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Malaysian Courts System - Coggle Diagram
Malaysian Courts System
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Magistrate's Court:
- Lowest in the hierarchy of courts but most important
- Established under S76 SCA 1948
Jurisdiction:
- General jurisdiction to try criminal & criminal cases in local limits and jurisdiction assigned to it. If no jurisdiction assigned, arising in any part of local jurisdiction of respective HC.
- Can issue summons, writs, warrants/other processes & make interlocutory/interim orders including orders on adjournement, remand & bail
- Can also conduct inquests / inquiries of death
First Class Magistrate
- Has original and appellate jurisdiction
Civil matters:
- S.90 SCA 1948 - a 1st class magistrate has jurisdiction to try all actions where the amount in dispute or value of subject matter does not exceed RM25,000
- SC(Amendment) Act 2010 – RM100,000
- S.93(1) SCA 1948: a 1st class magistrate may hear a case where the amount in dispute or value of the subject matter is more than RM100,000 if both parties agree in writing. In such case, ss.65(3)&(4), 66-70 & 72-74 SCA 1948 applies.
Criminal matters:
- S.85 - A 1st class magistrate may hear cases of offences punishable with up to 10 years imprisonment or fine only
- Including offences under ss.392 (robbery) & 457 (lurking, house trespass or housebreaking in order top commit an offence) of the Penal Code
- Sentencing powers are provided under s.87(1) of the SCA 1948 – not exceeding:
- 5 years imprisonment;
- Fine of RM 10,000
- Whipping up to 12 strokes or
- A sentence in combination of the above
- But if magistrate feels the need for more severe punishment than the ones listed is needed, can reward FULL PUNISHMENT as provided by law and must give reasons for doing so - S87(2) SCA 1948
- Magistrate can pass sentence in excess than provided in S87(1) provided she was given the power to do so by any law in force - proviso to S87(1)
Appellate jurisdiction:
- A 1st class magistrate has jurisdiction to hear & determine both civil & criminal appeals from any decision of the Penghulu Court, within local limits of her jurisdiction - S86 & 91 SCA 1948
- But the SC (Amendment) Act 2010 repealed both sections
Small Claims Procedure:
- Simplified, inexpensive & fast process for claims not more than RM5000
- Heard before a 1st class magistrate with enhanced jurisdiction
- Initially for recovery of debt / liquidated demand in money. Was broaden to include any claims provided the amount not more than RM 5000
Second Class Magistrate
- Only original jurisdiction
Civil matters:
- S.92 SCA 1948 - a 2nd class magistrate has jurisdiction to try case where the amount in dispute or value of subject matter does not exceed RM3,000
- SC Amendment Act 2010 - RM 10,000
Criminal matters:
- Only cases where maximum penalty is 12 months imprisonment or those punishable with a fine only - S.88 SCA 1948
- If he thinks the punishment is inadequate, the case must be adjourned for trial by a 1st class magistrate – proviso to s.88
- A 2nd class magistrate may pass a sentence (i) imprisonment not more than 6 months, (ii) a fine not exceeding RM10,000, or (iii) a combination of those sentences.
- Appeals against the decision of the Magistrate’s Courts lie in the HC – Courts of Judicature Act 1964 ss 26-28
- Normally appeals for cases less than RM 10,000 won't make it except cases on maintenance of wives & children
Sessions Court:
- Established under S.59 of the Subordinate Courts Act 1948
- Only 1 sessions court judge per court
The Subordinate Courts (Amendment) Act 2010 (Act A1382) came into force on 1st March 2013
- Under amended Subordinate Courts Act 1948, jurisdiction of the Subordinate Courts (especially the Sessions Court) has been enhanced significantly.
