Saturday, August 06, 2005

The Malaysian Judiciary

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 persons 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 five Federal Court judges.

There are presently ten Court of Appeal Judges excluding the President of the Court of Appeal. There are 46 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 :
  1. by the President of the Court of Appeal; or
  2. where the President is absent, by the Chief Judge of the High Court in Malaya; or
  3. 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
  4. 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.

Role of the Court

Malaysia is a federation of thirteen states. The Constitution which is the supreme law of the Federation spells out, among others, the duties and powers of the Federal and State Governments and their relationship inter se. One of the main functions of the Federal Court in its original jurisdiction "to the exclusion of any other court" is to determine whether a law made by Parliament or a State Legislature is invalid on the ground that it makes provision to a matter with respect to which Parliament or, as the case may be, the State Legislature has no power to make the law. It also has exclusive jurisdiction to determine disputes between States or between the Federation and any State.

His Majesty the Yang di-Pertuan Agong may invoke the advisory jurisdiction of the Federal Court by referring for its opinion any question as to the effect of any provision of the Constitution which has arisen or appears to him likely to arise. In addition, the High Court may also refer to the Federal Court any constitutional question which arises in any proceedings before it and may stay the proceedings to await the decision of the Federal Court. The framers of the Constitution evidently saw in the Federal Court the absolute interpreter of the Constitution and the final aribiter of disputes arising from it.

The Federal Court also makes final judgments on legal matters which come before it on appeal from the Court of Appeal. It is the ultimate court in civil, criminal and constitutional matters.


Federal Court

Article 121(1) of the Federal Constitution provides that the Federal Court shall have appellate, original, consultative or advisory, and referral jurisdiction but it does not cover those matters under the jurisdiction of the Syariah Court.

Court of Appeal

Article 121(1B) of the Federal Constitution provides the Court of Appeal with appellate jurisdiction to hear both civil and criminal cases originating from the High Court or the Sessions Court (criminal cases only).

Criminal Appeals

Besides having the jurisdiction to hear and determine any appeal against any decision made by the High Court and in respect of any criminal matter decided by the Sessions Court, section 50 of the Courts of Judicature Act, 1964 also provides that an appeal shall lie to the Court of Appeal, with the leave of that Court, against any decision of the High Court in the exercise of its appellate or revisionary jurisdiction in respect of any criminal matter decided by a Magistrates' Court but such appeal shall be confined to only questions of law.

Civil Appeals

The Court of Appeal shall have jurisdiction to hear and determine appeals from any judgment or order of any High Court in any civil cause or matter, whether made in the exercise of its original or of its appellate jurisdiction.


High Court

a) Criminal Cases

Generally, the High Court has the jurisdiction to hear cases which carry the death penalty. Specifically, the jurisdiction of the High Court in criminal cases is provided in sections 22, 26, 31 and 35 of the Courts of Judicature Act, 1964.

b) Civil Cases

The High Court has the jurisdiction to hear civil cases in respect of :
  1. divorce and matrimonial causes;
  2. admiralty;
  3. bankruptcy and company cases;
  4. appointment and control of guardians of infants and their property;
  5. appointment and control of guardians of disabled persons and their estate; and
  6. grant of probates of wills and letters of administration.

Specifically, the jurisdiction of the High Court in civil cases is provided in sections 23, 24, 24A, 25 (including Schedule), 25A, 28, 30, 32, 33 and 35 of the Courts of Judicature Act, 1964 .


Sessions Court

a) Criminal Cases

The Sessions Court has the jurisdiction to try all offences other than offences punishable with death.

b) Civil Cases

The Sessions Court has unlimited jurisdiction to hear :
  1. running down cases, landlord and tenant, and distress;
  2. to try other suits where the amount in dispute does not exceed RM250,000.00; and
  3. with the consent of the parties involved, to try cases exceeding RM250,000.00 but the award is limited to the statutory limit of RM250,000.00 only.
Magistrates' Court

a) Criminal Cases

A First Class Magistrate Court has the jurisdiction to try all offences where the maximum term of imprisonment provided by law does not exceed 10 years or which are punishable with fine only or cases involving robbery and housebreaking by night.

Generally, a First Class Magistrate may pass any sentence allowed by law not exceeding :
  1. 5 years imprisonment;
  2. a fine of RM10,000.00;
  3. whipping up to 12 strokes; or
  4. any sentence combining any of the sentence aforesaid.

However, in some cases e.g under the Dangerous Drugs Act 1952, Customs Act 1967 and Betting Act 1953 the Magistrate may impose a fine higher than RM10,000.00.

b) Civil Cases


A First Class Magistrate Court has the jurisdiction to try all actions and suits of a civil nature where the amount in dispute does not exceed RM25,000.00.

