TOPIC 4

JUDICIARY / JUDICIAL BODY

Prepared By
Miss Junaida Hj Ismail

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Learning Objectives ..

Elaborate on the concept of judiciary

Explain the judicial structure in Malaysia
Explain the concept of Independence of
Judiciary
Discuss the concept of Supremacy of Law

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4.0 Definition and function

4.1.1 Definition

The judiciary is the third branch / arm of any government

Its existence / establishment is to separate the three

major functions of government to uphold justice and
equality for all.

It is done through the administration of justice through

courts.

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4.1.2 Function

The primary purpose is to ensure the administration of

justice but courts do a number of jobs beyond the
settlement of disputes functions performed are the
following:

Establishing facts to establish and determine facts in order

to deduce the truth.

Interpreting laws to apply the law to the facts which have

been found by investigation and then render decisions /
deliver verdict or opinion.

Creating laws to create a new law in dealing with a case

where the existing law may not be consistent with the
present situation.
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Function contd
Upholding the constitution as a guardian of the Constitution
especially in the Federal system by delimiting the
jurisdiction of various agencies and units of government.

Preventing infraction of laws performs the function of

preventing infraction of laws and violation of human rights.

Judicial review the Court has the power to declare any act
of the legislature or of the executive null and void, and
consequently invalid (if they are found to be in conflict with
the Constitution).

(See : S.S. Islam & A.R. Moten : 2005 : pp 84 87)

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4.1.2 Function contd

The function can also be seen from the power and duty that it possesses i.e.
i. Adjudicating (giving a judgment or decision upon) administration of justice
Disputes between citizens
Disputes between citizens and the various organs of the state
Disputes between States
Disputes between a State and the Federation

ii. Constitutional Interpretation

Interpreting the rule of law three main principles
i. The Constitution must be interpreted within its own four walls
ii. The Constitution must be interpreted broadly
iii. There is a strong presumption that a statute is constitutionally valid.
(See : Andrew Harding : 1996 : pp 132-133)

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4.1.3 Powers of the Judicial Body in Malaysia

The Federal Constitution endows the following powers to this body:

Interpret the laws, including the Constitution itself;

Declare any law of federal or state void; and

Declare the action of federal or state government illegal from the law
perspective.
(J.A.Jawan : 2003 : pp 135 139)

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4.2 Judicial Structure in Malaysia
The present structure of the Malaysian Judiciary is presented in the Table 1.
It comprises the following :
the Federal Court (at its apex)
the Appeal Court (below)
the High Court of Malaya and the High Court of
Sabah and Sarawak (that form the superior courts)
the subordinate courts i.e. the Session Courts, the Magistrate
Courts, the Juvenile Courts and the Penghulu Courts.

Group Exercise : 1. Explain on the Chief Justice

2. Elaborate on the superior court, subordinate court and the operation of
these courts.
3. Discuss on the Native Court, the Syariah Court and other courts

(See : Jayum A. Jawan : 2003 : pp 135 139 and)

(See : Andrew Harding : 1996 : pp 138 139)

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Table 1 : Structure of the Malaysian Judiciary
(Jayum A Jawan :2003 : pp 134)

Federal Court

Appeal Court

High Court High Court of Sabah &

Sarawak

Session Court Session Court

Juvenile Court / Magistrates

Magistrates Court / Juvenile Court Court

Penghulus Court

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4.2.1 The Federal Court Malaysia
The Federal Court is the highest court of appeal that replaced the Supreme Court
(constituted in 1985)

Is headed by the Chief Justice

The other members are : the President of the Court of Appeal, the two Chief
Judges of the High Courts of Malaya and Sabah and Sarawak, and seven other
Federal Court Judges.

4.2.2 The Court of Appeal Malaysia

The Court of Appeal is headed by the President of the Court of Appeal

It comprises 10 other judges, excluding the President

It was constituted from the Federal Court which was abolished when the
Supreme Court was formed in 1985

It resurfaced again when in 1995, the Supreme Court was split into Federal Court
and the Court of Appeal as in the pre-1985.

