Subordinate Courts in Malaysia and the Position of Islamic Law

Running Head: MALAYSIA 1
Subordinate Courts in Malaysia and the Position of Islamic Law
Name of Student
Institutional Affiliation

MALAYSIA 2
Introduction
The Subordinate Courts (Amendment) Act 2010) came into action in March 2013 (The
Selangor Bar, 2019). The amendment has impacted significant change over the subordinate
Courts. They can now try all actions and suits that are of a civil nature. The Malaysian Court
system works in a hierarchal structure (Krishnan, 2014). However, courts like the Penghulu’s
Courts, Native Courts and the Syariah Courts were said to be outside hierarchy. The Penghulu’s
Court was abolished by The Subordinate Courts (Amendment) Act 2010 .Magistrate Courts are
the lowest ranked courts (Turner, 2016). Above magistrate courts are session courts, High Court,
Court of Appeal and the Federal Court of Malaysia which is the most superior of all. Among
these courts there two categories; the superior courts and the subordinate courts. There is a
general rule on the doctrine of precedents that lower courts shall always be bound to the decision
of higher courts (Spohn, & Hemmens, 2011). This means that all subordinate courts in Malaysia
have no precedence over superior courts. The superior courts are the Federal Court, the Court of
Appeal and the High Court. The Subordinate courts are the Sessions Court, Magistrate Court to
include Court of Children. The Juvenile Court is in paralleled jurisdiction with the Magistrate’s
Court. The Penghulu’s Court was initially under the Subordinate Courts before being abolished.
The Jurisdiction and Composition of Session Courts of Malaysia
The Session Courts are the highest court among the subordinate courts of Malaysia
(Karlsgodt, 2012; Yeh & Chang, 2014).They are constituted by The Yang di-Pertuan Agong and
he may also give the limitation of their scope of jurisdiction. Under the Subordinate Act of 1948,
Session Courts have been given power to hear and give decisions on matters civil and criminal
that arise within the local limits of jurisdiction assigned to it under section 59 of the Act. The
judges presiding in Session Courts are appointed by Yang di-Pertuan Agong upon the
recommendation of the Chief Justice. Section 53 of the Subordinate Courts Act 1948 sets the
power of Session judges in calling for civil records of courts subsidiary thereto. For a judge to be
appointed as a Session’s Court judge, he is or he must be a member of the judicial and legal
service of the Federation. The judges has the capacity to override the decision of a Magistrate
Court or Penghulu’s Court, if they consider the decision as illegal or improperly constructed
through the High Court (The hierarchy of the malaysian judicial system, 2019). Session Courts

MALAYSIA 3
can be held in places directed by Chief Judge or other places that are within the limit of their
jurisdiction.
Criminal Jurisdiction of Session Courts
The scope of jurisdiction of Malaysian Courts is that they can try all offences other than
those that can be punished by death. Section 64 of the Subordinate Courts Act 1948 [Act 92]
provides that;
“A Sessions Court may pass any sentence allowed by law other than the sentence of
death”.
A Session judge, therefor, whatever the situation will never pass a death sentence on any
accused person. The Court can, for example, give sentences of life imprisonment.
Civil Jurisdiction of Session Courts
The civil jurisdiction of Session courts is set out under the section directly after S. 64
(one establishing criminal jurisdiction). Section 65 of the Subordinate Courts Act 1948.
Subsection (a) provides that these courts have unrestricted jurisdiction regarding all matters of
civil nature regarding motor vehicle accidents, landlord and tenant and distress. Subsection (b) of
the same S. 65 states that the Session Courts can preside over all civil matters whose dispute
amount does not go above two hundred and fifty thousand ringgit. This particular part was
amended by the Subordinate Courts (Amendment) Act 2010 [s. 7(a) (ii) of Act A1382]. The
amendment raised the dispute amount from two hundred and fifty thousand ringgit to 1 million
ringgit. There is a further provision regarding action and suits. S.7 (a) (iii) of Act A1382
provides that:
“The Sessions Court has been conferred with 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”. This amendment
revokes the initial provision under section 69 (b), (c), and (d) of the Subordinate Courts Act
1948.