MALAYSIAN

JUDICIAL SYSTEM
Court With Special Jurisdiction
The following courts are some of the courts in Malaysia having special
jurisdiction apart from civil courts system which are:
• Syariah Court
• Native Court
• Martial Court
• Court for Children
• Special Court for Rulers
• Industrial Court
SYARIAH COURT

• Syariah court derives it power from the State Law as mentioned under
Article 74 read together with State List where the establishment of
Syariah Court fall under the jurisdiction of state.
• The state list stipulates that the Syariah Court is to have jurisdiction over
Muslims only.
• Jabatan Kehakiman Syariah Malaysia (JKSM) under Prime Minister’s
department has been set up to coordinate the administration of Syariah
Court at the national level.
• Syariah Court civil jurisdiction is limited to matter generally relate to
family law.
• Syariah Court also don’t have any jurisdiction in respect offences unless
conferred by federal law.
• Under Syariah Court (Criminal Jurisdiction) Act 1965, Syariah Court only
have jurisdiction in respect of Muslim who committed any offences the
precept of Islam.
• Under this Act, Syariah Court have jurisdiction to deal with cases:
• Punishable with imprisonment, max 3 years
• Punishable with fine, max RM 5000
• Punishable with whipping, max 6 strokes
• Any combination of the above
 Syariah Appeal
• Every states in Malaysia, the three-tier
Court
structure exist which are:
• Syariah Subordinate Court;
• Syariah High Court; Syariah High
• Syariah Appeal Court Court
• In our discussion, we will refer to the
structure of Sarawak Syariah Court Syariah
System Subordinate
Court
SARAWAK SYARIAH COURT SYSTEM

• Sarawak Syariah Court System established under Section 3 of Sarawak

Syariah Court Ordinance 2001
• YDPN on the recommendation of Majlis Islam Sarawak may constitute:
• Syariah Subordinate Court
• Syariah High Court
• Syariah Appeal Court
SARAWAK SYARIAH COURT SYSTEM
• YDPN under recommendation from Majlis Islam Sarawak may
appoint:
• A Chief Syariah Judge (Section 4)
• Not more than seven standing panel of Judges of Syariah appeal
Court (Section 5)
• Judges of Syariah High Court (Section 6)
• A person is qualified for those appointment if
• he is a citizen; and
• he has for a period of not less than ten years before his
appointment, been a Judge of the Syariah High Court or a Kadi
or the Chief Registrar or the Chief Syariah Prosecutor of a State
or sometimes one and sometimes another; or is a person learned
in Islamic Law.
SARAWAK SYARIAH COURT SYSTEM

• Chief Syariah Judge, Syariah Appeal Court Judges and Syariah High
Court Judges may hold office until they attains the age of sixty-five
years old or such later time on approval by YDPN.
• YDPN under recommendation from Chief Syariah Judge, from
amongst members of State Public Service, Judges of the Syariah
Subordinate Court. (Section 8)
SARAWAK SYARIAH COURT SYSTEM

Syariah Subordinate Court

Composition
• The court should be presided by the Judge of Syariah
Subordinate Court
Original Criminal Jurisdiction
• Can try any offence committed by a Muslim and punishable
under the Majlis Islam Sarawak Ordinance, the Islamic Family
Law Ordinance, or under any other written law does not exceed
three thousand ringgit, or imprisonment for a term of one year or
both and may impose any punishment provided for such offence.
SARAWAK SYARIAH COURT SYSTEM

Original Criminal Jurisdiction

• Can hear and determine all such actions and proceedings as a
Syariah High Court is authorized to hear and determine, if the
amount or value of the subject-matter in dispute does not exceed
three hundred thousand ringgit or is not capable of estimation in
terms of money.
• However, YDPN may, on the recommendation of the Chief Syariah
Judge, from time to time by notification in the Gazette, extend the
jurisdiction of the Syariah Subordinate Courts
SARAWAK SYARIAH COURT SYSTEM

Syariah High Court

Composition
• The court should be presided by the Judge of Syariah High Court
and the Chief Syariah Judge may sit as judge of the Syariah High
Court
Original Criminal Jurisdiction
• Can try any offence committed by a Muslim and punishable
under the Majlis Islam Sarawak Ordinance, the Islamic Family
Law Ordinance, or under any other written law for the time being
in force which prescribes offences against the precepts of the
religion of Islam and may impose any punishment provided for
such offence.
SARAWAK SYARIAH COURT SYSTEM

