JUDICIAL SYSTEM

IN MALAYSIA
JUDGES & JUDICIAL SERVICE
 INTRODUCTION

A person who has the power to make decisions on cases brought before a court of law.

A person who is in charge of a trial in a court and decides how a person who is guilty of a crime
should be punished, or who makes decisions on legal matters.

Judges is independent in a way that it is not subjected to another superior and that he remains as
a member of the judicial and legal service committee.

Judges were looked up as persons who were fair and just. Seldomly any accusation or suggestion
made that any of them was corrupt or in any way dishonest, or had been improperly influenced in
giving a decision.

Judges, nonetheless, do made errors in their judgments; but judgments were carefully scrutinised
through appeal process.
The Chief Justice (Ketua Hakim Negara) is the
head of the Malaysian judiciary and also the
head of the Federal Court, the highest court of
Malaysia.The President heads the Court of
Appeal whilst two Chief Judges head the High
Courts in Malaya and Sabah and Sarawak. They
also sit in the Federal Court, together currently
with two other Federal Court judges.

The President of the Court of Appeal and the

Chief Judges of the High Courts shall be
responsible to the Chief Justice.
WHO CAN BE A SUPERIOR COURT JUDGE?

123, Federal Constitution - A person is qualified for appointment as a judge of Superior Courts
(Federal Court, Court of Appeal or any of the High Courts) if:

a. if he or she is a Malaysian citizen and either:

b. a lawyer who has practised in any of the Superior Courts for at least 10 years just before his or
her appointment; or
c. a member of the Judicial and Legal Service or of the legal service of a State for at least 10
years just before his or her appointment.
Section 23(2) Judicial Appointments Commission Act 2009 “Selection Criteria” explains the other
criteria which includes:

a. integrity, competency and experience;

b. objective, impartial, fair and good moral character;
c. decisiveness, ability to make timely judgments and good legal writing skills;
d. industriousness and ability to manage cases well; and
e. physical and mental health.

A person who is a serving judge or judicial commissioner must not be appointed if he has three or
more pending judgments or unwritten grounds of judgments that are overdue by sixty days or
more from the date they are deemed to be due.

The Commission in selecting candidates must also take into account the need to encourage
diversity in the range of legal expertise and knowledge in the judiciary.
SUPERIOR COURT JUDGE APPOINTMENT

The appointment of judges of Superior Court level is being set out under Article 122B of the the
Federal Constitution.

His Majesty, the Yang di-Pertuan Agong (YDPA) on the advice of the Prime Minister after
consulting the Conference of Rulers appoints:

a. the Chief Justice of the Federal Court;

b. the President of Court of Appeal;
c. the two Chief Judges of the High Courts; and
d. judges of the Federal Court, the Court of Appeal and the High Court.
The Prime Minister shall consult the Chief Justice, the President of the Court of Appeal and the
two Chief Judges, before he tenders his advice in appointing a judge to the Federal Court, the
Court of Appeal and the High Courts.

A judge shall not be a member of any political party or participate in any political activity.

If a judge was practising as an advocate and solicitor prior to his appointment, he shall, on his
appointment, cease to have any connection with the firm.

Judges of superior courts are not public servants as they fall under the exception of the service
provided under Article 132(3)(c) Federal Constitution.

His monthly remuneration is sourced from the Consolidated Fund - Article 125(7) Federal
Constitution
Superior Court Level
The appointment of judges of Superior Court level is being set out under Article 122B of the the
Federal Constitution.

Federal Court
Under Article 122(1A) of the Federal Constitution, YDPA may also appoint a person who has held
high judicial office in Malaysia to be additional judge of the Federal Court. This must be on the
advice of the Chief Justice.

If the interest of justice so require, the Chief Justice may also nominate a judge of the Court of
Appeal to sit as a judge of the Federal Court.