Jurisdiction:
- A SSC has power to try both civil & criminal cases within local limits of its jurisdiction
Original jurisdiction
Civil matters
- SS.65 of the Subordinate Courts Act 1948
- SSC has unlimited jurisdiction to try all civil actions concerning motor vehicle accidents, landlords & tenants & distress S.65(1)(a)
- Subordinate Courts (Amendment) Act 2010, s.65(1)(c) - jurisdiction to try all actions and suits of a civil nature for the specific performance or rescission of contracts or for cancellation or rectification of instruments, within the jurisdiction of the Sessions Court
- SSC has jurisdiction to hear cases where amount in dispute / value of the subject matter does not exceed RM250,000 - S65(1)(b)
- Amended by Subordinate Courts (Amendment) Act 2010
- Subordinate Courts (Amendment) Act 2010 also added subsection (5) to S.65 SCA
- SSC may now within jurisdiction in any proceedings before it -
- (a) grant injunctions; and
- (b) make a declaration, whether or not any other relief, or remedy is or could be claimed".
- S.66(1) - in matters or suits where the amount is beyond the jurisdiction of the SsC, the court can still hear the matter but no relief beyond its jurisdiction may be awarded
- S.67 - A plaintiff may relinquish any portion of his claim in order to bring the action or suit within the jurisdiction of the Sessions Court, but he shall not afterwards sue in respect of the portion so relinquished.
S.69 - matters outside the jurisdiction of the SSC:
- (a) relating to immovable property except as provided in S70 and 71
- (e) to enforce trusts
- (f) for accounts
- (g) for declaratory decrees except in interpleader proceedings
Under Section 73:
- (h) for the issue / revocation of grants of representation of the estates deceased persons / administration or distribution thereof
- (i) wherein the legitimacy of any person is in question
- (j) wherein the guardianship / custody of infants is in question; and
- (k) except as specifically provided in any written law for the time being in force, wherein the validity or dissolution of any marriage is in question.
Supervisory Jurisdiction
Criminal matters
SS.63-64 SCA 1948:
- SSC may try all offences other than those punishable with death & may pass all sentences except the death sentence
Civil matters
S54 SCA 1948 - the SSC has supervisory jurisdiction over Magistrate Courts & Penghulu Courts
- (1) Sessions Court judge can call and examine record of any civil proceedings before a Magistrates Court / Penghulu Court within local limits of jurisdiction of the Sessions Court, whichever it may satisfy the judge in terms of correctness, legality / propriety of any decision recorded / passed, and to regularity of any proceedings of that court.
- (2) If Sessions Court judge acting under Subsection (1) considers that any decision of a Magistrate's Court / Penghulu's Court is illegal / improper, with such remarks thereon as he thinks fit, to the HC
Appeals:
- All appeals from the SSC goes to the HC
High Court:
- There are 2 HC's of equal jurisdiction and status: (i) HC in Malaya (ii) HC in Sabah & Sarawak
- Both established by Art 121(1) of the Federal Constitution (Amendment) Act 1988. Jurisdiction & powers are conferred by federal laws
- Each HC only tries a case from its territory but can try a case from another territory with consent in the case or matter
- S.3 CJA 1984 & S2(1) Subordinate Court local jurisdiction
- Every proceeding in the HC is heard by a single judge except as provided for by an written law
4 Types of Jurisdiction:
- Original jurisdiction
- Appellate jurisdiction
- Revisionary & Supervisory Jurisdiction
- Review of the Decision of Other Judicial & Quasi Judicial Bodies / Administrative Tribunals
- Original Jurisdiction:
- Unlimited jurisdiction in civil & criminal matters - can hear any case but usually those outside the jurisdiction of the subordinate courts
Civil matters
S.23 CJA 1964 subject to Art 128 of the Federal Constitution - the HC can hear a civil case where:
- (i) The cause of action arose
- (ii) D or one of several D's resides or has his place of business;
- (iii) The facts on which the proceedings are based exist of are challenged to have occurred; and
- (iv) Any land, the ownership of which is disputed, is situated within the local jurisdiction
S24 CJA 1964 - The HC has jurisdiction to hear cases which subject to matter includes:
- (i) Divorce & matrimonial causes;
- (ii) Admiralty matters
- (iii) Bankruptcy & companies
- (iv) Appointment & control of guardians of infants & generally over the persons & property of infants
- (v) Appointment & control of guardians & keepers of the persons & estates of idiots, mentally disordered persons & persons of unsound mind
- (vi) Granting, altering / revoking probates of wills & letters of administration of the estates of deceased persons leaving property within the court's territorial jurisdiction
Criminal matters
General rule: HC has jurisdiction over everyone & offences committed within its territory - S.22 (1)(a)(i) CJA 1964
- Exception to general rule - S.22 (1)(a)(ii) - (iv) CJA 1964: gives the HC jurisdiction to hear cases for offences committed by citizens & permanent residents as well as offences committed outside Malaysia
- (i)...