Original Civil Jurisdiction

• Can hear and determine all actions and proceedings relate to:
i. betrothal, marriage, ruju’, divorce, annulment of marriage
[fasakh], nusyuz, or judicial separation [faraq] or any other
matter relating to the relationship between husband and
wife;
ii. any disposition of, or claim to, property arising out of any of
the above matters
iii. Maintenance of dependence and guardianship
iv. Harta Sepencarian, wills of Muslims, Hibah, Wakaf etc.
SARAWAK SYARIAH COURT SYSTEM

Appellate Criminal Jurisdiction

• Any appeal against an acquittal, a conviction or a sentence or
any of them
Appellate Civil Jurisdiction
• Any appeal with the amount claimed is not less than one
thousand ringgit; cases involving any decision as to personal
status, cases relating to maintenance of dependents, but no
appeal shall lie against a decision made by consent
SARAWAK SYARIAH COURT SYSTEM

Supervisory and Revisionary Jurisdiction

• 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
of such matter or proceeding and may give such directions as
justice may require.
• When exercising this jurisdiction, all proceedings in the Syariah
Subordinate Court on the matter or proceeding in question shall
be stayed pending further order of the Syariah High Court.
SARAWAK SYARIAH COURT SYSTEM

Syariah Appeal Court

Composition
• An appeal in the Syariah Appeal Court shall be heard and
disposed of by the Chief Syariah Judge, who shall be the
chairman for every proceeding of the Syariah Appeal Court, and
two other Judges of the Syariah Appeal Court
• the Chief Syariah Judge may appoint any Judge of the Syariah
High Court to be a member of the Syariah Appeal Court for any
particular proceeding if the Chief Syariah Judge considers it
desirable to do so.
SARAWAK SYARIAH COURT SYSTEM
• The Chief Syariah Judge shall appoint the most senior of the
Judges of the Syariah Appeal Court to be the chairman if the
appeal is against the decision that he made whilst sitting as a
Judge of the Syariah High Court or if he is unable to be the
chairman for any reason.
Appellate Jurisdiction
• The Syariah Appeal Court shall have jurisdiction to hear and
determine any appeal against any decision made by the Syariah
High Court in the exercise of its original jurisdiction
• The Syariah Appeal Court also have jurisdiction to hear and
determine any appeal against any decision made by the Syariah
High Court on appeal from a decision of Syariah Subordinate
Court
SARAWAK SYARIAH COURT SYSTEM

Supervisory and Revisionary Jurisdiction

• 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 the
Syariah High Court, call for and examine any records of such
matter or proceeding and may give such directions as justice may
require.
• When exercising this jurisdiction, all proceedings in the Syariah
High Court on the matter or proceeding in question shall be
stayed pending further order of the Syariah Appeal Court.
NATIVE COURTS

• Native courts only exist in Sabah and Sarawak which established by

state legislation, i.e., Sabah Native Courts Enactment 1992 and
Sarawak Native Courts Ordinance 1992.
• Native Courts have no jurisdiction over matter within the jurisdiction of
civil or Syariah court.
• Native Courts do not have jurisdiction over criminal offences except in
so far as conferred by federal law.
• Under Native Courts (Criminal Jurisdiction) Act 1991, Native Courts
have jurisdiction to deal with cases:
• Punishable with imprisonment, max 2 years
• With a fine, max RM5,000
• Combination of both
• This jurisdiction does not include jurisdiction over offences under Penal
Code
Native Court in Sarawak
• Created under Native Courts Ordinance 1992. this ordinance provide
the constitution, jurisdiction and power of the Native Courts.
• The procedure of Native Court governed by Native Court Rules
1993.
• Three main matters heard by Native Courts are:
i. Breaches of Adat
ii. Native Customary Rights (NCR) land dispute
iii. Application from native to be identified with the native
communities
 Native Court of Appeal

• The structures of Sarawak Native

Resident’s Native
Courts includes: Court
• Headman’s Court (Mahkamah
Penghulu)
District Native Court
• Native Officer’s or Chief’s Court
(Mahkamah bagi Pegawai atau
Ketua Anak Negeri) Chief’s Superior Court
• District Native Court
• Resident’s Native Court
Chief’s Court
• Native Court of Appeal

