left to be administered by the respective states, with the
Sultans proclaimed as (Head' of Islamic religion in each state, thus giving rise to the
lack pf uniformity in the administration of Islamic law in Malaysia, whereas the uniform
application of English law throughout the land was guaranteed.
(3) The Administration of Islamic Law
The Administration of Islamic Law (Federal Territories) Act 199381 provides
for the Federal Territories of Kuala Lumpur and Labuan, a law concerning the
enforcement and administration of Islamic law, the constitution and organization of the
Syariah Courts, and other related matters.
(a) The Majlis Agama Islam
Section 4(1) of the Act establishes a 'Majlis Agama Islam Wilayah Persekutuan'
advise the Yang di Pertuan Agong in matters pertaining to the religion of Islam. The
Majlis is a body corporate having perpetual succession and corporate seal, may sue and
be sued in its corporate name, and is given the power to enter into contracts and acquire,
purchase, take, hold and enjoy movable and immovable property, which includes the
conveyance, assignment, surrendering and yielding, charging, mortgaging, demise,
reassignment and transference of any such property.82 The Majlis also has the power to
act as an executor of a will, or as an administrator of the state of a deceased person, or
as a trustee of any trust.83
The main function of the Majlis for which it has been established is to 'promote,
stimulate, facilitate and undertake the economic and social development and well-being
of the Muslim community in the Federal Territories consistent with Islamic law.'84 For
the above purpose, the Majlis has been given several powers. For example, it may carry
out activities of commercial and industrial nature, such as manufacturing, assembling,
81
Act 505.
ibid, section 5(3).
83
ibid, section 5(4).
84
ibid.
82
24
processing, and packing, grading and marketing of products. 85 It may invest in any
authorized investment, establish any scheme for the granting of loans to Muslim
individuals for higher learning and establish, and maintain Islamic schools.86 In pursuit
of the above main objective, the Majlis may so establish companies under the
Companies Act 1965 (with the approval of the Yang di-Pertuan Agong).87
(b) Appointment of Mufti, and the Islamic Legal Consultative Committee
The Mufti and Deputy Mufti shall be appointed by the Yang di Pertuan
Agong.88 The main function of the Mufti is to aid and advise the Yang di Pertuan Agong
in respect of all matters of Islamic Law. Upon the direction of the Yang di Pertuan
Agong or on his own initiative or on the request of any person by letter, the Mufti may
make and publish in the Gazette, a fatwa or ruling on any unsettled or controversial
question of or relating to Islamic law.89 Upon publication in the Gazette, the said fatwa
will be 'binding on every Muslim resident in the Federal Territories as a dictate of his
religion and it shall be his religious duty to abide by and uphold the fatwa ...'90 All
courts in the Federal Territories shall recognize the fatwa as authoritative of all matters
laid down therein.91
Section 37(1) of the Act establishes an Islamic Legal Consultative Committee
consisting of the Mufti as Chairman, the Deputy Mufti, two members of the Majlis
nominated by the Majlis, not less than two fit and proper persons to be appointed by the
Majlis and an officer of the Islamic Religious Department of the Federal Territories to
be appointed by the Majlis, who shall act as the Secretary. The main duty of the
Committee is to provide a forum for discussion and thereby aid the Mufti in the making
of any fatwa.
(c) The Syariah Court
The Syariah Court System is made up of the Syariah Subordinate Courts, the
Syariah High Court and the Syariah Appeal Court. It is headed by a Chief Syariah Judge
85
25
(ii) any disposition of, or claim to, property arising out of any of the matters
set out under (i);
(iii) the maintenance of dependants, legitimacy, guardianship or custody of
infants;
(iv) the division of, or claims to, harta sepencarian;
92
26
The Syariah High Court also has supervisory and revisionary jurisdiction over
all Syariah Subordinate Courts and may, if it appears desirable in the interest of justice,
either of its own motion or at the instance of any party or person interested, at any stage
in any matter or proceeding, whether civil or criminal in any Syariah Subordinate Court,
call for and examine any records thereof and give such directions as justice may
require.97
An Appeal from the Syariah High Court
And appeal from the Syariah Court shall lie to the Syariah Appeal Court.98
The Syariah Appeal Court is given the power to determine any question of law
of public interest which has arisen in the course of an appeal in the Syariah High Court,
and which has affected the result of the appeal.99
The Syariah Appeal Court also has supervisory and revisionary jurisdiction
over the Syariah High Court, in the same way that the Syariah High Court has such
jurisdiction over the Syariah Subordinate Courts.100
Prosecution and Representation
A Chief Syariah Prosecution is appointed by the Yang di Pertuan Agong,101
who has the power to institute, conduct or discontinue any proceedings for an offence
before a Syariah Court.
97
27
The Majlis may admit any person having sufficient knowledge of Islamic law
to be the Peguam Syarie to represent parties in any proceeding before the Syariah
Court.102
(4) The Industrial Court
The Industrial Court was established under the Industrial Relations Act 1967 as
a specialist tribunal for the adjudication of industrial or trade disputes, that is, disputes
between employers, workmen and their trade unions. The Industrial Court is the main,
indeed the only adjudication tribunal within the Malaysian industrial relations system.
There is no hierarchical structure, as there are no appeals from decisions of the
Industrial Court to a higher appellate Industrial Court. Industrial Court decisions are
open to review by the High Court in the exercise of its general powers of revision over
decisions of inferior courts.
The Industrial Court consists of a President and eight Chairmen, each in charge
of a division, appointed by the Yang di Pertuan Agong, and two panels of members
representing employers and workmen, appointed by the Minister of Human Resources.
Each panel consists of about 100 members. For the purposes of any sitting of the
Industrial Court to hear a trade dispute, the Court is constituted by the President as
Chairman and one representative from each panel selected by the President.
(a) Jurisdiction of the Industrial Court
The Industrial Court has jurisdiction to hear and settle complaints of unfair
labour practices, representations of unfair dismissals, and trade disputes, but this
jurisdiction is exercisable only when the Minister of Human Resources refers them to
the court, either of his own motion or upon the joint request of the parties concerned.
The court is also empowered to hear cases pertaining to collective agreements, namely,
questions pertaining to interpretation of collective agreements, variation of terms of
collective agreements and complaints of non-compliance with collective agreements.
In these instances, parties concerned may make direct application to court without the
necessity of a Ministerial reference.
