Judiciary of Malaysia

The Sultan Abdul Samad Building nearby Merdeka Square formerly housed the superior courts of the country. Today the courts have shifted to either the Palace of Justice in Putrajaya during the early 2000s, or the Kuala Lumpur Courts Complex in 2007.

The Judiciary of Malaysia is largely centralized despite Malaysia's federal constitution, heavily influenced by the British Common Law and to a lesser extent Islamic law, and is mostly independent from political interference.

History

Although British colonialism deeply influenced the judiciary of Malaysia, law and a system of courts were well established long prior to the arrival of the British. For example, Melaka and Brunei maintained order using Islamic law and unwritten law based on tradition and custom. Judges were appointed by the sultan of their state. Before the creation of the Federated Malay States in 1895, chief judges heard appeals from the Islamic courts and further appeals were heard directly by the sultans in consultation with their religious advisors. Under this system the ruler was the source of justice and supreme judicial authority.

The Islamic system of justice was slowly weakened under British rule due to the emphasis placed on separating religious and civil power and creating a formal bureaucratic state governed by written law. William A. Graham, the first head of state government in Kelantan per the Anglo-Siamese Treaty of 1902, provides an illustrative example. In violation of the treaty with the state ruler Graham worked to curb the power of Islamic courts by refusing police assistance in carrying out their orders and collecting evidence. The marginalization of indigenous courts was formalised with the Judicial Commissioners' Regulations and Order in Council in 1896. This legislation removed the power of the sultans to hear legal appeals and created the office of judicial Commissioner to carry out this function. The Federated Malay States Appeals Orders in Council of 1906 provided for appeals to the Privy Council in London.

Before the Japanese invasion in 1941 the Straits Settlements, the Federated Malay States and the Unfederated Malay States each had their own appeals courts. These appeals courts were later integrated into the Court of Appeal of the Malayan Union in 1946. When the Federation of Malaya was put into place in 1948 following the abandonment of the Malayan Union a Court of Appeal was established for the entire federation that lasted until independence from the British in 1957.

Prior to the formation of Malaysia in 1963, there were three Supreme Courts of Judicature in Commonwealth South-east Asia:

• The Supreme Court of the Federation of Malaya
• The Supreme Court of Singapore
• The Supreme Court of Sarawak, North Borneo and Brunei

Each Supreme Court consisted of a High Court and a Court of Appeal, and was headed by a Chief Justice.

When the Federation of Malaysia was founded in 1963 the Federal Court (not to be confused with the Federal Court in Malaysia's current judicial arrangement) took the place of the Court of Appeal. Upon independence, by mutual agreement of the United Kingdom and Malaysia, and by Article 131 of the Federal Constitution, the Privy Council continued to function as the highest court in Malaysia, formally advising the Yang-di-Pertuan Agong on the determination of appeals from the Federal Court. Appeals to the Privy Council in London were not abolished entirely until 1 January 1985 upon the establishment of the Supreme Court. The Supreme Court was renamed the Federal Court in a further reorganization of the court system in 1994.

Privy Council appeals

During the colonial era, decisions of the Malayan courts could be taken on appeal to the Queen-in-Council, advised by the Judicial Committee of the Privy Council in London.

Upon independence, by an Agreement between Her Majesty The Queen and His Majesty The Yang di-Pertuan Agong, and by Article 131 of the Federal Constitution, the Privy Council continued to function as the highest court in Malaysia, formally advising the Yang-di-Pertuan Agong on the determination of appeals from the Federal Court.

Privy Council appeals on criminal and constitutional matters were abolished on 1 January 1978. Civil appeals were abolished on 1 January 1985, whereupon the Federal Court was renamed the "Supreme Court of Malaysia".

Formation of Malaysia

In 1963 the remaining British territories in Southeast Asia, save Brunei, were incorporated into an enlarged federation of Malaysia. The 1963 Federal Constitution replaced the various Courts of Appeal with a single Federal Court of Malaysia, headed by a Lord President of the Federal Court, with three High Courts, each headed by a Chief Justice, below it:

• The High Court in Malaya
• The High Court in Singapore
• The High Court in Borneo

A separate Supreme Court of Judicature was established in Brunei.

