Courts of Malaysia

Malaysia is a federation of thirteen states, but judicial power in the federation is almost exclusively vested in a federal court system.

History

The court system in Malaysia has its origins in the 1807 charter known as the "First Charter of Justice" whereby the British East India Company obtained from the British Crown the right to establish a permanent Court of Judicature in the settlement of Penang.

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.

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.

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".

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." [Wu, Min Aun & Hickling, R. H. (2003). "Hickling's Malaysian Public Law", pp. 35–36. Petaling Jaya: Pearson Malaysia. ISBN 983-74-2518-0.]

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 " [http://www.highcourt.sabah.sarawak.gov.my 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. 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.

uperior Courts

Federal Court

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

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

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.

essions 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.

The Magistrates' Courts hear all civil matters of which the claim does not exceed RM25,000.

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 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 RM25.

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, ie: 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. [ [http://www.lawyerment.com.my/library/doc/laws/const/1000000-3.shtml Lawyerment - Document Library - Laws of Malaysia - Constitution ] ]

yariah 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. [cite web|publisher=Malaysian Courts|title=Jurisdiction of the Court|accessdate=2008-08-04|url=http://www.kehakiman.gov.my/courts/judicialEN.shtml]

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.

Controversy

The Malaysian judiciary has suffered from diminished public confidence since the 1988 Malaysian constitutional crisis, when the Lord President and two other Supreme Court judges were dismissed by the Government of the day. Subsequent constitutional amendments divested the courts of the judicial power of the Federation, leaving it unclear where judicial power was meant to lie. The courts have also since then faced public perceptions of corruption and undue favour towards government interests. Former Deputy Prime Minister Anwar Ibrahim has alleged that many multinational corporations prefer to litigate their disputes in countries such as Singapore for this reason, while quoting former Chief Judge Tun Suffian: "When I am asked what I thought, my usual reply is that I wouldn't like to be tried by today's judges, especially if I am innocent." [cite news | first=Anwar | last=Ibrahim | coauthors= | title=Judicial Rot | date=2007-10-22 | publisher=Malaysia Today | url =http://malaysia-today.net/blog2006/newsncom.php?itemid=9282 | work =Wall Street Journal | pages = | accessdate = 2007-10-22 | language = ]

In addition, the courts are often perceived as being backlogged with old cases. Some have cited the low number of judges as a reason; in 2006, it was estimated that there were 2.4 judges for every million people in Malaysia, as opposed to about four times this number in India, and substantially higher ratios in more developed countries. ["Injudicious numbers", p. 24. (Sep. 1, 2006). "New Straits Times".]

On April 9, 2008 the nation's top judge Chief Justice Abdul Hamid Mohamad supported calls for the creation of an independent panel to select judges. Currently, senior judges are chosen and recommended for appointment by the prime minister, though the king formally appoints them. [cite news | first= | last= | coauthors= | title=Malaysia's chief judge backs calls for reforms to boost judicial transparency | date=2008-04-09 | publisher= Yahoo | url =http://malaysia.news.yahoo.com/ap/20080409/tap-as-gen-malaysia-judicial-reforms-b3c65ae.html | work =Associated Press | pages = | accessdate = 2008-04-09 | language = ]

2007 Royal Commission

A Royal Commission was set in 2007 to investigate a purported tampering in the appointment of judges following the release of a widely circulated (including on YouTube) eight-minute video clip featuring what appears to be a well-connected senior lawyer, V. K. Lingam, purportedly discussing promotions and factionalism among senior judges over the phone with Ahmad Fairuz Sheikh Abdul Halim, the number 3 judge in the country at the time the clip was recorded on a mobile phone in 2002. Lingam is also seen apparently talking to Fairuz about the latter's own rise within the judiciary. At the time the video was released on September 19, 2007, [cite news|publisher=New Straits Times|title=Spanish voice check for Lingam tape - Chronology of events|url=http://www.nst.com.my/Current_News/NST/Friday/National/2129365/Article/index_html|date=January 11, 2008|accessdate=2008-01-18]

Ahmad Fairuz was already the Chief Justice of Malaysia, but his four-year tenure as Chief Justice was due to expire October 31, 2007. His tenure was not extended, and his post was taken over by Abdul Hamid Mohamad. [cite news|publisher=The Star|url=http://thestar.com.my/news/story.asp?file=/2007/11/2/nation/19359046&sec=nation|title=Fairuz's tenure not extended, Abdul Hamid is now acting CJ|accessdate=2008-01-18] The lawyer is also heard saying that he had discussed the judiciary with tycoon Vincent Tan and another prominent ruling party politician - both regarded as intermediaries to then-prime minister Mahathir Mohamad. The conversation suggests that certain top judges are closely connected with the country's top leaders via political intermediaries and business cronies. The minister in the Prime Minister's Department, Nazri Abdul Aziz, has said that the judge implicated in the video clip had called him to deny that he was the one talking to the lawyer.

