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LU1 Part 2: Malaysian Legal System - Coggle Diagram
LU1 Part 2: Malaysian Legal System
1.0 Basic About Courts:
1.1 The doctrine of Judicial precedent
Superior courts will be making decision for common law
The decision from superior courts will be follow by lower court from it
The judges will do research and make decisions if the recent cases is similar to previous ones. This condition called
PRECEDENT
1.2 Precedent & Case Law (Based on Hierarchy)
For
LOWER
status court to other court: The judge don't have to follow the precedents but must
consider and not overrule
without consideration (persuasive precedents)
For
EQUAL/HIGHER
status court to other court: The recent cases should be decide based previous similar cases by binding its previous precedents
1.3 Types of Judicial Precedents:
Declaratory precedents: A judge applies
an existing rule
of law w/o extending it
Original precedents: When previous case is
without precedent
, a judge should make a decision based on justice, equity and good conscience.
1.4 Rules of Precedent
Court of Appeal: bound to the decisions from Federal Court ( still binding to the decisions of the court itself with other inferior courts)
High Court: consist of many divisions ( the decisions of every division did not bound to another division
BUT
binding to the decisions from inferior courts)
Federal Court: make the decisions on its own (still binding to the decision of other courts below)
2.0 Hierarchy of Courts and Administration
Geography of Malaysia:
West Malaysia (Peninsular Malaysia): 11 states + 2 Federal Territories
East Malaysia (Borneo): Sarawak + Sabah + Federal Territory of Labuan
NOTE
: West and East Malaysia have their own courts. Both parts have Supreme Court and Court of Appeal
3.0 Types of Court and Legal System
3.1 The Highest Court - Federal Court
Types and roles of Jurisdiction:
Appellate Jurisdiction: To hear the
appeals
from Court of Appeal and High Court
Revisionary Jurisdiction
Determine the questions arise before another court
Determine the effect of any provision under the Federal Constitution
Original Jurisdiction
Determine the law made by Parliament/Legislation of any states
Determine the disputes between states + states
or
between state + Federation
Advisory Jurisdiction
Be a reference to YDPA for opinions + advising for effects of any provision of Constitution +
History:
01/01/1985, the Federal Court renamed to Supreme Court by the Constituition (Amendment) Act 1983. Article 131, means taht 2-tier appeal process for decisons of the HC was reduced to 1 tier.
(cont.)
9 years later, Supreme Court was renamed to Federal Court on 24/06/1994 by the Constitution (Amendment) Act 1994. the honorific title "Lord President" was to "Chief Justice".
(cont.)
After SG's secession on 9/08/65, only remain: H.C of Malaya & H.C of Borneo.
(cont.)
After the amendment, the Federal Court's appellate jurisdication now comprises appeals from the Court of Appeal.
(cont.)
Supreme Court : established under Federation of Malaya Agreement 1948. Then, replaced by Federal Court & 3 H.C of coordinate juridiction: H.C of Malaya, H.C of SG & H.C of Borneo.
3.0 Types of Court and Legal System
3.2 Court of Appeal
24/06/1994, Court of Appeal was established under the Court of Appeal Act 1994. Initially, COA got President of COA who was the chairman for the COA and 10 other COA judges. The president of COA is also the member of the Federal Court.
Based on the Article 122A of the Federal Constitution, max. no of judges is 32.
Federeation of Malaya Agreement 1948, Supreme Court which consists of HC & Court of Appeal was established.
3.0 Types of Court and Legal System
3.3 High Court
The High Court in Sabah and Sarawak consisted of the Chief justice (now Chief Judge) and not less than 4 and not more than 8 other judges.
High Court in Malaya consisted of Chief Justice (now Chief judge) & not less than 4, not more than 12 other judges
Based on Article 122a of Federal Constitution, the present maximum number of judges is 60 for the High Court in Malaya and 13 for the High Court in Sabah and Sarawak.
Judicial Commissioners have been appointed, over the years, both High Courts to facilitate the disposal of case.
High court in Malaya and High Court in Sabah & Sarawak presided by the "Chief Judge" by the amendments made to Federal Constitution by Constitution (Amendments) Act 1994
3.0 Types of Court and Legal System
3.4 Subordinate Court
1980: The Subordinate Courts Act (Extension) Order 1980 made under section 74 of the Malaysia Act 1963, extended the Subordinate Courts Act 1948 to Sabah and Sarawak with effect from 1st June 1981.
The Court of a Magistrate of the First Class and the District Court became the Session Courts, while the Courts of a Magistrate of the Second Class and of a Magistrate of the Third Class, as well as the Police Court, the Court of Small Causes & the Petty Courts were all renamed as the Magistrates’ courts.
1963: Section 88 of the Malaysia Act 1963 continued the subordinate courts of the Federation of Malaya and of Sabah and Sarawak until otherwise provided by federal law
Magistrates and Magistrate of the First Class became Presidents of the Sessions Court, while Second Class and Third Class Magistrates became Second Class Magistrates
1948: Under the Federation of Malaya Agreement 1948, subordinate courts could be constituted by laws made under the Agreement. The Law also provide for appeals from such courts to the Supreme Court.
On 22nd May 1987: The title of “President of the Session Court” was replaced with the title of “Sessions Court Judge” by amendments made by the Subordinate Courts (Amendment) Act 1987
3.0 Types of Court and Legal System
3.5 Sessions Court
Civil jurisdiction
Cases:
accident claims
argument between landlord + tenants ( RM 100k - RM 1M)
Criminal jurisdiction
Hear ALL cases EXCEPT cases that involving death penalty
3.0 Types of Court and Legal System
3.6 Magistrate Court
Civil jurisdiction
Cases:
Disputes/ claims less than RM100k
Criminal jurisdiction
Hear ALL criminal cases related to fine (not exceeding RM10k and/or 12 of whipping) & imprisonment (not exceeding 5 years)
4.0 Commissioner for Oaths
Commissioner for Oaths Rules 2018: have the power to perform
Receive acknowledgement of married woman where required by law
Receive acknowledgement of recognizances of bail/bail bonds
Administer Oaths for justification for bail, taking and receiving statutory declarations (sworn statements), any person who'll be attending court proceedings etc.,
Certify the marriage
Who is a Commissioner for Oaths?
A person selected by Chief Justice of Federal Court
Can be appointed from a lawyer/public officer
Section 11(1) of Court of Judicature Act 1964
Commisioner for Oaths Rules 2018
Objectives
Manage the affairs of all Commissioners for Oaths in an efficient, competent and organized manner
Ensure the effectiveness of duties carried out by Comissioners for Oaths to make an indirect contribution to Malaysian Judiciary
Roles of Commissioner for Oaths
Supervise & update the Directory of the Commissioner for Oaths for all types of appointments
Be the source of reference & authentication in relation period of appointment
Process all application for appointment of Commissioner for Oaths
Undertake the supervision, conduct examnination and interview for appointment and reappointment of all Commissioner for Oaths