11 Courts with Special Jurisdiction & Syariah Court Flashcards
Special Court
- Established in 1993, under Article 181 &182 of FC (with effect from 30/3/1993)
- Consists of the Chief Justice of the FC (Chairman), the Chief Judges of the HCs and 2
former judges of
FC or HC appointed by the Conference of Rulers - Any proceedings by or against the YDPA or the Ruler of a State in his personal capacity must be taken to the Special Court.
Special Court Original Jurisdiction
- Has exclusive authority to try offenses committed by the YDPA or the Ruler of a State, as well as civil cases involving them.
- Decisions are made by a majority of the Court’s members.
- The decision is final and cannot be challenged in any court.
- Proceedings can only be initiated with the Attorney General’s consent.
- Only Malaysian citizens can take legal action in the Special Court (Faridah Begum bt Abdullah v Sultan Haji Ahmad Shah was deemed invalid because Faridah is Singaporean, as the Special Court ruled that non Malaysian could not bring a suit against the Malay rulers).
Industrial Court
- Established under the Industrial Relations Act 1967
- Decides on trade disputes and the dismissal of workers, whether members of a trade union or not
Characteristics of Industrial Court (2)
- A trade dispute, as defined by the Act, refers to a disagreement between an employer and their employees related to employment, non-employment, employment terms, or working conditions.
- Disputes must be referred to the court by the Minister of Human Resources.
Court of Children
- Established by the Child Act 2001
- To hear, determine and dispose of charges against children
- Consists of a Magistrate who is assisted by 2
advisers appointed by the Minister from a panel of persons resident in the State (1 of the advisers must be a woman) - Has jurisdiction to try all offences except offences punishable with death
Privacy in Court of Children
- Should be located in a separate building or room from ordinary courts.
- If it is in the same building, it must have a separate entrance and exit to ensure privacy for children being brought to and from the court.
The court is not open to the public, only to:
-Court members and officers
- Children involved in the case
- Other individuals approved by the court
-The media is prohibited from revealing any details about the child in their reports (gag order).
Court of Children sentencing procedures
- When the offence has been proven, the court shall direct a probation officer to prepare a probation report
- The court shall also seek the opinion of the advisers
- The court will then decide on the order to be imposed
- Punishment such as sending to an approved school or a Henry Gurney School
Court of Children sentencing guidelines
- A child under the age of 14 shall not be ordered to be imprisoned
- A child aged 14 and above shall not be ordered to be imprisoned if he can be suitably dealt with in any other way (probation or fine or being sent to a place of detention or an
approved school or a Henry Gurney School) - If ordered to be imprisoned, a child aged 14 or above shall not be allowed to associate with adult prisoners
Islamic law in Malaysia
Based on Shafi school of jurisprudence, as modified by Malay adat (customary) law
Sources of Islamic Law
Primary sources
- Qur’an: the Word of Allah;
- Sunnah: rules reduced from the traditions i.e. the sayings or conduct of Prophet Muhammad
Secondary sources (means for discovering the law)
- Ijma: agreement of jurists of any particular era on a legal rule;
- Qiyas: deductions from reasoning by ijtihad or analogy
History of Islamic Law & Syariah Court
- Islam spread in Southeast Asia from the 13th century, with Malacca as its center in the 15th century.
- Before Islam, the Malays followed Malay customary law influenced by Hinduism.
- With the arrival of Islam, Syariah law was introduced, and Malay adat law was modified to align with Islamic principles.
- Malay states adopted Islamic law.
- Before the British arrived, Islamic law was the basic law of the land.
- The British introduced English law, which replaced Islamic law.
- Islamic law was limited to personal matters like marriage and divorce for Muslims.
- The Courts Ordinance 1948 established the judicial system in Malaya, excluding Syariah courts from the federal structure.
- As a result, Syariah Courts became state courts, under the jurisdiction of state legislatures (except in the Federal Territories of Kuala Lumpur, Labuan, and Putrajaya).
- The Ninth Schedule, List II (State List) of the Federal Constitution grants states power over Islamic law.
Syariah Courts’ jurisdiction is restricted to
- person professing the religion of Islam
- matters provided for the state governments
Syariah Court in the Federal Territories
- Syariah Courts are established by state law except in the Federal
Territories of Kuala Lumpur, Labuan and Putrajaya - In the Federal Territories, the Syariah Courts are established by federal law
Under FC, Syariah Courts have jurisdiction:
- only over persons professing the religion of Islam
- only within the respective states or territories
Syariah Court civil jurisdiction
Limited to matters stated in Item 1 of List II (State List) under the Ninth Schedule of FC which apart from trusts and wakaf, primarily concerns family law
Syariah Court criminal jurisdiction
As conferred by the Syariah Court (Criminal Jurisdiction) Act 1965:
- Imprisonment up to 3 years
- Fine up to 5K
- Whipping up to 6 strokes
- A combination of all these
