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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.
The Malaysian Courts of Justice are made up of the Superior Courts and the Subordinate Courts. The
Superior Courts comprise of the Federal Court (the highest court), the Court of Appeal and the two High
The Hierarchy
The Federal Court
The Federal Court hears appeals from the Court of Appeal
The Court of Appeal
The Court of Appeal hears appeals from the High Court relating to both civil and criminal matters
The High Court
Civil Jurisdiction
The High Court has jurisdiction to try all civil matters but generally confines itself to matters on which
the Magistrates and Sessions Courts have no jurisdiction. These include matters relating to divorce and
matrimonial cases, appointment of guardians of infants, the granting of probate of wills and testaments
and letters of administration of the estate of deceased persons, bankruptcy and other civil claims where
the amount in dispute exceeds RM1,000,000.
Criminal Jurisdiction
The High Court may hear all matters but generally confines itself to offences on which the Magistrates
and Sessions Courts have no jurisdiction, for instance, offences which carry the death penalty.
Appellate Jurisdiction
The High Court may hear appeals from the Magistrates and Sessions Courts in both civil and criminal
matters. Amount in dispute in any civil matters must exceed RM10,000 except where it involves a
question of law.
The Sessions Court
Civil Jurisdiction
A Sessions Court may hear any civil matter involving motor vehicle accidents, disputes between landlord
and tenant, and distress actions. The Sessions Court may also hear other matters where the amount in
dispute does not exceed RM1,000,000.
Criminal Jurisdiction
A Sessions Court has jurisdiction to try all criminal offences EXCEPT those punishable by death.
The Magistrates Court
First Class Magistrate
Civil Jurisdiction – A First Class Magistrate may hear a civil case when the amount in dispute does not
exceed RM100,000.
Criminal Jurisdiction
A first class Magistrate may hear criminal matters of the following nature:
where the offence is punishable by a fine only – this would cover the majority of traffic offences; or
where the offence provides for a term of imprisonment not exceeding ten (10) years.
A First Class Magistrate may not, however, impose:
a term of imprisonment exceeding five (5) years;
a fine exceeding RM10,000;
whipping exceeding twelve strokes; or
any sentence combining any of the sentences above.
During the pandemic, the Malaysian courts were closed due to the implementation of the
MCO. All court proceedings save for certain criminal proceedings and urgent civil cases
came to a halt.
In April 2020, to ensure continuous access to justice in the wake of the pandemic, the Court
of Appeal carried out its first online hearing on 23 April 2020 which was live-streamed for
public viewing. While the unprecedented use of technology by the Malaysian judiciary to
live-stream an online hearing during unprecedented times is commendable, the validity of
online hearings remains to be seen.
For the purposes of this guide, four (4) options to host remote hearings will be explored: (i) Skype for
Business, which is currently being used by the Malaysian courts; (ii) Microsoft Teams, which will replace
Skype for Business by 31 July 2021; (iii) Zoom Meeting; and (iv) Cisco Webex Meeting
Is online hearing feasible?
There are pros and cons to having online hearings. The advantages are obvious, such as
accessibility, convenience and cost and time saving. On the other hand, there are
drawbacks to conduct hearings online, including:
Not all users of Court are technology savvy.
For trials and other proceedings involving witnesses, the demeanour of witnesses
may not be easily evaluated by judges on screen.
The possible lack of the “grilling factor” adopted by counsel to cross examine
witnesses in court.
Increased chances of evidence tampering or witness coaching.
Witnesses could easily turn off or control their online connection to escape further
“grilling” by counsel.
Chief Justice Tengku Maimum Tuan Mat recently wrote that the administration of justice cannot be
brought to a “grinding halt” during the movement control order (MCO).
She outlined measures implemented to counter disruptions of court processes and services. We hereby
highlight two main points.
Firstly, that the judiciary has proposed amendments to certain written laws to allow for greater use of
technology in courts such as video-conferencing in all cases; and secondly, that the judiciary has in fact
drafted a Practice Direction and is awaiting adequate feedback from all stakeholders.
Digitalisation of the justice system is fundamental to provide efficient and equitable justice in the 21st
In fact, the judiciary has digitalised most of its processes since the year 2009. This includes an electronic
filing system (e-Filing) – a system which allows practitioners to file documents electronically.
