Malaysian Studies Wla103_ the Malaysian Judiciary

8/18/2019 Malaysian Studies Wla103_ the Malaysian Judiciary

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THE MALAYSIAN JUDICIARY

Status of the Court

The Federal Court of Malaysia is the highest judicial authority and the final court of appeal in

Malaysia. The country, although federally constituted, has a single-structured judicial system

consisting of two parts - the superior courts and the subordinate courts. The subordinate courts are

the Magistrate Courts and the Sessions Courts whilst the superior courts are the two High Courts of

co-ordinate jurisdiction and status, one for Peninsular Malaysia and the other for the States of Sabah

and Sarawak, the Court of Appeal and the Federal Court. The Federal Court, earlier known as the

Supreme Court and renamed the Federal Court vide Act A885 effective from June 24, 1994, stands

at the apex of this pyramid.

Before January 1, 1985, the Federal Court was the highest court in the country but its decisions were

further appealable to the Privy Council in London. However on January 1, 1978, Privy Council

appeals in criminal and constitutional matters were abolished and on January 1, 1985, all other

appeals i.e. civil appeals except those filed before that date were abolished.

The setting up of the Court of Appeal on June 24, 1994 after the Federal Constitution was amended

vide Act A885 provides litigants one more opportunity to appeal. Alternatively it can be said that the

right of appeal to the Privy Council is restored, albeit in the form of the Federal Court.

The Special Court was established on March 30, 1993 vide Act A848, now provided for in Article 182

of the Federal Constitution. All offences committed by the Rulers (the Rulers being the monarchical

heads of the component states of the Federation of Malaysia) including His Majesty The Yang di-

Pertuan Agong shall be heard by the Special Court. The Special Court shall also hear all civil cases

by or against them. This Court shall be chaired by the Chief Justice of the Federal Court and he shall

be assisted by four other members, namely the two Chief Judges of the respective High Courts and

two other person s appointed by the Conference of Rulers who hold or have held office as a judge.

Constitution of and Appointment to the Court

The Federal Court consists of a president styled as the Chief Justice (formerly called the Lord

President), the President of the Court of Appeal, the two Chief Judges of the High Courts in Malaya

and Sabah and Sarawak (formerly called Chief Justices) and presently four Federal Court judges.

There are presently 8 Court of Appeal Judges excluding the President of the Court of Appeal. There

are 48 Judges (including Judicial Commissioners) for the High Court in Malaya and a further 7

Judges (including Judicial Commissioners) for the High Court in Sabah and Sarawak. At the

Subordinate Court level, there are 60 Sessions Court Judges of which 52 are in Peninsular Malaysia


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and 4 each in Sabah and Sarawak. At the Magistrate Court level, 151 posts have been approved

(122 posts in Peninsular Malaysia, 10 posts in Sabah, 1 post in Labuan and 18 posts in Sarawak) of

which 138 posts have been filled and presently there are 118 magistrates in Peninsular Malaysia, 7

magistrates in Sabah, 1 magistrate in Labuan and 12 magistrates in Sarawak.

The Chief Justice is the head of the Malaysian Judiciary. His appointment, like those of the President

of Court of Appeal, the two Chief Judges, judges of the Federal Court, the Court of Appeal and the

High Court, are made by His Majesty The Yang di-Pertuan Agong on the advice of the Prime Minister

after consulting the Conference of Rulers.

As to the appointment of a judge to the Federal Court, the Court of Appeal and the High Courts, the

Federal Constitution provides that the Prime Minister before tendering his advice shall consult the

Chief Justice, the President of the Court of Appeal and the two Chief Judges. On the advice of the

Chief Justice, His Majesty The Yang di-Pertuan Agong may also appoint a person who has held high

judicial office in Malaysia to be an additional judge of the Federal Court. The Chief Justice may also,if the interests of justice so require, nominate a Court of Appeal Judge to sit as a Judge of the

Federal Court. All judges of the Superior Courts retire at the age of 65.

Administration of the Court

For the smooth administration of the Judiciary, the Chief Registrar's Office was established which is

headed by the Chief Registrar to handle both judicial and administrative matters. The Chief Registrar

is assisted by the Registrar of the Court of Appeal, the Registrar of the High Court in Malaya and theRegistrar of the High Court in Sabah and Sarawak. Below them are a number of Deputy Registrars,

Senior Assistant Registrars, Administrators, Librarian, Information Systems Officer and support staff.

