The Development of Judicial System in Malaysia

The Malaysian legal system is largely based on the English common law system. This is because of the long period of colonization by the British Empire starting in Penang Island from the year 1786 until the independence of Malaya in 1957. Besides that, the development legal system in Malaysia also being affected by many other factors like the rule of Malay Sultanates, the local custom, the spreading of Islamic religion, the immigration of various races into Malaya and many more.

Like many other countries which were colonized before, Malaysia has a plural legal system which means there are two or more legal traditions within a national legal system. Today, the Malaysian legal system consist of the common law, Syariah law and customary law traditions. During the early days, there was no clear separation between the judiciary and executive and this concept only developed here with the arrival of the British. Now, we should look at the historical development of our country legal system.

The Historic Period

One main thing about the judicial system in the ancient times is that there was no judicial independence as the rulers had total control over the law. The records about the administration of justice and the legal system in this land before the British colonial rule are not very clea. The Hindu-Buddhist influence is one of the major factors affecting the development of legal system in early Malaya. Under the Hindu-Buddhist concept, when a certain village or region developed and became a kingdom, the Malay chief or ruler was regarded as the devaraja or semi-divine king who possessed absolute political and legal power and was assisted by the wise-men called Brahmans. So, the king would resolve all the judicial disputes with the helped of his trusted assistants.

Hindu criminal law was very harsh as it was based on the lex talionis [1] because it never changed from the ancient times. But then, retaliation was carried out only against member of lower caste. In the case of equal status, the offenders will only be fined. Hindu law based on the Dharmasutras (law books in prose), Dharmasastra (law books in verse), commentaries and customary law made up the major part of the legal system in South-East Asia during the period between the eighth and the fourteenth centuries.

The Malacca Sultanate Era

The Hindu-Buddhist strong influence and powerful control over the customs and legal control of the people of the South-East Asia ended around the thirteenth century with the spreading of the Islamic religion into this region. The establishment of Malacca as a port serving the trade between the East and West and subsequent embraced of Islam facilitated the spread of this religion and the Islamic legal concepts.

Before the arrival of Islam, the laws applicable in this land were the Malay custom laws, like the Adat Temenggung and the Adat Perpatih. Adat Temenggung was based on the patriarchal system, came from Palembang and adopted by all the Malay states except Negeri Sembilan. This system was organized on the basis of territorial units, with the constitutional and judicial authorities vested in the group consist the King (Sultan), Chief Minister (Bendahara), Chief of Police (Temenggung), Harbour Official (Syahbandar) and few other officials. While the Adat Perpatih. The Adat Perpatih on the other hand was matrilineal in nature, came from Minangkabau and adopted by Negeri Sembilan. It was observed as democratic and hierarchical because it required for an elected and hereditary constitutional monarchy.

Then, there were two legal digests during the period of the Malacca Sultanate also which were the Undang-Undang Melaka (Laws of Malacca) and the Undang-Undang Laut Melaka (Maritime Laws of Malacca). The Laws of Malacca concern with constitutional, civil and criminal matters like personal relationship, behaviour of settlers and property. While the Maritime Laws of Malacca covered largely maritime matters. In this sultanate, the laws were under the charge of the Bendahara who exercised both political and judicial functions. The Temenggung was responsible in apprehending criminals and maintaining the prison and peace. The Syahbandar was in charge of the port, traders and collection of taxes.

After the arrival of Islam, the influence of the customary laws was weakened. Even the title of the ruler changed from Maharaja under the Hindu-Buddhist influence to Sultan, which means the shadow of Allah on earth. As Islam was adopted as the religion of the state, customary law was administered together with Islamic law. The influence of Islamic law is evident when it comes to the alternative of penalties to customary law for every offence. The coming of Islam marked the beginning of the introduction of Syariah law in this land.