Singapore left the Federation on 9 August 1965, but the High Court in Singapore remained part of the Malaysian judicial system until the Supreme Court of Singapore was reintroduced in 1969: see Law of Singapore.

1988 constitutional crisis

In 1988, a constitutional crisis occurred after the Lord President and a number of Supreme Court judges were suspended and later dismissed. As a consequence of the crisis, Article 121 of the Constitution was amended. Originally, in line with the doctrine of separation of powers, Article 39 vested the executive authority of the federation in the Yang di-Pertuan Agong (King), Article 44 vested legislative power in Parliament, and Article 121 provided that "the judicial power of the Federation shall be vested in two High Courts of coordinate jurisdiction and statute". This provision was repealed in 1988, removing any reference to the judicial power of the federation in the Constitution. Most legal scholars believe that despite this change, since no mention was made of a new holder of judicial authority, "it may still be presumed to reside in the courts". The motivation for the amendment has been criticised: "Exactly what was intended to be achieved by tampering with the original version that was founded on well established principles remains unclear."^[1]

1994 reforms

In 1994, in order to restore a second tier in the appellate system which was lost when Privy Council appeals were abolished, the Constitution was amended to establish a Court of Appeal of Malaysia (headed by a President of the Court of Appeal) under the Supreme Court, which once again was renamed the "Federal Court".

As part of the reforms, the office of Lord President of the Supreme Court was replaced by that of "Chief Justice of Malaysia", while the Chief Justices of Malaya and Borneo were re-titled "Chief Judge of Malaya" and "Chief Judge of Sabah and Sarawak" respectively. The High Court in Borneo was also renamed "High Court in Sabah and Sarawak". These changes were seen by many in the Opposition as an attempt to downgrade the prestige of the judiciary.

Trial by jury

In the former British settlements of Penang and Malacca, the introduction of English law brought about a system of trial by jury (a jury consisted of originally twelve, but later seven, persons) in all criminal cases on indictment. In the Malay states, Sarawak and North Borneo, trial by jury had not been available, and capital cases were tried by a judge sitting with two assessors.

Due to concerns about miscarriages of justice during the Malayan Emergency, the first prime minister of Malaya, Tunku Abdul Rahman, extended trial by jury to all capital cases in Malaya after independence in 1957.

In Sabah and Sarawak, which did not join the Federation until 1963, capital trials continued to be tried by a judge sitting with two assessors, as they had been before independence.

In 1978, jury trials in Penang and Malacca were restricted to capital cases, bringing them into line with the rest of Malaya. From 1 January 1995, jury trials and trials with assessors were abolished throughout Malaysia.

Current system

There are generally two types of trials, criminal and civil. The hierarchy of courts begins from the Magistrates' Court, Sessions Court, High Court, Court of Appeal, and finally, the Federal Court.^[2] The jurisdiction of the courts in civil or criminal matters are contained in the Subordinate Courts Act 1948 and the Courts of Judicature Act 1964. Article 121 of the Constitution provides for two High Courts of coordinate jurisdiction, the High Court in Malaya, and the High Court in Sabah and Sarawak. Thus this creates two separate local jurisdiction of the courts – for Peninsular Malaysia and for East Malaysia. The highest position in the judiciary of Malaysia is the Chief Justice of the Federal Court of Malaysia (also known as the Chief Justice of Malaysia), followed by the President of the Court of Appeal, the Chief Judge of Malaya, and the Chief Judge of Sabah and Sarawak. The superior courts are the High Court, Court of Appeal, and the Federal Court, while the Magistrates' Courts and the Sessions Courts are classified as subordinate courts.

