Under the Practice Direction of the Chief Judge of Malaya No 2 of 2020 dated 22 September 2020 which came into force on 1 October 2020 (“Practice Direction No. 2/2020”), certain designated Sessions Court Judges in Peninsular Malaysia (“Designated Sessions Court Judges”) have been conferred jurisdiction to hear the following matters:
The conferment of jurisdiction to the Designated Sessions Court Judges had earlier been made pursuant to the Notification of Conferment of Jurisdiction to Sessions Court 2020 [PU(B) 374/2020] and Notification of Conferment of Jurisdiction to Sessions Court (No. 2) 2020 [PU(B) 375/2020], both with effect from 1 July 2020, under section 2(2) of the Act.
Although the Notifications stated that the 35 Designated Sessions Court Judges named in their respective schedules were conferred jurisdiction to “deal with any matter
” under the Act, Practice Direction No. 2/2020 restricts the jurisdiction of the 35 Designated Sessions Court Judges to the matters set out in the first paragraph above.2
In addition, if there are any issues in dispute, either raised by parties themselves or identified by the Designated Sessions Court Judges, the Designated Sessions Court Judges are required to fix the matter for case management before a High Court Deputy Registrar to enable it to be heard by a High Court Judge.3
Moving forward, solicitors are to continue to draft and file their applications at the High Court. The High Court will then transfer such applications, where appropriate, to the Sessions Court.4
The effect of Practice Direction No. 2/2020 is to allow for quicker disposal of joint-petition divorce hearings and section 106 Applications by reducing the caseload of the High Court given that such matters are largely uncontested in practice.
Appealing directly to the Court of Appeal?
Paragraph 4.7 of Practice Direction No. 2/2020 provides that any appeal against the Designated Sessions Court Judge’s decision should be heard by the Court of Appeal. However, under the Courts of Judicature Act 1964, appeals from subordinate courts are heard by the High Court5
whereas the Court of Appeal’s jurisdiction to hear civil appeals refer only to judgments or orders of the High Court.6
Although the Law Reform (Marriage and Divorce) Act 1976 allows for any Sessions Court Judge to have jurisdiction to deal
with any matter under the Act, it does not alter the jurisdiction of a Sessions Court to that of a High Court. Without any statutory authority or written law granting the Court of Appeal jurisdiction to hear an appeal from the Sessions Court, paragraph 4.7 of Practice Direction No. 2/2020 cannot supersede the relevant court rules or statutory legislation7
and may arguably be ultra vires
the Courts of Judicature Act 1964 and therefore void.
Alert prepared by Trevor Padasian (Partner) and Ryan Jaafar (Associate) of the Family Law Practice of Skrine