JUSTICE SYSTEM IN MALAYSIA: COURTS, LAWYERS, PROCESSES

JUSTICE SYSTEM IN MALAYSIA

Malaysia is a deeply conservative country and this is reflected in the justice system. There are Western-style laws that apply to criminal cases and sharia (Muslim law) courts.Sharia is imposed only on Muslims and deals with moral and family matters. Non-Muslims are required to follow secular laws that deal with the same matters.

Malaysia has an independent judiciary and two court systems (civil courts and Islamic domestic law courts).The dual-track legal system is comprised of civil courts running in parallel with Islamic Sharia courts where Muslim Malays can be tried on religious and moral charges. Police constables and courts settle disputes, various offices if the civil government often adjudicate problems as do religious leaders at mosques.

Legal system: is a mix of English common law, Islamic law, and customary law. The federal constitution of Malaysia is the supreme law of the land, and the legal system is based on English common law. Judicial review of legislative acts is carried out in the Supreme Court at request of supreme head of the federation. Malaysia has not submitted an International Court of Justice (ICJ) jurisdiction declaration. It is a non-party state to the International Criminal Court.

The judiciary in Malaysia is a relatively newly established and evolving institution. Until 1985 the highest court of appeal was the Privy Court, located in the United Kingdom. Malaysia has a death penalty and no trial by jury. Critics and jurists contend that the system is beset by many problems, such as case backlogs, corruption, poor legal representation, and a changing institutional structure. In the 1980s, Mahathir placed the independent judiciary under parliamentary control by removing the president of the supreme court and other senior judges.

Legal System of Malaysia

Malaysia has a unified judicial system, with all courts taking cognisance of both federal and state laws. The legal system is based on British common law. Most cases are heard in magistrates' courts and sessions courts. Religious courts decide matters of Islamic law and custom. However, the use of religious law by states and the selective and inconsistent enforcement of this law by religious officers has become controversial. The use of the Internal Security Act (ISA) against dissidents, as well as restrictions on the press and freedom of expression, remain a concern for civil libertarians and international human rights organisations. [Source: Worldmark Encyclopedia of Nations, Thomson Gale, 2007]

flow chart detailing the provisions of the Judges’ Ethics Code 2009 and the disciplinary powers available to the Chief Justicemalaysiakini.com

The Federal Court, Malaysia's highest court, reviews decisions referred from the High Courts of Peninsular Malaysia and Sabah and Sarawak, as well as from subordinate courts. The Federal Court, of which the Yang di-Pertuan Agong is Lord President, has original jurisdiction in disputes between states, or between a state and the federal government. It consists of the Chief Justice, two Chief Judges from the High Courts and seven other judges. Administrative detention is permitted in security cases, in which certain guarantees of due process reportedly apply.

The judiciary has traditionally functioned with a high degree of independence. Most civil and criminal cases are fair and open. The accused must be brought before a judge within 24 hours of arrest. Defendants have the right to legal representation and to bail. Strict rules of evidence apply in court, and appeals can be made to higher courts. Criminal defendants may also appeal for clemency to either the paramount or local state ruler. Severe penalties, including the death penalty, are imposed for drug-related offences.

High courts have jurisdiction over all serious criminal cases and most civil cases. Sessions courts hear cases involving landlord-tenant disputes and car accidents. Magistrates' courts hear criminal cases in which the maximum sentence does not exceed 12 months. The Court of Appeals has jurisdiction over high court and sessions court decisions.

According to Expat Focus: As a general rule of thumb in Malaysia, there are no sentencing guidelines in place and each sentence is passed by the judge presiding over the case and other cases will be referred to in English, Indian and Australian law. There is a book available which is now used in sentencing: Sentencing Practice in Malaysia. This book is widely available for purchase. This means that the legal system in Malaysia is exceptionally uncertain and arbitrary and each and every expat needs to be fully aware of this. Penalties are high in Malaysia if a criminal offense is committed. Be absolutely clear on all your dealings and behave as though you would in your own country and respect the laws. The legal system, just like in most jurisdictions, is convoluted and complex and there is little leniency when compared to European countries. [Source: Expat Focus]