The requirement for Ministerial reference before adjudication by the court
might commence in certain cases arises out of the system of industrial dispute resolution
102
28
in Malaysia, where the dispute is first brought to the attention of the Ministry of Human
Resources in the hope that its officers might be able to settle the dispute through
conciliation and mediation before it is brought for arbitration. Failing conciliatory
measures the dispute is referred to the Industrial Court for arbitration. Once the process
of conciliation and mediation has been started, parties to the dispute, especially trade
unions, are prevented from resorting to industrial action, such as strikes. The Malaysian
industrial relations system is premised upon the doctrine of compulsory arbitration as
opposed to voluntary arbitration, that is, parties must settle all disputes through the
conciliation and arbitration process as quickly as possible without taking industrial
action. Once the Minister or the Court has handed down its decision, such decision
binds all parties to the dispute, and no industrial action may be taken in consequence
thereof.
(b) Powers of the Industrial Court
The Industrial Court, as a court of industrial adjudication or arbitration,
functions with less formality than a normal court of law and the courts powers are also
much broader in scope than the powers of a civil court. Under the main provision of
section 30 of the Industrial Relations Act 1967, the court is empowered to make an
award (decision) relating to all or any of the issues in dispute. In making its award, the
court is to have regard to the public interest, the financial implications and the effect of
the award on the economy, the industry concerned and also as to the probable effects in
related or similar industries. It is also provided that in making its award the court is not
to be restricted to the specific relief claimed by the parties, but may include in the award
any matter or thing which the Industrial Court thinks necessary or expedient for the
purpose of settling the dispute. Principally, in all maters, the court is enjoined to act
according to equity, good conscience and the substantial merits of the case without
regard to technicalities and legal form.
(c) Problems with the Industrial Adjudication Machinery
As in the civil court system, a major problem faced by the Industrial Court
relates to rising litigation and an administrative machinery that is no longer sufficient to
deal with the bulk of cases, thus causing a severe backlog, as shown in the tables below
(1)-(2):
29
(1)
Particulars
Brought forward
from previous years
1995
1996
1997
1998
1999
1,507
1,812
1,459
2,123
4,275
2000
(Jan June)
4,511
3,099
3,055
3,524
8,819
5,369
2,482
4,606
4,867
4,983
10,942
9,644
6,993
2,794
3,408
2,860
6,667
5,133
1,740
Reported to Minister
Still being dealt by
Industrial Relations
Department
Resolved
Source: The Sun, 4 August 2000.
(2)
METHOD OF SETTLEMENT
1995
1996
1997
1998
1999
2000
(Jan-June)
Resolved through
conciliation
Referred to
Industrial Court
1,981
1,972
2,060
5,003
3,346
1,239
596
393
713
886
1,419
444
30
9. OTHER COURTS
(1) The Juvenile Court
The Juvenile Court is established under the Juvenile Courts Act, 1947, to
provide for the care and protection of children and young persons. The Act applies to a
child, that is a person under the age of fourteen, and juveniles, defined as persons under
the age of eighteen.103
A Juvenile Court consists of a Magistrate of the first class who is assisted by
two advisers chosen from a panel of persons resident in the Federal Territory or a State,
nominated by the Minister or the State Authority. It is provided that one of the two
advisers shall, if practicable, be a woman.104 The advisers are to inform and advise the
Court with respect to any consideration affecting the punishment or other treatment of
any child or young person brought before it. A Juvenile Court may try all offences
except those punishable with death.
A Juvenile Court sits either in a different building or room from that in which
sittings of regular courts are held, or on different days from those on which sittings of
those courts are held. No person is allowed to be present at any sitting of a Juvenile
Court except105(i)
(ii) parties to the case before the court, their parents, guardians, advocates and
witnesses;
(iii) bona fide representatives of newspapers, and
(iv) such other persons as the court may specially authorize to be present.
A Sessions Court or Magistrates court may try in a summary way any juvenile
alleged to have committed a petty offence.106 A Sessions Court Judge or a magistrate
exercising jurisdiction over a juvenile must sit in Chambers, or if that is not practicable,
in camera. A Juvenile may be arrested with or without a warrant, but he must be
brought before a Juvenile Court or, failing which, a Sessions Court Judge or Magistrate
who shall inquire into the case and release the person on a bond, with or without
103
31
sureties.107 This is not applicable if the charge against the juvenile is one of murder or
other grave crime or where his release would defeat the ends of justice.
(2) Procedure in Juvenile Court108
Where a juvenile is brought before a Juvenile Court for any offence, it is the
duty of the Court as soon as possible to explain to him in simple language the substance
of the alleged offence. After this, the Court shall ask the juvenile whether he admits the
facts constituting the offence. If the juvenile does not admit the facts, the court shall
then hear the evidence of the witnesses in support thereof. At the closes of the evidence
in chief of each witness, the juvenile (or his parent or guardian) shall be asked if he
wishes to put any question to the witness. If, instead of asking questions, the juvenile
wishes to make a statement, he will be allowed to do so.
If it appears to the court that a prima facie case has been made out, the court
shall explain to the juvenile the substance of the evidence against him and, in particular,
any points therein which specially tell against him or require explanation. At this stage,
the juvenile will be allowed to give evidence on oath or affirmation or to make any
statement if he so desires, and the evidence of any defence witness will be heard.
If the juvenile admits the offence or the court is satisfied that it is proved, he
shall then be asked if he desires to say anything in mitigation. Before deciding how to
deal with him, the court must obtain such information as to his general conduct, home
surroundings, school record and medical history.
(3) Powers of a Juvenile Court on proof of offence
When a Juvenile Court is satisfied that an offence has been proved, the court has
the following powers:109
(i)
(ii)
(iii) to commit the offender to the care of a relative or other fit person;
(iv) to order his parent or guardian to execute a bond to exercise proper care
and guardianship;
107
S. 6(1).
S. 10.
109
S. 12(1).
108
32
(v)
(vi) to order the offender to be sent to an approved school or the Henry Gurney
School for boys;
(vii) to order the offender to pay a fine, compensation or costs, and
(viii) where the offender is a young person and the offence is punishable with
imprisonment, the court may impose upon him any term of imprisonment
which could be awarded by a Sessions Court, or commit him to the High
Court for sentence.
110
S. 16.
S. 21.
112
S. 34(1).
113
Art. 181(1)..
111
33
proceedings whatsoever shall be brought in any court against the Ruler of a State in his
personal capacity, except in the Special Court established under Part XV of the
Constitution.
The Special Court consists of the Chief Justice of the Federal Court, who acts
as Chairman, the Chief Judges of the High Courts and two other persons who hold or
have held office as judge of the Federal Court or a High Court appointed by the
Conference of Rulers.
