NOOR ‘ASHIKIN HAMID

JUDICIARY
 Learning Outcomes
• At the end of the lecture the students are
able:
1. to explain the powers of judiciary;
2. to discuss the qualifications and
appointments of the judges;
3. to analyse the concept of the judicial
independency;
4. to explain the dismissal of the judges.
 Introduction

• The judiciary is the branch of government which

administers justice according to law.
• The term is used to refer broadly to the courts, the
judges, magistrates, adjudicators and other support
personnel who run the system.
• The courts apply the law, and settle disputes and
punish law-breakers according to the law.
• There are generally two types of trials, criminal and
civil.
• The hierarchy of courts begins from the Magistrates'
Court, Sessions Court, High Court, Court of Appeal, and
finally, the Federal Court.
 Introduction

• The jurisdiction of the courts in civil or criminal

matters are contained in the Subordinate Courts
Act 1948 and the Courts of Judicature Act 1964.
• Article 121 of the Constitution provides for two
High Courts of co-ordinate jurisdiction, the High
Court in Malaya, and the High Court in Sabah and
Sarawak.
• Thus this creates two separate local jurisdiction
of the courts – for Peninsular Malaysia and for
East Malaysia.
 Introduction

• The highest position in the judiciary of Malaysia is

the Chief Justice of the Federal Court of Malaysia (also
known as the Chief Justice of Malaysia), followed by the
President of the Court of Appeal, the Chief Judge of
Malaya, and the Chief Judge of Sabah and Sarawak. The
superior courts are the High Court, Court of Appeal, and
the Federal Court, while the Magistrates' Courts and the
Sessions Courts are classified as subordinate courts.
• The current President of the Federal Court effective 11 July
2018 is Tan Sri Richard Malanjum, the President of the
Court of Appeal is Tan Sri Dato' Sri Ahmad Bin Haji Maarop,
and the Chief Judge of Malaya is Tan Sri Zaharah Ibrahim.
The current Chief Judge of Sabah and Sarawak is Justice
Datuk David Wong Dak Wah.
 Judicial Power
• When the High Court came into existence by virtue of art.
121 of the Federal Constitution on Merdeka Day, they were
equipped with the necessary powers to fulfil their function
as the superior courts of Malaya and subsequently of
Malaysia.
• Judicial power is the power every sovereign State must
have to decide controversies between its subjects or
between itself and its subjects, whether the rights related
to life, liberty or property.
• Judicial power is best described in PP v. Dato' Yap Peng
[1987] 1 CLJ 550; [1987] CLJ (Rep) 284, as being the power
vested in the court to adjudicate on civil and criminal
matters brought to it.
 Article 121 of the Federal Constitution reads:

• Judicial power of the Federation

(1) There shall be two High Courts of co-ordinate jurisdiction and
status, namely
a) one in the States of Malaya, which shall be known as the High
Court in Malaya and shall have its principal registry at such place
in the States of Malaya as the YDPA may determine; and
b) one in the States of Sabah and Sarawak, which shall be known as
the High Court in Sabah and Sarawak and shall have its principal
registry at such place in the States of Sabah and Sarawak as the
YDPA may determine;
c) (c) (Repealed).
d) and such inferior courts as may be provided by federal law; and
the High Courts and inferior courts shall have such jurisdiction
and powers as may be conferred by or under federal law.
 Judicial Power
• A notable observation is that the words "judicial
power" do not form part of the provision of art.
121(1) of the Federal Constitution.
• The words were in fact deleted from the text
of art. 121(1) by the Constitution (Amendment)
Act 1988 (Act A704) effectively on 10 June 1988.
• However, they remained in the marginal note to
that article, and subsequently when the Federal
Constitution was reprinted, the current version
has those words in the shoulder note of the
article.
 Judicial Power
• The original text of art. 121(1) in the 1957
Constitution of the Federation of Malaya reads as
follows:
• The judicial power of the Federation shall be
vested in a Supreme Court and such inferior
courts as may be provided by federal law.
• The phrase "the judicial power of the Federation
shall be vested" was taken by the framers of our
Constitution from s. 71 of the Australian
Constitution (see the decision of the Court of
Appeal in Kok Wah Kuan v. PP [2007] 4 CLJ 454).
