JUDICIARY

Fairuz Hidayat Merican, 2011

 At the end of this chapter, students should
be able to:
Explain the definition & functions of
judiciary;
Explain the concept of judicial
independence;
Discuss the judicial structure in
Malaysia;
Discuss the concept of the Supremacy
of Law.
4.1 Definition & Functions of Judiciary

4.2 Judicial Independence

4.3 Factors to Ensure Judicial

Independence

4.4 Judicial Structure in Malaysia

4.5 Rule/Supremacy of Law

4.1 DEFINITIONS &
FUNCTIONS
 Definitions
A branch of govt that is concerned with the
administration of justice;
A system of courts which administers justice in the
name of the state;
A body of judges in a constitutional system that is
separated from the legislative & executive.
 Functions
Administration of Justice:
Courts will decide/settle disputes btwn individuals,
btwn individualState;
Put those accused of crime to trial.

Establishing facts:
Determine facts in order to deduce the truth;
Judges will listen to the witnesses & weigh the
testimony.
Interpreting the law:
Apply the law to the facts which they have
determined;
Deliver their verdict/judgment;
Judges do not evaluate the law or the verdicts.

Creating laws:
Existing laws may not be consistent with the
present situation;
Cases not covered by existing law;
Laws which conflict each other.
Upholding the Constitution:
Interprets the constitution;
Delimits jurisdiction of govt agencies;
Ensures central/state govt does not make laws that
exceed constitution;
Resolve disputes btwn central & state govt or btwn
state govts;
Resolve dispute btwn executive & legislature.
Prevent Infraction of Law & Violation of Human
Rights:
Approach the court for protection from attempts to
violate ones rights;
Courts can issue restraining orders or injunctions;
If the order is disobeyed, the courts have the power
to punish for contempt.
Judicial Review:
Power to declare act of legislature or executive
invalid if it conflicts with the constitution;
Example: judicial review of subsidiary legislations.
4.2 JUDICIAL
INDEPENDENCE
 Definitions
Freedom from direction, control or interference in the
operation/exercise of judicial powers by either the
legislature or executive; (Legal Words Dictionary)
Freedom & independence of judges in discharging
their duties;
Decisions of the judiciary should be impartial and not
subject to influence from the other branches of
government or from private or political interests.
4.3 FACTORS TO ENSURE
JUDICIAL INDEPENDENCE
 1. Appointment of Judges
Emphasis on quality (knowledge, experience,
character).
Election by the legislature:
Violates the separation of powers;
Judges become subservient to the legislature;
Appointment based on party consideration.
Election by the people:
Judges become the subject of popular passion &
prejudice;
Judges decisions & conduct based on popularity;
People are not qualified to choose judges.

Appointment by the executive:

Most common & best method;
Judges are independent of popular/political
influence;
Judges are accountable only to the executive.
 2. Judicial Tenure

Term of office for judges;

Most common: during good behavior with compulsory
retirement at a definite age.
Short tenure:
Judges might abuse their power.
Long tenures:
Judges can acquire more legal & judicial knowledge.
 3. Removal of Judges
Remove corrupt & inefficient judges;
Process should be difficult to avoid abuse of power;
Ensure security of office.
 4. Promotion of Judges
Based on merit & seniority;
Promoted by the exec upon recommendation by
committee of judges.
 5. Salaries of Judges
Low salaries results in bribery or corruption;
Judges should receive a fixed & adequate salary;
Should also be given allowances & other benefits;
Give the judges courage & firmness in dispensing
justice.
6. Non-interference of the Executive &
Legislature
Executive should not interfere with the operations of
the judiciary;
Legislature cannot discuss conduct of judges;
Executive & legislature should be accountable to the
judiciary.
JUDICIAL INDEPENDENCE
IN MALAYSIA
Appointment of judges:
Article 122B(1): appointed by YDPA on the advice
of PM after consulting the C.o.R;
Article 123: qualifications for appointment (F.C,
C.o.A & H.C):
Citizen;
Ten years as an advocate of any of the courts or
a member of the judicial & legal service of the
Federation/State.
Judicial tenure:
Article 125(1): Until the age of 66 years;
Extend for 6 months upon approval by YDPA.
Removal of judges:
Article 125(3): the PM (or the Chief Justice after
consulting PM) can recommend to the YDPA the
removal of a judge;
Article 125(4): Decided by a tribunal of no less
than 5 judges;
Reasons for removal:
Breach of the judges code of ethics;
Inability (due to infirmity of body or mind) to
carry out his functions;
Other reasons: as accepted by the tribunal.
Salaries (remuneration):
Article 125(6): Provided by the Parliament &
charged on the Consolidated Fund;
Article 125(7): Remuneration & other terms of
office (including pension) cannot be altered to his
disadvantage after his appointment.
Non-interference by legislature:
Article 127: Conduct of a judge cannot be
discussed in either House of Parliament & in any
state Legislative Assembly;
Exception: substantive motion by no less than
of total members of that House.
4.4 JUDICIAL STRUCTURE
IN MALAYSIA
FEDERAL COURT
Replaced the Supreme Court under the 1994
constitutional amendment;
Highest court of appeal;
Membership Article 122(1):
Chief Justice (replaced the Lord President).
President of Court of Appeal;
2 Chief Judges of High Court;
11 Federal Court judges.
Appointment:
Chief Justice: appointed by YDPA upon advice of
the PM after consulting with the C.o.R; (Article
122B(1))
11 Federal Court judges: appointed by Chief Justice
after consulting the PM.
Jurisdiction:
Article 121(2)(a): Determine appeals for
decisions from the C.o.A or H.C;
Article 128(1)(a): Determine validity of laws
made by Parliament or any State Assembly;
Article 128(1)(b): Determine disputes btwn
States or btwn Federation & State;
Article 128(2): Determine constitutionality of
proceedings in other courts;
Article 130: Advisory = YDPA can refer to the
Federal Court.
COURT OF APPEAL
Established under the 1994 constitutional amendment;
Membership Article 122A:
Headed by President of the CoA;
32 judges.
Appointment:
President of the CoA: by the YDPA upon advice of
PM (who must refer to CJ) & CoR;
32 judges: by the YDPA upon advice of the PM
(who must consult the CJ) & Pres of the CoA.
Jurisdiction:
Article 121(1B): Determine appeals for civil &
criminal cases from a High Court & criminal cases
from Sessions Court.
Civil cases: claim involved not more than RM10,000.
HIGH COURT
Article 121(1): provides for the creation of two High
Courts:
High Court of Malaya;
High Court of Sabah and Sarawak.