The Special Court shall have exclusive jurisdiction to try all offences
committed in the Federation by the Yang di Pertuan Agong or the Ruler of a State and
all civil cases by or against the Yang di Pertuan Agong or the Ruler of a State,
notwithstanding where the cause of action arose.114
The Special Court shall have the same jurisdiction and powers as are vested in
the inferior courts, the High Court and the Federal Court, and the practice and procedure
applicable in any proceedings in any inferior court, High Court and the Federal Court
shall apply in any proceedings in the Special Court.115
The proceedings in the Special Court shall be decided in accordance with the
opinion of the majority of the members and its decision shall be final and conclusive
and shall not be challenged or called in question in any court or any ground.116
114
Art. 182(3).
Art. 182(4) & (5).
116
Art. 182 (6).
115
34
Chapter 2
JUDICIAL REVIEW
1. PROCEDURE
It has been long acknowledged that judicial review is not an appeal in the
process of exercising judicial review over the inferior tribunals, the superior courts
exercise merely a supervisory jurisdiction as opposed to an appellate jurisdiction.117
Application for judicial review requires leave of court. Order 53 rule 1(1) of the
117
Hotel Equatorial (M) Sdn Bhd v Nat. Union of Hotel, Bar & Restaurant Workers [1984] 1 MLJ 363;
Chief Constable of the North Wales Police v Evans [1982] 1 WLR 1155.
35
Rules of the High Court provides that no application for an order of mandamus,
prohibition or certiorari shall be made unless leave has been granted in accordance with
this rule. The procedure for leave is set out under Order 53 rule 1(2), which provides
for the application for leave to be made ex parte and supported by a statement setting
out the name and description of the applicant, the relief sought and the grounds on
which it is sought, and by affidavits to be filed before the application is made, verifying
the facts relied on. This requirement has been judicially interpreted as imposing upon
the party a duty to disclose material facts, the breach of which could result in the order
being set aside.118
Judicial review in Malaysia follows closely the law in the United Kingdom, that
is, through the issue of the prerogative writs of certiorari, mandamus and prohibition
developed by the Court of Kings Bench. Declaration and Injunction, developed by the
Court of Chancery, are also added to the list of prerogative writs.
Illegality, that is, where a wrong decision has been made, whether due to
taking into account irrelevant matters or not taking into account matters
which are relevant;
(ii)
(iii) Procedural impropriety, which refers to the need to follow the rules of
procedural fairness or natural justice.
Where statute contains an ouster clause, the basis for review had been that
judicial review would not lie except for errors of law, which affects the jurisdiction of
the tribunal or administration (what is commonly known at common law as
118
119
Tuan Haji Sarip Hamid v Patco Malaysia Bhd [1995] 2 MLJ 442.
[1948] 1 KB 223.
36
jurisdictional errors of law). However, since the decision of the House of Lords in
Anisminic v Foreign Compensation Commission,120 this legal basis has been altered
judicial review will now be effected for mere errors of law (or errors of law on the face
of the record) as opposed to jurisdictional errors of law.121
initial confusion as Malaysian courts felt bound by a Privy Council decision on appeal
from Malaysia, that is, the case of South East Asia Firebricks Sdn Bhd v Non-Metallic
Mineral Products Manufacturing Employees Union, 122 which decided that judicial
review will only lie for jurisdictional errors of law, and not errors of law on the face of
the record. However, in 1995, the Malaysian Court of Appeal delivered judgment in the
case of Syarikat Kenderaan Melayu Kelantan Bhd v Transport Workers Union,123 which
affirmed that judicial review will lie for all errors of law and is not restricted to
jurisdictional errors of law. Since this decision, the Malaysian judiciary has adopted a
pro-active and interventionist approach in judicial review, culminating in the case of R.
Rama Chandran v The Industrial Court,124 which decided that in the exercise of judicial
review, the tribunals decision may be reviewed for substance as well as process, and
that should the decision be found to be wrong, the court had the power to mould the
appropriate relief and award it to the party concerned instead of remitting the case back
to the tribunal for a re-hearing. This decision has gone much further than the House of
Lords decisions, and has greatly expanded the scope of the doctrine of judicial review
in Malaysia, so much so in effect, there is really no difference anymore between a
review and an appeal.
120
[1969] 2 AC 147.
Upheld, since then, by other Court of Appeal and House of Lords decisions, for example Re A
Company [1980] 1 All ER 284 (CA); Re Racal Communications [1981] AC 374 (HL); Page v Hull
University Visitor [1993] 1 All ER 97 (HL).
122
[1980] 2 MLJ 165.
123
[1995] 2 MLJ 317.
124
[1997] 1 MLJ 145.
125
[1996] 1 MLJ 261.
121
37
the constitutional guarantee of certain fundamental liberties, fair and just punishment
must be imposed, that is, the sentence had to suit the offence and the offender without
being disproportionate as to shock the conscience.
4. CONCLUSION
Post Rama Chandran and Tan Teck Seng, the Malaysian courts appear to
retreat from their pro-active and interventionist stance. Subsequent decisions on judicial
review had not picked up from where the earlier cases had left off. For example, in the
case of Ng Hock Cheng v Pengarah,126 the Federal Court appeared to disapprove of the
proportionality principle. Similarly, there are decisions, which have not applied the
greatly expanded scope of judicial review formulated in the case of R Rama Chandran.
For example, in Michael Lee v Menteri Sumber Manusia,127 the court observed that the
exercise of discretionary power was vested in the Minister, not the courts, and that when
this discretion is challenged, the court must be vigilant and resist any temptation to
convert the jurisdiction of the court to review into a consideration of the case on its
merits as if on appeal. The result is that there is some uncertainty at the moment
regarding the scope of the doctrine of judicial review.
126
127
38
Chapter 3
ALTERNATIVE DISPUTE RESOLUTION
maintaining discipline in the Public Service, the Public Officers (Conduct and
Discipline) Regulations 1993, and the Public Services Disciplinary Board Regulations
1993 have been enacted. The Public Officers (Conduct and Discipline) Regulations
1993 identifies types of conduct unbecoming on the part of civil servants, and provides
for disciplinary procedure. The Public Services Disciplinary Board on the other hand is
entrusted with the responsibility of conducting hearings and making a determination in
each case whether any member of the civil service is guilty of the disciplinary offence,
128
Art. 132.
39
as charged.
The Disciplinary board has jurisdiction over all civil servants, except officers
holding or acting in the posts of Chief Secretary of the Government and Director
General of the Public Service. These officers come within the purview of the Public
Services Commission. Further, the Board is not empowered to dismiss or reduce in
rank an officer in the Top Management Group and the Managerial and Professional
Group, which is exercisable only by the Public Services Commission. The Disciplinary
Board in any disciplinary proceedings may not order a dismissal or reduction in rank
unless such officer has been informed in writing of the grounds on which it is proposed
to take action against him and has been afforded a reasonable opportunity of being
heard.129 This requirement will not apply in the following cases:130
(i)
(ii)
where the Board is satisfied for some reason to be recorded in writing, that
it is not reasonably practicable to carry out the requirement;
(iii) where the Yang di Pertuan Agong is satisfied that in the interests of the
security of the Federation it is not expedient to carry out the requirement;
or
(iv) where there has been made against the officer any order of detention,
supervision, restricted residence, banishment or deportation, or where
there has been imposed on such officer any form of restriction or
supervision by bond or otherwise under any law relating to the security of
the Federation.
