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This book serves as an introduction and guide in understanding further the powers and jurisdiction of Courts in Malaysia.
The last two years has been interesting with many new cases being decided in the Court of Appeal and Federal Court as to whether the respective courts can review their own decisions. There has also been a string of cases whereby the Federal Court has ruled that it cannot review decisions of the Court of Appeal which are final in nature. The Juvenile Court has now been renamed as the Court for Children whilst the newly created Special Court has heard a few cases since its establishment. There has also been a renewed debate as to whether the Court of Appeal can decline to follow the decision of the Federal Court even though the decision has been wrongly decided.
Srimurugan Alagan. Obtained his LL.B (Hons) from the University of Wolverhampton, U.K in 1998 and was admitted as Advocate & Solicitor, High Court in Malaya. He has extensive experience as a legal researcher and has lectured Criminal Procedure and Law of Evidence at the International Islamic University Malaysia from 2004 to 2008. He has also written articles which have been published in local law reports and journals. He currently practices as an Advocate & Solicitor under the name and style of Srimurugan & Co.
Chapter 1
1.1.
1.2. 1.3. 1.3.1. 1.3.2. 1.3.3. 1.3.4. 1.4. 1.5. 1.5.1. 1.5.2. 1.5.3.
Introduction
Distinction between Superior & Inferior Courts Types of Jurisdiction Original Jurisdiction Appellate Jurisdiction Revisionary or Supervisory Jurisdiction Advisory Jurisdiction Subordinate Courts Meaning of the word “jurisdiction” Monetary Jurisdiction Territorial Jurisdiction Jurisdiction to Grant Relief
Chapter 2 : The Sessions Court
2.1.
2.2. 2.3. 2.4. 2.4.1. 2.4.2. 2.4.3. 2.5. 2.6. 2.7. 2.7.1. 2.7.2. 2.8. 2.9.
Introduction to Sessions Court
Civil Jurisdiction Maximum award in a single suit Exception to Section 69(1)(b) SCA 1948 Where there is an agreement between the Parties to the suit to submit to the jurisdiction of the Sessions Court. Relinquishment Splitting claims not allowed Special Provision relating to Counter-Claims Limitation on the Powers of the Sessions Court Jurisdiction of the Sessions Court in relation to immovable property Disputes as to the title of land When can the Sessions Court adjudicate on the question of ownership or title? Criminal Jurisdiction of Sessions Court Sentencing Jurisdiction
Chapter 3 : The Magistrates' Court
Magistrates’ Court
Composition and Appointments of Magistrate’s Civil Jurisdiction of the First Class Magistrate Civil Jurisdiction of Second Class Magistrate Limitations on the Jurisdiction of Magistrates’ Courts Civil Cases Small Claims Procedure in the Magistrates’ Court Introduction Scope of the small claims procedure Parties to the dispute are not allowed to be represented by an advocate When the Small Claims Procedure must be utilised No Pleadings Costs not exceeding RM100 Duty to Assist Parties to reach a settlement Criminal jurisdiction of First Class Magistrates’ Courts Trial Jurisdiction of First Class Magistrate Whether First Class Magistrate can try offences punishable with whipping Sentencing Jurisdiction of the First Class Magistrate Specific Statues which confer the Magistrates' Courts with powers to impose sentence in excess of its powers conferred under s. 87 (1) SCA 1948 Section 6(3) of Betting Act 1953 (revised 1992) Section 41(1) of the Dangerous Drugs Act 1952 Section 118 of the Customs Act 1967 (revised 1980) Additional Sentencing Powers Duty to transmit the records of proceedings to the High Court where the Magistrate invokes s. 87 (2) of the SCA 1948 to impose a heavier sentence Duty to Record Reason for invoking s. 87(2) of the SCA 1948 Criminal Jurisdiction of Second Class Magistrate Sentencing Jurisdiction of Second Class Magistrate
3.1.