Article 122AA: each court is headed by a Chief

Judge and
HCoM: at least 4 & not exceeding 60 judges.
HCoS&S: at least 4 & not exceeding 13 judges.
Appointment:
Chief Judge HCoM: by YDPA upon advice of the PM
who must consult the CoR;
Chief Judge HCoS&S: by YDPA upon advice of PM
who must consult CM.
Jurisdiction:
Original: unlimited civil & criminal powers;
Claim involved is more than RM1000.
Appellate: civil & criminal cases from subordinate
courts;
Supervisory.
SPECIAL COURT
Established under Article 182;
Hear any action, civil/criminal instituted by/against the
YDPA or any of the 9 Malay Rulers;
Article 183: must first obtain the approval of the
Attorney General.

Article 182(1): consists of CJ, Chief Judges of both

HC & two persons appointed by CoR.
Jurisdiction: try all offences committed in the
Federation by/against the YDPA or any Rulers of the
State & all civil case by/against YDPA or any Rulers of
the State.
 Sessions Court
Headed by Sessions Court Judge;
Appointment: by the YDPA;
Jurisdiction:
All criminal cases except those punishable by
death.
Civil cases: claim is more than RM25,000 but
does not exceed RM250,000.
 Magistrate Court
Members = Magistrates;
Appointment:
Federal Territory: by YDPA;
State level: by State Authority.
Jurisdiction:
Civil: claim does not exceed RM25,000.
Criminal: maximum punishment not more
than 10 years imprisonment.
 Court for Children
Established under the Child Act 2001;
Consists of a magistrate who is assisted by 2
advisors;
A child who is found guilty shall not be
imprisoned but may either be sent to an
approved school or released on bail;
For capital offences, the child shall be detained
in prison at the pleasure of the Ruler.
4.5 RULE OF LAW
Introduced by Prof. Dicey;
Refers to:
The absolute supremacy/predominance of
the law;
Every man is subject to the law of that
country;
The law of the constitution is a consequence
of the rights of individuals as defined and
enforced by the courts.
Diceys analysis:
Absolute supremacy: No one may be
arrested/detained except for definite breach
of law which must be proven in a Court of
Law.
Equality before the Law: Everyone is
subjected to the law regardless of his official
or social status.
Essential characteristics of Rule of Law:
Supremacy of law;
Concept of justice;
Restriction on discretionary power;
Doctrine of judicial precedent;
Common law methodology;
Prospective legislation;
Independent judiciary;
Exercise by Parliament of the legislative
power & restrictions on exercise of legislative
power by the executive;
Moral basis for all law.
(http://www.ourcivilisation.com/cooray/btof/chap180.htm)
Supremacy of Law in Malaysia:
Provided under the Federal Constitution.
Article 4(1) of the Federal Constitution:
This Constitution is the supreme law of the
Federation & any law passed after Merdeka
Day which is inconsistent with this
Constitution shall, to the extent of the
inconsistency, be void.