 Judicial Power
• The phrase was interpreted by Griffith CJ in Huddart, Parker
and Co Proprietary Ltd v. Moorehead [1909] 8 CLR 330, to
mean:
• ... the power which every sovereign authority must of
necessity have to decide controversies between its
subjects, or between itself and its subjects, whether the
rights relate to life, liberty or property. The exercise of this
power does not begin until some tribunal which has power
to give a binding and authoritative decision... is called upon
to take action.
• This definition was cited with approval by the Privy Council
in Shell Co of Australia Ltd v. Federal Commissioner of
Taxation [1931] AC 275.
 Judicial Power Is Vested In The Courts
• Dato' Seri Anwar Ibrahim v. PP [2010] 7 CLJ 397; [2010] 5 MLJ 145,
the FC held that the provision of art. 121 of the Constitution is to be
read in connection with its shoulder note (which contains the words
'judicial power') and interpreted in this light. The shoulder note in a
written Constitution therefore furnishes some clue as to the
meaning and purpose of the article.
• The legal consequence is that art. 121(1) of the Federal
Constitution states that judicial power or the power to adjudicate in
civil and criminal matters brought to the court is vested only in the
court.
• The same position was adopted in an earlier decision of the Federal
Court in the dissenting view of Richard Malanjum (CJSS) in Kok Wah
Kuan (FC) and curiously, as did the majority of the Court of Appeal
in the same case; Kok Wah Kuan v. PP (CA)
 Kok Wah Kuan (FC)
• The Federal Court in Kok Wah Kuan (FC)
appears to have given a narrow interpretation
of art. 121(1) of the Federal Constitution. It held
that art. 121(1) of the Federal
Constitution merely declares that the High
Courts "shall have such jurisdiction and powers
as may be conferred by or under Federal law".
• “There was thus a definitive declaration that the judicial
power of the Federation shall be vested in the two High
Courts. So, if a question is asked 'Was the judicial power of
the Federation vested in the two High Courts?' The answer
has to be 'yes' because that was what the Constitution
provided. Whatever the words 'judicial power' mean is a
matter of interpretation. Having made the declaration in
general terms, the provision went of to say 'and the High
Courts... shall have jurisdiction and powers as may be
conferred by or under federal law.' In other words, if we
want to know what are the specific jurisdiction and powers
of the two High Courts, we will have to look at the federal
law”.
• The narrow compass within which the Federal Court in Kok Wah
Kuan above approached art. 121(1) of the Federal
Constitution suggests that the provision merely identifies the
sources from which the High Courts derive their jurisdiction,
namely from Federal law.
• Whilst it is correct to say that the powers of the High Courts to
adjudicate legal disputes are those which have been conferred by
Federal laws, the judges in SEMENYIH JAYA case said the legal
implication of art. 121(1) extends well beyond that.
• In this connection, there is a general acceptance that the Federal
Constitution has to be interpreted organically and with less rigidity
(see the principle of law in Dato' Menteri Othman Baginda & Anor
v. Dato' Ombi Syed Alwi Syed Idrus [1984] 1 CLJ 28; [1984] 1 CLJ
(Rep) 98; [1981] 1 MLJ 29).
 SEMENYIH JAYA SDN BHD v. PENTADBIR TANAH DAERAH HULU
LANGAT & ANOTHER CASE
FEDERAL COURT, PUTRAJAYA [2017] 5 CLJ 526

• ISSUE - Exercise of judicial power - Power to award

compensation in land reference proceedings - Whether
vested in High Court Judge sitting in Land Reference Court -
Power to decide amount of compensation upon two
assessors under s. 40D of Land Acquisition Act 1960 ('LAA') -
Whether non-judicial personages could exercise judicial
power - Whether s. 40D of LAA usurps power of court -
Whether s. 40D of LAA ultra vires art. 121 of Federal
Constitution
• HELD
1. Under art. 121(1) of the Constitution, the judicial
power of the court resides in the Judiciary and no
other. There is always a strong presumption in favour
of the constitutionality of provisions in a statute
based on the principle that Parliament cannot be
presumed to intend an unconstitutional action. The
burden is upon him who challenges the provision to
show that they are unconstitutional. Hence, by virtue
of art. 121(1) of the Constitution, the power to award
compensation in land reference proceedings is a
judicial power that is vested in the High Court Judge
sitting in the Land Reference Court.
2. Further, the act of determining the amount of
compensation payable arising out of land
acquisition cases involves judicial assessments.