On January 15, 2008 the Royal Commission began their inquiry of a the video that alleges political interference in judicial appointments and the manipulation of high-profile cases. [ [http://www.japantoday.com/jp/news/425002 Japan Today - News - Malaysia probes judge-fixing video ] ] On January 17, 2008 Mahathir was brought before a Royal Commission that look the manipulation of top judicial appointments during his admnistration, a scandal that has cast doubts about the independence of Malaysia's judiciary. He was made to testify before a government inquiry into a secretly recorded video clip that showed a man believed to be a prominent lawyer, V. K. Lingam, boasting that he could get key judicial appointments made with Mahathir's help. Throughout the inquiry Mahathir feign ignorance and forgot key timelines. [http://news.yahoo.com/s/ap/20080117/ap_on_re_as/malaysia_judicial_scandal_1] Continuing with the inquiries, former Chief Justice of Malaysia Tun Mohamed Eusoff Chin was called before the Commission whereby he denied he was a close acquiantance of the lawyer V.K. Lingam even though he took a vacation with him to New Zealand. [http://malaysia.news.yahoo.com/ap/20080118/tap-as-gen-malaysia-judicial-scandal-b3c65ae.html]

Lingam was also called before the Royal Commission, where he claim he did not recall the phone conversation he made to Ahmad Fairuz. He said he might have been drunk at that time and denied he had ever tried to influence judicial appointments. [http://news.yahoo.com/s/afp/20080121/wl_asia_afp/malaysiajusticecorruption_080121212728] Vincent Tan who was next was questioned about his influence on former Prime Minister Mahathir Mohammad and he denied that he ever discussed judicial appointments with Mahathir. He rebutted Mahathir's claims that he might have consulted with Tan over judicial appointments. [http://malaysia.news.yahoo.com/rtrs/20080129/tbs-malaysia-justice-0fe1d6e.html]

A new revelation appeared showing PKR President Anwar Ibrahim releasing a third video clip purportedly showing Lingam talking about having dinner with and buying an expensive gift for former Chief Justice Tun Mohamed Dzaiddin Abdullah. Anwar said he was disappointed the Royal Commission which focused solely on the fixing of judges and did not allow evidence that court decisions had also been fixed. [ [http://thestar.com.my/news/story.asp?file=/2008/1/30/nation/20167174&sec=nation Brace for more videos, says Anwar ] ] Anwar also claimed that there was a third video clip that implicated more judges in the judiciary.

On February 12, Jayanti Govinda Rajulu Naidu the former secretary of Lingam revealed she was asked to type a judgement that her boss had dictated. This judgement was fully incorporated as the official judgement of the judge Mokhtar Sidin, which pertained to a defamation case lodged by business tycoon Vincent Tan. The suit was eventually won by Vincent Tan, in which he was awarded 10 million ringgit. A copy of the typed judgement was given to laywer Mohamad Shafie Abdullah in 1998 and later lodged with the anti-corruption agency. But the case had been closed as it involved too many high-ranking officials. [http://sg.news.yahoo.com/afp/20080212/tap-malaysia-corruption-judiciary-0193655.html]

The Commission's official report determined that it was former Fairuz who had been speaking with Lingam, and that the video clip itself was authentic. The report also named Loh Mui Fah as the man Lingam spoke to after his conversation with Fairuz.cite news|date=May 10, 2008|url=http://thestar.com.my/news/story.asp?file=/2008/5/10/nation/21213763&sec=nation|title=Panel finds Lingam video clip authentic|publisher=TheStar] The final report found a "kind of misbehaviour ... so unprecedented that were it not for the release of the video clip, it may never have come to light," stating that top judicial appointments had been subject to undue outside influence, most notably that of the Chief Judge of Malaya, where Tan Sri Malek Ahmad's candidacy had been sabotaged by Lingam and "his collaborators". [cite news | first=Elizabeth | last=John | coauthors= Sonia Ramachandran | title='Constitutional process sabotaged' | date=2008-05-18 | publisher= | url =http://www.nst.com.my/Current_News/NST/Sunday/Frontpage/2243510/Article/index_html | work =New Straits Times | pages = | accessdate = 2008-05-19 | language = ]

Disclosures by Ian Chin

On June 9, 2008, High Court judge Ian Chin revealed during a election petition in Sarawak of veiled threats and indoctrination of judges in a 'boot camp' organised by the executive government under the leadership of Mahathir Mohamed. Ian Chine alleges that between May 26-30, 1997, several judges and judicial officers were told attend the boot camp whereby they were told in essence that "that the government interest was more important than all else." [cite news|date=June 11, 2008|publisher=The Star|title=Justice Ian Chin tells of threats and indoctrination attempt|accessdate=2008-08-04|url=http://thestar.com.my/news/story.asp?file=/2008/6/11/nation/21512634&sec=nation]

List of Chief Justices of the Federal Court

*Tun Abdul Hamid Omar 1994, previously Lord President
*Tun Mohamed Eusoff Chin 1994 – 2000
*Tun Mohamed Dzaiddin Abdullah 2000 – 2003
*Tun Ahmad Fairuz Abdul Halim 2003 – 2007
*Datuk Abdul Hamid Mohamad 2007 - present

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

ee also

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

Notes and references

External links

* [http://www.kehakiman.gov.my Judiciary Web Site]
* [http://www.highcourt.sabah.sarawak.gov.my High Court in Sabah and Sarawak]