Location

The Federal Court is situated in the Sultan Abdul Samad building which is one of Malaysia's heritage buildings and a famous and historic landmark in the Federal Capital. It is situated right at the heart of Kuala Lumpur.

Directly opposite the building is the famous Royal Selangor Club and the Merdeka Square or Independence Square which acquired its name because it was at that very spot that the Union Jack flag was lowered down on August 31, 1957 and the new flag of the Federation of Malaya was hoisted. This marked the passing of an era and the birth of a newly independent nation, the Federation of Malaya.

The Sultan Abdul Samad building plays an important role during Malaysia's National Day celebrations where a parade of uniformed troops, government and semi-government bodies, private sector and school children march pass His Majesty the Yang di-Pertuan Agong, ministers and both foreign and local dignitaries. The building, as well as the Merdeka Square, is also the site for other major national events.


On one side of the Sultan Abdul Samad building, across the Gombak River, are the Subordinate Courts, the former High Court building and the Jamek Mosque. The Jamek Mosque is the oldest mosque in the city and is gazetted a historical site under the Antiquities Act 1976.

On the other side is the former General Post Office building which now houses the Court of Appeal Registry; next to it is the Malaysian Handicraft Centre and further down is the Dayabumi Building which is the first Malaysian "Turnkey System" building.

History Of the Building

The Sultan Abdul Samad building was constructed at the end of the last century and the site was chosen because of its central position. A.C. Norman, a British architect who worked for the Public Works Department in Kuala Lumpur, in designing the existing building took into consideration some of the features of buildings in several Islamic countries. The predominantly Moorish appearance of the building suitably reflects the cultural background of Malaysia.

The foundation-stone of the building was laid by the then Governor of the Straits Settlements, Sir Charles Mitchell, on October 6, 1894, and the building itself which was opened in 1896 was named Bangunan Sultan Abdul Samad after the name of the then Sultan of Selangor. The building now houses the Federal Court of Malaysia, the Court of Appeal and the Criminal Division of the High Court of Kuala lumpur. Prior to this it housed several Ministries and Departments of the Federal Government including the Central Bank and also the State Secretariat of Selangor and its Legislative Assembly.

The conversion work of the building began in 1978 and the renovation was completed in 1984 with an approximate cost of RM17.2 million. Besides this the Government of Australia had generously contributed RM200,000.00 towards making copper cladding to the three domes of the building which now gleam with majestic radiance, adding even greater lustre to an already unique and superb structure. Prior to this, the domes which were made of timber and bricks were covered with copper sheeting painted in black.

External Features

The Sultan Abdul Samad building is a two-storey building standing at 57 feet and covering an area of 10,200 sq.metres. It is of a horseshoe shape at the centre of which is a quadrangle plateau surrounded by flower-beds at its fringes. Beneath it is a basement car park meant for judges and officers of the court.

The prominent features of the building are its three domes, the clock tower and its extensive arcades and arches. The three domes originally made of timber and bricks and painted black have now been replaced with copper cladded domes. The central dome is placed on top of the clock tower flanked by two smaller domes with descending spiral staircases.

The arches found in the building are of the pointed horseshoe type with varying spans. They were made of bricks and white-painted plastered blocks. The clock tower on the axis appears to be well balanced by the two turrets. The spiral staircases in the turrets tend to point up to the tower accentuating therefore its importance.

The focal point of the building is its main porch which faces the Royal Selangor Club and the Merdeka Square. On entering this main entrance, one could see a semicircle staircase which leads to the Chambers of the Chief Justice, the President of the Court of Appeal and other Judges' Chambers, as well as to the Federal and Court of Appeal Courtrooms.

Federal and Court of Appeal Courtrooms

The Federal Court and the Court of Appeal have a Courtroom each. The long curved bench in the Federal Court which is equipped with microphones and sound system facilities is made from Langkawi marble, the finest local marble. The several rows of Bar tables similarly equipped with microphones are made from the finest quality local wood, the Meranti wood. Malaysia's national crest made of copper is seen appropriately hung on the wall behind the Bench in the Federal Courtroom. The Court of Appeal Courtroom is similarly equipped.

The windows of each Courtroom are double glazed to ensure minimum sound entry and the ceilings are adorned with decorative lights and unique chandeliers. Sittings of the full court are held in the courtrooms which are equipped with a sound reproduction system and facilities to provide closed circuit television coverage of court proceedings. A public gallery is also located at the back portion of each courtroom.

In the Federal Courtroom on each side of its walls are displayed portraits of former Lord Presidents/Chief Justice of the Supreme/Federal Court of Malaysia.

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