How the Central Authority Works in Malaysia

Written by: Undisputed Legal Inc.

This article will provide guidance on How The Central Authority Works In Malaysia. A worldwide mechanism for the service of process among its member nations, the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters streamlines the cross-border delivery of the process. Each member state has selected a Central Authority as the primary point of contact under the HSC. Member states generally acknowledge that the Hague Service Court must be adhered to if the lex fori mandates the outside service of a court document. Click Here for Frequently Asked Questions About Process Servers!

But what happens to your documents when the nation is not a part of the Hague Convention? Before attempting to serve a process outside the court’s jurisdiction, the High Court must provide permission in Malaysia. A private process service agency like Undisputed Legal can ensure that your papers are delivered with care, even if Malaysia is not a signatory to the Hague Convention. Click here for information on How To Identify A Good Process Service Agency

The implementation of Malaysia Process Service is somewhat more complicated than that of other countries. There are fewer options for delivering foreign service from Malaysia as the country has not joined the Hague Service Convention. Informal service is often much faster, even if official service can take a month or more. Our local Undisputed Legal process servers, consequently, are very helpful in ensuring that your papers are delivered as quickly as possible within the nation. Click here for information on How Rush Process Service Can Expedite Your Case.

Understanding the Authorities in Malaysia

Most cases in Malaysia’s courts end in an adversarial ruling. With the adoption of the Rules of Court in 2012 came additional procedural powers for the courts. Online dispute resolution is often not permitted in court proceedings. The nature of the claim and the amount at risk determine which court is most appropriate for a lawsuit. Magistrates, Sessions, or High Courts may hear cases of business matters. Click here for information on How Service of Process Ensures A Solid Foundation.

Due to its participation in many bilateral investment accords, the Malaysian government has established a mechanism for the alternative serving of papers to diplomatic channels or private process servers like those at Undisputed Legal. Unless otherwise specified under the applicable treaty, such as by the Attorney General or the Ministry of International Trade and Industry, these messages are typically transmitted and received by the Ministry of Foreign Affairs. Click here for information on How Process Servers Protect Your Rights: Myths Debunked

Judicial papers must be prepared in the national language (Malay) and may be supported by an English translation. Mail service or service through an agent (such as a local process server like those at Undisputed Legal), or letters rogatory may all serve process in Malaysia unless expressly prohibited. No matter the witness’s country, a voluntary deposition may be held in Malaysia as long as no coercion is utilized. At the U.S. Embassy, either on notice or under a commission, U.S. consular personnel or private solicitors from the US or Malaysia may take oral or written depositions. Prior coordination with the U.S. embassy must ensure that a U.S. consular official swears in the witness, interpreter, and stenographer. Click here for information on How To Overcome Language Barriers in Process Service

Role of the Ministry of Foreign Affairs

Attestation services are offered by the Consular Division of the Malaysian Ministry of Foreign Affairs (Wisma Putra) for various documents required for endorsement by foreign missions in Malaysia. These documents include birth certificates, educational certificates, certificates of origin, letters of power of attorney, certificates of origin, certificates of origin, and commercial invoices. Before a document may be used outside the nation, it must undergo this process to verify the stamp and signature. Under the authority of the Secretary-General, the Secretary General’s Office, the Legal Division, the Integrity Unit, the Internal Audit Unit, the Deputy Secretary General for Bilateral Affairs, and the European Division are responsible for international affairs within the Ministry. Click here for information on How Timelines Are Important in Process Serving.

All matters about Malaysia’s diplomatic relations are to be handled by the Ministry of Foreign Affairs. Issues about social and cultural promotion, economics, security, and political interactions all fall under the Ministry’s purview. To carry out its mandate, the Ministry provides consular services and assistance within the bounds allowed by international law articulates the Government’s foreign policy positions, and monitors and analyzes regional and global developments. The Ministry is further responsible for developing and advising the Government on foreign policy options and coordinating a coherent position on international issues with other Ministries and Agencies.

The ASEAN Community, established in 2015, has greatly improved Malaysia’s strategy and involvement in the area, and ASEAN continues to be the foundation of Malaysia’s foreign policy. Malaysia retains multiple treaties for service within ASEAN countries, both bilaterally and multilaterally.

Malaysia has collaborated with other developing nations in technical cooperation through its foreign policy institutions by sharing its expertise and knowledge. The Malaysian Technical Cooperation Programme (MTCP) is one such initiative, along with other related initiatives, including the Langkawi International Dialogue, bilateral humanitarian aid, and public diplomacy initiatives.