The current President of the Federal Court is Justice Dato' Abdul Hamid Mohamad, the President of the Court of Appeal is Tan Sri Dato' Zaki bin Tun Azmi, and the Chief Judge of Malaya is Justice Dato' Alauddin Mohamad Sheriff. The current Chief Judge of Sabah and Sarawak is Justice Tan Sri Richard Malanjum (appointed 2006). Bypassing many other senior judges, Tan Sri Dato' Zaki was the first lawyer appointed directly to the Federal Court. After some 2 months as a sitting judge, Tan Sri Dato' Zaki was subsequently appointed as the President of the Court of Appeal.

Superior courts

Federal Court

Further information: Federal Court of Malaysia

The Federal Court is the highest court in Malaysia. The Federal Court may hear appeals of civil decisions of the Court of Appeal where the Federal Court grants leave to do so. The Federal Court also hears criminal appeals from the Court of Appeal, but only in respect of matters heard by the High Court in its original jurisdiction (i.e. where the case has not been appealed from the Subordinate Courts).

Court of Appeal

Further information: Malaysian Court of Appeal

The Court of Appeal generally hears all civil appeals against decisions of the High Courts except where against judgment or orders made by consent. In cases where the claim is less than RM250,000, the judgment or order relates to costs only, and the appeal is against a decision of a judge in chambers on an interpleader summons on undisputed facts, the leave of the Court of Appeal must first be obtained.The Court of Appeal also hears appeals of criminal decisions of the High Court. It is the court of final jurisdiction for cases which began in any subordinate courts.

High Courts

Further information: High Courts of Malaysia

The two High Courts in Malaysia have general supervisory and revisionary jurisdiction over all the Subordinate Courts, and jurisdiction to hear appeals from the Subordinate Courts in civil and criminal matters.

The High Courts have unlimited civil jurisdiction, and generally hear actions where the claim exceeds RM250,000, other than actions involving motor vehicle accidents, landlord and tenant disputes and distress. The High Courts hear all matters relating to:

• the validity or dissolution of marriage (divorce) and matrimonial causes,
• bankruptcy and matters relating to the winding-up of companies,
• guardianship or custody of children,
• grants of probate, wills and letters of administration of estates,
• injunctions, specific performance or rescissions of contracts,
• legitimacy of persons.

The High Courts have unlimited jurisdiction in all criminal matters other than matters involving Islamic law. The High Courts have original jurisdiction in criminal cases punishable by death.

Cases are heard by a single judge in the High Court, or by a judicial commissioner. While High Court judges enjoy security of tenure, judicial commissioners are appointed for a term of two years, and do not enjoy similar protection under the Constitution.

An application for a judicial review is applied in this court.

Subordinate courts

The Magistrates' Courts and Sessions Courts in Malaysia have jurisdiction in both criminal and civil matters.

Sessions Courts

Somewhat like the former Quarter Sessions in England, the Sessions Courts have jurisdiction to try offences which are not punishable by death. They are presided over by Sessions Court judges (formerly Sessions Court Presidents).

The Sessions Courts also hear all civil matters of which the claim exceeds RM25,000 but does not exceed RM250,000, except in matters relating to motor vehicle accidents, landlord and tenant and distress, where the Sessions Courts have unlimited jurisdiction.

Magistrates Courts

Magistrates are divided into First Class and Second Class Magistrates, the former being legally qualified and having greater powers. Second Class Magistrates are now not normally appointed.

In criminal matters, First Class Magistrates' Courts generally have power to try all offences of which the maximum term of imprisonment does not exceed 10 years or which are punishable with fine only, but may pass sentences of not more than five years imprisonment, a fine of up to RM10,000, and/or up to twelve strokes of the cane. The Magistrates Courts hear all civil matters with less than RM25,000 in dispute. The Magistrates' Courts also hear appeals from the Penghulu's Courts.

Other courts

The court of a penghulu, or Malay village head, has the power to hear civil matters of which the claim does not exceed RM50, where the parties are of an Asian race and speak and understand the Malay language.

The Penghulu Court's criminal jurisdiction is limited to offences of a minor nature charged against a person of Asian race which is specially enumerated in his warrant, which can be punished with a fine not exceeding RM50.

