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 – cont’d
• 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 … cont’d
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
Session Court
Magistrate’s Court / Juvenile Court
High Court of Sabah &
Sarawak
Session Court
Juvenile Court / Magistrate’s
Court
Penghulu’s 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 – cont’d
•
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 – cont’d
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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.
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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 – cont’d
•
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 – cont’d
•
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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