MALAYSIA Law and Practice Contributed by: Dhinesh Bhaskaran, Rabindra Nathan, Shanti Mogan and Lai Wai Fong, Shearn Delamore & Co
1. General 1.1 General Characteristics of the Legal System Malaysia’s legal system is based on common law and follows an adversarial model. Depend- ing on the nature of the proceedings, evidence may be led orally or through affidavits. Legal submissions normally involve a combination of written and oral argument. 1.2 Court System Malaysia’s court system is hierarchical, with the primary courts being (in ascending order) the Magistrates’ Court, Sessions Court, High Court, Court of Appeal and Federal Court. There are two High Courts of co-ordinate juris- diction, namely the High Court of Malaya (Pen- insular Malaysia) and the High Court of Sabah and Sarawak (East Malaysia). Courts that are organised by subject matter are mainly situated in Kuala Lumpur. Malaysia also has Sharia courts, which deal with certain matters involving Islamic law. The typical time taken from commencing pro- ceedings to getting to trial is 12 to 24 months. 1.3 Court Filings and Proceedings In civil proceedings, court filings and proceed- ings are accessible by the public. Once a docu- ment is filed, it is generally considered public and not confidential. In criminal proceedings, court filings are not accessible by the public, although proceedings are. If a party wishes court filings or proceedings to be kept confidential, an application for a sealing
or protective order may be made. The court may view a document on a confidential basis before deciding whether to grant such an order. 1.4 Legal Representation in Court The legal profession in Malaysia is governed by the Legal Profession Act 1976 (Peninsular Malay- sia), the Advocates Ordinance 1953 (Sabah) and the Advocates Ordinance 1953 (Sarawak). Legal representatives who have a right of audi- ence in Peninsular Malaysia are advocates and solicitors of the High Court who are qualified per- sons under Section 11 of the Legal Profession Act 1976 and hold valid practising certificates. Legal representatives who have a right of audi- ence in Sabah or Sarawak are advocates and solicitors who have been born in Sabah or Sarawak, respectively, have been ordinarily res- ident in Sabah or Sarawak, respectively, for a continuous period of at least five years, or are domiciled in Sabah or Sarawak, respectively, at the relevant time, and hold valid practising certif- icates. Advocates and solicitors from Peninsular Malaysia are only allowed a right of audience on an ad hoc basis, with leave from the High Court of Sabah and Sarawak for the proceedings in question. A foreign lawyer will only be allowed a right of audience on an ad hoc basis, with leave from the relevant High Court for the proceedings in question. The foreign lawyer will have to dem- onstrate skills or ability which local lawyers do not possess.
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