3.2. 3.3. 3.4. 3.5. 3.6. 3.6.1. 3.6.2. 3.6.3. 3.6.4. 3.6.5. 3.6.6. 3.6.7 3.7. 3.8.1 3.8.2. 3.9. 3.10. 3.10.1. 3.10.2. 3.10.3. 3.11. 3.12. 3.13. 3.14. 3.15.
Chapter 4 : The Penghulu's Court & Native Court
4.1.
4.2. 4.3. 4.4. 4.5. 4.6. 4.7. 4.8. 4.8.1. 4.8.2. 4.8.3. 4.9. 4.10. 4.11. 4.12. 4.13. 4.14. 4.15. 4.16.
The Penghulu’s Court
Civil Jurisdiction of Penghulu’s Court Criminal Jurisdiction of Penghulu’s Court Sentencing jurisdiction of Penghulu’s Court Enforcement of Penghulu’s Orders Appeal against the decision of the Penghulu’s Court Native Courts in Sabah Establishment of Native Courts in Sabah Native Court of Appeal District Native Court Native Court Power to Impose Penalty Native Courts in Sarawak Native Court of Appeal Resident’s Native Court District Native Court Chief’s Superior Court Chief’s Court Headman’s Court
Chapter 5 : Additional Powers
5.1
Additional Powers of the Subordinate Court
Chapter 6 : Court for Children
6.1.
6.2. 6.3. 6.4. 6.5. 6.6. 6.7. 6.8. 6.9. 6.10. 6.11. 6.12. 6.13. 6.14. 6.15. 6.16.
Introduction to the Court for Children
Jurisdiction of the Court for Children Who is a “Child”? Limitation of the Court for Children Composition of the Court for Children Trial accordance with the Child Act Applicability of Criminal Procedure Code to the Courts for Children Place of Sitting of Court for Children Who may be present in the Court for Children? Mandatory obligation on Parent or Guardian to be Present in Court Procedure to be followed where a Child is charged with an adult The words “conviction” and “sentence” must not to be used in relation to a child Orders consequent to a finding of guilt A child cannot be sentenced to death A child charged with a “security offence” Whether a child can be whipped
Chapter 7 : Superior Courts in Malaysia
7.1.
7.2. 7.3. 7.4. 7.5. 7.6. 7.7. 7.7.1. 7.7.2. 7.7.3. 7.7.4. 7.7.5. 7.7.6. 7.7.7. 7.8. 7.9. 7.10. 7.11. 7.12. 7.12.1. 7.12.2. 7.12.3. 7.12.4. 7.13. 7.13.1. 7.13.2. 7.13.3. 7.13.4. 7.13.5. 7.13.6. 7.13.7. 7.13.8. 7.13.9. 7.14. 7.15. 7.16. 7.17. 7.17.1. 7.17.2. 7.17.3. 7.18.
Introduction to the Superior Courts
Introduction to the High Court Constitution of the High Court Two High Courts Only Doctrine of Concurrent Jurisdiction Deciding forum of adjudication Interpretation of Section 23 CJA 1964 Section 23 (1) (a) CJA 1964 “where the cause of action arose” Cause of action in Tort Cause of action for Breach of Contract Section 23 (1)(b) CJA 1964 “Where the defendant or one of several defendants resides or has his place of business” Section 23(1)(c) CJA 1964 “Facts on which the proceeding are based exist or alleged to have occurred” Section 23(1)(d) CJA 1964 “Any land the ownership of which is disputed is situated” Proviso to Section 23 CJA 1964 The doctrine of forum non-convenience Transfer of cases from the High Court Malaya to the High Court Sabah & Sarawak Specific Civil Jurisdiction of the High Court Original Jurisdiction of the High Court Appellate Jurisdiction of the High Court Interpretation of Section 28(1)(a) CJA 1964 In deciding whether the Judgment sum is above RM10,000.00 interest awarded by the court is not to be taken into account. Meaning of the word “decision” under Section 28 of the CJA Obtaining Leave of Appeal Revisionary Powers of the High Court Revision in Criminal Cases How Revisionary Powers are invoked On its own motion Formal Applications High Court exercising its revisionary powers must confine itself to the Records of the Proceedings of the Subordinate Courts No Absolute Right to be heard Whether Prosecution has a Right to be heard before a Judge makes any order in Revision Proceedings Powers of High Court Judge Acting in Revision Limitations on the exercise of Revisionary Powers Revision in Civil Cases Powers of High Court in Civil Revision No revision at instance of a party who could have appealed Limitation on the jurisdiction of the High Court Article 128 of the Federal Constitution Article 182(3) of the Federal Constitution Article 121 1(A) of the Federal Constitution Additional Powers of the High Court
Chapter 8 : Court of Appeal
8.1.