Hence, the power to award compensation in
land reference proceedings is a judicial power
that should rightly be exercised by a judge and
no other. Therefore, a non-judicial personage
(ie, a non-member of the judicature) has no
right to exercise judicial power. The discharge of
judicial power by non-qualified persons or non-
judicial personages renders the said
exercise ultra vires art. 121 of the Constitution.
The effect of deleting the expression "judicial power" from the
opening words in art. 121 of the Constitution
•The amendment by the Constitution (Amendment) Act 1988 [Act
A704] deleted the expression "judicial power" from the opening
words in art. 121 of the Constitution.
•However, the amendment did not have the effect of divesting the
courts of the judicial power of the Federation for the following
reasons.
1. The amendment did nothing to vest the judicial power in some
arm of the Federation other than the courts. Neither did it
provide for the sharing of the judicial power with the Executive
or Parliament or both those arms of Government.
2. The marginal note to art. 121 was not amended. That clearly
expressed the intention of Parliament not to divest the ordinary
courts of the judicial power of the Federation and not to
transfer it to or share it with either the Executive or the
Legislature.
 Dissenting view in KWK
• Richard Malanjum (CJSS) in Kok Wah Kuan (FC) took
the position that the specific provision on the vesting
of judicial power with the High Courts in art. 121(1) of
the Federal Constitution represents an important
feature in a democratic system of Government.
• The courts which form the third branch of the
Government has a duty "to ensure that there is a
'check and balance' in the system including the crucial
duty to dispense justice according to law for those who
come before them".
• His Lordship observed that:
 Richard Malanjum
• “At any rate I am unable to accede to the proposition
that with the amendment of Art. 121(1) of the Federal
Constitution (the amendment) the courts in Malaysia
can only function in accordance with what have been
assigned to them by federal laws. Accepting such
proposition is contrary to the democratic system of
government wherein the courts form the third branch
of the government and they function to ensure that
there is 'check and balance' in the system including the
crucial duty to dispense justice according to law for
those who come before them”.
 Richard Malanjum
• It is clear to us that the 1988 amendment had the
effect of undermining the judicial power of the
Judiciary and impinges on the following features of the
Federal Constitution:
• (i) The doctrine of separation of powers; and
• (ii) The independence of the Judiciary.
• With the removal of judicial power from the inherent
jurisdiction of the Judiciary, that institution was
effectively suborned to Parliament, with the
implication that Parliament became sovereign. This
result was manifestly inconsistent with the supremacy
of the Federal Constitution enshrined in art. 4(1).
 Richard Malanjum
• Parliament does not have power to amend the Federal
Constitution to the effect of undermining the features as
stated in (i) and (ii) above for the following reasons:
• The effect of sub-s. 8(a) of the Amending Act A704 appeared
to establish Parliamentary supremacy; this consequentially
suborned the Judiciary to Parliament, where by virtue of the
amendment, Parliament has the power to circumscribe the
jurisdiction of the High Court.
• Consequentially this has the unfortunate effect of allowing
the executive a fair amount of influence over the matter of
the jurisdiction of the High Court.
Liyanage v. The Queen [1967] 1 AC 259
• The appellants had been convicted of grave
criminal offences under laws of the Parliament of
Ceylon. The Act under which they were convicted
was passed after an unsuccessful coup, they were
not tried by a judge and jury in accordance with
the normal criminal procedure, but by three
judges of the Supreme Court sitting without a
jury.
• The judges imposed a minimum sentence of ten
years, and for forfeiture of their property.
• The Privy Council held: The convictions were quashed.
• The laws offended against Ceylon’s written constitution. It
offended fundamental principles which had been inherited into the
Ceylon constitutional framework- (retrospective effect of criminal
laws)
• The impugned legislation involving a usurpation and infringement
by the Legislature of judicial powers is inconsistent with the written
Constitution of Ceylon which, while not in terms vesting judicial
functions in the Judiciary, manifested an intention to secure in the
Judiciary a freedom from political, legislative and executive control
and in effect left untouched the judicial system established by the
Charter of Justice of 1833.
• The legislation was struck down as void.
Liyanage v. The Queen [1967] 1 AC 259
• The Privy Council observed, inter alia:
• Powers in countries with written constitutions must be
exercised in accordance with the terms of the constitution
from which they were derived.
• Reference was made to the provisions in the Constitution
for appointment of judges by the Judicial Service
Commission and these provisions patently displayed an
intention to secure in the Judiciary a freedom from
political, legislative and executive control.