High Court
Article 122AB of the Federal Constitution provides for the appointment of a judicial commissioner.
A judicial commissioner who is appointed by the YDPA on the advice of the Prime Minister after
consulting the Chief Justice shall have the same powers and enjoy the same immunities as if he
had been a judge of the High Court.
 JUDGES RETIREMENT & REMOVAL
All judges of the Superior Courts must retire when they
reach 66 years old, or not later than six months after
they reach 66 years old if the YDPA consents. However, a
judge can resign at any time by informing the YDPA in
writing.
Article 125(3), Federal Constitution - A judge of the
Superior Courts can be removed if he or she:
Article 125(4) - The YDPA must then set up a tribunal
consisting of at least five judges or former judges of the
Superior Courts to decide if the judge should be
removed. If the tribunal decides the judge should be
removed, they recommend this to the YDPA, who then
directs the judge be removed.

a. does not follow the Judges’ Code of Ethics 1994; or

b. is physically or mentally unable to carry out his or
her duties.

To remove a judge, either the Prime Minister, or the

Chief Justice after consulting the Prime Minister, must
give the YDPA reasons why the judge should be
removed.
 JUDGES’ CODE OF ETHICS 1994
Judges’ Code of Ethics 1994 shall apply to a judge throughout the period of his service.

The breach of any provision of this Code of Ethics may constitute a ground for the removal of a judge from office.

Under the Judges’ Code of Ethics 1994, a judge cannot:

§ put his private interest over his judicial duties;
§ use his judicial position for his personal advantage;
§ bring the judiciary into disrepute or discredit; or
§ be a member of any political party or participate in any political activity.
§ lack efficiency or industry;
§ without reasonable explanation, delay in delivering decisions and the grounds of judgment;
§ refuse to obey a proper administrative order or refuse to comply with any statutory direction;
§ absent himself from his court during office hours without reasonable excuse or without prior permission of the
Chief Justice, the President of the Court Appeal of the Chief Judge, as the case may be; and

A judge shall, on his appointment or at any time thereafter declare in writing all his assets to the Chief Justice.
 JUDICIAL COMMISSIONER

Appointed by The Yang di-Pertuan Agong acting on the advice of the Prime Minister, in accordance
with Article 122AB Federal Constitution after consulting the Chief Justice of the Federal Court.

The person so appointed shall have power to perform such functions of a judge of the High court;
and anything done by him when acting in accordance with his appointment shall have the same
validity and effect as if done by a judge of that Court,

He shall have the same powers and enjoy the same immunities as if he had been a judge of that
Court.
 SUBORDINATE COURT JUDGE

Members of public servant under the category of judicial and legal service-Article 132(1) Federal
Constitution

Not independent. Subject to superiors due to the hierarchical nature in the public service.

They do not retain their post as subordinate court judges, as there is a possibility that they might
be posed for a different posts under the Attorney General Chambers (if they so requested).
SUBORDINATE COURT JUDGE APPOINTMENT

Comprises of Session Court judges and the magistrates. Appointment is government by the
Subordinate Court Act 1948

Session Court judge is appointed by the YDPA on the recommendation of Chief Judge - Section 59
Subordinate Court Act 1948

Magistrate are divided into two classes- First Class Magistrate (appointment by State authority on
recommendation of Chief Judge, Section 78 Subordinate Court Act 1948 ) and Second Class
Magistrate (appointment by State authority without any requirement of recommendation -
Section 79 Subordinate Court Act 1948 ).
Subordinate Court Level
The appointment of judges of Subordinate Court is being set out under the Subordinate Courts Act
1948 (Act 92).

Sessions Court
A Sessions Court lead by a Sessions Court judge (Hakim Mahkamah Sesyen) must be a member of
the Judicial and Legal Service of the Federation. A Sessions Court judge is appointed by the YDPA on
the recommendation of the Chief Judge.

Magistrates Court
To qualify as a First Class Magistrate, he must be a member of the Judicial and Legal Service of the
Federation.

In Malaysia, a First Class Magistrate for the Federal Territory is appointed by YDPA on the
recommendation of the Chief Judge whereas in each state, a First Class Magistrate is appointed by
the State Authority on the recommendation of the respective Chief Judge. This is provided for
under Section 78 of the Subordinate Courts Act 1948 (Act 92).

