Malaysia's Court Hierarchy: Five Levels, Two Streams, and How Judges Are Appointed

A RM60,000 contract dispute and a challenge to the validity of a federal statute both begin as a piece of paper filed at a court counter. They do not go to the same counter, they are not decided by the same kind of judge, and only one of them can end up in front of nine judges in Putrajaya.

Which court hears what is not a matter of practice or preference. It is set by the Federal Constitution and by two Acts of Parliament, and the boundaries are unusually precise.

At a glance

Level	Court	Constituted by	Broad remit
5	Federal Court	Federal Constitution, Art. 121(2)	Final appeals; constitutional questions
4	Court of Appeal	Federal Constitution, Art. 121(1B)	Appeals from the High Courts
3	High Court in Malaya / High Court in Sabah and Sarawak	Federal Constitution, Art. 121(1)	Trials of the most serious matters; appeals from below
2	Sessions Court	Subordinate Courts Act 1948	Mid-value civil claims; most criminal offences
1	Magistrates’ Court	Subordinate Courts Act 1948	Lower-value civil claims; lesser criminal offences

Levels 3 to 5 are the superior courts. Levels 1 and 2 are the subordinate courts.

The subordinate courts: where most cases start

The Magistrates’ Court is the entry point. The Judiciary’s portal states that it handles civil disputes or claims of less than RM100,000. On the criminal side, its sentencing powers are capped — imprisonment not exceeding five years, a fine not exceeding RM10,000, and up to twelve strokes of whipping, or a lawful combination of these.

The Sessions Court sits above it. The Judiciary’s portal states that it hears civil cases valued above RM100,000 but not exceeding RM1,000,000 — and that it has unlimited jurisdiction over motor vehicle accident claims and landlord-and-tenant and distress matters, regardless of the amount at stake.

Criminally, the Sessions Court is broad: it hears all criminal cases except those carrying the death penalty.

That single exception is what pushes the gravest charges up to the next level.

The High Court — and why there are two of them

Article 121(1) of the Federal Constitution provides that there shall be two High Courts “of co-ordinate jurisdiction and status”: the High Court in Malaya, for the States of Malaya, and the High Court in Sabah and Sarawak, for those two States. Each has its principal registry at a place determined by the Yang di-Pertuan Agong, and each is headed by a Chief Judge.

Co-ordinate means neither outranks the other. They are two halves of one tier, divided geographically, a structure that dates to the formation of Malaysia in 1963.

The High Court does three distinct jobs.

As a trial court. Section 24 of the Courts of Judicature Act 1964 gives it jurisdiction that includes divorce and matrimonial causes, admiralty, bankruptcy and companies, guardianship of infants and of persons of unsound mind, and the grant of probate and letters of administration. The Judiciary’s portal describes its original criminal jurisdiction as hearing criminal matters involving the death penalty, and its original civil jurisdiction as covering disputes exceeding RM1,000,000.

As an appeal court. It hears civil and criminal appeals from the Sessions and Magistrates’ Courts.

As a supervisor. Section 35 of the Courts of Judicature Act 1964 gives the High Court “general supervisory and revisionary jurisdiction over all subordinate courts”. It may call for the record of any matter in a subordinate court, civil or criminal, at any stage, on its own motion or at a party’s instance — and once it does, proceedings below are stayed.

Not every High Court seat is filled by a judge. Article 122AB allows the Yang di-Pertuan Agong, on the Prime Minister’s advice and after consulting the Chief Justice, to appoint a judicial commissioner for a specified period or purpose. A judicial commissioner exercises the functions of a High Court judge, and what they do has the same validity and effect.

The Court of Appeal

Article 121(1B) establishes the Court of Appeal. Its jurisdiction, as the Judiciary’s portal puts it, is to determine appeals from decisions of the High Court in civil or criminal cases, together with any other jurisdiction conferred by federal law.

Section 38 of the Courts of Judicature Act 1964 sets the bench: every proceeding is heard by three judges, or such greater uneven number as the President of the Court of Appeal determines in a particular case.