There are also other electronic mechanisms such as e-Lelong and e-Review. The e-Review system allows
case management to be conducted online.
It was introduced during the tenure of former chief justice Richard Malanjum.
In fact, the high courts in Sabah and Sarawak are more technologically-advanced than their Peninsula
counterparts due to the efforts taken by Richard when he was the chief judge of Sabah and Sarawak for
over a decade.
The e-Review system is a mechanism that allows judges and judicial officers to conduct case
management proceedings through an online messaging platform with lawyers.
Accordingly, lawyers (and members of the court) need not be in each other’s physical presence to
manage their cases.
Richard sought to expand the Sabah and Sarawak version of e-Review throughout Malaysia. But given
the time he had in office, the judiciary was only able to roll out the system in Kuala Lumpur, Penang and
Shah Alam.
Currently, the judiciary is working, with some success, towards ensuring that the system is available in
almost all courts in Malaysia. Soon, only electronic documents will be used for hearings conducted at
the Federal Court i.e. “paperless hearings” without referring to physical documents.
While the talk to expand technology in the courts is abound, the courts in Sabah and Sarawak have long
adopted electronic hearings via video-link for simple applications.
Technology has been utilised to overcome onerous obstacles to access to justice, such as geographical
and cost factors.
While it is easy to criticise the judiciary for not expanding the adoption of modern technologies fast
enough to cover all Malaysian courts, we believe there must be some valid reasons behind it.
One valid reason could be budgetary constraints. Our government needs to invest more in the judiciary.
For example, the United Kingdom invested £1 billion to modernise courts and tribunals. Our government
should be equally as committed in digitalising our justice system.
Another reason, judging from the chief justice’s statement, may be the seemingly inadequate response
from the stakeholders to undergo such change. This could be perceived as criticism or perhaps better be
taken as calls for assistance by the judiciary.
The judiciary cannot work alone and support from its stakeholders is absolutely crucial in order for it to
fully adopt modern technologies.
Meanwhile, we too understand that adequate time must be given to the stakeholders to provide
meaningful feedback.
It is also reassuring to know that the present measures taken by the judiciary are not initiated simply by
virtue of the present circumstances but that they have long been in existence. Other countries such as
Singapore and the United Kingdom have already taken proactive steps to pass legislation to allow their
institutions to make full use of technology to overcome the physical barrier erected by the coronavirus.
The respective stakeholders in their justice systems are also coming to terms with the change that looms
over them. This is illustrated by the fact that proceedings have been going on electronically.
In those countries, the question is not “when” but “how” do we make the change most effectively.
It is therefore hoped that the seed planted by Richard and nurtured by the present chief justice will
continue to grow. It cannot however bloom if all parties do not play their respective roles.
The sooner we can all accept technological change the better. Hence, the primary stakeholders,
including the Attorney-General’s Chambers, the Malaysian Bar and the respective state Bars in Sabah
and Sarawak, should enhance their cooperation with the judiciary to fully embrace further digitalisation
of the justice system in Malaysia.
Hishamudin Yunus is a former judge of the Court of Appeal, and Marcus Lee Min Lun is an advocate and
solicitor of the High Court of Malaya.
Nations like Argentina, Bangladesh and Uganda are accessing available remote technology to maintain
their justice systems during the COVID-19 pandemic
The coronavirus pandemic of 2020 has affected every aspect of our lives. In some ways, the courts and
tribunals of England and Wales were at a particular disadvantage: a decade of underinvestment in court
buildings meant that some were unable to provide such basic necessities as soap and water, let alone
hand sanitiser. But those same courts and tribunals had an advantage over their counterparts in many
other countries: they had already started working online and they were able to conduct hearings and
deliver decisions remotely, without any of the participants having to leave home.
By the year 2022, most civil disputes in England and Wales will be resolved through an online court.
Virtual courts in India have been an emergency, temporary response to the COVID-19 pandemic, but a
section of judges and lawyers wants to include virtual courts in normal court proceedings even after the
health crisis is over.
Senior advocate and president of the Supreme Court Bar Association, Dushyant Dave, supports a
combination of the online and physical systems, but he says that the current technological challenges
are a hindrance in accessibility to justice.