Malaysia

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Background

Malaysia comprises 13 states and 1 federal territory with three components: the city of Kuala Lumpur (the capital), Labuan, and Putrajaya. Malaysia was a British colony and protectorate in the late 18th and 19th centuries, it was occupied by Japan from 1942 to 1945, and it became independent from Great Britain in 1957.

Malaysia is a constitutional monarchy, headed by the King and a bicameral Parliament consisting of a non-elected upper house and an elected lower house. All peninsular Malaysian states have hereditary rulers called sultans, except Melaka and Pulau Pinang, which have governors.

Type of System

The Malaysian judicial branch is made up of the superior courts and the subordinate courts. The superior courts comprise the Federal Court (the highest court), the Court of Appeal and the two High Courts. By virtue of Article121(1) of the Federal Constitution judicial power in the Federation is vested in two High Courts of Coordinate Jurisdiction and Status, namely the High Court of Malaysia for Peninsular Malaysia and the High Court of Borneo for Sabah and Sarawak. Inferior courts may be created by federal law.

The subordinate courts consist of the Sessions Court, Magistrates’ Court and the Penghulu’s Courts. The Subordinate Courts in Sabah and Sarawak consist of the Sessions Court, Magistrates’ Courts and Native Courts. In the hierarchy of Subordinate Courts the lowest is the Penghulu’s Court. A Penghulu is a headman appointed by a state government. The criminal jurisdiction of a Penghulu’s Court is limited to the trial of offences of a minor nature. In addition, there is also a juvenile court for offenders below the age of 18.

The legal system is based on English common law. Islamic law, however, is applied to Muslims in matters of family law and religion.

Sources of Defendants' Rights

The Constitution was approved on 31 August 1957, and it has been amended many times. Part II is titled “Fundamental Liberties”, and it contains some fundamental rights related to criminal proceedings, such as the equality before the law, the prohibition of ex post facto laws, the double jeopardy principle, and the privilege against self incrimination. The Criminal Procedure Code, Act 593, however, is the principal source of defendant’s rights.

Defendants' Rights

A warrant is required to make an arrest, but, there are many exceptions to the rule (Article 23 Criminal Procedure Code). Article 5 of the Constitution requires that when a person is arrested, he shall be informed as soon as possible of the grounds of his arrest and shall be allowed to consult with and be defended by a legal practitioner of his choice. The same provision states that if a complaint is made to a High Court or any judge that a person is being unlawfully detained, the court shall inquire into the complaint and, unless satisfied that the detention is lawful, shall order him to be produced before the court and release him.

An arrested person must be produced before a magistrate without unreasonable delay, and in any case within 24 hours (Articles 5(4) Constitution, 28 Criminal Procedure Code ). If the investigation cannot be completed within this timeframe, and there are grounds for believing that the accusation or information is well founded, upon the request of the police officer making the investigation, the Magistrate may authorize the detention of the accused for a term not exceeding fifteen days(Article 117 Criminal Procedure Code).

Any statement made at any time, whether before or after the person is charged, whether in the course of a police investigation or not, and whether or not wholly or partly in answer to questions, shall be admissible in evidence at his trial. Additionally, if the person charged tenders himself as a witness, any such statement may be used in cross-examination and for the purpose of impeaching his credibility. According to Article 113 Criminal Procedure Code, no such statement is admissible if the making of the statement appears to the court to have been caused by any inducement, threat, or promise having reference to the charge.

Post-Conviction

The system gives the possibility to appeal the judgment of a magistrate or of the High Court, and also the possibility of “revision”. A judge may indeed examine the record of any proceeding before any subordinate criminal court for the purpose of satisfying himself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of that subordinate court. However, no party has any right to be heard, either personally or by advocate, but the judge may, if he thinks fit, hear any party (Article 323 Criminal Procedure Code).


See Criminal Justice Systems Around the World and Legal Aid in ASEAN countries

QUICK FACTS

  • There are 36,040 held in Malaysian prison. 32.3% are pre-trial detainees and remand prisoners.
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