There is a filter. Section 68(1) of the same Act bars an appeal to the Court of Appeal where the amount or value of the claim (excluding interest) is less than RM250,000, except with leave of the Court of Appeal. Appeals are also barred where the judgment was made by consent of the parties, where it relates only to costs left by law to the court’s discretion (again, except with leave), and where a written law declares the High Court’s decision final.

Criminal appeals follow a different logic. Under section 50, appeals lie as of right against High Court decisions made in its original jurisdiction, and against its appellate or revisionary decisions in matters decided by the Sessions Court. But where the High Court was sitting on appeal or revision from a Magistrates’ Court, an appeal to the Court of Appeal requires leave and is confined to questions of law.

The Federal Court

The Federal Court is the apex. Article 121(2) gives it jurisdiction to determine appeals from the Court of Appeal, from the High Court or a judge of it; the original and consultative jurisdiction specified in Articles 128 and 130; and such other jurisdiction as federal law confers.

Four strands are worth separating.

• Appellate. Appeals from the Court of Appeal. In criminal matters, section 87 of the Courts of Judicature Act 1964 covers appeals from Court of Appeal decisions in respect of criminal matters decided by the High Court in its original jurisdiction.
• Original and exclusive. Article 128(1) gives the Federal Court, to the exclusion of any other court, jurisdiction to determine whether a law made by Parliament or a State Legislature is invalid because the legislature had no power to make it, and to determine disputes between States or between the Federation and a State.
• Referral. Article 128(2) provides that where a question as to the effect of a provision of the Constitution arises in proceedings before another court, the Federal Court may determine the question and remit the case to that other court.
• Advisory. Article 130 allows the Yang di-Pertuan Agong to refer to the Federal Court any question as to the effect of a constitutional provision that has arisen or appears likely to arise. The Court pronounces its opinion in open court.

Section 74 mirrors section 38: three judges, or a greater uneven number as the Chief Justice determines. That is why constitutional cases are sometimes reported as being heard by five, seven or nine judges.

For civil appeals, section 96 is the gate. Leave of the Federal Court is required, and it may be granted only on a judgment of the Court of Appeal in a civil matter decided by the High Court in its original jurisdiction that involves a question of general principle decided for the first time or a question of importance on which a Federal Court decision would be to public advantage — or on a decision as to the effect of any provision of the Constitution, including the validity of written law relating to it. Section 97 gives the applicant one month from the decision to apply, extendable by the Court.

Courts outside the ladder

The five-level structure is not the whole map.

Syariah courts. Article 121(1A) provides that the courts referred to in Article 121(1) “shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts.” The Syariah courts are constituted by State law and are not part of the federal hierarchy described above.

The Special Court. Part XV of the Constitution, inserted in 1993, establishes a Special Court consisting of the Chief Justice as Chairman, the Chief Judges of the High Courts, and two other persons who hold or have held office as a judge of the Federal Court or a High Court, appointed by the Conference of Rulers. Article 182 gives it exclusive jurisdiction over proceedings by or against the Yang di-Pertuan Agong or the Ruler of a State in his personal capacity, with its registry in Kuala Lumpur.

How a judge reaches the bench

Two mechanisms operate in sequence.

First, the Judicial Appointments Commission. Established under the Judicial Appointments Commission Act 2009, gazetted on 8 February 2009, the Commission’s stated purpose is to make the process for nominating, appointing and promoting superior court judges more transparent and comprehensive. Its functions include selecting suitably qualified persons who merit appointment for the Prime Minister’s consideration, receiving applications, formulating selection mechanisms, and recommending programmes to improve the administration of justice.

The Commission’s portal lists nine members: the Chief Justice as Chairman, the President of the Court of Appeal, the Chief Judge of the High Court in Malaya, the Chief Judge of the High Court in Sabah and Sarawak, a Federal Court judge, and four other members drawn from outside the serving judiciary.

