Sarawak’s Judiciary is headed by the Chief Judge of Sabah and Sarawak, who oversees the administration and working of all the various courts. The Judiciary in Sarawak consists of the High, Session and Magistrates’ Courts, the Sarawak Syariah Judicial Department and the Native Court.
Generally, the High Court has jurisdiction to hear cases which carry the death penalty. Jurisdiction of the High Court in criminal cases is specified in sections 22, 26, 31 and 35 of the Courts of Judicature Act, 1964.
The High Court has jurisdiction to hear civil cases in respect of divorce and matrimony; admiralty; bankruptcy and company cases; appointment and control of guardians of infants and their property; appointment and control of guardians of disabled persons and their estates; and grant of probates of wills and letters of administration.
Jurisdiction of the High Court in civil cases is specified in sections 23, 24, 24A, 25 (including Schedule), 25A, 28, 30, 32, 33 and 35 of the Courts of Judicature Act, 1964.
The Sessions Court has jurisdiction to try all offences other than offences punishable by death.
The Sessions Court has unlimited jurisdiction to hear running-down cases; landlord and tenant; distress; other suits where the amount in dispute does not exceed RM250,000, and with the consent of the parties involved; cases exceeding RM250,000, but the award is confined to the statutory limit of RM250,000.
A First Class Magistrates’ Court has jurisdiction to try all offences for which the maximum term of imprisonment provided by law does not exceed 10 years, or which are punishable with a fine only, or cases involving robbery and housebreaking by night.
Generally, a First Class Magistrate may pass any sentence allowed by law not exceeding five years’ imprisonment, a fine of up to RM10,000, whipping of up to 12 strokes, or any sentence combining any of the sentences aforesaid.
However, in some cases, such as offences under the Dangerous Drugs Act, 1952 and Betting Act, 1953, the Magistrate may impose a fine higher than RM10,000.
A Magistrates’ Court has jurisdiction to try all actions and suits of a civil nature in which the amount in dispute does not exceed RM25,000.
The Syariah Court which comes under the Sarawak Islamic Religious Department, was established as a separate department in 1991. Its objective is to hear and decide on civil cases involving divorce and matrimony, civil and property claims, guardianship of infants and inheritance of Muslims.
Ordinances Implemented for the Sarawak Syariah Court
Since 1991, six ordinances passed by the State Assembly and two rules and regulations passed by Majlis Islam Sarawak have been enforced and implemented by the State. They are the Ordinan Mahkamah Syariah, 1991; Ordinan Undang-Undang Keluarga Islam, 1991; Ordinan Acara Mal, 1991; Kanun Acara Jenayah, 1991; Ordinan Keterangan Syariah, 1991; Ordinan Kesalahan Jenayah Syariah, 1991; Kaedah Peguam Syarie, 1992; and Kaedah-Kaedah Prosiding Suami Isteri, 1992.
According to Sections 1 and 10, Ordinan Mahkamah Syariah, 1991, the Syariah Court has jurisdiction in criminal matters to hear and decide on any wrongdoings under Ordinan Majlis Islam (Pemerbadanan); Ordinan Kesalahan Jenayah Syariah, 1991; Ordinan Undang-Undang Keluarga Islam, 1991 or any written law which is under jurisdiction of the Syariah Court.
On civil claims, the Court hears and decides on any matters in which all parties are Muslim such as engagement, marriage, divorce, fasakh, faraq, custody of children, maintenance of wife and children, claims to property during marriage, inheritance, waqaf and nazar, etc.
The Native Court administers the Native Courts System and enforces Native Customs (Adat). The Native Court Rules, 1993, provide standard guidelines as to the mode of instituting proceedings and the manner in which cases should be handled.
Sarawak’s Native Court’s headquarters is based at Sri Muhibah, Jalan Taman Budaya, Kuching. A Chief Registrar - the chief administrator of the Native Court - supervises all Registrars, who are the District Officers and Sarawak Administrative Officers in charge of sub-districts.
To date, 58 Registrars have been appointed to receive claims, complaints, appeals, applications, payments of fees, fines, and to keep all court records of cases within their respective areas and submit the returns for proceedings. The Chief Registrar, Registrars and all the subordinate Court Officers are obliged to follow the special directions of the State Secretary.
Roles of Native Courts in Sarawak
The implementation of the new Native Court System involves the following activities or roles: