THE MALAYSIAN JUDICIARY

 Status of the Court 

The Federal Court of Malaysia is the highest judicial authority and the final court of appeal in Malaysia. The country, although federally constituted, has a single-structured judicial system consisting of two parts - the superior courts and the subordinate courts. The subordinate courts are the Magistrate Courts and the Sessions Courts whilst the superior courts are the two High Courts of co-ordinate jurisdiction and status, one for Peninsular Malaysia and the other for the States of Sabah and Sarawak, the Court of Appeal and the Federal Court. The Federal Court, earlier known as the Supreme Court and renamed the Federal Court vide Act A885 effective from June 24, 1994, stands at the apex of this pyramid.

Before January 1, 1985, the Federal Court was the highest court in the country but its decisions were further appealable to the Privy Council in London. However on January 1, 1978, Privy Council appeals in criminal and constitutional matters were abolished and on January 1, 1985, all other appeals i.e. civil appeals except those filed before that date were abolished.

The setting up of the Court of Appeal on June 24, 1994 after the Federal Constitution was amended vide Act A885 provides litigants one more opportunity to appeal. Alternatively it can be said that the right of appeal to the Privy Council is restored, albeit in the form of the Federal Court.

The Special Court was established on March 30, 1993 vide Act A848, now provided for in Article 182 of the Federal Constitution. All offences committed by the Rulers (the Rulers being the monarchical heads of the component states of the Federation of Malaysia) including His Majesty The Yang di-Pertuan Agong shall be heard by the Special Court. The Special Court shall also hear all civil cases by or against them. This Court shall be chaired by the Chief Justice of the Federal Court and he shall be assisted by four other members, namely the two Chief Judges of the respective High Courts and two other person s appointed by the Conference of Rulers who hold or have held office as a judge.


Constitution of and Appointment to the Court

The Federal Court consists of a president styled as the Chief Justice (formerly called the Lord President), the President of the Court of Appeal, the two Chief Judges of the High Courts in Malaya and Sabah and Sarawak (formerly called Chief Justices) and presently four Federal Court judges.

There are presently 8 Court of Appeal Judges excluding the President of the Court of Appeal. There are 48 Judges (including Judicial Commissioners) for the High Court in Malaya and a further 7 Judges (including Judicial Commissioners) for the High Court in Sabah and Sarawak. At the Subordinate Court level, there are 60 Sessions Court Judges of which 52 are in Peninsular Malaysia and 4 each in Sabah and Sarawak. At the Magistrate Court level, 151 posts have been approved (122 posts in Peninsular Malaysia, 10 posts in Sabah, 1 post in Labuan and 18 posts in Sarawak) of which 138 posts have been filled and presently there are 118 magistrates in Peninsular Malaysia, 7 magistrates in Sabah, 1 magistrate in Labuan and 12 magistrates in Sarawak.

The Chief Justice is the head of the Malaysian Judiciary. His appointment, like those of the President of Court of Appeal, the two Chief Judges, judges of the Federal Court, the Court of Appeal and the High Court, are made by His Majesty The Yang di-Pertuan Agong on the advice of the Prime Minister after consulting the Conference of Rulers.

As to the appointment of a judge to the Federal Court, the Court of Appeal and the High Courts, the Federal Constitution provides that the Prime Minister before tendering his advice shall consult the Chief Justice, the President of the Court of Appeal and the two Chief Judges. On the advice of the Chief Justice, His Majesty The Yang di-Pertuan Agong may also appoint a person who has held high judicial office in Malaysia to be an additional judge of the Federal Court. The Chief Justice may also, if the interests of justice so require, nominate a Court of Appeal Judge to sit as a Judge of the Federal Court. All judges of the Superior Courts retire at the age of 65.

Administration of the Court

For the smooth administration of the Judiciary, the Chief Registrar's Office was established which is headed by the Chief Registrar to handle both judicial and administrative matters. The Chief Registrar is assisted by the Registrar of the Court of Appeal, the Registrar of the High Court in Malaya and the Registrar of the High Court in Sabah and Sarawak. Below them are a number of Deputy Registrars, Senior Assistant Registrars, Administrators, Librarian, Information Systems Officer and support staff.