129
Reg. 10(1).
Reg. 10(2).
131
Reg. 11.
132
Reg. 12.
130
40
on any appeal. An appeal must be made in writing by the officer concerned through his
Head of Department within fourteen days from the date on which the decision of the
Board is communicated to him in writing.133 The Head of Department shall, not later
than thirty days from the date of receipt of the appeal, submit such appeal to the Appeal
Board together with his comments. It is the duty of the Board to prepare a copy of the
records of proceedings, including the grounds on which the Board relied upon in
arriving at its decision. These records must be sent to the Appeal Board not later than
thirty days from the receipt of the appeal by the Board.134
The Appeal Board is to decide an appeal solely on the merits of the grounds of
appeal without receiving any further statement or evidence.135 After considering the
appeal, the Appeal Board may136(i)
133
Reg. 15(1).
Reg. 15(4).
135
Reg. 16(2).
136
Reg. 16(4).
137
Reg. 16(5).
134
41
Assistance and advice on how clients may best look after their interests
in using Alternative Dispute Resolution processes such as mediation;
At present the MMC accepts only commercial matters but intends to expand its
scope of services to cover civil matters at a later stage. The MMC may accept cases at
any stage, whether pre-trial, commencement of legal proceedings, during proceedings
etc. Cases deemed suitable for mediation include cases where there is a deadlock in the
negotiation process or where parties face obstacles. Majority of cases mediated involve
construction agreement clauses, business agreements etc. Matrimonial and defamation
suits are unsuitable for mediation. The type of mediation offered by the MMC is the
facilitative model of mediation where the mediator is a neutral party who assists the
parties to negotiate a settlement. The mediator will not make a ruling or finding unless
expressly requested by all parties involved.
The Mediator is subject to a Code of Conduct whilst the parties are bound by
the Mediation Agreement, which they enter into. The mediator and all parties are
subject to the Mediation Rules of the MMC.
The Mediation process involves the following steps:
(i)
Quantum of Claim
RM100,001 RM250,000
RM250,000 RM500,000
RM500,000 RM750,000
RM750,000 RM1,000,000
RM1,000,001 RM2,000,000
RM2,000,001 RM3,000,000
RM3,000,001 RM5,000,000
RM5,000,001 RM10,000,000
Above RM10,000,000
(ii)
Room rental rates at RM350 for a full day and RM175 for half a day,
which is defined as a period of 3 hours or less;
Members of the Bar have been encouraged to adopt the Mediation Clause in
contracts and agreements prepared by them, that is where a dispute has arisen, and is not
resolved within fourteen days, the parties must submit the dispute to the Malaysian
Mediation Centre of the Bar Council. If the parties cannot agree on a Mediator, the
Centre shall appoint a Mediator from the Panel of Mediators, and the dispute is to be
mediated in accordance with the Rules of the Centre (see below).
Mediators registered with the Malaysian Mediation Centre must be of at least
seven years standing as an Advocate and Solicitor of the High Court, and a member of
43
the Malaysian Bar with a valid practicing certificate. All mediators are required to
complete a minimum of forty hours of training conducted by the centre, and must be
successfully assessed at the end of the training.
3. MEDIATION RULES
(1) The Mediation Process
The mediation process conducted by the Malaysian Mediation Centre
(MMC) is to be governed by this mediation procedure/Rules.
(2) Agreement of Parties
Whenever by stipulation or in their contract, the parties have provided for
mediation of existing or future disputes under the Rules of the Malaysian Mediation
Centre, they shall be deemed to have made these rules, as amended and in effect as of
the date of the submission of the dispute, a part of their agreement.
(3) Initiation of Mediation
(i)
All parties to a dispute may initiate mediation by filing jointly with the
MMC a submission (the Joint Submission) to mediation pursuant to
these Rules, together with a non-refundable processing fee of RM100.
(ii) Any party to a dispute may initiate mediation by filing with the MMC a
request (the Request) to mediate pursuant to these Rules together with a
non-refundable processing fee of RM100.
inform the MMC of the names and particulars of all other parties
interested in the dispute.
(iii) Upon receipt of the Request with the payment of RM100, the MMC will
contact all parties involved in the dispute and attempt to obtain a
submission to mediation within fourteen days from the date of the receipt
of the Request and shall within twenty-one days from the date of receipt
of the Request inform all parties whether mediation can proceed.
(iv) In the event the parties proceed with mediation, the processing fee will be
utilized as part payment of the administrative fee.
44
The Joint Submission or the Request for mediation shall contain a brief
statement of the nature of the dispute and the names, addresses, and
telephone numbers of all parties to the dispute and those who will
represent them, if any, in the mediation.
(ii) The initiating party shall simultaneously file two copies of the Request
with the MMC and one copy with every other party to the dispute.
(5) Appointment of Mediator
(i)
Upon the parties agreeing to submit to mediation, the MMC will forward a
list of Mediators on the panel and in the event the parties not having
agreed upon a Mediator on MMCs panel within seven days, the MMC
shall appoint a person on MMCs panel to act as the Mediator.
(ii) The MMC in the selection will choose a person who, in its view will be
best placed to serve as the Mediator. In the event that any of the parties
has reasonable cause to object to the choice, the MMC will appoint
another person. The Mediator will:
(a) prepare himself appropriately before the commencement of the
mediation;
(b) abide by the terms of the Mediation Agreement and the Code of
Conduct;
(c) assist the parties in the drawing of any written settlement agreement;
and
(d) in general, facilitate negotiations between the parties and steer the
direction of the discussion with the aim of finding a mutually
acceptable solution. Unless expressly requested by all the parties
involved, the Mediator will not make any ruling/finding with respect
to the dispute.
(iii)
The Mediator (or any member of his firm or company) should not act
for any of the parties at any time in connection with the subject matter
of the mediation. The Mediator and the MMC are not agents of, or
acting in any capacity for, any of the parties. The Mediator is not an
agent of the MMC.
45
(ii) The Mediator will determine the steps to be taken during the mediation
proceedings after consultation with the parties.
deemed, upon signing the Mediation Agreement, to have accepted and will
be bound by the terms of this procedure.