History of Malaysian Law

The history of Malaysian law is closely tied to British colonial rule, which left the deepest legal influence on the country despite earlier periods of Portuguese and Dutch control. Modern Malaysian legal history is generally traced to 1786, when the British acquired Penang and began introducing English legal principles through the Charters of Justice of 1807, 1826, and 1855. Over more than 150 years of British administration, interrupted only briefly during the Japanese occupation in World War II, English common law gradually became the foundation of Malaysia’s legal system. [Source: Shaikh Mohamed Noordin and Shanthi Supramaniam, Hauser Global Law School Program, New York University School of Law, June 2016]

During the colonial era, the Malay states were divided into several administrative groupings. The Straits Settlements included Penang, Malacca, and Singapore, while Perak, Selangor, Negeri Sembilan, and Pahang formed the Federated Malay States. Johor, Kedah, Perlis, Terengganu, and Kelantan remained the Unfederated Malay States. British legal influence expanded steadily during this period, but the formal statutory reception of English law only came with the Civil Law Enactment of 1937. Before independence, many British laws were either directly adopted into local legislation or applied through judicial precedent.

The development of modern Malaysian law can broadly be divided into three periods: pre-war colonial law from 1866 to 1942, post-war federal law between 1946 and 1957, and post-independence law after the creation of the Federation of Malaya in 1957 and Malaysia in 1963. The Federation of Malaya gained independence from Britain on August 31, 1957, shortly after the Federal Constitution came into force. In 1963, the constitution was amended to form Malaysia by incorporating Sabah, Sarawak, and Singapore into the federation. Singapore later separated in 1965 to become an independent republic.

Although English common law remains the core of the Malaysian legal system, the country’s laws were also influenced by other legal traditions. The Criminal Procedure Code, labour laws, and Contracts Act drew heavily from Indian legal models inherited from the British Empire, while Malaysian land law adopted the Australian Torrens registration system. Many colonial-era laws continue to exist today, though they have been modified to suit local conditions and contemporary needs.

Malaysia today operates under a constitutional monarchy and a parliamentary democratic system modeled on the British structure. The Yang di-Pertuan Agong, or King, serves as the ceremonial head of state and is elected for a five-year term from among the hereditary rulers of nine Malay states. Federal and state governments share legislative powers under the Federal Constitution, with Parliament enacting laws for the entire country while state assemblies legislate on local matters and Islamic law within their respective states.

Judicial Branch in Malaysia

court hierarchy in Malaysia

Malaysia’s judicial branch consists of several levels of courts, including the Federal Court, the Court of Appeal, the High Courts, Sessions Courts, Magistrates’ Courts, juvenile courts, and Sharia courts, which handle cases involving Muslims. [Source: Countries of the World and Their Leaders Yearbook 2009, Gale 2008]

At the top of the judiciary is the Federal Court, the highest court in Malaysia. Peninsular Malaysia and the East Malaysian states of Sabah and Sarawak each have a high court. [Source: Countries of the World and Their Leaders Yearbook 2009, Gale 2008]

Malaysia maintains two High Courts of equal status: the High Court of Malaya, which serves Peninsular Malaysia, and the High Court of Sabah and Sarawak, which covers the East Malaysian states. The judiciary is intended to operate independently of governmental or political influence. In addition to the civil court system, religious courts in some states have authority over matters related to Islamic law and custom. Ssubordinate courts are the Court of Appeal; High Court; Sessions Court; Magistrates' Court; note: Malaysia has a dual judicial hierarchy of civil and religious (sharia) courts.

Courts in Malaysia

Judicial power in Malaysia is vested in the Superior Courts (comprising the Federal Court, the Special Court, the Court of Appeal, the High Court of Malaya and the High Court of Sabah and Sarawak); and Subordinate Courts (comprising the Sessions Court, the Magistrates’ Court, the Syariah Court, the Juvenile Court, the Penghulu Court and Native Court) as provided for by the Federal Law. The Head of the Judiciary is the Chief Justice of the Federal Court of Malaysia. The Federal Court has the jurisdiction to determine the validity of any law made by Parliament or by a State legislature. [Source: Malaysian Government]

1) Civil courts include Federal Court, Court of Appeal, High Court of Malaya on peninsula Malaysia, and High Court of Sabah and Sarawak in states of Borneo (judges are appointed by the king on the advice of the prime minister). 2) Sharia courts include Sharia Appeal Court, Sharia High Court, and Sharia Subordinate Courts at state-level and deal with religious and family matters such as custody, divorce, and inheritance only for Muslims; decisions of sharia courts cannot be appealed to civil courts.