Headman’s Court
• All matters on Adat are heard in first instance (Original Jurisdiction)
before the Headman’s Court or the Chief’s Court.
• Headman’s Court consisting of the Headman and two Assessors
• Chief’s Court consisting of a Native Officer or a native and two
Assessors
• The Chief’s Superior Court is the final appellate court for all Adat
causes or matters. Therefore, the judgement of the Chief’s Superior
Court is final and cannot be subject of appeal.
• Chief’s Superior Court consisting of a Temenggung or Pemanca
sitting with two ancestor, or both Temengung and Pemanca sitting
with one ancestor.
• Disputes between natives concerning NCR land dispute are heard in
the first instance by District Native Court.
• District Native Court First Class Magistrate
• However, if the land dispute not involve NCR land or there is no title
issued by a Land Office, the first instance case heard by Chief’s
Court
• Among other matters that can be heard by this those Courts are
case involving native customary law concerning any native system of
personal law; native customary law concerning religious,
matrimonial, or sexual matter where one party are native; civil case
which value of subject matter not exceeding RM 2000; Native land
matter etc.
• The penalties that Native Courts may impose:
• District Native Court: Imprisonment not exceeding 2 years and
fine not exceeding RM 5000
• Chief’s Superior Court: Imprisonment not exceeding 1 years and
fine not exceeding RM 3000
• Chief’s Court: Imprisonment not exceeding 6 month and fine not
exceeding RM 2000
• Headman’s Court: Fine not exceeding RM 300
• The application by non-natives to be identified with the native
communities are heard by the Resident’s Native Court
• Resident’s Native Court consists of a resident together with a native
Officer or Chief and two Assessors
• Native Court of Appeal and Resident’s Native Court are appellate
courts in respect of civil cases and NCR land dispute.
• Native Court of Appeal is the highest appellate court. It consists 3, 5
or seven members including the presiding judge. The President of
the Court must be a High Court judge. This court has the same
power as the High Court.
Native Court in Sabah
• Created under Native Courts Native Court of Appeal
Enactment 1992.
• Sabah Native Court is divided
into three-tier structure which District Native Court
are:
• Native Court
• District Native Court Native Court
• Native Court of Appeal
• Native Court have Original Jurisdiction on the matter regarding to:
• Cases arising from breach of native law or custom in which all the
parties are natives
• Cases arising from breach of native law or custom, religious,
matrimonial or sexual, where one party is a non-native
• Cases involving native law or custom relating to:
i. Betrothal, marriage, divorce, nullity of marriage and judicial
separation,
ii. Adoption, guardianship or custody of infants, maintenance
of dependents and legitimacy
iii. Gifted or succession testate or intestate.
• Native Court consisting of three members, i.e., Natives Chief or
Headman
• District Native Court have can heard any appeal from Native Court in
matters of native customary law. District Native Court also have
Revisionary Jurisdiction to revise all proceedings in the native Court
if it finds any such proceeding irregular, improper or unconscionable,
it may quash or vary the same or direct a rehearing.
• District Native Court is presided over by District Officer sits together
with two other members, either District Chief or Native Chief.
• Native Court of Appeal can hear any appeal from District Native
Court. It has jurisdiction over the whole of Sabah
• Native Court of Appeal comprise of High Court Judge as President,
and two other members who are either District Chiefs or Native
Chiefs who are appointed by Minister responsible for the
administration of native affairs.
• Subject to Native Court (Criminal Jurisdiction) Act, all Natives Court
in Sabah may impose a fine, order imprisonment, or award both fine
and imprisonment, or inflict any punishment authorized by native law
or custom not being repugnant to natural justice and humanity.
SPECIAL COURT FOR RULERS

• Article 182 of the FC established the Special Court for Rulers

Composition
• Consist of 5 person presided by the Chief Justice of the Federal
Court as Chairman, the Chief Judges of the High Courts and 2 other
judges who hold or have held office as judge of the Federal Court or
a High Court.
• These members are appointed by the Conference of Rulers.
• Has both Criminal and Civil Jurisdiction as provided under Article
182(3).
• Has jurisdiction over any proceeding by or against the YDPA or the
Rulers of a state in his personal capacity.
• Has exclusive jurisdiction to try all offences committed in the Federation
by the YDPA or the Rulers.
• To initiate a suit against the Rulers, permission must be granted by the
Attorney General
• In Faridah Begum bt Abdullah v Sultan Hj Ahmad Shah Al Mustain
Billah Ibni Almarhum Sultan Abu Bakar, a suit by a foreigner against
the Ruler of Pahang was dismissed on the ground that the head of state
is immune from such proceedings.
MARTIAL COURT