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4.2.3 High Court (of Malaya and of Sabah and Sarawak)

The High Courts of Malaya and Sabah and Sarawak are courts of equal
jurisdiction and status.

Each Court is headed by a Chief Judge, who is appointed by the YDPA acting
upon the advice of the Prime Minister (who is required to consult the Conference
of Rulers).

In the case of the High Court of Sabah and Sarawak, the Constitution further
stipulates that the Prime Minister is required to also consult the Chief Minister of
both states.

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4.3 Independence of The Judiciary
The freedom of judges and / or courts from outside pressure and interference i.e.
the government.

Judges at all levels have to be confident that they will not face consequences if
they act according to the government decisions.

The judiciary is free from liability the government would take any hostile
criticism and not the judiciary as the act was initiated by the government and not
the judiciary.

They simply enforce the law that created by the Parliament.

Without independent judiciary, a democratic society cannot develop.

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4.3.1 The Securing of Judicial Independence

(General) principles to ensure the judiciary to exercise the power independently :

Mode of appointment of judges is different in different countries. In practice, three

methods are followed i.e. :
i. election by the legislature is not a common method.
ii. election by people e.g. in some of the Cantons in Switzerland, in some of the
states in the U.S.A
iii. appointment by the executive is the most common method e.g. Malaysia

Judicial tenure length / tenure of judges service.

usually during good behaviour with compulsory retirement at a
definite age.
in Malaysia, judges hold their office until the age of 65.

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The securing of Judicial Independence contd

Removal of judges removal of judges from office

in all States a provision is made for removal of corrupt and
inefficient judges.

Salaries of judges fixed and adequate salary earned by judge

- judges salaries are charged on the Consolidated Fund.

Qualification of judges the qualified judges can be secured from those who have
spent their life in the legal profession (to ensure them prepare
for difficult task of knowing and interpreting law).

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The securing of Judicial Independence contd
Separation of judicial function the judicial and executive should be separated
from each other.
the same person should not be a prosecutor as
well as a judge.

Guarantees against packing

the executive cannot anticipate, or secure the
overruling of the judiciary by packing (filling) the
courts with politically correct Judges of its own
persuasion.

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4.4 The Supremacy of Law
The term 'supremacy of law' was first introduced by Professor Dicey, one of
the most outstanding constitutional lawyers.

Dicey in his Introduction to the Study of the Law of the Constitution in 1885
explained the concept of the rule of law to mean;
(1) the absolute supremacy or predominance of the law as
opposed to arbitrary exercise of power;
(2) that every man is subject to the ordinary law of the country
and
(3) the principles of the constitution pertaining to personal liberties
were a result of judicial decisions determining the rights of
private persons in particular cases brought before the Courts.

Dicey, when he was referring to this third aspect was of course, referring to the
British Constitution which is an unwritten Constitution and not to a written
Constitution like the Malaysian Constitution.

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The Supremacy of Law contd

The term 'supremacy of law' is also sometimes used in contradiction to

supremacy of Parliament in countries like England.

As pointed out earlier, there is no written Constitution, it is a fundamental

principle of English Constitutional law that the British Parliament is supreme
and that it may do anything it wishes.

Parliament, therefore may pass any law it so wishes, so long as it conforms

to the necessary legislative procedure.

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The Supremacy of Law contd

However, in Malaysia, where there is a written Constitution, the Constitution itself

provides that it is the Constitution and not Parliament which is supreme.

Article 4(1) of the Federal Constitution provides: This Constitution is the supreme law of
the Federation and any law passed after Merdeka Day which is inconsistent with this
Constitution shall, to the extent of the inconsistency, be void.

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The Supremacy of Law vs. The rule of law

The rule of law means literally what it says The rule of the law.

Taken in its broadest sense this means that people should obey the law and be ruled
by it.

But in political and legal theory it has come to be read in a narrow sense, that the
government shall be ruled by the law and be subject to it.

The ideal of the rule of law in this sense is often expressed by the phrase, government
by law and not by men.

Please refer : THE SUPREMACY OF THE LAW

http://mgv.mim.edu.my/MMR/8608/860812.Htm

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