SOURCES

The main sources of civil procedure in Malaysia are:

(1) statute law;

(2) subsidiary legislation;

(3) case law;

(4) practice directions issued by the superior courts;

(5) the inherent jurisdiction of the court;

(6) the practice of the court;

(7) practice books.

1. Statute

Statute constitutes the primary source of the law of civil procedure.

The most significant statute dealing with civil procedure in Malaysia is the Courts of Judicature Act
1964 (CJA) and Subordinate Courts Act 1948.

There are several other statutes affecting rules of civil procedure, including the Civil Law Act 1956,
Limitation Act.

2. Subsidiary legislation

Subsidiary legislation as a source of civil procedure comprises in particular the Rules of Court 2012
(ROC), which prescribe the detailed procedural rules to be applied to all proceedings in the High Court,
Sessions Court and Magistrates’ Court including any pending proceedings.

A proceeding is pending as soon as it is commenced until it is concluded – that is so long as the court
having original cognizance of it can make an order on the matters in issue, or to be dealt with.

Rules that have been properly made will have the effect of statute.

Rules are made by the Rules Committee appointed under s 17 CJA. Rules of court shall be published
in the Gazette, and shall come into force on the date of publication or on such other date as may be
specified therein.

The Rules Committee make rules for the purpose of, inter alia, regulating and prescribing the
procedure (including the method of pleading) and the practice to be followed in the Magistrates’
Court, the Sessions Court, the High Court, the Court of Appeal and the Federal Court in all causes and
matters whatsoever in or with respect to which those courts have for the time being jurisdiction
(including the procedure and practice to be followed in the registries of those courts) and any matters
incidental to or relating to any such procedure or practice1 or for any purpose for which rules of court
may be made under any written law.

Under s 16A CJA (in force from October 2020 for two years) the Chief Justice (CJ) “may, if the Chief
Justice is of the opinion that the circumstances warrant and it is necessary in the interest of the
dispensation of justice, public safety, public security, public health or propriety or for other sufficient
reason to do so, issue any direction relating to the business of the Court as may be necessary.”
Under s 17B (in force from October 2020), the Chief Justice may issue such practice directions as may
be necessary for the purpose of carrying into effect the provisions of the CJA after consulting the
President of the Court of Appeal or the Chief Judge.

Meaning of practice and procedure

The Rules Committee is empowered by statute to make rules regulating and prescribing the procedure
and practice to be followed in the courts.

Rules made by the Rules Committee have the force of statute, but only in matters of procedure and
practice. The rules do not confer any new jurisdiction or create or alter substantive rights.

Any rules made that fall outside their compass and embrace substantive law will be ultra vires and
void.

It is therefore necessary to define what is encompassed by ‘procedure and practice’.

The difference between practice and procedure and substantive law is that, whereas substantive law
defines or creates legal rights and duties, the function of the rules of practice and procedure is to
provide the machinery or the manner in which the legal rights or obligations are enforced.

Lush LJ said in Poyser v Minors (1881) 7 QBD 329 at 333–334, CA said:

“’Practice’ in its larger sense …, like ‘procedure’…, denotes the mode of proceeding by which a legal
right is enforced, as distinguished from the law which gives or defines the right, and which by means
of the proceeding the court is to administer the machinery as distinguished from its product. ‘Practice’
and ‘procedure’… I take to be convertible terms.”

‘Practice’ is narrower than the term ‘procedure’, since practice may be limited to the habitual,
repetitive or continual use of practical methods or modes of proceeding, whereas ‘procedure’ refers
to the mode or form of conducting judicial proceedings.

The distinction is rarely invoked since the terms are usually used in conjunction.

3. Case law

Judicial decisions play a significant role in the interpretation and clarification of the rules of civil
procedure.

Some of the cases decided by the courts are of far-reaching importance and alter the effect of the law
of civil procedure.

4. Practice directions

By virtue of its inherent jurisdiction, the superior court may issue practice directions regulating the
court’s practice and procedure.

There are currently over two hundred practice directions in force regulating a variety of procedural
and administrative matters in the courts.

There is disagreement as to the effect practice directions have. The Federal Court appears to be
divided as to whether practice directions have the effect of law or are subservient to the particular
rules of the court.

In the past, practice directions have been regarded as being intended to be no more than
administrative directions.
5. Inherent jurisdiction

The law of civil procedure is provided with a helpful source of law in the ‘inherent jurisdiction of the
court’.

Nothing in the ROC is deemed to limit or affect the inherent powers of the court to make any order as
may be necessary to prevent injustice or to prevent an abuse of the process of the court – Order 92
rule 4 ROC (O 92 r 4 ROC).

The inherent jurisdiction of the court is the reserve or fund of powers or 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 scope of inherent jurisdiction of the court is potentially very wide and, given its nature, it does
not appear to lend itself easily to precise definition.

The court’s inherent jurisdiction includes all the powers that are necessary to fulfil its role as a court
of law, to uphold, to protect and to fulfil the judicial function of administering justice according to law
in a regular, orderly and effective manner.

The overriding feature of the inherent jurisdiction of the court is that it is part of the procedural law
and not part of the substantive law.

It is not intended to alter substantive rights and must be applied to do justice to all parties and to
secure fairness in a trial between them but not for any other purpose such as taking away the
substantive rights of either parties.

The inherent jurisdiction of the court enables it to exercise control over:

(1) court process by regulating its proceedings, by preventing abuse of process and by compelling the
observance of the process;

(2) persons who appear before the court whether as litigants or lawyers; and

(3) the powers of inferior courts and tribunals.

Where a lacuna exists in the rules which causes a procedural injustice in that an adequate remedy
cannot be provided, the court is not only entitled to fill such gap by using its inherent jurisdiction but
is obliged to do so in order to avoid an injustice.

The court will not apply its inherent powers under this provision to all cases indiscriminately but is
duty-bound to determine the issues in dispute so far as they affect the rights and interests of the
parties.

6. Practice of the court

Practice of the court is other than that expressed in practice directions. This refers to a course of
proceedings that has been followed over a period of time by successive judges.

For example: O 42 r 10(1) ROC requires judgments to be entered in a cause book. However, the
practice in some court is to make an entry on the minute sheet of the court file to the effect that
judgment had been entered.

The practice of the court may not, however, conflict with or override established principles of law.
7. Practice books

Practice books are sometimes the best place for practitioners to look up and see what has been
decided on the law of civil procedure as most Orders under the rules have been the subject of
decisions.