Summons in Malaysia

Filing a writ of summons in court with either [A.] a statement of claim or [B.] a brief description of the claim’s nature or the relief or remedy sought in the action is the standard procedure for initiating a claim. The court typically seals the writ within one or two days after the online filing. When the sealed writ is issued, the Malaysian Process Service requires the claimant to serve the summons and writ with the statement of claim. If the claimant wants to satisfy the standards of Malaysian Process Service, they have to serve the summons with a short statement of the cause of action and the reliefs sought. This might be achieved by personally serving the defendant or sending registered mail with an acknowledgment of receipt (AR) to their last known address through a private process service agency like Undisputed Legal.

The summons must be served within one month after it is issued. At any point, the defendant may be served with notice. The defendant is given fourteen days from receipt of the writ to respond to the claim by filing a memorandum of appearance. The defendant has limited time to apply with supporting affidavits to challenge the court’s authority to hear the claim. This could be to assert that Malaysia is not the right place for the dispute or that the writ was served irregularly, among other possible defenses. A defendant may face a default judgment if he or she does not attend court.

A memorandum of presence must be served to the claimant by the defendant within fourteen days of the filing date. Without a prior submission, the claimant must do so within fourteen days following the defendant’s presence. An adequately executed summons should be submitted in person at each defendant’s residence or via prepaid return receipt registered mail to each defendant’s last known address.

To personally serve someone with a summons, the process server, like those at Undisputed Legal, must first leave a copy with that person and, at their request, display them the sealed copy of the summons. In cases when a counsel is appointed to represent a defendant, the summons is considered served onto the defendant on the date of endorsement, since it signifies that the attorney accepts service of the summons on behalf of the defendant.

The deadline for serving a summons is fourteen days before the date set for the hearing. The defendant’s unit’s commanding officer or adjutant may receive the summons and forward it to the defendant directly if he is a member of the military forces. The person in charge of the jail may receive the summons and forward it to the defendant if the defendant is a prison inmate. When serving a summons, the party or their attorney must specify who served it, when, where, and how. It is necessary to provide the exact day and time of service.

We at Undisputed Legal understand the requirements of service in Malaysia. The process server responsible for serving the summons must sign Form 7 (Indorsement of Service). If the defendant is a corporation, the document can be served on the chairman, president, secretary, treasurer, or any other equivalent officer, or it can be left at the body corporate’s registered office. Alternatively, it can be sent by prepaid registered post to the office, or the principal office if there is more than one office, regardless of where the office may be.

Substituted service is an option available for those who are unable to personally deliver or send the summons by prepaid registered mail. Interestingly, in Malaysia, service via social media or messaging platforms like Facebook or WhatsApp may be regarded as a substituted service. Service via social media has been specified in the Rules of Court, which generally specify that human service or prepaid AR registered post is the norm. Publication and notifications are also officially sanctioned means of substitute service in Malaysia.

Understanding the Rules of Court in Malaysia

Since serving papers in Malaysia does not follow the requirements of the Hague Service Convention, process servers like those Undisputed Legal have to follow domestic laws to enact service in the country. In 2012, the Rules of Court codified the procedures for the originating proceedings, which include the rules for the delivery of writs and originating summons. There are two acceptable methods of service under the regulations outlined in Order 10, Rule 1 via personal service or through certified mail. Writs must be delivered to each defendant either personally or by prepaid A.R., according to the requirements of any statute. Certified mail should be addressed to the defendant’s most recent known address. It should be noted that the initial effort at service, to the extent feasible, should be made no later than one month after the writ’s date of issuance.

The Federal Court will impose severe sanctions on litigants who have attempted to get a judgment in default (‘JID’) without providing evidence that the defendants have received the Writ of Summons and Statement of Claim. If the defendant does not contest this, the evidence of service is prima facie, and it is a registered post.

It is not sufficient to just deposit the writ with the post office and be done with it. A private process service agency like Undisputed Legal can ensure that your papers are served within Malaysian specifications for postal service. It should be known that service by Registered Post, is ‘presumed’ ‘until the contrary is proved’ when a document is served through this method. The defendants should be able to meet their burden of proof because the Registered Post provides conclusive evidence of service. The Writ of Summons will also be considered defective in law if it is not served to the correct address, which is the defendant’s last known address.

Foreign service of papers in Malaysia

Defendants who are not citizens of Malaysia are required to apply to the court for permission to serve their documents outside of Malaysia. An affidavit proving the applicant’s legal standing and identifying the defendant’s residence or country of nationality is required to accompany the application. Whether the other nation has a civil process convention will determine how writs or originating summons are served. Service may be made via the relevant court authorities in the host nation, a Malaysian consular official, the applicant or their agent, or by a convention if one exists. However, a private process service agency like Undisputed Legal is the most effective way of conducting service in Malaysia.