The Portuguese Colonial Rule

Even during the early days of European colonization, there was hardly a separation between the judiciary and executive because justice administration was under the power of the governor. The Malacca Sultanate came to an end after the conquest of Malacca by the Portuguese led by Alfonso de Albuquerque in the year 1511. This occupation lasted from 1511 until 1641. During this period, a military and civil administration was established. In the civil and criminal matters, there was Corpus de Cidade [2] which exercised civil and criminal jurisdiction over all Portuguese settlers. In the military matters, the governor had to seek the advice of the captain-general of war or the commander-in-chief.

Although the Portuguese laws were applied generally and a local native Bendahara was appointed to administer native Muslims and other foreigners under the Portuguese juridiction, but most of the times, in cases involving local people, Muslim law and customs were to be applied. A headman or kapitan for each community were appointed to maintain peace and order and the Portuguese did not exert influence over the locals living outside the city walls.

The Dutch Colonial Rule

In the year 1641, an alliance between the Dutch and Johore managed to force the Portuguese to surrender the rule of Malacca to the Dutch. Under the Dutch, Malacca was controlled as a colony of the VOC [3] and was headed by a governor. The governor was assisted by the a council comprising the tax collector, the fiscal, the mayor, the mayor, the upper merchant, and a secretary. The laws and regulations were issued by the government in Holland, Batavia or Java, and by local executive. During the Dutch rule, magistrates were appointed to try criminal cases and settle judicial disputes, while Europeans were governed by the Dutch laws, the locals were leave to their own laws, unless these clashed with the generally accepted principles of justice.

The British Colonial Rule

The next major influence to the development of the Malaysian legal system is the time from the year 1786 to 1957 when the Great Britain begins their colonization of the Malay Peninsula. The British left such a huge impact that during this period, this land experienced the growth of a modern system of courts, court procedures, rules of evidence, court fees, emergence of lawyers and so on. The first territory in the Malay Peninsula to be held by the British was Penang in 1786. Then, British occupied Singapore in 1819 and Malacca in 1824. Later in the year 1826, all three colonies were incorporated into the Strait Settlements.

The judicial system in the settlements developed when the First Charter of Justice was granted to Penang in 1807 and established the Court of Judicature. This Charter was quite significant as it introduced the first statutory English law into this land. Subsequently in 1826, the Second Chartered of Justice was granted and a united Court of Judicature was established for all three settlements of Penang, Singapore and Malacca.

The administration of justice after the grant of the Second Charter remained unsatisfactory. So, a Third Charter of Justice was granted in 1855 to remedy any deficiencies in the system. This new charter only repealed the previous one to the extent necessary to reorganize the Court of Judicature. It is important to note that the court was to administer the principles of common law and equity ‘as far as local circumstances will admit’ only.

When the Ordinance 5 was passed by the Legislative Council of the Strait Settlement in 1868, the Supreme Court of the Strait Settlement was established and the Courts of Judicature in Penang, Malacca and Singapore were abolished. In 1873, a Criminal Court and a Court of Appeal were also established. Prior to 1867 the courts consisted not only of professional judges, but also of lay judges. The latter comprised the governor and members of executive council. It was only when the Strait Settlement came under the control of British Colonial Office [4] that there was a separation between executive and judiciary.

Malay states always faced constant threats from foreign powers, so in the late nineteenth century the Malay rulers concluded various treaties with the British and this began with the Pangkor Engagement of 1874. The states will receive British protection against external attack and in return, the rulers agreed to accept British Residents as advisers whose advice was acted upon all matters except those concerning Malay custom and religion. With this residential system, the British control the states through indirect rule. All the states which had a resident including Perak, Selangor, Negeri Sembilan and Pahang later formed the Federated Malay States (FMS) in 1895.

Before the formation of FMS, each states had their own judicial system consisted of the Magistrates Courts, the Court of Senior Magistrate and the court of appeal, the Sultan-in Council. But the actual decision making power was in the hand of the British Resident. After the FMS was formed, a common court of appeal called the Court of Commissioner was established and it was the highest court in FMS.

In 1905, the Court of Commissioner was superseded by the Supreme Court of the Federated Malay States. But then, the Supreme Court that was established was not a federal court and it was established in each state and had jurisdiction only regarding the respective state legislation. Only in 1918 a federal Supreme Court was created for FMS under the Court Enactment 1918.