Its published selection criteria include integrity, competency and experience; objectivity, impartiality, fairness and good moral character; decisiveness, timeliness and legal writing skill; industriousness and case management; and physical and mental health. The Commission also records that a serving judge or judicial commissioner with three or more judgments outstanding, or grounds of judgment unwritten more than sixty days past the due date, is not to be considered.

The Commission’s own portal describes this as “the process preceding the process of appointment under Article 122B of the Federal Constitution.”

Second, the constitutional appointment. Article 122B(1) provides that the Chief Justice, the President of the Court of Appeal, the Chief Judges of the High Courts and the other judges of the Federal Court, the Court of Appeal and the High Courts are appointed by the Yang di-Pertuan Agong, acting on the advice of the Prime Minister, after consulting the Conference of Rulers.

The Article then prescribes consultation before that advice is tendered:

Appointment to	Prime Minister must consult
Any judge other than the Chief Justice	The Chief Justice (Art. 122B(2))
Chief Judge of a High Court	The Chief Judge of each High Court; and, for Sabah and Sarawak, the Chief Minister of each of those States (Art. 122B(3))
Federal Court (other judges)	The Chief Justice (Art. 122B(4))
Court of Appeal (other judges)	The President of the Court of Appeal (Art. 122B(4))
A High Court (other judges)	The Chief Judge of that Court (Art. 122B(4))

Who is eligible. Article 123 sets two conditions: the person must be a citizen, and for the ten years preceding appointment must have been an advocate of those courts or a member of the judicial and legal service of the Federation or of the legal service of a State — or sometimes one and sometimes another.

How long they serve. Article 125(1) provides that a judge of the Federal Court holds office until the age of sixty-six years, or such later time, not being later than six months after that age, as the Yang di-Pertuan Agong may approve. Article 125(2) provides that a judge may resign by writing addressed to the Yang di-Pertuan Agong, but shall not be removed from office except in accordance with the further provisions of that Article, which require a representation to the Yang di-Pertuan Agong and the appointment of a tribunal.

How many. Article 122 sets the Federal Court as the Chief Justice, the President of the Court of Appeal, the two Chief Judges, and a number of other judges that the Yang di-Pertuan Agong may fix by order; the reprint records that number as not exceeding eleven, per P.U. (A) 163/2009. Article 122A does the same for the Court of Appeal — a President and other judges not exceeding thirty-two, per P.U. (A) 164/2009. Article 122AA provides that each High Court consists of a Chief Judge and not less than four other judges, with the ceilings recorded as sixty for the High Court in Malaya and thirteen for the High Court in Sabah and Sarawak, per P.U. (A) 384/2006.

Article 122(1A) also allows the Yang di-Pertuan Agong, on the Chief Justice’s advice, to appoint as an additional judge of the Federal Court any person who has held high judicial office in Malaysia — and expressly provides that such a person is not ineligible by reason of having attained the age of sixty-six.

Common mistakes

Treating “High Court” as one court. There are two, of co-ordinate jurisdiction and status. Which one hears a matter is a question of territory, not seniority.

Assuming an appeal is automatic. Below RM250,000, an appeal to the Court of Appeal needs leave. To the Federal Court in civil matters, leave is always needed and the statutory grounds are narrow.

Confusing the Judicial Appointments Commission with the appointing authority. The Commission selects and recommends. The appointment is made by the Yang di-Pertuan Agong under Article 122B.

Reading the Sessions Court’s RM1,000,000 ceiling as absolute. It does not apply to motor vehicle accident claims or to landlord-and-tenant and distress matters, where the Judiciary’s portal records unlimited jurisdiction.

Expecting the civil courts to decide a Syariah matter. Article 121(1A) removes from them any matter within the jurisdiction of the Syariah courts.

What’s next

If you want the constitutional frame this sits inside — Part IX is one of fifteen Parts — start with the Federal Constitution. For the branch that makes the laws these courts apply, see Parliament of Malaysia.

The three verification notes in this article’s frontmatter mark figures taken from the Judiciary’s published portal or from a reprint of an Act rather than from the current gazetted text; treat those specific numbers as provisional until a reviewer confirms them against the Act itself.