8.2. 8.3. 8.4. 8.5. 8.6. 8.7. 8.8. 8.9. 8.10. 8.11. 8.12. 8.13. 8.14.
Introduction to the Court of Appeal
The Establishment & Jurisdiction Composition A High Court judge may sit in the Court of Appeal Number of Judges hearing the appeal Functions of Court of Appeal Jurisdiction of Court of Appeal in Relation to Civil Appeals Jurisdiction of Court of Appeal in Relation to Criminal Appeals All Civil & Criminal Appeals are by way of Rehearing Appeal does not operate as stay of execution Proceedings how decided Powers of Court of Appeal hearing Criminal Appeals Powers of Court of Appeal hearing Civil Appeals Whether Court of Appeal can review its own decision
Chapter 9 : Federal Court
9.1.
9.2. 9.3. 9.4. 9.5. 9.6. 9.7. 9.8. 9.9. 9.10. 9.11. 9.12. 9.13. 9.14. 9.15. 9.16.
Introduction to the Federal Court
Establishment and Jurisdiction Composition & Appointments Court of Appeal judges may be invited to sit and hear appeals in the Federal Court Quorum in the Federal Court Delivery of Judgment in the Federal Court Jurisdiction of the Federal Court to hear appeals in Civil Cases When Leave to Appeal will be granted Jurisdiction of the Federal Court to hear Criminal Appeals Powers of Federal Court hearing Criminal Appeal Whether Federal Court can review its own previous decision Whether Federal Court has the Power to review decision of the Court of Appeal under r.173 of the Federal Court, 1995 Powers of Federal Court on hearing appeal Exclusive original jurisdiction of the Federal Court in Constitutional Matters Powers of Federal Court exercising Original Jurisdiction Special Advisory jurisdiction of the Federal Court in the Interpretation of Federal Constitution
Chapter 10 : Special Court
10.1.
10.2. 10.3. 10.4. 10.5. 10.6. 10.7. 10.8. 10.9. 10.10.
Introduction to Special Court
Removal of Royal Immunity The establishment of the Special Court Extent of jurisdiction Scope of the Article 182 Pre requisite of Consent before initiating proceedings against the Ruler of the State or the Yang Di-Pertuan Agong Powers of the Special Court Court Procedure in the Special Court How Proceedings are decided and finality of the decision Powers to make Rules
Chapter 11 : The Doctrine of Stare Decisis in Malaysia
11.1.
11.2. 11.3. 11.4. 11.5. 11.6. 11.7. 11.8. 11.9. 11.10. 11.11. 11.12. 11.13. 11.14. 11.15.
Introduction
Origin and development of the doctrine Unreported Cases Meaning of “Ratio Decidendi” Meaning of “Obiter Dictum” Distinguishing Precedent Decisions of Federal Court Decisions of Court of Appeal Meaning “Per incuriam” decision The Denning Campaign Whether the Court of Appeal can disregard a decision of the Federal Court on the grounds that it has been given per incuriam Practice in the High Court The Practice of Subordinate Courts Decisions from other Common Law Country Conclusion |
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