(10) Date, Time and Place of Mediation
The MMC shall fix the date and the time of each mediation session. The
46
mediation shall be held at the appropriate office of the MMC or at any other convenient
location as may be determined by the MMC.
(11) Identification of Matters in Dispute and Exchange of Information
(i)
At least five days prior to the Mediation, each party shall submit to the
Mediator the following:
(a) concise summary not exceeding three pages (the Summary) stating
its case; and
(b) if necessary, copies of all documents referred to in the Summary and
which are to be referred to during the Mediation.
(ii) Each party may also bring to the Mediator documents which it wishes to
disclose only to the Mediator, stating clearly in writing that the contents of
these documents are to be kept confidential by the Mediator.
(12) Authority of Mediator
(i)
The Mediator does not have the authority to impose a settlement on the
parties but will attempt to help them reach a satisfactory resolution of their
dispute.
attend mediation sessions. Other persons may attend only with the permission of the
parties and with the consent of the Mediator. Where appropriate, the Mediator is
authorized to limit the number of representatives from each party.
(15) Confidentiality
(i)
48
(ii) by a written declaration of the mediator to the effect that further efforts at
mediation are no longer worthwhile; or
(iii) by a written declaration of a party or parties to the effect that the
mediation proceedings are terminated.
(19) Exclusion of Liability (Waiver)
(i)
(ii) Neither the MMC nor any mediator shall be liable to the parties or any
other person for any act or omission in connection with any mediation
conducted under these Rules unless the act or omission is fraudulent or
involves dishonest misconduct.
(20) Interpretation and Application of Rules
The Mediator shall interpret and apply these Rules in so far as they relate to the
procedure of mediation, the Mediators duties and responsibilities. All other Rules shall
be interpreted and applied by the MMC.
(21) Expenses
The expenses of witnesses for either side shall be paid by the party producing
such witnesses. All other expenses of the mediation including required traveling and
other expenses of the mediation of the Mediator and representatives of the MMC and
the expenses of any witness and the cost of any proofs or expert advice produced at the
direct request of the Mediator, shall be borne equally by the parties unless they agree
otherwise.
(a) Administrative and rental charges and the Mediators fees are as
prescribed by the MMC from time to time.
(b) The administrative and rental charges of the MMC and the Mediators fees
for the first scheduled session shall be paid at least three days prior to the
first scheduled session. The balance charges and fees, if any, shall be paid
at least three days before the next scheduled session or upon termination
49
The Director of the Centre shall, at the request of the arbitral tribunal or either
party, make available or arrange for such facilities and assistance for the conduct of
arbitral proceedings as may be required including suitable accommodation for sittings
of the arbitral tribunal, secretarial assistance and interpretation facilities.
(8) Enforcement of Awards
The Centre shall, at the request of either party, render all assistance in the
enforcement of awards, which may be made in the arbitration proceedings held under
the auspices of the Centre.
(9) Costs of Arbitration
The costs of arbitration including the fees of arbitrators as also the expenses
reasonably incurred by the Centre in connection with the arbitration as well as its
administrative charges would be borne by the parties in such proportion as may be
determined in the arbitral award.
The fees of arbitrators, which depend on several factors, such as the complexity
of the case, the nature of the dispute, time spent and the expeditious conduct of the
proceedings, would be fixed in each case in accordance with a schedule.
The fees and charges of the centre would be fixed taking into account the actual
expenses incurred and also keeping in view the non-profit making character of the
Centre.
(10) Provision of Facilities and Assistance in ad hoc Arbitration
The Centre also provides technical facilities and assistance for holding of ad
hoc arbitration proceedings where parties request for such services upon payment of
certain charges which would be fixed, taking into account the expenses incurred by the
Centre in providing the facilities and the non-profit making character of the Centre.
(11) Provision of Facilities in Arbitrations Held Under the Auspices of Other
Institutions
The Centre has arrangements with certain institutions such as the World Banks
International Centre for Settlement of Investment Disputes under which arbitration
proceedings under the auspices of such institutions can be held at the seat of the Centre.
These facilities would be provided at the request of the institution concerned
52
5. OTHERS
(1) The Insurance Mediation Bureau
In 1992, the Insurance Mediation Bureau (IMB) was established after a spate of
complaints by policyholders against insurers. The Bureau is designed along the lines of
the British Insurance Ombudsman Bureau, and the mediator does not merely assist
parties to resolve their dispute but also makes decisions.
The IMB is established as a company limited by guarantee, which has a
membership comprising all insurance companies. The mediator is appointed by a
council which includes representatives from outside the industry.
The Bureaus
53
cards and guarantors. The bulk of cases so far comprise of ATM withdrawals. A case is
normally resolved within two to three months and matters, which have gone to court,
cannot be mediated by the Bureau. A case may be initiated by letter, but the Mediator
must meet the parties. Such sessions normally take only about two hours.
Once again, the service is free and while the complainant may engage counsel,
costs will not be awarded. The mediators decision is binding on the bank but not the
complainant. The mediator is limited in his jurisdiction to awards of up to RM25,000.
The Bureau handled about 144 cases in 1999.
In both the IMB and the Banking Mediation Bureau, the procedures established
are flexible and informal and strict rules of evidence do not apply.
(3) Tribunal for Consumer Complaints
This new tribunal is established under the Consumer Protection Act, 1999.
Membership of the Tribunal is by appointment of the Minister and consists of a
Chairman and Deputy Chairman from among members of the Judicial and Legal
Service and not less than five other members from the legal profession.140 Proceedings
before the Tribunal have been simplified in that a consumer only needs to lodge a claim
in the prescribed form and pay a prescribed fee.141 At the hearing of a claim every party
is entitled to attend and be heard, but no party is to be represented by an advocate and
solicitor.142 A corporation or unincorporated body of persons may be represented by a
full-time paid employee while a minor or any other person under a disability may be
represented by his next friend.143 The Tribunal is to make its award without delay and
where practicable within sixty days from the first day of hearing.144
A point of interest is section 107, which enjoins members of the Tribunal to
assess whether, in all the circumstances, it would be appropriate for the Tribunal to
assist the parties to negotiate an agreed settlement. Where the parties have reached an
agreed settlement, the Tribunal must approve and record the settlement and the
settlement shall then take effect as if it were an award of the Tribunal.145 Every agreed
settlement and award of the Tribunal is final and binds all parties to the proceedings and
140
54
55
assessment was made, a written notice of appeal in the prescribed form stating the
grounds of appeal and containing such other particulars.152 There is a right, given under
section 100(1), to ask for an extension of the period within which notice of appeal
against the assessment may be given.