• The provisions was intended that Judicial power shall vest
only in the Judicature; and they would be inappropriate in a
constitution by which it was intended that judicial power
should be shared by the executive or the Legislature.
 • Thus to put it in perspective, the judicial
power of the court resides in the Judiciary and
no other as is explicit in art. 121(1) of the
Constitution
 Keshavananda Bharati v. State of
Kerala AIR 1973 SC 146
• The Supreme Court emphasised the sanctity of the doctrine of
separation of powers and the exclusivity of judicial power. Khanne J,
in concurring with the majority inter alia held at pp. 2340-2347
that:
• ... A declaration that an order made by a court of law is void is
normally part of the judicial function and is not a legislative
function. Although there is in the Constitution of India no rigid
separation of powers, by and large the spheres of judicial function
and legislation function have been demarcated and it is not
permissible for the legislature to encroach upon the judicial
sphere. It has accordingly been held that a legislature while it is
entitled to change with retrospective effect the law which formed
the basis of the judicial decision, it is not permissible to the
legislature to declare the judgment of the court to be void or not
binding.
 Summary
• The Judiciary is thus entrusted with keeping every
organ and institution of the State within its legal
boundary.
• The concept of the independence of the Judiciary
is the foundation of the principles of the
separation of powers.
• The important concepts of judicial power, judicial
independence and the separation of powers are
as critical as they are sacrosanct in our
constitutional framework.
• An effective check and balance mechanism is in place
to ensure that the executive and the Legislature act
within their constitutional limits and that they uphold
the rule of law.
• The Malaysian apex court had prescribed that the
powers of the executive and the Legislature are limited
by the Constitution and that the Judiciary acts as a
bulwark of the Constitution in ensuring that the
powers of the executive and the Legislature are to be
kept within their intended limit. (see Pengarah Tanah
dan Galian, Wilayah Persekutuan v. Sri Lempah
Enterprise Sdn Bhd [1978] 1 LNS 143; [1979] 1 MLJ
135).
 Appointments of judges
• The appointment of the Chief Justice is governed by Article
122B of the Constitution whereby the YDPA appoints the
Chief Justice on the advice of the Prime Minister after
consulting the COR.
• As for the appointment of the President of the Court of
Appeal, the Chief Judge of Malaya, the Chief Judge of Sabah
and Sarawak, and other Federal Court judges, similar
procedure is taken with the additional requirement of
consultation with the Chief Justice.
• The appointment of Court of Appeal judges is also governed
by the same procedures with the additional requirement for
the consultation of the President of the Court of Appeal.
 Appointments of judges
• As for the appointment of High Court judges,
similar procedures are prescribed with the
additional requirement of consultation with
the respective Chief Judges.
• The appointment of Sessions Court judges is
governed by Section 59 of the Subordinate
Court Act 1948. They are appointed by the
Yang di-Pertuan Agong upon the advice of the
respective Chief Judges.
 Appointments of judges
• Section 78 of the Subordinate Courts Act 1948
provides that the appointment of magistrates
are done by the respective state government
upon the advice of the respective Chief
Judges, except for magistrates in the Federal
Territory, where they are appointed by the
Yang di-Pertuan Agong upon the advice of the
Chief Judge.
 Dato’ Seri Anwar Ibrahim v PP case
(2000) 5 CLJ 570
• Held that the actual appointing authority is the Prime
Minister. The YDPA could not but follow decision made
by the PM. Further held that so in the context of art
122B (1) where the PM has advised that a person be
appointed a judge and if the COR does not agree or
withholds its views or delays the giving of its advice
with or without reasons, legally the PM can insist that
the appointment be proceeded with.
• …so in the matter of the appointment of judges, when
the YDPA consults the COR, he does not seek its
‘consent’. He merely consults. So when the COR gives it
advice, opinion or views, the question is the YDPA
bound to accept. Clearly he is not.
 Dato’ Seri Anwar Ibrahim v PP
• The Court emphasized that even the requirement of
consultation with the COR does not amount much.
• To consult means to refer a matter for advise, opinions
or views. To consult does not mean to consent.
• The Conference’s view could be discarded.
• Though the appointment of the judges requires the
advice of the PM who is part of executive, this not be
seen as interference on the judiciary as he cannot
advise the YDPA to appoint anyone his liking.
