Lecture 2

SOURCES OF LAW

05/02/2020 Dr Ambi S T Singam 1

 Malaysian Legal System
(1) LEGISLATIVE PROCESS IN MALAYSIA

(2) JUDICIAL SYSTEM IN MALAYSIA

 2.1 Hierarchy of the courts

 2.2 Jurisdiction of the Courts

05/02/2020 Dr Ambi S T Singam 2

 LEGISLATIVE PROCESS IN
MALAYSIA
(How bill becomes law?)

05/02/2020 Dr Ambi S T Singam 3

LEGISLATIVE PROCESS IN MALAYSIA
FIRST READING SECOND READING A COMMITTEE OF
1 HOUSE
When a Bill is first Members debate the Bill.
introduced in one of the If accepted, the Bill is Considers the Bill in
two houses, only the title passed on for detail and may amend
consideration by a
2
is actually read. After any part of it. The
the Bill is passed at this committee of the house. Committee then submits
stage, the text is printed a report on the Bill to the
and distributed. house. If the report is
OTHER HOUSES approved, the Bill goes
on to a third reading in
When a Bill has passed the House.
ROYAL ASSENT 5 one House, it is sent to 3
the other house, where
When the Bill has passed both it follows a similar THIRD READING
Houses in accordance with pattern. If the second 4
Art. 68 (Fed. Consti.), it is house amends the Bill, Debate takes place and
sent to the Yang Di-Pertuan the Bill must be amendments may be put
Agong for the Royal Assent. returned to the first to a note. The House
The Bill then becomes a law house for its approval then either passes or
upon publication. defeats the Bill.
05/02/2020 Dr Ambi S T Singam 4
 ADMINISTRATION OF JUSTICE: HIERARCHY OF COURTS
Federal court
SUPERIOR SPECIAL COURT
COURTS Court of Appeal

High Court High Court

(West Malaysia) (Sabah & Sarawak) Shariah Court

Shariah Court
Sessions Court Sessions Court Native Court

Magistrates’ Magistrates’
SUBORDINATE Magistrates’ court Magistrates’ Court
COURTS Court for Court for
Children Children
Penghulu Court

05/02/2020 Dr Ambi S T Singam 5

COURT SYSTEM
https://youtu.be/H64ATEzBwp4?t=365
• Courts are divided into two categories:
(i) Superior Courts:
- Federal Court
- Court of Appeal
- High Court

(ii) Subordinate Courts:

- Sessions Court
- Magistrates’ Court
- Magistrates’ Court for Children
05/02/2020 Dr Ambi S T Singam 6
1. Federal Court (FCt)

• FCt replaced the Supreme Court in mid-1994 as

the highest court.
• FCt is the highest court in Malaysia.
• Instituted by Article 121 of the Federal
Constitution.

05/02/2020 Dr Ambi S T Singam 7

FEDERAL COURT:
 Highest court in Malaysia.
 Consists of the Chief Justice, the President of the COA,
the Chief Judge of Malaya and Chief Judge of Sabah &
Sarawak, and 6 Federal Court judges.
 With effect from January 2012, the quorum hearing any
application for leave to appeal, as well as the substantive
appeal in the Federal Court, the apex court of Malaysia,
shall be a minimum of 5 judges instead of the usual 3.
 Has jurisdiction in matters:
◦ To hear civil and criminal appeals from the COA.
◦ To exercise exclusive original jurisdiction on those
matters conferred on it under Art. 128(1) & (2) of the
FC.
 Hear disputes between any State and the Federal government.
 Determine the validity of any federal or state legislation as
being in excess of powers.
05/02/2020 Dr Ambi S T Singam 8
 – To determine constitutional questions which have
arisen in the proceedings of the High Court but
referred to the Federal Court for a decision.
– To give its opinion on any question referred to it by
the YDPA concerning the effect of any provision of
the Constitution which has already arisen or
appears likely to arise.

05/02/2020 Dr Ambi S T Singam 9

 2. Court of Appeal (COA)

 The COA was established under Article 121 of the Federal

Constitution.

 On 24.06.1994, the COA was created to act as an intermediate

appeal chamber before proceeding straight to the FC.

 The composition of its judicial personnel is prescribed in Article

122A of the Constitution.

 Proceedings is heard and disposed of 3 judges or such greater

uneven number of judges as the President may in any particular
case determine i.e. 3 judges at any one time OR more (but must
be of uneven numbers i.e. 5, 7, 9,11) Decisions are made by
majority i.e. 2:1 (2 to 1), 3:2, 4:3, 5:4.

05/02/2020 Dr Ambi S T Singam 10

• The Court of Appeal has also implemented several
initiatives to expedite the disposal of appeals.

• These include increasing the number of sittings,

setting up of a special panel hearing only
interlocutory appeals and another hearing only
appeals originating from the subordinate courts.

• The number of panels sitting in a month was

increased from 12 to 20.

05/02/2020 Dr Ambi S T Singam 11

Court of Appeal

• Section 50 and 67 of the Courts of Judicature Act 1964

• The court can hear both Civil and Criminal appeal cases.