The other states that stayed out of the FMS which consisted of Kedah, Kelantan, Terengganu, Perlis and Johor later formed the Unfederated Malay States (UMS). All the states received a British Adviser and unlike the FMS, they enjoyed greater autonomy, but the advice of the British Adviser still need to be followed on various matters except those affecting Malay religion and custom. Each state had its own judicial system with its own Supreme Court.

The Japanese Occupation

During the World War Two, the Japanese occupied Malaya from 1942 until 1945. During this time, there were two functioning courts, the Military or Special Court and the Civil Court. The Civil Court was headed by local judicial officers and their jurisdiction confined to civil and criminal cases only. The existing laws of FMS, UMS and Strait Settlements continued until they were repealed by the Japanese Military Administration. The Special Court was headed by a Japanese judge and tried civilians charged with offences under the Japanese Maintenance of Public Peace, Law and Order.

The British Military Administration

From 1945 to 1946, a British Military Administration (BMA) was set up in the Malay Peninsula after the surrender of Japan in 1945. By the Proclamation No.1 (1945), the Supreme Allied Commander [5] of Southeast Asia established the BMA which assumed full judicial, executive, legislative and administrative powers over all persons and property throughout the area of Malaya. So, the administration of justice was under the British military officers through the British Military Courts.

The Malayan Union

On April 1, 1946, the BMA was dissolved and was replaced with a confederation called Malayan Union. The Malayan Union comprised the FMS, UMS and the Strait Settlement except Singapore and saw the unification of the three separate judicial systems.

Under the section 85 of the Malayan Union Order in Council 1946, the Malayan Union Ordinance 3/46, a Supreme Court was established. Unlimited civil and criminal jurisdiction was vested in this Supreme Court, consisting of a High Court and Court of Appeal, presided by the Chief Justice and staffed by judges appointed by the Crown. The ordinance also dealt with the establishment and powers of subordinate civil and criminal courts which were consisted of the District Courts and the Magistrate Courts.

The Federation of Malaya

The Malayan Union received strong opposition from the Malays and was superseded by the Federation of Malaya in 1948. Under the federation, the Malay states were protectorates of the British while Penang and Melaka were British colonies, Singapore remained outside of the Federation. Head of Government would be a High Commissioner with powers over all matters except Malay custom and religion.

While the superior courts continued the existing structure from the era of Malayan Union, there was a restructuring at the subordinate courts level. The Court Ordinance 1948 established a new structure of subordinate courts comprising the Sessions Court, Magistrates Court and Penghulu Court.

The Independence of Malaysia

On August 31, 1957 the Federation of Malaya achieved independence and became a sovereign nation. With the existence of a written constitution, there is a clear division between the administration of the judiciary, executive and legislative bodies stated by the constitution. The judicial system is more independence compare to the early days. One of the biggest effects of the British intervention before the independence was the introduction the Civil Law Ordinance 1956 in the Peninsular Malaysia which provided that the courts apply the common law of England and the rules of equity as administered in England on April 7, 1956. For Sabah, the effective date of change was December 1, 1951 while for Sarawak, it was December 12, 1949. For these two states, apart from the common law and rules of equity, the English statutes of general application were also applied. All these laws were applicable only as far as the local circumstances allowed.

When Sabah, Sarawak and Singapore entered the Federation and formed Malaysia in 1963, the 1963 Federal Constitution replaced various courts of appeal with a single Federal Court of Malaysia which was headed by the a Lord President with three High Courts of Malaya, Borneo and Singapore which were headed by a Chief Justice. Although Singapore left Malaysia in 1965, the High Court of Singapore remained part of the Malaysian Judicial System until the Supreme Court of Singapore was reintroduced in 1969.

The Privy Council appeals were allowed on criminal and constitutional matters only until 1 January 1978, while the appeals for civil matters were abolished on 1 January 1985. The Federal Court was also renamed as the Supreme Court of Malaysia on 1 January 1985. With the abolition of the appeal to Privy Council, the Supreme Court became the court of appeal of the last resort in Malaysia.