On receipt of the notice of appeal, the Director General may review the
assessment against which the appeal is made, and for that purpose may
(a) require the appellant to furnish such particulars as the Director General
may think necessary with respect to the income to which the assessment
relates and any other matter relevant to the assessment in the Director
Generals opinion;
(b) require the appellant to produce all books or other documents in the
appellants custody or under the appellants control relating to any
source to which the assessment relates or any other matter relevant to
the assessment in the Director Generals opinion;
(c) summon any person who in the Director Generals opinion is able to
give evidence respecting the assessment to attend before the Director
General, and
(d) examine any person so attending on oath or otherwise.
Where, as the result of the review the Director General and the appellant has
come to an agreement in writing either as to the amount of the chargeable income and
the tax chargeable thereon or the amount of tax or additional tax, or that there is no
chargeable income or tax, the assessment against which the appeal is made shall be
treated as having been confirmed, reduced, increased or discharged in accordance with
the agreement.
As a result of the review, the appellant and the Director General may come to
an oral agreement, which the Director General may have confirmed in writing and
which will be regarded as an agreement, unless repudiated earlier by the appellant.153
Where there is deemed to be an agreement between the Director General and the
appellant, one of the Special Commissioners on the application of the appellant made to
the Special Commissioners within a period of thirty days after the agreement is deemed
152
153
56
to be come to may, after giving the Director General an opportunity to make oral or
written representations, set the agreement aside if he thinks it just and equitable to do so
in the circumstances.
application to set aside the agreement shall be notified by the clerk in writing to the
applicant and the Director General and shall be final.154
The Director General may send an appeal forward to the Special
Commissioners at any time if he is of the opinion that there is no reasonable prospect of
coming to an agreement with the appellant, and where he sends an appeal forward under
this provision, he must give the appellant written notice that he has done so.155 Where
an appeal has been sent forward to the Special Commissioners, the Director General and
the appellant at any time before the hearing of the appeal by the Special Commissioners
is completed may come to an agreement with regard to the assessment to which the
appeal relates, and where they do so, the proceedings before the Special Commissioners
shall abate, and the agreement shall have effect.
(6) The Court (Land Acquisition)
Under the Federal Constitution, land is a state matter. There shall be no
acquisition of land without the payment of adequate compensation (Article 13, Federal
Constitution, and the Land Acquisition Act, 1960, Revised 1992). For the purposes of
determining adequate compensation, a Special Court is constituted under the Land
Acquisition Act, 1960.
This court consists of a Judge sitting alone. Where the objection before the
court is in regard to the amount of compensation, the court is to appoint two assessors
(one of whom shall be a valuation officer employed by the Government) for the purpose
of aiding the Judge in determining the objection and in arriving at a fair and reasonable
amount of compensation.156 The assessors are to come from a list of names submitted
to the court by the President of the Board of Valuers, Appraisers and Estate Agents.
Every person appointed as an assessor is legally bound to attend and serve as an
assessor unless excused by the Judge. The opinion of each assessor on the various
heads of compensation claimed by all persons interested shall be given in writing and
recorded by the Judge.
154
ibid, s. 101(6).
Income Tax Act 1967, s. 102(1).
156
Land Acquisition Act 1960, s. 40A.
155
57
157
ibid, s. 40D(3).
58
Chapter 4
LEGAL EDUCATION
(ii)
59
(iv)
(v)
There is a great need for research into Malaysian law, not only as
regards the reception of the common law but also in the fields of
Muslim Law and Customary Law.
operational from the 1996/97 academic years. Previously, the Faculty of Law offered a
four-year course, combining both academic and professional elements, leading to the
LLB degree. The split in structure is to enable students to make a choice, that is,
whether they wish to exit after the conclusion of the academic degree, or whether they
wish to continue with the professional component and obtain the LLB degree. The
professional component would be important and is required if the student wishes to
pursue a career in the Judicial and Legal Service, or to serve as advocates and solicitors.
Otherwise, it is not really a necessity to have the professional component.
The academic component is offered in three Parts with Part I (the beginning
stage) comprising of courses such as the Malaysian Legal System, Constitutional Law,
Contract and Tort as well as Islamic Law. The second stage, Part II or the Middle Stage
comprises of courses such as Criminal Law, Administrative Law, Land Law, Equity and
Trusts and Moots. The Third Stage or Part III consists of courses such as Jurisprudence,
Company Law and three other elective courses such as International Law, Family Law,
Commercial Transactions, Environmental Law, Intellectual Property, Landlord and
Tenant, Media Law, Banking Law, Cyber Laws, and Medical Law. A student could also
opt to do a minor dissertation or project paper in a chosen field. At the Professional
level, the courses offered include Evidence, Criminal Procedure, Civil Procedure,
Professional Practice, Remedies and Ethics.
which, upon passing, will enable them to be called to the Malaysian Bar. This course is
actually under the auspices of the Qualifying Board of the Bar, but since 1984, the
Faculty of Law University of Malaya had been helping the Qualifying Board to conduct
the course and examination. About 300 students are admitted into this course each year.
4. POST-GRADUATE COURSES
Like other Law Faculties throughout the world, the Faculty of Law at the
University of Malaya also offers post-graduate courses such as the Doctor of Philosophy
and Masters in Law.
The Masters in Law (LLM) programme consists of that by pure dissertation,
coursework and dissertation and pure coursework. Some of the courses offered at the
Masters level include Comparative Constitutional Law, International Human Rights and
Humanitarian Law, Law of the Sea, Securities Regulation, Copyright, Employment Law,
International Environmental Law and Comparative Administrative Law. Candidates
have to take four courses for the pure coursework course, and two courses for the
coursework and dissertation course.
62
Public Law course. The course is the result of a request from the Royal Malaysian
Police Council for the Faculty to offer a Diploma specifically tailored for the needs of
police officers. The first twenty candidates enrolled in the 1997/98 academic session.
The course includes many subjects offered by the Faculty for the Bachelor of
Jurisprudence/LLB degree. The Diploma entitles the holder to continue his or her
studies in the Bachelor of Jurisprudence/LLB degree by transferring the credits obtained
for the Diploma course.
63
Chapter 5
PRACTICE AT THE MALAYSIAN BAR
The Malaysian legal system is very much inherited from the British as
Malaysia was once under British rule. The British system of administration of justice
based on statute law and common law has been incorporated into the Malaysian system
with modifications to suit local conditions. Since the attainment of independence in
1957, several changes have been made in Malaysia with regard to laws and procedures
pertaining to civil jurisdiction, criminal jurisdiction and appellate jurisdiction, etc.
64
General Paper
A person who has passed this examination (CLP) or who possesses a degree
where he/she is exempted from doing the CLP examination has to undergo a 9-month
period of pupillage under a Master of more than 7 years standing as an Advocate and
Solicitor and who has been in continuous active practice for that period of time. Upon
completion of the pupillage, the pupil can apply for admission as an Advocate and
Solicitor of the High Court of Malaysia.