- (ii) on the high seas on board any ship or any aircraft registered in Malaysia
- (iii) by any citizen or any permanent resident on the high seas on board any ship or on any aircraft; and
- (iv) by any person on the high seas where the offence is piracy by the law of nations
S.22(1)(b) CJA 1964 - extends the extraterritorial jurisdiction of the HC
- Offences under Chapter VI of the Penal Code [Act 574] and under any of the written laws specified in the Schedule to the Extra-Territorial Offences Act 1976 [Act 163] or offences under any other written law the commission of which is certified by the Attorney General to affect the security of Malaysia
- Chapter VI of the Penal Code refers to offences against the State
- Offences specified in Schedule of the Extraterritorial Offences Act 1976 refers to Offences under the Official Secrets Act 1972 (Revised 1988) & Sedition Act 1948 (Revised 1968)
- Other statutes providing for extraterritorial offences are the Prevention of Corruption Act 1961 (Revised `971) (S.22), & the Penal Code (Amendment) Act 1986
- Appellate Jurisdiction:
- The HC can hear appeals for subordinate courts in both civil & criminal matters
- Including quasi-judicial bodies if its allowed by law
Civil matters
S.28 CJA 1964 referring to S.28 of the same:
- The HC can only hear an appeal from a subordinate court in a civic matter where the amount in dispute / value of the subject worth less than RM10,000 except on a question of law.
- The monetary limit does not apply to cases of maintenance of wives / children - S.28(2) CJA 1964
Criminal matters
S.26 CJA 1964 - HC can hear appeals from subordinate courts according to any law in force within territorial jurisdiction of the HC
- Restrictions SS.304 - 6 of the Penal Code:
- No appeal can be made to the HC from a subordinate court involving an offence punishable with a fine no more than RM25
- No person who has pleaded guilty & convicted can appeal except to the extent / legality of sentence
- No appeal against an acquittal can be made except with or by written sanction of the Public Prosecutor
- Revisionary & Supervisory Jurisdiction
- S.31 CJA 1964: HC has the power to revise criminal proceedings in subordinate courts in accordance with any law in force concerning criminal procedure
- S.32 CJA 1964: HC has power to call & examine the record of any civil proceedings before any subordinate court to consider correctness, legality / propriety of any decision recorder or passed and as to regularity of proceedings of a subordinate
- S.33 CJA 1964: - In case of any civil proceedings in subordinate court in the record of which has been called for... HC... can direct a new trial, when it seems necessary to secure substantial justice is done
S.35 CJA 1964:
- HC shall general supervisory and revisionary jurisdiction over all subordinate courts, and can if it appears desirable in interests of justice, either at the motion / instance of any party or person interested at any stage in any matter of proceedings, whether civil / criminal in any subordinate court, call for the record and can remove the same into HC or may give subordinate court such directions as to further conduct of the same justice may require.
- HC with its supervisory capacity can exercise control over Native Courts through prerogative writs if there is:
- (i) lack of jurisdiction,
- (ii) blatant failure to perform a statutory duty,
- (iii) breach of natural justice
- Before Art 121(1A) of the Federal Constitution, the HC also had supervisory jurisdiction over Syariah Courts. But the Constitution (Amendment) Act 1988 which added Clause (1A)
- had removed the HC's jurisdiction over any matters within jurisdiction of Syariah Courts.