The REJA, or Reciprocal Enforcement of Judgements Act, 1958, governs the process by which foreign judgments may be enforced in Malaysia. Based on the concept of international reciprocity, which specifies that a foreign judgment may only be recorded in Malaysia if it is a reciprocating country (as listed in REJA), foreign judgments can only be enforced in Malaysia. An original summons accompanied by an affidavit must be initiated by the foreign judgment creditor.

For a judgment to be valid, it must [A.] be final; [B.] include a payable amount (not including taxes, fines, or penalties); and [C.] originate from a country that is a party to REJA’s list of reciprocating nations. Once the prerequisites) are satisfied, registration becomes virtually required. The applicant must validate all three requirements before the judgment may be recorded. This foreign judgment should have been handed down by the original court within six years, the judgment debtor has not paid it in full, and it may be enforced or executed at the original court.

A letter of request from the consul or another official of that country may serve foreign proceedings on a party in Malaysia. If a foreign party needs to collect evidence from a witness in Malaysia for use in a foreign case, they may ask a private process service agency like at Undisputed Legal which is familiar with Malaysian courts to help them out. The individual seeking the order or the registrar of a Malaysian court might choose a suitable individual to examine witnesses. The registrar will receive the witness’s deposition and examination results and will then issue a certificate that the High Court may seal for use outside of its jurisdiction. The registrar will thereafter transmit the certificate to the designated individual so that it may be used in the foreign court.

Notary Public in Malaysia

A Notary Public is a highly qualified attorney who acts as a public official with the primary responsibility of preparing, authenticating, and certifying papers for use abroad. This position is acknowledged globally. After a rigorous application procedure, the Attorney General of Malaysia appoints Notaries Public. Notaries public are primarily responsible for confirming the signer’s identity, making sure the signatory has read and comprehended the papers, and ensuring the signatory understands the transaction the documents are supporting.

To certify, authenticate, and attest papers that are to be used in any official proceedings or outside of Malaysia, one has to be a senior practicing lawyer with at least fifteen years of experience in the field and a globally acknowledged public office. A highly-respected lawyer or advocate with a minimum of fifteen years of continuous practice and impeccable credentials. The Attorney General of Malaysia appoints them after consulting with the Malaysian Bar Council, by the Notaries Public Act (1959.)

A notary public is authorized to deliver affirmations and oaths for statutory declarations and affidavits to demonstrate the proper execution of any document to be utilized in any jurisdiction outside of Malaysia. It is not within the purview of a notary public in Malaysia to administer, affirm, take, or attest any affidavit or statutory declaration that is intended for use in any court or venue in Malaysia.

According to the Notaries Public Act 1959, a notary public in Malaysia has the same powers as a notary public in England. A notary will create or revise any document about legal action, real or personal property, or will create a charge or instrument using the procedures outlined in the Land Registration Act of 1925. Foreign courts recognize affidavits sworn before a notary public and documents authorized by them. All individuals who can be legitimately interrogated or who are compelled to testify before any court or other body with the power to do so, are considered witnesses.

Parties should double-check that the service they have chosen and the document’s acceptance by the appropriate authorities are both met before scheduling an appointment. Presence before the Notary Public or Commissioner for Oaths is required for document attestation or affirmation. Parties are required to provide valid identification at each visit for notarial services. They may prove your identification using a passport, driver’s license, national ID, or residency card.

Appointed by the Chief Justice, a Commissioner for Oaths is vested with the authority to administer oaths or accept affidavits under Malaysian law. To administer oaths, take affidavits, and make statutory declarations are the powers bestowed. Sums of RM4.00 are due for each original statutory declaration, and RM2.00 for each exhibit mentioned in that original statement.

All oaths, affidavits, and statutory declarations to be completed and used inside Malaysia must be administered by a Commissioner for Oaths. In addition to administering oaths and affirmations for sworn declarations, a Notary Public may also witness their usage in foreign countries outside of Malaysia.

Power of Attorney in Malaysia

One may be authorized to act on behalf of another using a power of attorney, which is a unique legal instrument. In private or commercial concerns, the grantor (sometimes called the principal, donor, or grantor) authorizes an agent to act on his behalf. Investors from other countries may establish a power of attorney in Malaysia to manage their company activities while they are not physically present.

Many different things may be accomplished with a power of attorney. It is up to the grantor to decide how much authority to give the designated agent. If the company’s directors or administrators need to finalize a deal with a customer but can’t be there in person, they may utilize this power to do so on their behalf in Malaysia. For parties who need another party to make financial choices when they are unable to do so themselves, a power of attorney can also take effect if the principal’s mental capacity to do so declines. When a person’s mental ability deteriorates to the point that they cannot make decisions about their healthcare, a healthcare power of attorney may step in to do so.