Most cases come before magistrates and sessions courts. Religious courts decide questions of Islamic law and custom. The sharia system, which issues rulings under Islamic law, is composed of a high court and courts in each state. A system of superior and subordinate courts handles civil and criminal law. Superior courts include the Federal Court, the Court of Appeals, and two High Courts.

The Court of Appeals acts as an appeals court between the Federal Court and the High Courts. The High Courts—one each for eastern and western Malaysia—have original, appellate, and revisionary jurisdiction. A Special Court hears civil and criminal cases involving state rulers and the supreme ruler. The attorney general, as the principal legal officer and public prosecutor, provides legal advice to the executive branch and may draft bills for deliberation and enactment by parliament.

Subordinate courts include 60 sessions courts, 151 magistrate courts, and the Court for Children, which hears juvenile cases. Subordinate courts have jurisdiction over criminal cases not subject to the death penalty. Sessions courts can hear civil cases valued up to US$65,693, and magistrate courts have jurisdiction over civil cases valued up to US$6,596. Native courts in Sabah and Sarawak and “penghulu” (village headman) courts in the peninsula handle misdemeanors and civil disputes according to traditional customs, but under state jurisdiction.

Federal Court (Supreme Court) of Malaysia

The Federal Court is the highest judicial authority and final court of appeal. It has original, referral, and advisory jurisdiction as well as jurisdiction over disputes involving states and the federal government. The Federal Court has a chief justice and 10 judges; the number of judges needed for rulings varies according to the type of case. The yang di-pertuan agong (paramount ruler or monarch of Malaysia) is its lord president.

The Federal Court consists of the chief justice, president of the Court of Appeal, chief justice of the High Court of Malaya, chief judge of the High Court of Sabah and Sarawak, 8 judges, and 1 "additional" judge). Judge selection and term of office: Federal Court justices are appointed by the monarch on advice of the prime minister. They serve until mandatory retirement at age 66 with the possibility of a single 6-month extension [Source: CIA World Factbook]

The Federal Court reviews decisions referred from the Court of Appeal;, from the high court of peninsular Malaysia, the high court of Sabah and Sarawak, and subordinate courts. The Federal Court has original jurisdiction in constitutional matters and in disputes between states or between the federal government and a state. The Federal Court hears appeals from the Court of Appeal and holds original jurisdiction in constitutional matters as well as disputes between states or between a state and the federal government. he Federal Court can review legislative acts at the request of the supreme head of the federation.

Courts in Malaysia That Deal with Economic Matters

Industrial Court of Malaysia: , according to the Hauser Global Law School Progra, was established in 1940 under the Industrial Court of Inquiry Rules but it did not function due to Japanese Occupation. The Industrial Court’s objective is to set up principles and guidelines for labour law in the private sector through decisions and awards handed down by the court which will set precedent to be followed in the practice of labour law and industrial relation system. The present Industrial Court is instituted under the Industrial Relations Act 1967.[Source: Shaikh Mohamed Noordin and Shanthi Supramaniam,, New York University School of Law, June 2016]

Intellectual Property Court focuses mainly on the piracy of copyrighted materials and counterfeiting of goods in Malaysia drove the country to establish an Intellectual Property Court. The Malaysian government has approved the establishment of fifteen (15) Sessions Courts with criminal jurisdiction known as “Sessions Court (Intellectual Property)”, one (1) in each state including in Putrajaya. In addition, six (6) High Courts with both civil and appellate jurisdictions known as “High Court of Malaya (Intellectual Property)” or “High Court of Borneo (Intellectual Property)” as the case may be, would be established in Kuala Lumpur, Selangor, Johor, Perak, Sabah and Sarawak, with one (1) court already operational in the Kuala Lumpur High Court as of 17 July 2007.

Specialised Construction Court was established in 2013. A practice direction on the court is expected to be circulated sometime soon.There are two specialised construction courts — in the High Court of Kuala Lumpur and Shah Alam to handle construction industry-related cases. All construction disputes will be handled by this specialised court to facilitate speedy disposal of the cases and thereby help the industry.

