Explain the role of judiciary System in Malaysia.

judiciary System in Malaysia

(1) Introduction 

A democratic government performs functions of state through its three branches, and these branches are executive and judiciary. The legislature is to legislate, executive is to enforce law and maintain law and order in the state, and judiciary is to interpret and apply laws to decide disputes. No state can exist without a judicial system. The Malaysian Constitution also provides for judicial system of Malaysia.

(2) Judicial System In Malaysia Malaysian

Constitution provides for judicial system of Malaysia:

  • (i) Two High Courts
  • (ii) Inferior Courts
  • (iii) Court of Appeal
  • (iv) Federal Court
  • (v) Qualifications of judges
  • (vi) Power to punish for contempt

(i) Two High Courts

Article 121 establishes two High Courts:

  • (a) High Court in Malaya
  • (b) High Court in Sabah & Sarawak
  • (c) Co-ordinate jurisdiction & status
  • (d) Jurisdiction & powers
  • (e) Constitution
  • (f) Appointment of Chief Judges & judges
  • (g) Appointment of judicial commissioner

(a) High Court In Malaya

One High Court is in the states of Malaya and is known as High Court in Malaya.

(b) High Court In Sabah & Sarawak

Other High Court is in the states of Sabah and Sarawak and is known as High Court in Sabah and Sarawak.

(c) Co-Ordinate Jurisdiction & Status

These High Courts have co-ordinate jurisdiction and status.

(d) Jurisdiction & Powers

(d-i) Federal Law

These High Courts have the jurisdiction and powers, which are conferred by or under federal law.

(d-ii) Matter Within Jurisdiction Of Syariah Courts

These High Courts have no jurisdiction in respect of matter, which is within the jurisdiction of the Syariah courts.

(e) Constitution

Article 122 AA provides for constitution of High Courts:

  • (e-i) Chief Judge
  • (e-ii) Other judges

(e-i) Chief Judge

Each of the High Courts consists of a Chief Judge.

(e-ii) Other Judges

Following are.

(x) Minimum Numbers Of Other Judges

The minimum number of other judges of each of High Courts is four.

(y) Maximum Number Of Other Judges

(y-i) High Court In Malaya

The maximum number of other judges in the High Court in Malaya is sixty.

(y-ii) High Court In Sabah & Sarawak

The maximum number of other judges in High Court in Sabah and Sarawak is thirteen.

(y-iii) The King’s Power

The Malaysian King can change the maximum number of these other judges.

(f) Appointment Of Chief Judges & Judges

According to Article 122 B, Chief Judges and other judges of the High Courts are appointed by the King on the advice of the Prime Minister after consulting the Conference of Rulers.

(g) Appointment Of Judicial Commissioner

For the despatch of business of the High Court in Malaya and the High Court in Sabah and Sarawak, the King has power to appoint a judicial commissioner.

(ii) Inferior Courts

Article 121 Inferior Courts:

  • (a) Federal law
  • (b) Jurisdiction & power

(a) Federal Law

There are such Inferior Courts as may be provided by federal law.

(b) Jurisdiction & Powers

The inferior courts have jurisdiction and powers, which is conferred by or under federal law.

(iii) Court of Appeal

Article 121 establishes Court of Appeal:

  • (a) Jurisdiction
  • (b) Constitution
  • (c) Appointment of judges

(a) Jurisdiction

(x) Appeals From Decisions Of A High Court Or A Judge Of High Court

It possess jurisdiction to determine appeals from decisions of a High Court or a judge of the High Court.

Exception

It does not have jurisdiction to determine decisions that are given by a registrar or other officer of the High Court.

(y) Other Jurisdiction

It has other jurisdiction that is conferred by or under federal law.

(b) Constitution

Article 122 A provides for constitution of the Court of Appeal:

  • (b-i) Chairman
  • (b-ii) Maximum number of other judges
  • (b-iii) Judge of High Court

(b-i) Chairman

The Court of Appeal consists of a chairman, who is known as President of the Court of Appeal.

(b-ii) Maximum Number Of Other Judges

The maximum number of other judges of the Court of Appeal is thirty two.

Exception

The King can change the maximum number of its other judges.

(b-iii) Judge Of High Court

A judge of a High Court can sit as a judge of the Court of Appeal:

  •  (x) Interests of justice
  •  (y) Nomination

(x) Interests Of Justice

Such judge can sit as a judge of the Court of Appeal only when President of the Court of Appeal considers that the interests of justice so require.

(y) Nomination

Such judge can be nominated for the Court of Appeal by the President of the Court of Appeal after consulting the Chief Judge of the concerned High Court.

(c) Appointment Of Judges

According to Article 122 B, the President and the other judges of the Court of Appeal are appointed by the King on the advice of the Prime Minister after consulting the Conference of Rulers.

(iv) Federal Court

Article 121 establishes Federal Court:

  • (a) Jurisdiction
  • (b) Constitution
  • (c) Appointment of judges

(a) Jurisdiction

(a-i) Jurisdiction Under Article 121

(x) Appeals From Decisions Of Court of Appeal Or A Judge Of Court Of Appeal

It has jurisdiction to determine appeals from decisions of the Court of Appeal or a judge the Court of Appeal.