• Civil Appeal Cases

– Has jurisdiction to hear and determine civil appeals for cases where the
amount or value of the subject matter of the claim is more than RM1,000,000.
– If the amount is less than RM1.000,000 the parties must get the permission
from the Court of Appeal.

• Criminal Appeal Cases

– Has jurisdiction to hear and determine any appeal against the decision of the
High Court.

05/02/2020 Dr Ambi S T Singam 12

3. High Court (HC)

• Established under Article 121(1) of the Federal

Constitution.

• There are 2 High Courts of co-ordinate

jurisdiction in Malaysia:
(i) High Court for West Malaysia
(ii) High Court in Sabah and Sarawak

• Each of the two High Courts is headed by a

Chief Judge.
05/02/2020 Dr Ambi S T Singam 13
 High Court (HC)
• Sections 22, 23 and 24 of Courts of Judicature Act 1964 lay
down the criminal and civil jurisdiction of the High Court.
• Deals with offences punishable with death.

• The general jurisdictional rule in relation to criminal matters is

reflected in Section 22(1)(a) of the Courts of Judicature Act
1964.

• Has unlimited jurisdiction to try all civil proceedings within

the local jurisdiction of the court.

05/02/2020 Dr Ambi S T Singam 14

4. Sessions Court (SC)

• A SC is under the charge of a SC judge.

• Under Section 54 of the Subordinate Courts Act, the

SC assumes a limited supervisory role over the
Magistrates’ and Penghulu’s courts.

• The purpose for such action is to ensure the

correctness, legality or propriety of the decision
recorded or arrived at, and the regularity of the
proceedings.

05/02/2020 Dr Ambi S T Singam 15

SESSIONS COURT:
 Criminal Jurisdiction – all offences other than offences
punishable with death.
 May pass sentence allowed by law other than the
death sentence.

 Civil Jurisdiction– try all actions and suits of a civil

nature where the amount in dispute or value of the
subject-matter does not exceed RM1,000,000.

05/02/2020 Dr Ambi S T Singam 16

5. Magistrates’ Court (MC)

 For the Federal Territory, magistrates are appointed

by Yang di-Pertuan Agong on the recommendation of the
Chief Judge.

 In each of the States, magistrates are appointed by the

State Authority on the recommendation of the
respective Chief Judges.(Section 78 of the Subordinate
Courts Act 1948).

 This court has the jurisdiction to hear civil cases and

criminal cases.

05/02/2020 Dr Ambi S T Singam 17

 Magistrates’ Court
 This court has the jurisdiction to hear civil cases and criminal cases. There are two
(2) types of classes of magistrate i.e. First Class and Second Class

 First Class Court:

◦ Criminal – To try all offences punishable with up to 10 years imprisonment or

with fine only and offences related to punishment for robbery and house
breaking by night. (Sec 85 Subordinate Courts Act)
◦ Civil - To try all litigations where the matter in dispute or subject matter does
not exceed RM100,000.

 Second Class Court:

◦ Civil - Performs minor function i.e. granting bail, mentioning cases.

◦ Criminal – Only to deal with cases where the maximum punishment imposed is
no more than 12 months imprisonment or which is punishable with a fine only.

05/02/2020 Dr Ambi S T Singam 18

Subordinate Courts (Amendment) Act 2010

• Sessions Court and Magistrates’ Court will have jurisdiction

over civil claims of up to Ringgit Malaysia One (1) million and
Ringgit Malaysia 100,000.00 respectively.

• The Sessions Court is also conferred with the power to grant

injunction, declaration, specific performance, rescission of
contract.

• However, only selected Sessions Court judges with adequate

training and experience will be tasked with hearing such
applications.

05/02/2020 Dr Ambi S T Singam 19

6. Magistrates’ Court for Children (MCC)

• Established under the Child Act 2001 (Act 611).

• Section 2 of the Act defines “Child” as a person under the age of eighteen years,
and for the purposes of criminal proceedings, means a person who has attained
the age of ten.

• It can try all offences except those punishable by death and it is presided by a
First Class Magistrate and 2 advisors.

• The philosophy of creating a special court is that children need care and
attention and offenders should be treated differently from adult ones and with
compassion.

• When a juvenile is found guilty, they are sent to ‘corrective’ school i.e. Henry
Gurney School, Melaka.

05/02/2020 Dr Ambi S T Singam 20

7. Penghulu’s Court

• At the lowest level of the court hierarchy in West

Malaysia.
• Presided by a Penghulu or Headman appointed by
the state government for a mukim which is an
administrative district.
• Jurisdiction- To try civil disputes where the subject-
matter does not exceed RM50 in value and in
criminal cases, to impose a fine not exceeding RM25.