During the 1994 judicial reforms [6] , the Supreme Court was renamed as the Federal Court again and the Court of Appeal was also established under the Constitution (Amendment) Act 1994 (Act A885). The subordinate courts structure remained mostly unchanged after the independence of Malaysia.

Another significant development of Malaysian legal system is the establishment of the Syariah court. The Syariah Court represent the existence of dual system of law in Malaysia as provided by Article 121(1A) of the Federal Constitution. There are three levels Syariah courts, namely the Syariah Subordinate Court, Syariah High Court and Syariah Appeal Court. The Syariah Court has a limited jurisdiction over matters of the state Islamic law only.

Hierarchy of Courts in Malaysia

The High Courts of Malaya, Sabah and Sarawak, the Court Of Appeal and the Federal Court are the superior courts in Malaysia. While the Sessions Court, Magistrate’s Court and in west Malaysia the Penghulu’s Court are the subordinate courts. Article 121 of the Federal Constitution establishes the current hierarchy of courts:

The Court System in Malaysia

The jurisdiction and powers of courts under the Malaysian hierarchy of courts are contained in the Court of Judicature Act 1964 (Act 91) for the superior courts (Federal Court, Court of Appeal and High Court) and in the Subordinate Courts Act 1948 (Act 92) for the subordinate courts (Sessions and Magistrate’ courts).

The Superior courts:

Federal Court

The Federal Court is the highest court in Malaysia. In its original jurisdiction, the Federal Court is empowered to determine whether a law made by the Parliament or by the State Legislature is invalid on the ground that the Parliament or State Legislature has no power to make laws, and as to disputes on any question between States or between the Federation and any State.

The Federal Court may hear appeals of civil decisions of the Court of Appeal where the Federal Court grants leave to do so. The Federal Court also hears criminal appeals from the Court of Appeal, but only in respect of matters heard by the High Court on its original jurisdiction [7] .

Court of Appeal

The Court of Appeal has appellate jurisdiction on both criminal and civil matters. It is the court of the final jurisdiction for cases which began in any subordinate courts. The Court of Appeal hears civil appeals against the decisions of the High Court where against judgement or order made by consent. In cases where the claim is less than RM250000, the judgement or order relates to cost only or against decisions of a judge in chambers on an interpleader [8] summons on undisputed facts, the leave of Court of Appeal must be obtained first.

High Court

The High Court has both original and appellate jurisdictions for both civil and criminal matters. The High Court has the jurisdiction to try all civil matters and these include matters relating to divorce and matrimonial cases, appointment of guardians for infants, granting of probate of wills, bankruptcy and other civil claims where the amount of dispute exceeds RM250000. The High Court also has unlimited jurisdiction on all criminal matters other than matters involving Islamic law and it also has original jurisdiction for criminal cases punishable by death.

The Subordinate Courts:

Sessions Court

For civil matters, the Sessions Court may hear all matters where the amount of dispute exceeds RM25000 but does not exceed RM250000 except in matters relating to motor vehicle accidents, landlord and tenant and distress, where the Sessions Court has unlimited jurisdiction. For criminal matters, Sessions Court has the jurisdiction to try all criminal offences other than offences punishable by death and may pass any sentence allowed by law other than the sentence of death.

Magistrate’s Court

In its civil jurisdiction, Magistrate’s Court shall have jurisdiction to try all actions and suits where the amount of dispute or value of the subject-matter does not exceed RM25000. In criminal matters, the court has the power to try all offences of which the maximum term of imprisonment does not exceed 10 years or which are punishable by fine only, but the court may pass sentences not exceeding 5 years imprisonment, fine not exceeding RM10000, and/or whipping up to 12 strokes. This court can hear the appeal of Penghulu’s Court.

Penghulu’s Court

Penghulu’s Court is one of the subordinate courts in West Malaysia. The Penghulu’s Court hear civil matters of which the claim does not exceed RM50 and where the parties are persons of Asian race and speaking and understand the Malay language. While for criminal matters, its jurisdiction is limited to offences of a minor nature charged against a person of Asian race which can be punished with a fine not exceeding RM25.