(y) Appeals From Decisions Of A High Court Or A Judge Of A High Court

It possesses jurisdiction to determine appeals from decisions of the High Court or a judge of the High Court.

(a-ii) Jurisdiction Under Article 128

(x) Validity Of Law

It has jurisdiction to determine any question whether a law made by Parliament or by the Legislature of a state is invalid.

(y) Disputes

It possesses jurisdiction to determine disputes or any other question between states or between the Federation and any state.

(a-iii) Jurisdiction Under Article 130

Article 130 provides advisory jurisdiction of the Federal Court; if the King refers to it for its opinion any question about the effect of any provision of the Constitution, it is to pronounce its opinion on such question.

(b) Constitution

Article 122 provides for constitution of the Federal Court:

  • (b-i) President of Federal Court
  • (b-ii) President of Court of Appeal & Chief Judges of High Courts
  • (b-iii) Maximum number of other judges
  • (b-iv) Additional judges
  • (b-v) Judge of Court of Appeal

(b-i) President Of Federal Court

The Federal Court consists of a President, who is known as Chief Justice of the Federal Court.

(b-ii) President Of Court Of Appeal & Chief Judges Of High Courts

The Federal Court also consists of the President of the Court of Appeal and the Chief Judges of the High Courts.

(b-iii) Maximum Number Of Other Judges

The maximum number of its other judges is eleven.

(b-iv) Additional Judges

On the advice of the Chief Justice of the Federal Court, the King can appoint additional judges in the Federal Court.

(b-v) Judge of Court of Appeal

A judge of Court of Appeal can sit as a judge of the Federal Court:

  • (x) Judge other than President of Court of Appeal
  • (y)  Interests of justice
  • (z) Nomination

(x) Judge Other Than President Of Court Of Appeal

Such judge is other than the President of the Court of Appeal.

(y) Interests Of Justice

Such judge can sit as a judge of the Federal Court only when the Chief Justice of the Federal Court considers that the interests of justice so require.

(z) Nomination

Such judge can be nominated for the Federal Court by the Chief Justice of the Federal Court.

(c) Appointment Of Judges

According to Article 122 B, the Chief Justice and the other judges of the Federal Court are appointed by the King on the advice of the Prime Minister after consulting the Conference of Rulers.

(v) Qualifications Of Judges

Article 123 provides for qualifications of judges of Federal Court, Court of Appeal and High Courts; a person is qualified for appointment of a judge of Federal Court, Court of Appeal or High Courts if he fulfills the following qualifications:

  • (a) Citizenship
  • (b) Advocate or member

(a) Citizenship

He must be citizen of Malaysia.

(b) Advocate Or Member

(x) Advocate

He must have remained an advocate of those courts or any of them for the ten years.

(y) Member

(y-i) Judicial & Legal Service Of Federation

He must have remained a member of the judicial and legal service of the Federation.

(y-ii) Legal Service Of A State

He must have remained a member of the legal service of a state.

(vi) Power To Punish For Contempt

Article 126 states that the Federal Court, the Court of Appeal or a High Court has power to punish any contempt of itself.

(3) Role Of Judiciary In Malaysian System

The role of judiciary in the Malaysian system can be explained in the following words:

  • (i) Constitutionalism & rule of law
  • (ii) Check on government
  • (iii) Federalism
  • (iv) Human rights
  • (v) Interpretation of Constitution
  • (vi) Validity of law
  • (vii) Administration of justice
  • (viii) Dispute-resolving mechanism

(i) Constitutionalism & Rule of Law

The Constitution describes various functions of the courts. to preserve the rule of law and constitutionalism in the country. Judges are under oath to protect and defend the Constitution. It is their duty to enforce the supremacy of the Constitution against all pre-independence and post-independence legislation.

(ii) Check On Government

It is the inherent power of the judiciary to employ the “first principles of administrative law” to keep the government in check.

(iii) Federalism

The judiciary is to supply the balance wheel of federalism.

(iv) Human Rights

It is the duty of the judiciary to safeguard human rights by balancing the might of the state with the rights of the citizens.

(v) Interpretation Of Constitution

It is the function of the judiciary to interpret the Constitution to harmonize conflicting provisions.

(vi) Validity Of Law

It is the duty of the judiciary to declare whether any law is invalid or not and to fill gaps that are found in legislation.

(vii) Administration Of Justice

Administration of justice is its primary obligation; it is to provide remedies whenever rights are infringed.

(viii) Dispute-Resolving Mechanism

The courts supply a dispute-resolving mechanism between the citizen and the state and citizen and citizen.

(4) Conclusion

It can be finally stated that the Malaysian judiciary occupies a central place in Malaysia’s constitutional set-up, and it plays an important role in protecting Constitution, enforcing rule of law and maintaining checks on administrative actions. However, there are some checks on judicial independence. For instance. Articles 121, 149 and 150 not only deprives the judiciary of powers to keep government in check, but also bars judicial review on matters of emergency.

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