- Review of the Decision of Other Judicial & Quasi Judicial Bodies / Administrative Tribunals
S.25(2) CJA 1964:
- Read together with S1 of the Schedule to the Act - gives power to HC to issue orders / writs:
- Writs with nature of habeas corpus - court order that requires a person under arrest to be brought before a judge / into court
- Mandamus Order - order from court to an inferior government official to properly fulfil their official duties / correct an abuse of discretion,
- Prohibition, quo-warranto - an order requiring the person to whom its directed to show what authority they have for exercising some right / power to claim to hold
- Certiorari Order - a writ seeking judicial review issued by a superior court, directing an inferior court, tribunal or other public authority to send record of proceeding for review.
Court of Appeal (CA):
- Established in 1994 via Art 121(1B) of the Federal Constitution
- Constitution (Amendment) Act 1994 & the Courts of Judicature (Amendment) Act 1994 to provide an additional level of appeal & to relieve the workload of the FC
- Consists of President of the CA, & unless the YDPA orders otherwise, 22 other judges
- A HC judge can sit in the CA if the President thinks its in the interest of justice
- Quorum: normally 3 but may be a greater uneven number if the case so requires
Jurisdiction CA:
- Only appellate jurisdiction
- To hear appeals arising from HC or HC judge thereof
- except a decision of a HC given by Registrar or any other officer of the court, & appealable under federal law to a judge of the court
- Any other jurisdiction conferred to it by or under federal law.
The CA has power to:
- Summary dismiss an appeal
- Confirm, reverse or vary the decision of the trial court
- Order a re-trial or remit the matter with its opinion to trial court
- Make order in matter when it deems just, by that order exercise any power that the trial court might have exercised
- Quash sentence passed by trial court & pass other sentences it deems a different sentence should have been passed - SS60(1) & (2) CJA 1964
Civil matters
S.67 CJA 1964:
- CA has jurisdiction to hear & determine appeals from any judgement or order of any HC in any civil cause or matter, whether made in its original or appellate jurisdiction
S.68 CJA 1964 (restriction to the jurisdiction under S67):
- (a) Where amount / value of the subject matter of the claim (exclusive of interest) is less than RM250,000, except with leave of the CA
- (b) Where judgement / order is made with consent of the parties
- (c) Where judgement / order relates to costs only, that by law are left to discretion of HC except with leave of the CA
- (d) Where any written law for the time being in force, the judgement / order of the HC is expressly declared to be final
The CA may:
- Order a new trial (S.71) irrespective if the matter was heard by the HC in its original / appellate jurisdiction where the CA finds that some substantial wrong / miscarriage of justice has occurred.
- Reverse or decision of the HC or even order a new trial if an error or defect or irregularity occurred but did not affect the merits / jurisdiction of the HC
Criminal matters
- S.50(1) CJA 1964 - CA can hear a criminal appeal against any decision of the HC in its exercise of original and appellate or revisionary jurisdiction of any criminal matter decided by Sessions Court
- S.50 (4) - an appeal can also be made on a question of fact or a question of law or a mixture of both
- S.50(2) - CA can also hear appeals from Magistrate's Courts. In criminal matters, exercise of its revisionary jurisdiction with its leave
- Only applies to questions of law that has arisen in course of appeal or revision & determination of which the HC has affected the event of the appeal / revision
- But, S50(3) states that no leave of the CA is required when appeal is made by Public Prosecutor. Only notice of appeal by Public Prosecutor is needed. Notice must be given by / with consent in writing only by said officer
Federal Court:
- Highest court in Malaysia, final court of appeal
- Established under Art 121(2) of the Federal Constitution
- Consists of Chief Justice of FC, President of the CA, Chief Judges of the 2 HC's & (until the YDPA otherwise orders) 8 other judges appointed under Art.122(1A) of the Federal Constitution
- A judge from the CA (apart from the President) may sit in the FC when Chief Justice deems fit
- Quorum: minimum 3 judges or more
Per Art 121(2) of the Federal Constitution:
- (2) There will be a court known as Mahkamah Persekutuan (Federal Court) and will have its principle registry at the place of the YDPA may determine, and the Federal COurt will have the following jurisdiction that is to say:
- (a) jurisdiction to determine appeals from decisions of the CA, of the HC or a judge thereof;
- (b) such original / consultative jurisdiction as is specified in Art 128 and 130; and
- (c) such other jurisdiction as may be conferred by or under Federal law.