Tribunal for Consumer Claims is an independent body established under Section 85, Part XII, of the Consumer Protection Act 1999 which came into force on 15 November 1999 with the primary function of hearing and determining claims lodged by consumers under the Act and subject to the provisions of the Act. Before the establishment of the Tribunal, all disputes between a consumer and a supplier or manufacturer had to be brought before a civil court, which often involved protracted trials and high legal and other costs, not to mention the long delays.

Problems with the Malaysian Justice System

The Anwar trials in the 1990s and 2000s raised some serious questions about the credibility of Malaysia’s justice system. Judges for example do not seem to act independently. They often make decisions that appear in accordance with the wishes of the government or the ruling party.

One judge said that he had been given a “directive” over the phone by a politician to dismiss a case that involved getting a high-profile member of Mahathir ruling coalition elected with non-existent voters. Another judge got into trouble when a photograph was published on the Internet that showed him arm and arm with a lawyer for a top tycoon while the two vacationed together in New Zealand.

People with connections to judges sometime get their cases heard quicker than other people. The prosecution is allowed to amend its charges at any point during the trial. See Anwar Trial

As time has gone by judges have become more independent and blown the whistle on rigged elections and detention of government critics, released opposition members held under Malaysia’s draconian security law and criticized the judge who handled the Anwar case.

Conflicts Within Malaysia’s Dual Legal System

The Malaysian legal system is largely based on the British common law system, as a result of British colonisation from the 19th century until the 1960s. This legal framework is set out in the Constitution of Malaysia, which protects the rights of the country's citizens. There are also individual state laws. [Source: Expat Focus]

Malaysia has a dual legal system based on criminal and civil laws, as well as sharia law. Malaysia has also adopted Australian and Indian laws, and its land laws are based on Australian legislation. Islamic law is state law, but it only applies to Muslims, who have their own courts and sentencing guidelines.

This dual legal system brings its own problems, with opponents claiming that it goes against freedom of religion. The dual system causes difficulties for those who convert from Islam to another religion, which is illegal under Sharia law. Religious affiliation is stated on MyKads.

Federal and state laws are described as Acts of Parliament. State laws are set within the state and passed by Parliament. Federal laws can override any state law, including sharia law.

Where there is no particular Act that has been passed, English law is more often drawn upon in the case of unwritten law. There have been cases where Australian and Indian laws have been used to inform decisions. Written law is based on English law and primarily comprises the constitution.

Lawyers in Malaysia

Lawyers in Malaysia may serve in either the government or private sector. Those in government service fall under the Judicial and Legal Service Commission and may work within the Attorney-General’s Chambers or be seconded to state governments as legal advisers. Government legal officers are transferable within the public legal system and play roles ranging from prosecution to legislative drafting and legal advisory work. [Source: Shaikh Mohamed Noordin and Shanthi Supramaniam,Hauser Global Law School Program, New York University School of Law, June 2016]

In private practice, Malaysia does not divide the legal profession into separate categories of barristers and solicitors as in England. Instead, practicing lawyers are known as advocates and solicitors, performing both courtroom advocacy and solicitor-related duties. Lawyers admitted to the Bar have the exclusive right to appear and plead before Malaysian courts.

The legal profession is regulated separately in different parts of the country. Peninsular Malaysia is governed by the Malaysian Bar through the Bar Council, while Sabah and Sarawak each maintain their own professional bodies — the Sabah Law Society and the Advocates Association of Sarawak. Lawyers admitted in Peninsular Malaysia are not automatically entitled to practice in Sabah or Sarawak, and vice versa. The Bar Council also has statutory authority to regulate professional conduct and uphold legal ethics and standards.

Malaysia’s legal education and professional training system are modeled largely on the English system. Admission to legal practice is open not only to graduates from Malaysian law schools but also to qualified graduates from countries such as Singapore, England, Australia, and New Zealand. However, admission as an advocate and solicitor is generally restricted to Malaysian citizens and permanent residents.

