Malaysian Studies (MPW2133) Presentation Written Report Title : The Judiciary Authority of Malaysia

Introduction

Judiciary is the third arm of any government. Its function is to upholds law and order by ensuring all are equally treated before it.

Brief History

Law and order was already established before Malaysia achieved its independence. During the time of the Sultanates Malacca and Brunei, laws and orders were existed in the form of written such as the Maritime Law of Melaka, Pahang Law (Digest) 1596 and unwritten (derived from the traditions and customs of the local people). During British domination , they established an administrative mechanism in Penang, and this resulted in the appointment of first magistrate for Penang in 1801. The granting of a Royal Charter to the island in 1807 had led to the establishment of Supreme Court, followed by the appointment of the Judge called Recorder. In 1867, the title was then changed to Judge when the Straits Settlement states began to be administered from the Colony Official in London. At this time, there were appointments for a Chief Justice in Singapore and a Resident Judge in Penang. In 1893, there was a clear division of power between the three branches; executive, legislative, and judiciary. It is not until the second War World that the judges appointed were local residents and the first Malaysian native who was appointed as a judge was Raja Musa Raja Abot from the Selangor Royal family. In Sarawak, law was formally introduced when James Brooke became Rajah in 1841 introduced a Code Law. James Brooke had set up Native Court and Chinese Court. While Native Court still existed, the Chinese Court ceased to exist after 1919. In Sabah, North Borneo Company introduced law by dividing the states into residency that was administered by an Administrative Officer who also acted as judges of all Sessions and Magistrate court s in their respective residency.

The Structure of Judiciary

The Judiciary structure consists of two parts which are Superior Courts and Subordinate Courts. Under the Superior Courts, there are Federal Court, Special Courts, Court of Appeal, and High Courts which are divided into High Court of Malaya and High Court of Sabah and Sarawak. For the Subordinate Court, it consists of Sessions Court, Magistrate Court, Court for Children, Penghulu Court for Peninsular Malaysia and Native Court for Sabah and Sarawak. There are also special tribunals in addition to the above courts such as Industrial Court, Labour Court, the Mining Court, and Courts Martial each dealing with specific matters. Ath the state level, there are several courts such as follows; Syariah Court that is further sub-divided into Syariah Court of Appeal, Syariah High Court, and Syariah Lower Court, and in the states of Sabah and Sawarak, the Adat (Native) Court.

Chief Justice

Chief Justice is the head of Judiciary. He is elected among the most senior and respected member of the Judiciary and the appointmentwas done by the Yang DipertuaAgong upon advice of the Prime Minister after consulting the Conference of Rulers. There are a few conditions for one to be appointed as Chief Justice:
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Must be a citizen Must have in the ten years preceding the appointment appeared before any of the Court of Malaysia.

Chief Justice holds the position until the age of 65 and cannot be removed earlier except under the terms provided for in the Constitution . The functions or Chief Justice are:
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The appointing of the Chairman of the Land Tribunal Advising YDP Agong in the appointment of judicial commissioners The convening of a council of judges as and when the Chief Justice deams necessary Special Court

Federal Court

1. Federal Court replaced the Supreme Court which was established on 1985. Before 1985, the highest position was held by the Privy Council.

2. Federal Court is headed by the Chief of Justice (known as Lord President before the amendment) and other members including the President of the Court Appeal, the two Chief Judges of the High Court of Malaya and Sabah and Sarawak, and seven other judges. 3. For the appointment of the other 7 members, the Prime Minister must also consult the Chief of Justice. 4. For the appointment of additional judges, YDP Agong is allowed to appoint any person who has held high judicial office in Malaysia 5. All the judges hold position until the age of 65
6. Jurisdictions:  Hearing civil and criminal appeals from the two High Courts  Decide on validity of any law made by federal or state legislature on the ground that it deals with a matter on which it has no power to legislate and on disputes or any other question.  Determine constitutional questions which have arisen in the proceedings of another court.  YDP Agong may refer to it on any question concerning the effect of any provision of the constitutio n.

Special Court

1. Special Court consist of the Chief Justice of the Federal Court (Chairman), the Chief Judges of the two High Courts and two other persons who hold or have held office as judges of the Federal Court or the High Court appointed by the Conference of Rulers. 2. The Special Court was established to hear any action civil or criminal instituted by or against the YDP Agong or any of the nine Malay Rulers, however by Article 183 of Federal Constitution no action, civil or criminal, shall be instituted against the YDP Agong or any of the Rulers of States in respect of anything done or omitted to be done by him in his personal capacity except with the consent of the Attorney General personally 3. Special Court has an exclusive jurisdiction to try all offences committed in the Federation by the YDP Agong or any of the Rulers of the States and all civil cases by or against them not withstanding where the cause of action arose. 4. It also has the same jurisdiction and powers as are vested in the subordinate courts, the High Court and the Federal Court by the Federal Constitution.

Court of Appeal

1. Court of Appeal is headed by the President of the Court of Appeal 2. It comprises of 10 judges initially but was increased to 15 by order of the YDP 3. The appointment of the President is made by YDP Agong upon advice of PM after consulting the Chief Justice and Conference of Rulers 4. For the appointment of the other members, PM needs to consult the President as well. 5. All the members hold position until the age of 65 6. Jurisdictions:  To hear both civil and criminal cases from the High Court and criminal cases only from the Session Court  For criminal cases, it is confined to only the question of law  For civil cases, it has jurisdiction to hear and determine the appeal from any judgment or order of any High Court.

High Courts

1. It is divided into two courts, High Court of Malaya and High Court of Sabah and Sarawak. Both courts are of equal jurisdiction and status 2. It is Head by the Chief Judge appointed by YDP Agong upon advice of PM after consulting the Conference of Rulers and Chief Justice. 3. For the High Court of Sabah and Sarawak, PM needs to also consult the Chief Ministers of both states. 4. For High Court of Malaya, it consists 47 judges and for High Court of Sabah and Sarawak it consists 10 judges 5. Jurisdictions:  Hear both criminal and civil cases from the lower courts  Provided with general supervisiory and revisiory jurisdiction over all subordinate courts. The power are : a. To supervise the conduct of and review the decisions of subordinates courts, bodies with quasi-judicial functions and tribunals b. To call the record of any proceeding in the subordinate courts c. To remove such cases to the High Courts or give such directions to the subordinate courts as they think necessary in the interest of justice.

Sessions Court

1. It has the jurisdiction to hear both criminal and civil cases. 2. Presently there are eighty seven Sessions Court judges
Magistrate Court

1. It has jurisdiction to hear both criminal and civil cases 2. Presently there are one hundred and fifty one Magistrates

Court for Children

1. Also known as Juvenile Court 2. Child is a person under the age of eighteen years, and for the purposes of criminal proceedings, means a person who has attained the age of ten.