In Sabah and Sarawak, there are no Penghulus' Courts, but there are instead Native Courts having jurisdiction on matters of native law and custom.

The Court for Children, previously known as the Juvenile Court, hears cases involving minors except cases carrying the death penalty, which are heard in High Courts instead. Cases for children are governed by the Child Act 2001. A child is defined as any person below the age of 18.

The Special Court was established in 1993 to hear cases of offences or wrongdoings made by a Ruler. A Ruler includes the Yang di-Pertuan Agong (King), the sultans of monarchical states in Malaysia, the Yang di-Pertua Negeri, and the Yang di-Pertuan Besar, i.e.: the head of states of Malaysia and its component states. Prior to this, a Ruler was immune from any proceedings brought against them in their personal capacity.^[3]

Syariah Courts

There is a parallel system of state Syariah Courts which has limited jurisdiction over matters of state Islamic (sharia) law. The Syariah Courts have jurisdiction only over matters involving Muslims, and can generally only pass sentences of not more than three years imprisonment, a fine of up to RM5,000, and/or up to six strokes of the cane.

Appointment of judges

The appointment of the Chief Justice is governed by Article 122B of the Constitution of Malaysia whereby the Yang di-Pertuan Agong (King) appoints the Chief Justice on the advise of the Prime Minister of Malaysia after consulting the Conference of Rulers. As for the appointment of the President of the Court of Appeal, the Chief Judge of Malaya, the Chief Judge of Sabah and Sarawak, and other Federal Court judges, similar procedure is taken with the additional requirement of consultation with the Chief Justice.^[4]

The appointment of Court of Appeal judges is also governed by the same procedures with the additional requirement for the consultation of the President of the Court of Appeal. As for the appointment of High Court judges, similar procedures are prescribed with the additional requirement of consultation with the respective Chief Judges.

The appointment of Sessions Court judges is governed by Section 59 of the Subordinate Court Act 1948. They are appointed by the Yang di-Pertuan Agong upon the advise of the respective Chief Judges.

Section 78 of the Subordinate Courts Act 1948 provides that the appointment of magistrates are done by the respective state government upon the advise of the respective Chief Judges, except for magistrates in the Federal Territory, where thy are appointed by the Yang di-Pertuan Agong upon the advise of the Chief Judge.

List of Chief Justices of the Federal Court

Main article: Chief Justice of Malaysia

• Abdul Hamid Omar 1994, previously Lord President
• Mohamed Eusoff Chin 1994 – 2000
• Mohamed Dzaiddin Abdullah 2000 – 2003
• Ahmad Fairuz Abdul Halim 2003 – 2007
• Abdul Hamid Mohamad 2007 - 2008
• Zaki Tun Azmi 2008–2011
• Tun Arifin Zakaria (2011-present)^[5]

For a list of Lord Presidents, see Lord President of the Federal Court.

See also

• Law of Malaysia
• Capital punishment in Malaysia
• 1988 Malaysian constitutional crisis

Notes and references

1. ^ Wu, Min Aun & Hickling, R. H. (2003). Hickling's Malaysian Public Law, pp. 35–36. Petaling Jaya: Pearson Malaysia. ISBN 983-74-2518-0.
2. ^ "Malaysian criminal court system". Association of Commonwealth Criminal Lawyers. http://www.acclawyers.org/resources/malaysia/. Retrieved 2011-01-05. 
3. ^ Constitution of Malaysia:Article 43-2, now amended.
4. ^ "Jurisdiction of the Court". Malaysian Courts. http://www.kehakiman.gov.my/courts/judicialEN.shtml. Retrieved 2008-08-04. 
5. ^ "Arifin appointed Chief Justice". The Star. http://thestar.com.my/news/story.asp?file=/2011/9/6/nation/9431247&sec=nation. Retrieved 11 September 2011. 

External links

• Judiciary Web Site
• High Court in Sabah and Sarawak