• Established under the Armed Forces Act 1972

• Section 2 of the Armed Forces Act 1972- “Armed forces” includes the
regular forces of Malaysia and other forces which maybe declared by
the YDPA from time to time to be armed forces.
• “Regular forces”- includes the Malaysia Army, the Royal Malaysian
Navy and the Royal Malaysian Air Force.
• Composition
• Section 105- the court-martial shall consist of the president and not
less than 2 other officers
• Section 105(2)- officers forming the court shall belong to the same
service as the accused.
• Section 105(3)- officer shall not be appointed unless he is subject to
service law and has been officer for 2 years.
• Section 105(4)- if it consists of 5 officers or more, the president shall
be an officer of or above the rank of lieutenant-colonel or its
equivalent.
• Section 105(5)- if it consists of less than 5 officers, the president
shall be appointed by officer convening the court-martial and shall
not be under the rank of major or its equivalent.
• Amongst the offences in respect of military services are:-
i. Aiding the enemy;
ii. Misconduct by other person in operations against enemy;
iii. Communication with the enemy;
iv. Offences against morale;

• Punishments can be awarded:

i. death;
ii. imprisonment for a term not exceeding 14 years;
iii. dismissal from His Majesty's service;
iv. forfeiture of seniority of rank; etc.
COURTS FOR CHILDREN

• Child Act 2001 has repealed the Juvenile Courts Act 1947.
• The Juvenile Courts now replaced by Courts of Children.
• Section 2- a child means:-
i. a person under the age of 18 years; and
ii. in relation to minimal proceedings means a person which has
attained the age criminal responsibility as prescribed by section 82
of the Penal Code i.e., nothing is an offence which is done by a
child under 10 years of age.
Composition
• Consists of 2 Magistrates and assisted by 2 advisers to be
appointed by the Minister from a panel of persons resident in the
state.
• 1 of the 2 advisers shall be a woman.
Jurisdiction
• To try all offences except offences punishable with death.
• Criminal Procedure Code shall apply to the court as if the Courts for
Children were Magistrate Court.
• Court cannot try a child who has attained 18 years of age.
• Section 14, the court may make an order relating to:
a) the detention of a child in a place of detention, probation, hostel,
approved school or Henry Gurney School, approved institution or
center;
b) the supervision of a child by a social welfare officer or probation
officer; or
c) any probation period.
• Probation Hostels
• Meant for children about 10 years of age.
• Ministry may make rules and regulations concerning the
management and inspection of probation hostels.
• Henry Gurney Schools
• Established under section 73.
• The school for children above 14 years.
INDUSTRIAL COURT

• Industrial Court is set up under the Industrial Relations Act 1967.

Composition
• Section 21, stated that Industrial Court shall consist of
a) a President who shall be appointed by the Yang di-Pertuan
Agong; and
b) a panel of persons representing employers and a panel of
persons representing workmen who shall be appointed by the
Minister.
 • The President and Chairman must be legally qualified with at least
seven years’ standing in professional practice.
• The members of the employees' panel and employers' panel are
appointed by the Honourable Minister of Human Resources.
Jurisdiction
• Matters relating to trade dispute and dismissal of workman
• Meaning of trade dispute under Sec 2 of the Act- “any dispute
between an employer and his workmen, which is connected with the
employment or non employment or the terms of employment or the
conditions of work of any such workmen”
• Parties to the dispute cannot take matters directly to court
• A party to the dispute before the court may represent himself or be
represented at the proceeding by any official of trade unions or a union
employers
• The decision handed down by the court referred to as an award which is
final and conclusive
• In Hotel Malaya Sdn. Bhd. & Anor v National Union of Hotel Bar &
Restaurant Workers & Anor the judge described the function of the
Industrial Court in these terms:-
“It exercises a quasi-judicial function. It gives a full reasoned
judgement in the nature of an award (section 30). Its functions
comprise an investigation of the facts, an analysis of the facts, findings
of facts, and lastly, the application of the law to those findings.”