• At the same time there is a strict rule that the PM must
consult the COR and Chief justice and only judges who
are qualified can be appointed.
 Qualifications of judges
• Art 123 prescribes 2 formal rules of eligibility for
the appointment to the FC, COA and the HC.
i. the nominee must be a citizen whether by
operation of law, registration or naturalization.
ii. He or she must possess the minimum
professional experience of being 10 years
preceding his appointment…an advocate of
courts…or a member of the judicial and legal
service of the Federation or of be legal service
of a state.
 Badan Peguam Malaysia v Kerajaan
Malaysia [2008] 2 MLJ 285
• Dr B was appointed as a Judicial Commissioner on
March 1, 2007. She had been called to Bar in
1987 but she chose to immerse herself in
teaching and research. She had appointed as the
Dean of the Law Faculty and wrote law treaties.
She was a member of the professional qualifying
board overseeing the CLP programme.
• FC held that once called to the Bar she is lawfully
an advocate of those courts and therefore eligible
for election to the Bench.
• Art 125 (1): Appointment is only up to 65
years but YPDA may acting on advice, extend
the period by 6 months- usually for the
completion of cases part heard
• Article 122C- transfer of judge to HC may only
be done on the recommendation of Chief
Justice after consultation with Chief Judge
 Judicial Independence
Dato' Haji Azman bin Mahalan v Public Prosecutor
[2007] 4 MLJ 142 : “...the independence of the
judiciary is a priceless treasure to be cherish
and safeguard at all”…
 Chong Chung Moi @ Christine Chong v The
Government of the State of Sabah & Ors [2007] 5 MLJ
441
 High Court: :“The doctrine of separation of powers is
not a concept written in the Federal Constitution,
because it is the foundation of the constitution itself,
without which the establishment will collapse and will
have no footing to stand on. There are also other
concepts such as Independence of Judiciary, Judicial
Review, which are not written in the constitution but
stands as a sine qua non to protect the constitution
and without these concepts and its application the
constitution cannot function as intended. As such the
constitution cannot be read in isolation”.
Lim Kit Siang V Dato Seri Dr Mahathir Mohamad
[1987] 1 MLJ 383
• Facts: In this case the appellant had applied for
an order of committal for contempt of court
arising out of the remarks of the respondent in a
interview given to and published in Time
magazine. The application was dismissed in the
High Court and the appellant appealed.
• Supreme Court: the respondent's statement ex
facie does not amount to a contempt of Court
• Statement in the Time Magazine: "On the Courts. The
Judiciary says (to us), 'Although you passed a law with a
certain thing in mind, we think that your mind is wrong,
and we want to give our interpretation.' If we disagree, the
courts will say, 'We will interpret your disagreement.' If we
go along, we are going to lose our power of legislation. We
know exactly what we want to do, but once we do it, it is
interpreted in a different way, and we have no means to
reinterpret it our way. If we find out that a court always
throws us out on its own interpretation, if it interprets
contrary to why we made the law, then we will have to find
a way of producing a law that will have to be interpreted
according to our wish’.
 Supreme Court held
• Government comprises three branches, namely,
the legislature, the executive and the judiciary.
• The courts have a constitutional function to
perform and they are the guardian of the
Constitution within the terms and structure of
the Constitution itself; they not only have the
power of construction and interpretation of
legislation but also the power of judicial review.
 Supreme Court held
• The right of every individual (including the Prime
Minister) to freedom of speech in this country has
been consistently upheld by the Courts subject only to
any restrictions that are prescribed by the Constitution
itself.
• There is no reason to deny that right to the respondent
in the instant case.
• The Court should not be over sensitive to criticism. The
impugned statement, read objectively is not even a
criticism of the Court far less scandalising it or a threat
to the independence of the Judiciary.
How is judicial independence secured
in Malaysia?
• In Malaysia, Judicial independence is secured
in the following ways:
i. Judges are independent of the Executive
and the Legislature and they do not get
involved in political debate or political
activities.
ii. Judges cannot be sued or prosecuted for
what they do or say in their capacity as a
judge and in the course of their duties.
iii. Rules concerning the tenure of office,
remuneration, qualifications and powers of
the judges are enshrined in the Federal
Constitution.