4 Types of Jurisdiction:
- Original Jurisdiction
- Appellate Jurisdiction
- Referral Jurisdiction
- Advisory Jurisdiction
Art 128(1) of the Federal Constitution gives the FC powers to:
- Determine validity of a Federal or State law;
- Decide disputes on any other question between States & the Federation / Federation & a State;
- And in such dispute the FC may give only a declaratory judgement
The FC may order a new trial for any case or matter tried by the HC in its original or appellate jurisdiction - S.96 Courts of Judicature Act 1964:
- S.100 CJA 1964 - such an order (a new trial) may not be granted unless the FC feels that a failure of justice has occurred
Civil matters
S.96 of Courts of Judicature Act 1964 - an appeal can be made from CA to the FC with leave from the FC
- (i) From any judgement or order of the CA concerning any civil cause or matter decided by the HC in the exercise of its original jurisdiction involving a question of general principle decided for the 1st time or a question of importance where further argument + decision is needed
- (ii) From any decision as to effect of any provision of the Federal Constitution including the validity of any written law concerning any such provision
Criminal matters
- S.87(1) CJA 1964 - The FC has jurisdiction to hear and determine appeal from any decision of the CA in its appellate jurisdiction concerning any criminal matter decided in its 1st instance by HC
- S.87(3) CJA 1964 - An appeal may be on a question of fact or a question of law or both
- S.90 CJA 1964 - that FC may dismiss an appeal that comes before it
- It may also reverse, confirm or vary the decision of the CA or order retrial / remit the matter with its opinion to the HC or make any order deem fit.
- FC has power to decide a question that has risen in another court concerning the interpretation / effect of any provision of the Federal Constitution that is referred to it in the form of a special case
- When decided, FC remits the case back to trial court to be disposed off in accordance with that decision
- Art 130 - YDPA can refer to the FC any question concerning the effect of any provision in the Federal Constitution that has arisen / is likely to arise
- Opinion on such matters will be in the form of a declaratory judgement
- Only urgent political considerations / matters of great urgency
Courts of Special Jurisdiction:
- Established under Part XV of the Federal Constitution, added via the Federation Constitution (Amendment) Act 1993
- Art.182 Federal Constitution - Special Court, will consist of the Chief Justice of the FC, the Chief Judges of the HC & 2 other persons who hold or have held office of the FC or HC appointed by the Conference of Rulers
- Decision is final and cannot be challenged
- When a YDPA / Ruler is charged in a Special Court, he will cease to exercise the functions of the YDPA or Ruler
Where a Ruler is convicted of an offence & sentenced to imprisonment for more than a day, he ceases to be the Ruler of the State unless he receives a free pardon from the Conference of Rulers - 8th Schedule, para 1A(3) read together with Art 42(12)
Jurisdiction:
- Only original jurisdiction
- Art 182(3) Federal Constitution - the Special Court has jurisdiction to hear all cases involving the YDPA or Ruler of a State in his personal capacity
- Does not have jurisdiction to hear cases involving the Regent of a State
- DYTM Tengku Idris Shah ibni Almarhum Sultan Salahuddin Abdul Aziz Shah v Dikim Holdings Sdn Bhd & Anor [2002] - The special court has no jurisdiction to hear a case involving a Regent. Hence any proceedings against a Regent in his personal capacity lies with ordinary courts per Art 121 & the SCA 1948
- Cannot be instituted without the consent of the Attorney General personally - Art 183 Federal Constitution
- Only Malaysian citizens can institute an action against the YDPA / Ruler of the state - Faridah Begum bt Abdullah v Sultan Haji Ahmad Shah Mestain Billah (1996)
Court for Children
Established by the Child Act 2001:
- Replaced the Juvenile Courts established under the Juvenile Courts Act 1947
- Main focus to protect the interest of children appearing before them
- S2 CA 2001 Definition of a "child" - a person under 18 years, & in the event of a criminal proceeding, a person who has attained the age of criminal responsibility that is 10 years - S.82 Penal Code
- A Court for Children includes a magistrate assisted by 2 advisors, 1 must be a woman
- Advisors are persons appointed by the Minister from a panel of persons resident in the state / territory concerned