Inauguration of the Court

The birth of the Supreme Court (as it was known then, now called Federal Court) on January 1, 1985 was commemorated with a ceremony held in its Courtroom No. 1 on January 7, 1985. The ceremony was also to bid farewell to the ending of an old era - that of Privy Council jurisdiction. Present at the ceremonial sitting to inaugurate the Supreme Court were the ten Supreme Court judges, Attorney General of Malaysia, Solicitor General, Chairman of the Bar Council and members of the legal profession. Speeches welcoming the setting up of the Court were made by the Lord President (as he was known then, now called the Chief Justice) the Right Honourable Tun Dato' Haji Mohamed Salleh bin Abas, Attorney General Tan Sri Abu Talib bin Othman and Mr. Ronald Khoo, Chairman of the Bar Council. The first sitting of the Supreme Court which was presided by the Lord President was also held on the same day at the same venue after the closing of the ceremony.

History of the Court 

Before 1957 the name "Supreme Court" was used to refer to the highest court for Malaysia next below the Privy Council. With the abolition of appeal to the Privy Council from January 1, 1985, the Supreme Court was finally designated the highest court in Malaysia.

However, material distinction between the constitution of the former "Supreme Court" and that of the present should be noted. The Supreme Court was renamed the Federal Court of Malaysia effective from June 24, 1994, and is now the final court of appeal for Malaysia.

Operation of the Court

Normally cases before the Federal Court of Malaysia are heard and disposed of by a full Court comprising of three judges. However, in certain special cases, for example one which involves interpretation of the Constitution or a principle of law of major public importance, the Chief Justice may convene a bigger panel of five or even seven judges to deal with the matter. In fact the Federal Court sat as a seven-men Bench for the first time on February 5, 1996 to decide on the law governing the standard of proof required of the prosecution in criminal cases.

In the absence of the Chief Justice, the powers shall be had and may be exercised and the duties shall be performed :

(a) by the President of the Court of Appeal; or

(b) where the President is absent, by the Chief Judge of the High Court in Malaya; or

(c) where the President and the Chief Judge of the High Court in Malaya are absent, by the Chief Judge of th High Court in Sabah and Sarawak; or

(d) where the President, the Chief Judge of the High Court in Malaya and the High Court in Sabah and Sarawak are absent, by the Judge of the Federal Court nominated for that purpose by the Yang di-Pertuan Agong.

A single judge of the Court can also hear and determine certain matters. In a proceeding pending before the Court, the judge may make incidental directions or grant interim orders pending the hearing of the proceeding. The order of a single judge may, however, be discharged or varied by the full Court.

If the Court is not unanimous in its opinion, the view of the majority of the judges composing the Court prevails.

Hearing of Cases 

Cases come to the Federal Court for final determination from the Court of Appeal.
Rules of the Federal Court, which are made by the Rules Committee, regulate and prescribe the procedure which legal practitioners must comply with in preparing a case for hearing, including the preparation of an Appeal Record. The Appeal Record, prepared by the appellant's solicitors, contains all material which is necessary for the Court to determine the issues raised by the appeal.

Seven days before the hearing, the appellant's solicitor has to submit an outline submission to the Federal Court Registry. During the hearing, counsel representing the parties present their arguments orally to the Court. In addition, written submissions in skeletal forms may sometimes be submitted.

Written reasons are always given in most cases. Copies of the written reasons commonly referred to as grounds of judgments are distributed by the Federal Court Registry to all judges, the Federal Court Library for indexing and recording purposes, law schools and law publishers. The decisions of the Federal Court are binding on all other courts (excluding Syariah Courts) throughout Malaysia.

The principal seat of the Federal Court is in Kuala Lumpur. Its principal registry is also located here. Although it sits regularly in Kuala Lumpur, the Federal Court also travels on circuit to the major state capitals of Penang, Ipoh, Kota Bharu, Johor Bahru, Alor Setar, Kuantan, Malacca, Kuching and Kota Kinabalu.