Lecture 2 : Malaysian Legal
System
• a) Malaysian Court Structure
• b) Alternative Dispute Resolution
Malaysian Court Structure
Superior Courts
Federal Court headed by Chief Justice
Court of Appeal – President of the Court of Appeal
High Court – Chief Judge
Subordinate Courts
Sessions Court – Sessions Court Judge
Magistrates Court – Magistrate
Penghulu’s Court – has been abolished.
Jurisdiction of the Courts
Magistrates’ Courts
Second class magistrate:
Civil jurisdiction: value of dispute not exceeding
RM10,000
Criminal jurisdiction : trial of offences for which the
maximum term of imprisonment does not exceed
twelve months’ imprisonment or offences punishable
by fine only
Magistrates’ Courts
First class magistrate
Civil jurisdiction -to try all actions and suits where the
amount in dispute or value of the subject-matter does not
exceed RM100,000
Criminal jurisdiction - all offences for which the
maximum term of punishment provided by law does not
exceed ten years’ imprisonment and all offences
punishable by fine only
Juvenile’s Court
• set up to deal with criminal offenders below the age of
18 years
• consists of a first-class magistrate who is assisted by
two lay advisers, one of whom shall, if practicable, be
a woman
• jurisdiction to try all offences except those punishable
by death
• closed to members of the public in order to protect the
young offender from publicity
• if the offender is aggrieved by any finding or order of
the court, he may appeal to the High Court against the
finding or order
Syariah Court
• Article 5 of Federal Constitution -Islamic law is a state
matter.
• Syariah Courts has jurisdiction over matters of state
Islamic law issues.
• It has no jurisdiction to enforce Federal Laws.
• Those who do not profess the Islamic faith and Muslims
whose disputes do not fall within the purview of the
Syariah Courts are subject to the civil legal system.
• Syariah court listens to mainly concerning family law,
distribution of family assets, and religious observances.
Session’s Courts
Civil jurisdiction - to 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
Criminal jurisdiction - extends to all offences other than
offences punishable by death
Unlimited jurisdiction to hear cases of a civil nature in
respect of motor vehicle accidents, landlord and tenant
and distress.
High Court
• the jurisdiction of the High Court is original, appellate and
supervisory
Original jurisdiction:
• in the exercise of its original jurisdiction, it has unlimited
criminal and civil powers
• Civil jurisdiction - any matter which cannot be determined in
the subordinate courts is heard before the High Court
• Bankruptcy and company winding up matters, guardianship and custody
of non – Muslim children, probate and administration, injunction, specific
performance and marriage of non muslims.
• Criminal jurisdiction – include those punishable with death
High Court
• Appellate jurisdiction – hear appeals from subordinate
courts
• has the power to refer any points of law arising in the
appeal for the decision of the Court of Appeal
• General supervisory and revisionary jurisdiction over all
subordinate courts and its administration.
Court of Appeal
• jurisdiction to hear and determine any appeal against any
High Court decision on criminal matters
• jurisdiction to hear and determine civil appeals generally
for cases where the amount or value of the subject-matter
of the claim is above RM250,000
Federal Court
• the highest court in Malaysia
• has the jurisdiction to:
• Hear civil and criminal appeals from the Court of Appeal
only on point of law
• Exercise exclusive original jurisdiction on those matters
conferred on it under Art 128(1) and (2), Federal
Constitution – matter between state and the Federal
Constitution, validity of federal or state legislation
• Determine constitutional questions which have arisen in
the proceedings of the High Court but referred to the
Federal Court for a decision
• Give its opinion on any question referred to it by the Yang
di-Pertuan Agong concerning the effect of any provision of
the Constitution
Tribunals
•Apart from the court systems, tribunals have also been set
up as a form of dispute settlements.
•Tribunals are set-up under statutes to provide expertise,
speed and less expensive form of dispute resolution.
Tribunal for Consumer Claims
• The tribunal is an independent body established under s.
85 Consumer Protection Act 1999 ( as amended to CPA
2010) intended for the protection of consumers.
• The tribunal operates under Ministry of Domestic Trade,
Co-operatives and Consumerism.
• The primary objective is to provide alternative forum of
dispute resolution for consumers to file claims in a simple,
inexpensive and speedy manner.
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 provided they are individual purchasers.
• 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)
• The claim should not exceed RM50,000 unless both parties agree
Tribunal should decide on it
Alternative Dispute Resolution
• The methods of (ADR) in Malaysia are principally
mediation, conciliation, and arbitration.
• ADR are becoming increasingly popular mechanisms to
resolve disputes since:
• Litigation is time-consuming
• ADR would save time, costs, can resolve their disputes in
confidence
• ADR will not create ill-will or animosity as it sometimes does, in
litigation.
Mediation
• Mediation is a confidential and less expensive form of dispute
resolution, but it carries the same weight of court ruling.
• Flexibility in crafting solutions within realm of legality while it helps
build relationships and trust especially in family disputes.
• Mediation is a method using dialogue compared to arguments and
assertion.
• A mediation process may include 1 or 2 mediators assisting parties to
facilitate the discussion and dialogue who will not make decisions for
parties except to assist the parties to reach an agreement.
• The types of disputes which may be mediated are example, labor
disutes, property disputes, family disputes (except for child abuse or
neglect, domestic violence, criminal offences)
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.
• For conciliation, a third party shall play the role of a conciliator helping
the parties to resolve dispute through negotiation.
Arbitration
• Arbitration is mainly used as ADR for commercial disputes
where the parties have prior agreement that disputes
between them will be resolved by arbitration (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.
• The award will be documented in the form of an
agreement between the parties.