- Function: Advise court concerning ay issues / matter that could affect the order made upon finding of guilt / other related treatment of a child offender, & if needed to advise the parent / guardian of the child
- S.12 CA 2001 - measures to ensure juveniles are protected from publicity & away from the adult criminal justice system
Jurisdiction:
- A CFC has jurisdiction to try all offences committed by a child except those punishable by death, which is tried in normal courts - S.11(5)
- Criminal Procedure Code applies to all CFC as the CFC are Magistrates Courts - S.11(6) CA 2001
- A child offender can only be "found guilty" & "order upon finding of guilt" instead of "convicted" & "sentenced"
- Before finding of guilt, CFC must consider the probation report & the opinion of both advisors
- Probation report prepared by probation officers containing information regarding child's general conduct, home surroundings, school surroundings etc
- Opinion of both advisors must be recorded & considered but can be accepted. Reasons for not accepting their opinions must be recorded
Category of orders
- Sending the child to an approved school e.g. Henry Gurney
- Whipping with a light cane
- Imprisonment can be awarded by the Sessions Court if the offender is 14 years & above & and the offence is punishable with imprisonment
- S.97(1) CA 2001 - CFC cannot record a death sentences against a child found guilty of an offence
- As an alternative to the death sentence, child may be detained in prison at request of YDPA / ruler of state depending on venue of the offence - Subsection (2)
- Exception: where its a security. Child will fall under provisions of the Essential (Security Cases) Regulations 1975 (ESCAR)
Native Courts of Sabah & Sarawak
- Native Courts have no jurisdiction over matters in the jurisdiction of the Syariah Courts & over criminal offences except as provided by federal law
- Native Courts (Criminal Jurisdiction) Act 1991:
- NC have jurisdiction to try any offence under any written law, is punishable with imprisonment for a term not exceeding 2 years / a fine not exceeding RM5000 or a combination of both
Native Courts in Sabah
- Established by Sabah Native Courts Enactment 1992 (No.3 of 1992) - Yang Di Pertua Negeri Sabah
- Comprises of a HC judge as: President & 2 other members who are either District Chiefs / Native Chiefs - appointed by Ministers in charge of native affairs
Jurisdiction of Native Court in Sabah:
Per Section 6 of the Native Courts Enactment 1992 - that the Native courts in Sabah has original jurisdiction over the following matters:
- (a) cases arising from a breach of native law / custom where all parties are natives; or
- (b) cases arising from a breach of native law / custom in respect of religion, matrimony / sex where one party is a native; a written sanction of the District Officer acting on advice of 2 Natives Chiefs to institute proceedings is a requirement where 1 party is not a native
- (c) cases involving native law, customs relating to;
- (i) betrothal, marriage, divorce, nullity of marriage and judicial separation
- (ii) adoption, guardianship / custody of infants, maintenance of dependents and legitimacy
- (iii) gifts / succession testate or intestate; and
- (d) other cases if jurisdiction is conferred upon it by the Native Court Enactment of any written law
Native Courts in Sarawak
Established under the Sarawak Native Courts Ordinance 1992 (No.9 of 1992):
- The NCA & Resident's NC are appellate courts. The rest are courts of original jurisdiction
- Each NC comprises of a presiding officer & 2 or more assessors appointed by the presiding officers, except those in the NCA & Headman's Court
- Rule 34 of the Native Court Rules 1993 - establishment of a panel of assessors in every district
- Appointment of assessors is made by Resident of a Division upon the recommendation of relevant District Officer
- Presiding officer must record & consider opinions of the assessors but not bound to follow. Reasons must be given for not following opinions of assessors
S5 of the Native Court Enactment 1992 provides that Native Courts in Sarawak will have original jurisdiction in the following matters:
- (a) breach of native law / custom where all parties are subject to the same native system of personal law
- (b) cases arising from breach of native law / custom relating to religious, matrimonial or sexual matter where 1 party is a native; and
- (c) civil matters (excluding cases under the jurisdiction of the Syariah Court) where the value of subject matters does not exceed RM2,000 and where all parties are subject to the same native system of personal law