• Refer to Art 123
• Refer to Art 125
• Refer to Art 121
• Art 125(6)- Judges salaries are charged on the
Consolidated Fund provided by Judges
(Remuneration) Act 1971
• The salary and perquisites of Judges may be debated
but when it has been passed the Act remains on the
statute book and so a judge’s remuneration does not
require annual parliamentary approval and is thus
removed from annual parliamentary debate.
• The Act may be amended but it would be
unconstitutional if it altered a judge’s
remuneration to his advantage after his
appointment and the amendment affects only
the remuneration of judges appointed after
the amendment.
• The salary, other terms of office, pension
rights may not be altered to his disadvantage
after his appointment [art 125(7)].
iv. The conduct of superior court judges cannot
be discussed in Parliament. It could be
discussed only if one quarter of the total
members of either house submits a
substantive motion to that effect. Their
conduct cannot be discussed in any State
Assembly.
• Article 127- the conduct of a judge may only be
discussed in Parliament on a substantive motion
supported by ¼ of the total number of members
and not at all in the State Legislative Assembly
Raja Sageran a/l Krishnan v Bar Council Malaysia
& Ors [2004] 1 MLJ 34
• After referring to art 125 (3) and 127 the court
said: “…that Parliament although supreme, is
unable to discuss the conduct of a judge
unless a provision to Art 127 applies…whilst
on the need to protect and uphold the
independence of the judiciary, it must be seen
to be manifest that no external pressure is
exerted against the judiciary either from the
executive or from any other sources including
Bar”.
v. The tenure of office of the judges is
guaranteed by the Constitution. Judges hold
office during good behaviour and retire at
66.
• FC excluded judges of the HC and Federal
Court from the operation of the general rule
set out in article 132(2A) that a member of
the public service holds office during the
pleasure of YDPA.
vi. A special Tribunal is set up under Article 125
(3) and (4) of the Federal Constitution to
remove a judge if he is guilty of breaching the
Judicial Code of Ethics prescribed under Article
125 (3B) and (3C) and the Judges’ Code of
Ethics 1994.
• The guarantee of judicial independence lies in
the hands of tribunal, and the conduct of
proceedings before the tribunal which is not laid
down in the constitution.
• If PM or Chief Justice after consulting with PM,
represents to YDPA that a Judge of FC, COA or HC
ought to be removed on the ground of any breach of
Code of Ethics prescribed under article 125(3A) or of
any inability, from infirmity of body or mind or any
other cause, properly to discharge the functions of his
office, the YDPA shall appoint a Tribunal and refer the
representation to it and may on the recommendation
remove the Judge from office.
• Tribunal consists of not less than 5 judges or former
judges.
vii. Power to punish for contempt. (art 126)
MBF Holdings Bhd & Anor v Houng Hai Kong &
Ors [1993] 2 MLLJ 516:
“It is a paramount in the public interest that
every court should have power and authority or
jurisdiction to punish persons who scandalize it
or disobey orders made by it. If such power is
absent, then the public will loss all confidence
in the authority of the judicial arm of the state
leading to anarchy and disorder. This the
juridical basis for the law of contempt”.
viii. The appointment of the Judicial Appointment
Commission.
• The Minister said that the tabling of the Judicial
Appointment Commission Bill is to get back the trust of the
people on the judicial appointment process under the
principle of the independence of the judiciary.
• The title of the Judicial Appointment Commission Act 2009
is to provide the continued independence of the judiciary.
• The Act received its Royal Assent in January 2009. The
Commission consists of 5 serving judges and 4 eminent
persons.
• It consists of the Chief Justice, the President of
the COA, the Chief Judges of the High Courts and
a Federal Court appointed by the PM.
• 5 eminent are appointed by PM; must not a
member of the executive or public service. In this
regard, the PM must consult the Bar Council and
the law associations in Sabah and Sarawak.
• They hold office for 2 years and not more than 2
terms.
• The members may be removed by the PM.
• The function of the commission is to provide a list of
candidates for the PM to consider. The Commission does not
appoint the judges. The Act provides that the Commission has
to consider, among others, integrity, competency, impartiality,
moral characters, legal writing skills and case management.
• The PM may disagree with the suggested name and request
another list. However there is no limitation of the power to
request another list.
• The Commission may receive applications from qualified
person to be selected as judges. This will widen the pool
candidates to be considered.
• The Commission may propose programmes to the PM to
improve the administration of justice.
 Critics
• Who are eminent persons nominated as the member
of the Commission is no defined. Suggest: define this
phrase. In England, the law ensures that panel of
selection will consist apart judicial officers, lay
members. This will broaden expertise and inject fresh
views in the appointment process.