Inauguration of the Court

The birth of the Supreme Court (as it was known then, now called Federal Court) on January 1, 1985

was commemorated with a ceremony held in its Courtroom No. 1 on January 7, 1985. The ceremony

was also to bid farewell to the ending of an old era - that of Privy Council jurisdiction. Present at theceremonial sitting to inaugurate the Supreme Court were the ten Supreme Court judges, Attorney

General of Malaysia, Solicitor General, Chairman of the Bar Council and members of the legal

profession. Speeches welcoming the setting up of the Court were made by the Lord President (as he

was known then, now called the Chief Justice) the Right Honourable Tun Dato' Haji Mohamed Salleh

bin Abas, Attorney General Tan Sri Abu Talib bin Othman and Mr. Ronald Khoo, Chairman of the Bar

Council. The first sitting of the Supreme Court which was presided by the Lord President was also

held on the same day at the same venue after the closing of the ceremony.

History of the Court

Before 1957 the name "Supreme Court" was used to refer to the highest court for Malaysia next


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below the Privy Council. With the abolition of appeal to the Privy Council from January 1, 1985, the

Supreme Court was finally designated the highest court in Malaysia.

However, material distinction between the constitution of the former "Supreme Court" and that of the

present should be noted. The Supreme Court was renamed the Federal Court of Malaysia effective

from June 24, 1994, and is now the final court of appeal for Malaysia.

Operation of the Court

Normally cases before the Federal Court of Malaysia are heard and disposed of by a full Court

comprising of three judges. However, in certain special cases, for example one which involves

interpretation of the Constitution or a principle of law of major public importance, the Chief Justice

may convene a bigger panel of five or even seven judges to deal with the matter. In fact the Federal

Court sat as a seven-men Bench for the first time on February 5, 1996 to decide on the law

governing the standard of proof required of the prosecution in criminal cases.

In the absence of the Chief Justice, the powers shall be had and may be exercised and the duties

shall be performed :

(a) by the President of the Court of Appeal; or

(b) where the President is absent, by the Chief Judge of the High Court in Malaya; or

(c) where the President and the Chief Judge of the High Court in Malaya are absent, by the Chief

Judge of th High Court in Sabah and Sarawak; or

(d) where the President, the Chief Judge of the High Court in Malaya and the High Court in Sabah

and Sarawak are absent, by the Judge of the Federal Court nominated for that purpose by the Yang

di-Pertuan Agong.

A single judge of the Court can also hear and determine certain matters. In a proceeding pendingbefore the Court, the judge may make incidental directions or grant interim orders pending the

hearing of the proceeding. The order of a single judge may, however, be discharged or varied by the

full Court.

If the Court is not unanimous in its opinion, the view of the majority of the judges composing the

Court prevails.

Hearing of Cases

Cases come to the Federal Court for final determination from the Court of Appeal.

Rules of the Federal Court, which are made by the Rules Committee, regulate and prescribe the


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procedure which legal practitioners must comply with in preparing a case for hearing, including the

preparation of an Appeal Record. The Appeal Record, prepared by the appellant's solicitors, contains

all material which is necessary for the Court to determine the issues raised by the appeal.

Seven days before the hearing, the appellant's solicitor has to submit an outline submission to the

Federal Court Registry. During the hearing, counsel representing the parties present their arguments

orally to the Court. In addition, written submissions in skeletal forms may sometimes be submitted.

Written reasons are always given in most cases. Copies of the written reasons commonly referred to

as grounds of judgments are distributed by the Federal Court Registry to all judges, the Federal

Court Library for indexing and recording purposes, law schools and law publishers. The decisions of

the Federal Court are binding on all other courts (excluding Syariah Courts) throughout Malaysia.

The principal seat of the Federal Court is in Kuala Lumpur. Its principal registry is also located here.

Although it sits regularly in Kuala Lumpur, the Federal Court also travels on circuit to the major statecapitals of Penang, Ipoh, Kota Bharu, Johor Bahru, Alor Setar, Kuantan, Malacca, Kuching and Kota

Kinabalu.

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Malaysian Studies Wla103_ the Malaysian Judiciary