The Malaysian Bar (malaysianbar.org.my has a list of lawyers available for direct access to the public including foreigners. According to Expat Focus: There is a legal aid system and this is means tested. There is a Bar Council Legal Aid Centre (BCLAC) and there is a form to be filled in to assess your financial circumstances. If you are charged with an offence which comes under death sentencing guidelines then legal aid is not available. The court will provide a lawyer for a defence and this cost will be borne by the court.To qualify for legal aid in Malaysia, a foreigner has to be a MYKAD holder and come under the threshold for legal aid which is currently set at 650 RM for single person or a combined income of 950 RM for a couple. Foreigners who are charged with a criminal offense in Malaysia should also contact their country’s embassy. [Source: Expat Focus]

Plea Bargaining in Malaysia

In Malaysia, where informal charge bargaining practices occurred prior to amendments to the Criminal Procedure Code being made in 2010, the accused may submit a request for plea bargaining to the court. Once an agreement on the charges and/or sentence has been reached by the prosecutor and accused, the court may dispose of the case, provided that the agreement was entered into voluntarily, the sentence is within the acceptable range in the Code and is accepted by the court, and the offense involved is not one that cannot be the subject of an agreement. The accused may appeal the extent and legality of the sentence imposed by the court. [Source: Kelly Buchanan, Foreign Law Specialist, Library of Congress Law Library, Legal Legal Reports, September 2019]

Malaysia has resolved its court backlog in the past decade following the passage of criminal procedure reforms, but it is unclear the extent to which this can be attributed to the application of the plea bargaining provisions. Commentators have raised concerns about the interpretation and application of the provisions by judges, the removal of judicial discretion in sentencing, the risk of corruption and abuse, and protections for victims in the process.

Under the current provisions, a defendant must submit a request for plea bargaining to the court using the form provided in the Code. Following a brief court appearance, the prosecution and defense can proceed to agree upon a satisfactory disposition of the case. This can include plea bargaining of the charge or of the sentence. The court will then consider the agreement and dispose of the case in accordance with the relevant provision in the Code, which includes the ability to sentence the defendant to not more than half of the maximum punishment of imprisonment for the offense. Such a sentence is not available, however, where the case involves a sexually related offense, an offense that is subject to life imprisonment, an offense committed against a child under twelve years old, or where, in the case of a serious offense, the defendant has had a previous conviction for a similar offense.

Miranda-Style Rights in Malaysia

In the United States, Miranda rights refers to the legal rights of an arrested person to have an attorney and to refuse to answer questions (the “right to remain silent”) when the person is taken into police custody. The Federal Constitution of Malaysia recognizes the right of an arrested person to “consult and be defended by a legal practitioner of his choice.” Under a provision added in 2007, the Criminal Procedure Code requires a police officer, before commencing any form of questioning of a person arrested without a warrant, to inform the person that he or she may “communicate or attempt to communicate and consult with a legal practitioner of his choice.” [Source: Library of Congress Law Library, Legal Reports 2016 |*|]

Under common law, the Malaysian courts have stated that an arrested person has the right to remain silent and to refuse to answer any questions. The Criminal Procedure Code also provides that “a person may refuse to answer any question the answer to which would have a tendency to expose him to a criminal charge or penalty or forfeiture.” A police officer examining a person must first inform him or her of this provision. |*|

A further statutory requirement for a type of caution is contained in section 37a(1) of the Dangerous Drugs Act 1952, which provides that, where a person is charged with an offense under the Act, any statement that he or she has made or makes is admissible at trial, provided that “no such statement shall be admissible or used... (b) in the case of a statement made by such person after his arrest, unless the court is satisfied that a caution was administered to him in the following words or words to the like effect — It is my duty to warn you that you are not obliged to say anything or to answer any question, but anything you say, whether in answer to a question or not, may be given in evidence”:

Provided that a statement made by any person before there is time to caution him shall not be rendered inadmissible in evidence merely by reason of no such caution having been given if it has been given as soon as possible. The provision further states that a person accused of an offense under the Act “shall not be bound to answer any questions relating to such case after any such caution as aforesaid has been administered to him.”

Image Sources: Wikimedia Commons

Text Sources: New York Times, Washington Post, Los Angeles Times, Times of London, Lonely Planet Guides, Library of Congress, Malaysia Tourism Promotion Board, Compton’s Encyclopedia, The Guardian, National Geographic, Smithsonian magazine, The New Yorker, Time, Newsweek, Reuters, AP, AFP, Wall Street Journal, The Atlantic Monthly, The Economist, Foreign Policy, Wikipedia, BBC, CNN, and various books, websites and other publications.

Last updated May 2026