• The PM may disagree with the suggested name, he
may wait until a name that he agrees comes out. In
contrast the English Act provide only one name. The
government could only decline once. The second time,
the government must accept a name provides by the
Commission.
• The PM may remove any member. Suggest: law should
provide specific grounds of removal such as unfit to
hold the office.
• The PM may reject the candidate of the Commission
without any reason. The English Act restricts the power
to reject the candidate on the ground that there is
enough evidence that the candidate is suitable or that
person is not the best candidate on the merit.
• The setting up the Commission indeed is a right step to
improve the state of the judiciary in Malaysia, but
there is still possible improvement to the existing Act
(Shuaib, 2011).
 Robert Linggi v Government of
Malaysia [2011] 2 MLJ 741
• The petitioner challenged the constitutionality of
the Act on the ground that, inter alia, it changes
the appointment procedure under the Federal
Constitution.
• The High Court held that the JAC only
recommends qualified candidates for judgeship
and the discretion of the PM in submitting a
particular name to YDPA remains. Thus, the Act
does not change the constitutional procedure in
judicial appointment.
 Dismissal of the Judges
• Art 125 (2): A judge of the Federal court may at any time
resign his office, however shall not removed from the office
except in accordance with provisions of the Art.
• Art 125 (3): “If the Prime Minister…represents to the YDPA ]
that a judge of the Federal Court ought to be removed on
the ground of any breach of any provision of the code of
ethics prescribed under clause 3A or on the ground of
inability, from infirmity of body or mind or any other cause,
properly to discharge the functions of his office, the YDPA
shall appoint a tribunal…and refer the representation to it;
and may on the recommendation of the tribunal remove
the judge from office”.
 Dismissal of the Judges
• Art 125 (3A) allows to prescribe a code of
ethics.
• Judges’ Code of Ethics 1994
• Principles for a judge to follow:- He must not
a) Subordinate his judicial duties to his private
interest
b) Bring his private interests into conflict with
his judicial duties
c) Conduct himself in any manner likely to cause a
reasonable suspicion that he has allowed his
private interests into conflict with his judicial
duties so as to impair his usefulness as a judge
or that he has used his judicial position for his
personal advantage.
d) Conduct himself dishonestly or in such a manner
as to bring the judiciary into disrepute or bring
discredit thereto
e) Lack of efficiency or industry
 Continue…
d) Inordinately and without reasonable explanation
delay in the disposal of cases, the delivery of
decisions and the writing of grounds of
judgment
e) Refuse to obey a proper administrative order or
refuse to comply with any statutory directions
f) Absent himself from court during office hours
g) Be a member of any political party or participate
in any political activity
 Tun Dato Haji Mohamed Salleh Abbas v Tan Sri
Abdul Hamid [1988] 3 MLJ 149
• The Attorney General, Malaysia, applied by way
of notice of motion dated 11 July 1988 to set
aside an ex parte order dated 2 July 1988
restraining the tribunal appointed under art
125(3) of the Federal Constitution from
submitting any recommendations, report or
advice respecting the inquiry into the
representation concerning Tun Dato Haji
Mohamed Salleh bin Abas to YDPA until further
order.
• Held: The functions of the tribunal appointed
under art 125(3) of the Constitution is to inquire
and investigate on the representation and then
report to the YDPA with any recommendation it
may make. The tribunal is a body which
investigates and does not decide. It is performing
a constitutional function. The tribunal should not
therefore be restrained from performing its
constitutional function.
• Held: The members of the tribunal are
appointees of the YDPA. From the language of art
125 it is clear that the YDPA is entitled to the
report of the tribunal. To restrain the tribunal
from submitting their report is in effect to
restrain His Majesty from receiving the report. On
the above grounds it is our view that the
restraining order is therefore bad in law, invalid
and unenforceable as against the YDPA and the
tribunal.
• The judge is considered to breach of the Code of
Ethics if fails to give reasons for his decisions- see
Hong Leong Equipment Sdn Bhd v Liew Fook
Chuan and Another Appeal [1996] 1 MLJ 481.
• The judge is considered to breach of the Code if
he use his office for gratification when he makes
any decision (conflict of interest) – see Allied
Capital Sdn Bhd v Mohamed Latiff bin Shah and
Another Application [2001] 2 MLJ 395.