Friday, March 19, 2010

Federal Court Of Malaysia

The Federal Court is the highest judicial authority in the country. It was established pursuant to Article 121(2) of the Federal Constitution. Its decision binds all the courts below. Prior to 1st January 1985, the superior courts system in Malaysia was three-tiered, namely, The Privy Council, The Supreme Court, The High Court Malaya and the High Court Borneo.

The Privy Council was the highest court of appeal for Malaysia until 31st December 1984. On 1st January 1985, all appeals from Malaysia to the Privy Council were abolished. In its place, the Supreme Court was established making it the final court of appeal in the country. The abolishment of appeals to the Privy Council resulted in a change from the three-tiered system of superior courts to a two-tiered system, which was the Supreme Court and the two (2) High Courts.

In 1994, a significant change took place in the Judiciary when Parliament amended the Federal Constitution. With the amendment, the Court of Appeal was established. The Supreme Court was renamed the Federal Court. As a consequence, the three-tiered system of the superior courts was restored. The Federal Court is headed by the Chief Justice. Prior to the amendment the post was known as the Lord President.

Members
According to Article 122(1) of the Federal Constitution, the Federal Court shall consist of the Chief Justice, the President of the Court of Appeal, the two Chief Judges of the two High Courts and seven other judges.

Appointment of Judges
Article 122B of the Federal Constitution provides for the appointment of the Chief Justice, the President of the Court of Appeal, the Chief Judges of the High Courts and the other judges of the Federal Court by the Yang di-Pertuan Agong, acting on the advice of the Prime Minister, after consulting the Conference of Rulers. Before tendering his advice, the Prime Minister shall, except for the appointment of the Chief
Justice, consult the Chief Justice.

Appointment of Additional Judges
Article 122(1A) of the Federal Constitution, allows the Yang di-Pertuan Agong, acting on the advice of the Chief Justice, to appoint any person who has held high judicial office in
Malaysia to be an additional judge of the Federal Court. This appointment may be for such purposes or for such period as may be determined by the Yang di-Pertuan Agong.

Composition
Every proceeding in the Federal Court is according to section 74 of the Courts of Judicature Act 1964, heard and disposed off by three judges or such greater uneven number of judges as the Chief Justice may in any particular case determine. In the absence of the Chief Justice the most senior member of the Court shall preside.

Article 122(2) of the Federal Constitution provides that the Chief Justice, if he considers that the interests of justice so require, may nominate a judge of the Court of Appeal other than the President of the Court of Appeal to sit as a judge in the Federal Court.

Sittings
The Court sits on such dates and at such places as the Chief Justice may from time to time direct. Normally the Federal Court sits at the Palace of Justice in Putrajaya. However the Federal Court also goes on circuit to the major towns of Penang, Ipoh, Kota Bharu, Johor Bahru, Alor Setar, Kuantan, Malacca, Kuching and Kota Kinabalu (section 75 of the Courts of Judicature Act 1964).

Jurisdiction
Article 121(2) of the Federal Constitution confers the Federal Court with the following jurisdiction“
(a) to determine appeals from decisions of the Court of Appeal, of the High Court or a judge thereof;
(b) such original or consultative jurisdiction as is specified in Articles 128 and 130; and
(c) such other jurisdiction as may be conferred by or under federal law.

Criminal Appeals
The Federal Court may subject to section 87 of the Courts of Judicature Act 1964 hears and determines appeals against decisions of the Court of Appeal relating to any criminal matter decided by the High Court in the exercise of its original jurisdiction.

Civil Appeals


Section 96 of the Courts of Judicature Act 1964 provides that an appeal against the decision of the Court of Appeal may be made to the Federal Court with the leave of the Federal Court. Leave is only granted if

(a) the decision of the Court of Appeal is in respect of any civil cause or matter decided by the High Court in exercise of its original jurisdiction where it involves a question of general principle of law decided for the first time or a question of importance upon which further argument and a decision of the Federal Court would be to public advantage; or

(b) the decision of the Court of Appeal is as to the effect of any provision of the Federal Constitution including the validity of any written law relating to any such provision.
(section 96(a) and (b) Courts of Judicature Act 1964).

Original
The Federal Court has the exclusive jurisdiction to determine
(a) any question whether a law made by Parliament or by the Legislature of a State is invalid on the ground that it makes provision with respect to a matter with respect to which Parliament or, the Legislature of the State has no power to make laws; and

(b) disputes on any other question between States or between the Federation and any State. (Article 128(1) of the Federal Constitution).

Referral
The referral jurisdiction of the Federal Court is provided for in Article 128(2) of the Federal Constitution which reads “Without prejudice to any appellate jurisdiction of the Federal Court, where in any proceedings before another court a question arises as to the effect of any provision of this Constitution, the Federal Court shall have jurisdiction (subject to any rules of court regulating the exercise of that jurisdiction) to determine the question and remit the case to the other court to be disposed of in accordance with the determination.

Advisory


The advisory jurisdiction of the Federal Court is provided for in Article 130 of the Federal Constitution which reads “The Yang di-Pertuan Agong may refer to the Federal Court for its opinion any question as to the effect of any provision of this Constitution which has arisen or appears likely to arise, and the Federal Court shall pronounce in open court its opinion on any question so referred to it.

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