Powers of attorney may be broad or narrow in scope, and the people granting them the authority can sign as many particular papers as are necessary. Either the High Court of Malaya in Kuala Lumpur or another registration office of the High Court of Malaya in West Malaysia may be used to register a power of attorney; however, this process is specific to the location in which the document is prepared.

The power of attorney must be signed by the grantor with a witness present. Notaries public, land administrators, advocates, magistrates, and commissioners for oaths are the common witnesses for this document’s signing. It is advised to consult an attorney for both the original document draft and any necessary due diligence processes. We have immigration attorneys in Malaysia who can help you with this and other matters. A power of attorney allows one party to represent another in legal matters involving the donor’s money, property, or personal affairs. A legal power of attorney must be prepared by following the procedures outlined in the Power of Attorney Act 1949* (‘PA 1949’) which include the necessary steps for authentication and execution.

Legal papers must be served effectively across international borders. For countries that are not a signatory to the Hague Service Convention, the service of papers may become complicated. Every single one of Undisputed Legal’s staff is an expert when it comes to delivering legal papers to other countries. Depend on us for first-rate document service every time. Our goal is to make the Malaysian legal system easier to use for all litigants to deliver their papers. At Undisputed Legal, we prioritize the precise and culturally appropriate preparation and distribution of all papers in the local language. We can assist you with document service regardless of where in the world you may be.

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Washington DC: (202) 655-4450 – 1101 Pennsylvania Avenue, N.W. Suite 300, Washington DC 20004

FOR ASSISTANCE SERVING LEGAL PAPERS IN MALAYSIA

Simply pick up the phone and call Toll-Free (800) 774-6922 or click the service you want to purchase. Our dedicated team of professionals is ready to assist you. We can handle all your Malaysia process service needs; no job is too small or too large! For instructions on How To Serve Legal Papers in Malaysia, Click Here

Contact us for more information about our process-serving agency. We are ready to provide service of process to all our clients globally from our offices in New York, Brooklyn, Queens, Long Island, Westchester, New Jersey, Connecticut, and Washington, D.C.

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Sources

1. By Order 11, Rules 3 and 4 of the ROC 2012

2. Order 92, Rule 1 of the Rules of Court 2012

3. If the service of summons is performed after 4 p.m. on any weekday other than the day before a weekly holiday, the following day will be deemed the day after the holiday.

4. The defendant must be served personally with a summons for an affidavit of service of a summons in Form 9 to be prepared.

5. Alternatively, if the court’s process server serves the summons, the Registrar of the Court must notify you or your attorney of the fact and method of service using Form 8 (Notice of Service).

6. Parties should also be considered served if their attorney receives the writ or originating summons on their behalf. On the other side, if a copy of the lawsuit reaches the company secretary, directors, or any other senior official, it is deemed served upon the business. The company’s registered office address is another possible place to leave a copy.

7. Goh Teng Whoo & Anor v Ample Objectives Sdn Bhd (Civil Appeal No: 02(i)-35-04/2019(W).

8. Order 62, Rule 5 authorizes this service.

9. Chung Wai Meng v Perbadanan Nasional Berhad [2017] 1 LNS 892 reasoned that the Affidavit of Service should prove that the writ was served on the defendant and that the intended recipient should be interpreted favorably due to a lacuna in Order 10 Rule 1(1) of the Rules of Court, 2012 (‘ROC’).

10. According to the Federal Court’s analysis of Section 12 of the Interpretation Acts 1948 and 1967.

11. Presently, Brunei Darussalam, India, Sri Lanka, New Zealand, Singapore, Hong Kong, and the United Kingdom are the reciprocating nations listed under REJA.

12. To effectively register a foreign judgment, the following requirements must be met, as stated in Section 3(3) of REJA32

13. The Notaries Public (Fees) (No. 2) Rules 1981 regulate the applicable fees for these services.

14. The Statutory Declarations (Fees) (Amendment) Order 1993 governs the applicable fees for services that are limited to statutory declarations.

15. For a power of attorney to be registered in Malaysia, the following are required:

a single initial declaration of authority;
just one set of power of attorney documents;
documentation verifying the donor’s identity and completed (if asked for).

16. Put simply, not every document signed by an agent with a power of attorney is suitable for final land office registration. Section 433F of the NLC 2020 states that any instrument of dealing or deed executed by a non-citizen or a foreign company under a power of attorney regarding alienated land or any interest therein will be null and invalid and cannot be registered.