The Three Branches of Government: The Malaysian Judiciary (Article 121-131A)

Introduction to the Malaysian Judiciary

  • Constitutional Framework: The judiciary is the third branch of the Malaysian government, governed primarily by Part IX (Article 121 until 131A) of the Federal Constitution.

  • Composition: The branch consists of members of various courts.

  • Leadership:

    • Chief Justice: The head of the Malaysian Judiciary, formerly known as the Lord President. The current Chief Justice is Tun Tengku Maimun binti Tuan Mat.

    • President: Heads the Court of Appeal.

    • Chief Judges: Two Chief Judges head the High Courts (one for Malaya and one for Sabah & Sarawak).

    • Federal Court Bench: This is the apex court in Malaysia. Its members include the Chief Justice, the President of the Court of Appeal, the two Chief Judges of the High Courts, and currently two other Federal Court judges.

Functions of the Judiciary

  • Administration of Justice: The primary concern is the fair and proper administration of justice within the federation.

  • Interpretation: The judiciary has the authority to interpret laws, including the Federal Constitution and statutes passed by the Parliament.

  • Dispute Resolution: Hearing and deciding on legal disputes between parties.

  • Advisory Function: The judiciary provides legal advice when requested by the government or when the Yang di-Pertuan Agong (YDPA) refers a matter to it for a legal opinion.

Judicial Power and Article 121

  • Pre-1988 Status: Before the amendment, Clause (2) of Article 121 stated that the judicial power of the Federation was vested in the High Courts of co-ordinate jurisdiction and status.

  • Case Study: Dato’ Yap Peng [1987] 2 MLJ 311:

    • Facts/Issue: This case involved Section 418A of the Criminal Procedure Code (CPC), which conferred judicial power on a body that was not a court.

    • Ruling: The court held that Section 418A was an interference with the judicial power of the Federation as enshrined in Article 121.

    • Constitutional Violation: The power was deemed unconstitutional because it went against Art 121(1) FC, which mandated that judicial power must be vested in the two High Courts.

  • The 1988 Amendment: Following the Dato’ Yap Peng case, the phrase "judicial power" was deleted from the Constitution in 1988.

    • Consequence: The repeal meant the Public Prosecutor (PP) could thereafter freely transfer cases from subordinate courts to the High Court without legal challenge or question.

    • Post-Amendment Art 121(1): Specifies the existence of two High Courts of co-ordinate jurisdiction (Malaya and Sabah & Sarawak) and such inferior courts as provided by federal law. Jurisdiction and powers are now those "conferred by or under federal law."

  • Territorial Effect (Art 121(3)): Subject to federal law, any order, decree, judgment, or court process from the High Courts (or inferior courts) has full force and effect according to its tenor throughout the Federation and can be executed or enforced in any part of Malaysia. Federal law can also provide for court officers in one part of the Federation to assist courts in another.

Establishment of Courts and Jurisdiction

  • Constitutional Basis (Art 121(1)):

    1. Two High Courts (HC of Malaya and HC of Sabah and Sarawak).

    2. Inferior courts provided by federal law, specifically the Subordinate Courts Act (SCA).

    • Jurisdiction Source: Powers and jurisdiction for these courts are defined by the Courts of Judicature Act (CJA) and the Subordinate Courts Act (SCA).

  • Separation of Jurisdiction (Art 121(1A)): The civil courts (referred to in Clause 1) have no jurisdiction over matters that fall within the jurisdiction of the Syariah courts.

  • Court of Appeal (Mahkamah Rayuan) (Art 121(1B)):

    • Its principal registry is determined by the YDPA.

    • Jurisdiction: Includes determining appeals from decisions made by a High Court or a High Court judge, and other jurisdictions conferred by the CJA.

  • Federal Court (Mahkamah Persekutuan) (Art 121(2)):

    • This is the superior court with a principal registry determined by the YDPA.

    • Jurisdiction:

      • Determine appeals from decisions of the Court of Appeal, the High Court, or High Court judges.

      • Original or Consultative Jurisdiction: Specified in Article 128 (validity of law) and Article 130 (advisory role).

