3- High Courts

ISLAMIC SCIENCE UNIVERSITY OF M A L A Y S I A Faculty of Syariah and Law

LBA 1043 Malaysian Legal System II

© Muhammad Nizam Awang @ Ali

Superior Court

High Courts

Discussion Points

• • • •

Constitution Original Jurisdiction Appellate Jurisdiction Revisionary & Supervisionary Jurisdiction • Judicial Review • Referral Jurisdiction • Statute: Federal Consti & Courts of Judicature Act 1964 (Act 91)

Constitution • Art.121(1) FC – judicial power of the High Court - 2 High Courts of coordinate jurisdiction & status: – (a) High Court in Malaya – (b) High Court in Sabah & Sarawak (formerly known as Borneo)

• Art. 122AA (1) – Chief Judge and not less than four other judges (but subject to maximum number provided under para. (a) & (b)

Original Jurisdiction • Unlimited jurisdiction in civil and criminal matters • S.23 – General Civil Jurisdiction – (i) where the cause of action arose – (ii) where the defendant/ one of several defendant resides or has place of business – (iii) where facts exists/alleged to have occurred – (iv) land (ownership) is situated within local jurisdiction

• Except if the parties have consent in writing to bring the case outside the local jurisdiction

Cases in Discussion • Sova Sdn Bhd v. Kasih Sayang Sdn Bhd [1988] 2 MLJ 268 Read also: • United Malayan Banking Corp Bhd v. Sooi Lean Tooi & Ors [1984] 1 MLJ 47

Original Jurisdiction (2) • S.24 – Specific Civil Jurisdiction (exclusively fall under HC jurisdiction) – – – – –

(i) Divorce & matrimonial matters (ii) Admiralty (iii) Bankruptcy and companies matters (iv) Guardianship of infant (v) Guardianship of idiots, mentally disordered and persons of unsound mind – (vi) Probate of wills and administration of estate

Original Jurisdiction (3) • S.22(1) – Original Criminal Jurisdiction • It has two categories - Jurisdiction over people who are: • (a) citizen/ non-citizen and offences committed within Malaysian territory • (b) citizen/ permanent resident (PR) and offences committed in extraterritorial jurisdiction

Original Jurisdiction (4) • Category (a) – s.22(1)(a) – for all offences committed: (i) within local jurisdiction (ii) on the high seas on ship/ aircraft registered in Malaysia (iii) by any citizen on high seas on any ship or aircraft; or (iv) by any person on high seas committed piracy

Original Jurisdiction (5) • Category (b) – s.22(1)(b) – for all offences committed: • Under Chap. VI of the Penal Code, Extra Territorial Offences Act 1976 or any other written law certified by Attorney General to affect security of Malaysia whether: (a) On the high seas on ship or aircraft registered in Malaysia (b) By any citizen or PR on high seas on any ship or aircraft (E.g.. Official Secret Act 1972) (c) By any citizen or PR in any place irrespective of the territorial limits (Eg. Penal Code bigamy committed abroad by Malaysians)

Appellate Jurisdiction • APPELLATE CIVIL JURISDICTION • S. 27 – jurisdiction to hear appeal from subordinate courts • S.28 – Condition to make appeal • Amount claimed must not be less than RM10,000, except – (a) on question of law – (b) in proceedings involving maintenance of wives/ children

• S. 29 – jurisdiction to hear civil appeal from subordinate court by way of rehearing • HC exercise jurisdiction & power to hear appeal like the Court of Appeal

Appellate Jurisdiction (2) • APPELLATE CRIMINAL JURISDICTION • S.26 – to hear criminal appeal from subordinate courts within HC territorial jurisdiction • (see also: s.304-306 Criminal Procedure Code on the restriction of making appeal to HC)

Cases in Discussion • Lee Soo Chuan V Lai Yan & Anor [1971] 2 MLJ 275 • Sulaiman bin Mohammad v. Malayan Banking Bhd [1992] 2 MLJ 116

Revisionary & Supervisionary Jurisdiction • General R & S jurisdiction – applicable when (a) in the interest of justice (b) by its court’s own motion or upon the application by any party (c) at any stage of proceedings (either to transfer case to HC or direct subordinate court for further court)

Revisionary & Revisionary Jurisdiction Supervisionary Jurisdiction (2) • CIVIL CASES • s.32 – Call for record of proceeding as to its: (a) Legality of decision (b) Regularity of proceedings • S.33- power of HC on revision of civil proceeding • CRIMINAL CASES – s.31 – Revise proceedings in subordinate courts (criminal procedure)

Cases in Discussion • Hari Ram Seghal V PP [1981] 1 MLJ 165 • PP V Abdullah Pandak Hassan & Anor [1975] 2 MLJ276 • Liaw Kwai Wah & Anor V PP[1987] 2 MLJ 69 • Re Soo Leot [1956] MLJ 54 • Re Radha Krishnan Naidu [1962] MLJ 130 • Kok Heng Chow v. Lay Mee Yin [1948] MLJ 157

Judicial Review – on the Decisions of Other Judicial or Quasi-Judicial Bodies • S.25 (2) + Section 1 of the Schedule entitled Prerogative Writs – writ of habeas corpus, mandamus, prohibition, quo warranto

Referral Jurisdiction • S.30 - Reference of constitutional question by subordinate court. • Where there is related constitutional issues during the proceeding in the subordinate court, the subordinate court may stay the proceeding & transmit the record to the HC • To be read with Art. 128(2) of the

Referral Jurisdiction (2) • ….the Federal Court shall have jurisdiction (subject to any rules of court regulating the exercise of that jurisdiction) to determine the question and remit the case to the other court to be disposed of in accordance with the determination.

• Cases in Discussion: Hashim Daud v. Yahya Hashim [1973] 2 MLJ 85

Recap • • • •

Constitution Original Jurisdiction Appellate Jurisdiction Revisionary & Supervisionary Jurisdiction • Judicial Review • Referral Jurisdiction

Next Lesson

Superior/ Higher Courts Court of Appeal Statute: Federal Constitution Courts of Judicature Act 1964