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Southeast Asian Legal Research Guide: Case Law

Malayasia's Court Hierarchy

Malaysian Court System

Prior to 1985, the Judicial Committee of the Privy Council (JCPC) was the highest Court of Appeal. Appeals to the Privy Council in criminal and constitutional cases were abolished in 1978.  In 1985, all civil appeals to the Privy Council were abolished.

Malaysian Courts, the Administration of Justice & the Judiciary

Malaysia maintains two parallel justice systems: the Syariah Court System in each of the thirteen states, and the Civil Court System for the whole Federation. There are also two separate High Courts - one for the Peninsula and one for the Borneo states of Sabah and Sarawak.The Malaysian civil court system is based on the UK common law legal system.  

Syariah courts decide matters within their 'exclusive jurisdiction' relating to Islamic law in which the litigants are all Muslim. This jurisdiction predominantly deals with personal and family law areas such as succession, betrothal, marriage, divorce, maintenance, adoption, guardianship, trusts, Islamic religious revenue and mosques. While criminal law is within the Federal Government’s jurisdiction, certain criminal offences which involve Muslims are also within the jurisdiction of the Syariah courts. The jursidiction is protected by Article 12(1A) of the Constitution, which provides that the civil courts have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts. 

See detailed explanations of the Syariah court system in:

The following resources provide good overviews of the court structure, the judiciary and the administration of justice:

Yvonne Tew, 'The Malaysian Legal System: A Tale of Two Courts' (2011) 19 Commonwealth Judicial Journal 3-7 (open access) - this article discusses the relationship between the judiciary and the other two branches of government; the executive and the legislature, and the relationship of the civil courts with the religious Syariah courts.

Legal Systems in ASEAN: Malaysia (from the ASEAN Law Association) (open access) includes the following very useful (although a little dated) sections:

Structure of the Court Jurisdiction - on the Federal Court of Malaysia website - click the Public dropdown menu to see this information.

Judicial Training in ASEAN: A Comparative Overview of Systems and Programs - Malaysia (Human Rights Resource Centre, 2014) pages 45-52 (open access) 

Halsbury's Laws of Malaysia (UniMelb staff & student access) contains a detailed chapter on the Courts and Judicial System.

Tan Sri James Foong, The Malaysian Judiciary: a Record (LexisNexis, 3rd ed, 2017) link to catalogue record

H P Lee and Richard Foo, 'The Malaysian Judiciary' in H P Lee and Marilyn Pittard, Asia-Pacific judiciaries: independence, impartiality and integrity (CUP, 2018) 231-263 Link to e-book

Recent Open Access Articles & Book Chapters on SSRN

Tew, Yvonne, 'On the Uneven Road to Constitutional Redemption: The Malaysian Judiciary and Constitutional Politics' (2016) 25(3) Washington International Law Journal 674-696

Abstract: This Article explores the Malaysian judiciary’s approach toward interpreting the Federal Constitution of Malaysia and situates it within the context of the nation’s political and constitutional history. It traces the judiciary’s tentative movement toward a more rights-oriented approach followed by its more recent retreat in several appellate court decisions. The Article argues that the Malaysian courts’ journey toward constitutional redemption has been uneven so far. In order to reclaim its constitutional position as a co-equal branch of government, the Malaysian judiciary must exhibit greater willingness to assert its commitment to constitutional supremacy and the rule of law.

 

Finding Malaysian Cases in English

LAW REPORTS

  • The Malayan Law Journal Reports (direct access to the database via this link) on Lexis Advance Pacific (UniMelb staff & student access) - full text of reports of cases from the Federal Court, Court of Appeal, Malaysian High Court (in all states) from 1932 to current. This database can be browsed by year or searched.
  • Shariah Law Reports (direct access to the database via this link) on LexisNexisAu - full text of from Oct 1 2004 to current(UniMelb staff & student access). This database can be browsed by year or searched.
    • Note: the text of the decisions in this report series is in Malay, but the catchwords and headnotes are in English.
  • CLJ Law (UniMelb staff & student access  - requires a separate password in addition to your UniMelb password. Get password here) includes:

    • Current Law Journal Reports (CLJ Rep / CLJ Supp)
    • Malaysian Tax Cases (MTC)
    • Business Law Journal (BLJ)
    • Industrial Law Reports (ILR)
    • Reported cases from the Magistrates and Sessions courts (SMC)
    • Syariah Reports (Selected cases from 2004 to current) (CLJ Sya/CLJ ISL/SYA/SHR)

CLJ has a sophisticated search engine and can also be browsed by eg: court and/or topic. From the home page, select Advanced Search to see the following screen:

 

UNREPORTED DECISIONS

CLJ Law (UniMelb staff & student access - requires a password. Get password here) includes the LNS series - all unreported cases from:

  • Civil and criminal courts (LNS 1)
  • Industrial courts (LNS 2) 
  • Syariah courts (LNS 3) 
  • Magistrates and Sessions courts (LNS 5)
  • Orders (LNS(O))
 

The Malayan Law Journal Unreporteds - (direct access to the database via this link) on Lexis Advance Pacific - from March 1991 to current (UniMelb staff & student access). Contains unreported judgments from the Federal Court, Court of Appeal and High Court that are not reported in the Malayan Law Journal Reports

  • Note - there is no browse option for this series - it can only be searched. 

 

Unreported Decisions on Individual Court Websites

Chief Registrar's Office, Federal Court of Malaysia website

  • includes completely up to date full text Federal Court judgments and Court of Appeal judgments from 2008 onwards. The pages are in Malay, but can be translated by right clicking anywhere in the page. The judgments themselves are provided as PDFs and are a mixture of Malay and English. The judgments can be browsed by date, or searched by date, Case Number, Keyword, Summary, Judge and broad Topic. 
  • provides information relating to the Federal Court of Malaysia, the Malaysian Court of Appeal and the High Court of Malaysia (including Practice Notes and Practice Directions), and links to the Malaysian State Courts.

The High Court in Sabah and Sarawak - this portal includes:

  • information about the court and judges, and practice directions. 

Case Citators

‚ÄčCaseAnalysis Malaysia on LexisNexisAu - from 1932 to current.

(Note: as at 8 March 2018, this database is currently unavailable - access will be restored as soon as possible)

  • Description: this citator, annotator and digester covers all significant reported and unreported Malaysian judgments, as well as key overseas cases (such as from England or other Commonwealth jurisdictions) where they are referred to by Malaysian cases. As well as providing key case details - party names, court, judges, judgment date, parallel citations - catchwords and tables of legislation referred to provide a valuable snapshot of the case you are researching. To clarify the precedential value of each case, all cross-references between cases are displayed and classified (followed, distinguished, overruled, referred etc) and the treatment is characterised as positive, cautionary, negative or neutral). CaseAnalysis also features complete searchability and links to full-text reported and unreported judgments and primary legislation.
  • Access: to access this database, go to LexisNexisAu. From the LNAU homepage go to Source Directory>Browse Sources. Select Malaysia from the Country menu and Cases from the Content Type menu. Then click the General Legal folder. 

Finding Cases on Legislative Provisions

To find judicial consideration of legislation and specific legislative provisions, use CLJ Law (UniMelb staff & student access  - requires a separate password in addition to your UniMelb password. Get password here).

To find judicial consideration of specific provisions of the Constitution, Federal and State Acts and subordinate legislation, you can either:

  1. Start on the CLJ Home Page. Use the search boxes (in either simple or Advanced Search) to type a search term and then the Act and section number (if required). The Act box will autosuggest legislation titles as you type.
    TIP: you must type a search term, or you will get no results.

OR

2. Start with the legislation

  • Once in CLJ Law, select BROWSE on the top menu, and select Federal Acts or State Enactments from the dropdown menu
  • Navigate to the Act or piece of subordinate legislation in which you are interested (From the Acts page, you can find legislation by title, Act number, or subject).
  • The menu of the left of each Act lists the sections. Click on the specific legislative provision, and it will be shown in full in the right window pane.
  • If there are any cases on this provision, there will be a blue 'Cases Referred' button at the top of the screen, with a red number indicating the number of cases considering the provision.
  • Click on the blue button and the list of cases will appear.