- (d) any criminal case of a minor nature that are specifically enumerated in the Adat / Iban / any customary law whose custom the court is bound and that is adequately punished by a fee not exceeding what the Native Court can award
- (e) any matter in respect of which it may be empowered by any other written law to exercise jurisdiction
Syariah Courts:
- During the early British era, Syariah Courts were placed at the bottom of the court structure - jurisdiction was limited, works of court officials were supervised. More serious cases were referred to the civil courts
- Where there is conflict between the decision of a civil court & a Syariah court, decision of civil court prevails
- Established by state law except in the Federal Territories where its established by federal law
- Item 1: List II State List in the 9th Schedule - Syariah Courts have the jurisdiction only over persons professing the religion of Islam
- Do not have criminal jurisdiction except conferred by federal law
- Syariah Courts (Criminal Jurisdiction) Act 1965 - limited criminal jurisdiction on Syariah Courts - offences committed by Muslims against the precepts of Islam
- Cases punishable with imprisonment up to 3 years or fine up to RM5000 / whipping up to 6 strokes or both
Ainan bin Mahmud v Syed Abu Bakar bin Habib Ysoff & Ors (1939):
- S.112 of the Evidence Enactment where a child in the continuance of a valid marriage overrides the rule of Islamic law that a child born within 6 months is illegitimate.
Syariah Appeal Court:
- Presided by Chief Syariah Judge appointed by YDPA on advice of Minister after consulting Majlis Agama Islam Wilayah Persekutuan (Islamic Religious Council for the Federal Territories)
- A Malaysian citizen
- 10 years prior to appointment has been a Judge of the Syariah High Court / kadi / registrar / a Syariah prosecutor of a state / person learned in Islamic law
- Assisted by 2 judges selected by Chief Syariah Judge from a standing panel of 7 judges
- Panel is appointed for a term of 3 years by the YDPA on advice by Minister after consultation with the Council
- Chief Syariah Judge can appoint the most senior judge of the Syariah CA to act on his behalf in instances he is unable to hear a specific case
Appellate Jurisdiction
- May hear an appeal against the decision of the Syariah Court in exercising its original jurisdiction
- May hear & determine any question of law of public interest that has arisen in course of an appeal against decision of Syariah Subordinate Court to the Syariah HC & the determination has affected the result of the appeal
- Subject to leave from Syariah CA
-
Syariah High Court
- Presided by a Syariah HC judge appointed by the YDPA on advice of the Minister after consultation with the Council
- Qualification of the judge of the Syariah HC is similar of the Syariah CA
Original Jurisdiction
Civil matters:
- All matters listed in S.46(2)(b) - Waqaf, personal & family law & any matter which jurisdiction is conferred by any written law
Criminal matters:
- Offences punishable under:
- The Syariah Criminal Offences (Federal Territories) Act 1997
- The Islamic Family Law (Federal Territories) Act 1984
- Any law prescribing offences against the percepts of Islam
- e.g. Khalwat (close proximity)
Appellate Jurisdiction
Civil matters:
- Where the amount is not less than RM1000, concerns personal status / concerns maintenance of dependants except in decisions made with consent
- May confirm, reverse / vary the decision of the trial court / make any order that the trial court should have made
- May also order retrial
Criminal matters:
- May hear an appeal by the prosecution / accused against an acquittal, conviction / sentence
- May dismiss the appeal, convict & sentence the accused, order a retrial, order the trial court to make further inquiries, alter sentence, reverse an order of the trial court
-
Syariah Subordinate Courts
- Presided by a Syariah Subordinate Court judge appointed by the YDPA on recommendation of the Chief Syariah Judge
Civil matters:
- Has jurisdiction to hear all matters it is authorised to hear
- Limited to proceedings that amount / value of the subject matter does not exceed RM50,000; or the value of the subject matter cannot be estimated
Criminal matters:
- Jurisdiction conferred by the Syariah Criminal Offences (Federal Territories) Act 1997 / any writte law prescribing offences against the precepts of Islam for which the maximum punishment does not exceed RM2000 / imprisonment for a term of 1 year or both