05/02/2020 Dr Ambi S T Singam 21

 SUBORDINATE AND HIGH COURTS

05/02/2020 Dr Ambi S T Singam 22

 THE SUBORDINATE & HIGH COURTS

05/02/2020 Dr Ambi S T Singam 23

 PALACE OF JUSTICE

05/02/2020 Dr Ambi S T Singam 24

 FEDERAL & APPEAL COURTS

05/02/2020 Dr Ambi S T Singam 25

 JUDGES & LAWYERS

05/02/2020 Dr Ambi S T Singam 26

 SOURCES OF LAW

05/02/2020 Dr Ambi S T Singam 27

05/02/2020 Dr Ambi S T Singam 28
 Alternative Dispute Resolution
The methods of (ADR) in Malaysia are principally mediation,
conciliation, adjudication and arbitration. Tribunals are set-
up under statutes to provide expertise, speed and less
expensive form of dispute resolution.

ADR are becoming increasingly popular mechanisms to

resolve disputes.
- litigation as time-consuming
- ADR would save time costs, can resolve their disputes in
confidence
- it will not create ill-will or animosity as it sometimes
does, in litigation.

05/02/2020 Prepared by: Ambikai S T Singam 29

 Consumer Protection
 Consumers are protected from products, services and
manufacturing processes that may endanger their
health and life.
 have the right to obtain accurate and precise facts
about products and services. A supplier and
manufacturer are prohibited to use misleading and
deceptive conduct, false misrepresentation and unfair
claims in selling the product or service to you.
 A consumer cannot be forced to buy a product or
service. They have the freedom to buy the product or
service.
 has the right to claim for damages from
unfair practices from the supplier or manufacturer.

05/02/2020 Prepared by: Ambikai S T Singam 30

 Tribunal for Consumer Claims
independent body established under s. 85
Consumer Protection Act 1999 ( to be
amended to CPA 2010)
Operates under Ministry of Domestic Trade,
Co-operatives and Consumerism.
Primary objective - provide alternative
forum for consumers to file claims in a
simple, inexpensive and speedy manner.

05/02/2020 Prepared by: Ambikai S T Singam 31

 Tribunal For Homebuyers Claim
• Established by Ministry of Housing and Local Government
under the Housing Developers (Control and Licensing)
(Amendment) Act 2002

• To provide channel for homebuyers to claim for compensation

from housing developer easily.

• homebuyer must be an individual purchaser.

• Claim can be technical (involves substandard work or non-
adherence to the specifications as stated in the SPA) or non-
technical claim (e.g. late delivery of possession of property)
• claim does not exceed RM50,000 unless both parties agree
Tribunal should decide on it

05/02/2020 Prepared by: Ambikai S T Singam 32

 Marriage Tribunal
S 106 Law Reform (Marriage and Divorce) Act
1976.
Under the National Registration Department
For non-muslims only
For reconciliation.
Must have Tribunal’s certificate in
order to get court order for divorce.

05/02/2020 Prepared by: Ambikai S T Singam 33

 Mediation
less expensive but carries weight of court
ruling.
confidential.
flexibility in crafting solutions within realm
of legality.
helps mend and build relationships and
trust esp. in family disputes.
mediation is about dialogue not
arguments.

05/02/2020 Prepared by: Ambikai S T Singam 34

 Mediation
• may have 1 or 2 mediators assisting parties
to facilitate agreement.
• Do not make decisions for parties, just help
them reach agreement.
• any type of dispute can be mediated e.g.
labor, property. Exceptions - child abuse or
neglect, domestic violence, criminal
offences.

05/02/2020 Prepared by: Ambikai S T Singam 35

 Mediation Bodies
Malaysian Mediation Centre (MMC) -established in 1999,
by Bar Council. Objective - promoting mediation as means
of alternative dispute resolution and provide proper
avenue for successful dispute resolutions.

Financial Mediation Bureau (FMB)

•Set up by Bank Negara Malaysia in 2005.
•provides faster, convenient, efficient, independent and
impartial avenue for dispute resolution
•Disputes may be between insurers & policyholders,
consumers & financial institutions
•members - representatives of public & consumer
interests & representatives of members of
Bureau.

05/02/2020 Prepared by: Ambikai S T Singam 36

 Arbitration
• parties agree that disputes between them will be
resolved by arbitration.
• Governed by Arbitration Act 2005.
• The Arbitration Tribunal - Arbitration Act 2005 - in
the event parties silent on number of arbitrators,
tribunal shall consist of 1 arbitrator and for
international arbitration 3 arbitrators.
• S. 36 Arbitration Act 2005 - award by arbitrator is
final and binding.
• Conduct of proceedings and appointment
of arbitrator is for parties to determine.

05/02/2020 Prepared by: Ambikai S T Singam 37

 Conciliation
• This is a compulsory conciliation (mediation) procedure at
the Ministry of Human Resources. ... The purpose of
conciliation is to obtain an amicable settlement of a dispute
through the resolution of issues with the help of the
conciliator (mediator i.e. Industrial Relations Officer).
• Conciliation is an alternative out-of-court dispute resolution
instrument. Like mediation, conciliation is a voluntary,
flexible, confidential, and interest based process. The parties
seek to reach an amicable dispute settlement with the
assistance of the conciliator, who acts as a neutral third
party.
• The selected arbitrators then shall resolve the dispute and
render an arbitration award which is final and binding. For
conciliation, a third party shall play the role of a conciliator
helping the parties to resolve dispute through negotiation.

05/02/2020 Prepared by: Ambikai S T Singam 38