      • Other jurisdictions conferred by federal law (CJA).

Composition of Courts

  • Federal Court (Art 122(1)):

    • 1 President of the Federal Court (styled as the Chief Justice).

    • 1 President of the Court of Appeal.

    • 2 Chief Judges of the High Courts.

    • Up to 11 other Federal Court judges.

  • Court of Appeal (Art 122A):

    • 1 Chairman (styled as the President).

    • Not exceeding 32 other Court of Appeal judges.

  • High Courts (Art 122AA):

    • 2 Chief Judges.

    • High Court in Malaya: Minimum of 4 and maximum of 60 other judges.

    • High Court in Sabah and Sarawak: Minimum of 4 and maximum of 13 other judges.

Appointment of Judges (Article 122B)

  • Primary Process: The YDPA appoints superior court judges (Chief Justice, President, Chief Judges, and judges of the Federal Court, Court of Appeal, and High Courts) acting on the advice of the Prime Minister (PM).

  • Consultation with Conference of Rulers: The YDPA is required to consult the Conference of Rulers.

  • Legal Interpretation: Dato’ Seri Anwar Ibrahim [2000] 2 CLJ 570:

    • Consult vs. Consent: The court clarified that to "consult" does not mean to "consent."

    • YDPA's Discretion: When consulting the Conference of Rulers, the YDPA does not seek consent. He may consider their advice or views but is not bound by them.

    • Compulsory Advice: Under Art 40(1A), the YDPA must act on the advice of the PM. This advice is characterized as direct advice from the recommender and not advice reached after external consultation.

  • PM’s Consultation Duties (Before advising the YDPA):

    • Chief Justice (CJ): Must be consulted for the appointment of all judges (excluding the appointment of a new CJ).

    • President of Court of Appeal: Must be consulted for appointments to the Court of Appeal (excluding the appointment of a new President).

    • Chief Judges of High Courts: Must be consulted for appointments to the High Court (excluding the appointment of a new Chief Judge).

    • New Chief Judge Appointments: The PM must consult the current Chief Judge of each High Court when appointing a new Chief Judge of a High Court.

    • Sabah and Sarawak Specifics: The PM must consult the Chief Minister of Sabah and Sarawak when appointing a Chief Judge for the High Court of Sabah and Sarawak.

Qualifications and Tenure

  • Qualifications (Art 123 FC): To be a judge for the Federal Court, Court of Appeal, or High Courts, an individual must:

    • Be a citizen of Malaysia.

    • For the 10 years preceding the appointment, have been an advocate in these courts or a member of the judicial and legal service of the Federation or a State legal service (or a combination of both).

  • Tenure and Retirement: Judges retire at the age of 66 years old. A judge also has the right to resign voluntarily.

  • Removal of Judges (Art 125 FC): The procedures are as follows:

    1. Representation: A representation is made to the YDPA by the PM or by the Chief Justice (after the CJ consults with the PM).

    2. Tribunal: The YDPA appoints a tribunal to review the representation. The tribunal consists of no fewer than 5 judges (from the Federal Court, Court of Appeal, or High Court).

    3. Recommendation: The tribunal investigates and submits a report with recommendations to the YDPA. Based on this report, the YDPA may remove the judge.

The 1988 Juridical Crisis

  • Case: Tun Dato’ Hj Mohamed Salleh Abas [1988]:

    • Tribunal's Role: The court clarified that the tribunal appointed under Art 125(3) is an investigative and reporting body, not a deciding body. Its function is to inquire into the representation and report to the YDPA.

    • Authority of the YDPA: Since the YDPA appoints the tribunal and is entitled to its report under Art 125, restraining the tribunal from submitting a report is effectively restraining the YDPA from receiving it.

Philosophical Perspective on the Judiciary

  • Independence: As quoted by Rose Elizabeth Bird (25th Chief Justice of California), the judiciary must not adopt the "coloration of whatever may be popular at the moment."

  • Responsibility: Judges are the "guardians of rights" and must often deliver decisions or truths that people "do not like to hear."