Upon admission as an Advocate and Solicitor, the Registrar of the High Court
keeps a Roll of all Advocates and Solicitors with their respective dates of admission.
65
Investigating Tribunal;
(ii) It shall report its findings not later than 2 months after commencement of
its investigation to the Disciplinary Board.
(ii) that there is no cause of sufficient gravity for a formal investigation but
that the advocate and solicitor should be ordered to pay a penalty; or
(iii) that there should be a formal investigation by the Disciplinary Committee.
67
imposition of a fine upon the advocate and solicitor for such sum as the
Disciplinary Committee deems just;
(ii) suspension of the advocate and solicitor concerned from practice as the
Disciplinary Committee deems appropriate; and
(iii) striking off the Roll the advocate and solicitor concerned.
(6) Disciplinary Board
The Disciplinary Board consists of:
(i)
the Chairman who is appointed by the Chief Justice who shall be a Judge
of the High Court, Supreme Court or a retired Judge from the High Court
or Supreme Court or any other person qualified to be a Judge of the High
Court or Supreme Court.
(ii) the President of the Bar Council with the Vice-President as his alternate;
and
(iii) 15 practitioner members of not less than 15 years standing appointed by
the Chief Justice for a period of 2 years provided the Chief Justice may
extend their term for a period not exceeding a further 2 years or re-appoint
68
them.
Note: The Supreme Court now refers to the Federal Court;
(7) Powers of the Disciplinary Board
The Disciplinary Board has the power to strike off the Roll, suspend from
practice for any period not exceeding 5 years, any advocate and solicitor found guilty of
misconduct.
Misconduct comes in various forms, which include:
(i)
(ii) breach of duty to the Court including any failure by him to comply with an
undertaking given to the Court;
(iii) dishonest or fraudulent conduct in the discharge of his duties;
breach of any rules of practice and etiquette of the profession made by the Bar
Council;
(iv) being adjudicated a bankrupt;
(v) breach of any provision of the Legal Profession Act of any rules made
there under or any directions or ruling of the Bar Council;
(vi) gross disregard of his clients interest; and
(vii) being guilty of any conduct that is unbefitting of an advocate and solicitor
which brings or is calculated to bring the legal profession into disrepute.
Admissions
Practising
Female
Male
1995
1052
957
447
510
1996
1159
1057
544
513
1997
1155
1018
509
509
1998
1190
1019
523
496
1999
1134
1027
564
463
2000
1155
934
502
432
69
Year
1995
Members
As of to date
5968
1996
6796
1997
7300
1998
8124
1999
8879
2000
9595
5. LEGAL PROFESSION
RULES 1992
(PROFESSIONAL
LIABILITY)(INSURANCE)
Under these Rules which came into force in 1992, the Bar Council shall take
out an insurance policy in the name of the Malaysian Bar and shall maintain a Master
Policy to provide indemnity against classes of professional liability as may be
determined by the Bar Council.
(ii) to comply with the terms of the Master Policy with any certificate of
insurance in connection therewith;
(iii) to produce together with any application for a Sijil Annual (annual
certificate) a certificate issued by the brokers certifying that the applicant
is insured under the Master Policy for a period of 12 months with effect
from such date that the Bar Council may determine.
70
(ii) there is some personal relationship between him and a party or a witness
in the proceedings.
(3) No advocate and solicitor to accept brief if professional conduct is likely to
be impugned
No advocate and solicitor shall accept a brief in a case where he knows or has
reason to believe that his own professional conduct is likely to be impugned.
71
(4) Circumstances where an advocate and solicitor shall not accept a brief
(i)
(ii) An advocate and solicitor shall undertake the defence of a person accused
of an offence regardless of his personal opinion as to the guilt or otherwise
of the accused.
(6) Fees of an advocate and solicitor
In determining the amount of fee for litigious or contentious matters involving
representation of a client in Court, consideration shall be given to the following:
(i)
An advocate and solicitor shall put before the Court any relevant binding
decision of which he is aware which is immediately in point, whether it be
72
An advocate and solicitor shall not actively carry on any trade which is
unsuitable for an advocate and solicitor to engage in; and
An advocate and solicitor shall not solicit work or advertise either directly
or indirectly procuring his photographs to be published in connection with
cases in which he has been engaged or concerned.
73
exceptions,
e.g.
particulars
appearing
in
approved
publications.
(15) Judgment by Default
No advocate and solicitor shall enter judgment by default against the client or
another advocate and solicitor where there is a delay in filing documents unless notice
of his intention to do so has been given to the other advocate and solicitor in writing and
seven days have elapsed after the delivery of such notice to the other advocate and
solicitor.
(16) Advocate and solicitors branch office
(i)
No advocate and solicitor shall maintain a branch office unless the same
is:
(a) in the name of his firm; and
(b) continuously manned by the advocate and solicitor himself or any of
the partners of his firm or by an advocate and solicitor wholly
employed by him or his firm.
(ii) The branch office shall not be in the same office as that of any other firm
of advocates and solicitors.
(iii) No advocate and solicitor shall practise his profession in the States of
Malaya in or as a partner of more than one firm at any time without the
consent of the Bar Council.
(iv)
74
to uphold the cause of justice without regard to its own interest or that of
its members, uninfluenced by fear or favour;
(ii) to maintain and improve the standards of conduct and learning of the legal
profession in Malaysia;
(iii) to express its view on matters affecting legislation and the administration
and practice of the law in Malaysia where so requested to do;
(iv) to represent, protect and assist members or of the legal profession in
Malaysia and to promote in any proper manner the interests of the legal
profession in Malaysia;
(v) to protect and assist the public in all matters touching ancillary or
incidental to the law;
(vi) to encourage, establish and maintain good relations with professional
bodies of the legal profession in other countries and to participate in the
activities of any local or international association and become a member
thereto or, etc.
>
RM25,000
(ii)
Car
>
RM7,000
(iii)
Motorcycle
>
RM4,500
(iv)
>
RM5,000
77
Chapter 6
CIVIL LITIGATION
Subordinate Court Rules 1980 for matters tried at the Magistrates and
Sessions courts.
(ii) Rules of the High Court 1980 for matters before the High Courts of
Malaysia.
(iii) Rules of the Court of Appeal 1994 for matters before the Court of
Appeal of Malaysia.
(iv) Rules of the Federal Court 1995 for matters before the Federal Court of
Malaysia.
(v) The Court of Judicature Act 1964.
(vi) The Civil Law Act 1956.
commercial matters;
78
Writs
The party making the Claim (who is the plaintiff) chooses which form of
process to use and the relevant documents are then filed in the proper division of the
court.
Previously the writ was valid for a period of 12 months by which time it has to
be served on the other party, (the defendant) but by virtue of a recent amendment, the
writ is only valid for 6 months but can be extended twice for a period of 6 months each.
The major source of procedure are found in the Rules of the High Court 1980,
Rules of the Court of Appeal 1994, Rules of the Federal Court 1995 and the Courts of
Judicature Act 1964 (CJA) and for matters before the Magistrates and Sessions Courts,
the source for procedure to be found in the Subordinate Court Rules 1980. Other forms
of legislation with regard to procedure that are adopted in Civil Litigation include the
Civil Law Act 1956 and the Evidence Act 1950.
In order to bring a civil proceeding in the court, there must be a "cause of
action" which means simply that the plaintiff has to prove his action before an order or
judgment can be given in his favour.
The plaintiff' s claim must disclose a "cause of action" so as to enable the court
to proceed to adjudicate the actionable dispute. of action" , the court cannot provide any
remedy.
The party in addition to the "cause of action" must also have locus standi. If the
party has no locus standi, the court will also dismiss the action inlimine.
Generally, actions filed on contracts or on torts have to brought within 6 years
from the date on which the "cause of action" arose under the Limitation Act 1963.
In the case of dependency claims, a claim for loss of support by the dependent
relative shall be brought within 3 years after the death of the deceased under the Civil
Law Act 1956.
Where a writ has been issued by the court and served on the defendant, the
79
2. JUDGMENT-IN-DEFAULT
A writ is normally indorsed with a statement of claim and failure to enter into
appearance may result in the plaintiff proceeding to enter judgment-in-default against
the defendant.
Ordinarily where a defendant has filed an appearance and also a statement of
defence subsequent to other procedures of filing of documents in support, the matter
would be set for trial.
3. SUMMARY JUDGMENT
Where a statement of claim has been served on the defendant and the defendant
has entered a appearance and where there is no defence to the plaintiffs claim, the
plaintiff may apply to the court for judgment against the defendant.
An application for summary judgment is made by way of a summons supported
by an affidavit verifying the facts on which the claim is made. The defendant in such a
case may then apply to defend with the leave of the court in respect of the claim.
The defendant may also in filing a defence to a writ served on him file a
counter-claim as against the plaintiff.
The court can also give directions as regards further conduct of the action. This
process of summary judgment is made under Order 14 of the Rules of the High Court
1980 or Order 26A of the Subordinate Court Rules 1980.
80
The court may upon application of a party or on its own motion determine any
question of law or construction of any document arising in any cause or matter at any
stage of the proceeding where (a) such a question is suitable for determination without
the full trial of an action or (b) such determination will finally determine the entire
cause or matter or any claim or issue therein. Upon such determination the court may
discuss the cause or matter or make such order or judgment as it thinks fit
4. PLEADINGS
Pleadings are statements in writing filed by each party to an action giving such
details that are necessary. It is a cardinal rule that parties are bound by the pleadings and
are not allowed to adduce facts, which they had not pleaded.
The objectives of the pleadings are: (i)
(ii) to require each party to give fair and proper notice to its opponent in order
to enable him to prepare his case; and
(iii) to inform the court the issues which are required to be determined by the
court
A vital issue not raised in the pleadings would not be allowed to be argued if so
decided by the court.
Law is not pleaded. It must only contain material facts on which the party
pleading relies for this claim on defence.
5. CLOSE OF PLEADINGS
Pleadings in an action are deemed to be closed at the expiration of 14 days after
the service of the defence. However, if there is a reply or a defence to the counter-claim,
pleadings are deemed to be closed after 14 days of the service of the reply or defence to
the counter-claim
81
82
83
Chapter 7
CRIMINAL LITIGATION
1. PENAL CODE
In Malaysia criminal offences are codified under the Penal Code under various
chapters for various offences relating to:(i)
Other offences quasi criminal in nature are tried under specific law, e.g. the
Corruption Act, Dangerous Drugs Act, etc
All offences under the Penal Code are inquired into and tried according to the
provisions of the Criminal Procedure Code.
3. A MAGISTRATES COURT CAN HEAR CRIMINAL MATTERS:A Magistrate Court can hear criminal matters:
(i)
Where the offence is punishable by a fine only which should cover most
traffic offences; and
(ii) Where the offence provides for a term of imprisonment not exceeding 10
years. A Magistrate may not, however, impose a term of imprisonment
exceeding 5 years.
85
8. POLICE ACTION
Upon a report being lodged with the police, the police investigate on the
alleged offence(s) and take all necessary action to apprehend where possible the
offender if not the culprit of the offence.
The police may arrest a suspect for an alleged offence(s) and shall grant bail
before the offender is brought to court to be formally charged (arraigned) in court for
boilable offences. For crimes which capital punishment, e.g. murder, rape and
kidnapping, no bail is granted, as they are non-boilable offences.
evidence to support the charge preferred against him, me may be convicted thereon
provided the accused understands the nature and consequence of his plea (unequivocal).
If the accused chooses to be tried, the court would then be required to call witnesses to
give evidence as may be produced by the prosecution.
After the witnesses have given evidence (evidence in chief) the accused
through his counsellor if undefended by himself cross-examine his witnesses. The
prosecution can also re-examine his witnesses after cross-examination. Witnesses are
called by the prosecution by means of subpoenas that are applied for and obtained by
the court.
The Magistrate in a boilable offence can offer bail to the accused which
discretion is reasonable pending hearing of pending trial.
86
12. PROSECUTION
The public prosecutor who initiates criminal prosecution is the Attorney
General. The Solicitor-General has all the powers of a Deputy Public Prosecutor and
shall act as a Public Prosecutor in the absence or inability to act of the Attorney-General.
The Public Prosecutor may appoint fit and proper persons to be Deputy Public
Prosecutors.
87
16. SENTENCING
Sentencing of accused persons, that is, the imposition of fines and
imprisonment and/or both are meted out by the presiding judge in the Magistrates Court,
Sessions Court and High Court according to the provisions in respect of the offences
committed pursuant to the provisions in the statute.
The death penalty is only imposed for capital offences including murder, rape
and trafficking of drugs of a quantity as prescribed by law.
88
Chapter 8
RECENT DEVELOPMENTS
recommendations for law reform, after consultation with the government, non-
158
89
90
At the time of writing, it remains unclear precisely what shape the proposed
Family Court would take, and how the thorny issues pertaining to jurisdiction are going
to be resolved. What is clear is that Malaysian family law and Malaysian court system
is in urgent need of reform.164
164
91