Second Class Magistrate - The State Authority may appoint a Second Class Magistrate in and for the
state. In the Federal Territory, a Second Class Magistrate is appointed by the YDPA.
 ATTORNEY GENERAL

Article 145, Federal Constitution - Yang di-Pertuan Agong, on the advice of the Prime Minister,
appoint a person who is qualified to be a judge of the Federal Court to be the Attorney General
(AG) for the Federation.

It is the duty of the AG to advise YDPA or the Cabinet or any Minister upon such legal matters, and
to perform such other duties of a legal character, as referred or assigned to him by YDPA or the
Cabinet, and to discharge the functions conferred on him by the Constitution or other written law.

AG has power to institute, conduct or discontinue any proceedings for an offence, other than
proceedings before a Syariah court, a native court or a court-martial.
 SOLICITOR GENERAL

Solicitor General is responsible to assists the Attorney General and is by law empowered to
perform any of the functions that can be performed by the Attorney General.

They act as a Deputy Public Prosecutor or as Public Prosecutor in the absence or inability of the
Attorney General to act.

They are responsible for civil matters, interviews, intakes, transfers, postings and promotions of
officers and any other duties directed by the Attorney General.

They also may conduct prosecutions in the Session Courts and Magistrate Courts.
 ADMISSION TO LEGAL PROFESSION
The body which is responsible to conduct courses or monitor the admission of new members to
the legal profesion is the Legal Profesion Qualifying Board Malaysia (LPQB)

In general, an eligible candidate for admission must fulfil the academic, practical and other formal
requirement as provided by Legal Profession Act 1976 .

Section 2 of the Legal Profession Act 1976 (Act 166) defines a qualified person as any person who:
a. has passed the final examination leading to the degree of the Bachelor of Laws of the
University of Malaysia or of the University of Singapore;
b. Is a barrister-at-law of England; or
c. Is in possession of such other qualification as may by notification in the Gazette be declared
by the bar Council on the advice of the Qualifying Board to be sufficient to make a person a
qualified person under the Act.

Qualified person under section 2 Legal Profession Act 1976 is referring to academic qualification-
possessing Bachelor of Law or Law Degree which is equivalent to it subject to other requirement
such as Certificate of Legal Practice for overseas law graduate.
 QUALIFICATION FOR ADMISSION
TO THE MALAYSIA BAR
Qualified person under section 2 Legal Profession Act 1976 may be admitted as an advocate and
solicitor if he fulfils the requirements as set out in section 11 of Legal Profession Act 1976,
including serving the prescribed period of pupillage.

Under sections 10 and 11 of the Legal Profession Act 1976 and subject to section 14 of the Act, a
qualified person may be admitted as an advocate and solicitor in Malaysia if he/she satisfies
the relevant conditions.

Section 11 Legal Profession Act 1976 : A qualified person may be admitted as an advocate and
solicitor if he:
a. he / she attained the age of eighteen years;
b. is of good character;
c. is either a Federal citizen or a permanent resident of Malaysia;
d. has satisfactorily served in Malaysia the prescribed period of pupillage for qualified persons
(s.12 Legal Profession Act 1976): and
e. as from 1st January 1984, has passed or is exempted from the Bahasa Malaysia Qualifying
Examination conducted by the Board.- section 5(f) and 11(2) Legal Profession Act 1976
f. This is the formal requirement to be fulfilled before a qualified person may be admitted as an
advocate and solicitor.
 PUPILLAGE
This is practical requirement to be fulfilled before a As for Sabah & Sarawak, admission to the profesion also
qualified person may be admitted as an advocate and requires completion of pupillage for 12 months.
solicitor.
Some criteria to be fulfil which includes that the
Section 12, Legal Profession Act 1976 - Period of candidate must have connection to Sabah or Sarawak,
pupillage of qualified person – 9 months whether by
§ birth,
A qualified person shall during his period of pupilage be § marriage with a resident in Sabah or Sarawak or
known as ‘pupil’ and a person with whom a pupil serve § continuous residence of 5 or more years,
his period of pupilage shall be known as ‘master’. § must currently be domiciled in Sabah & Sarawak and
§ must serve a 3 to 6 months of pupillage in Sabah or
A pupil shall serve his period of pupilage with an Sarawak
advocates and solicitors who is and has been in active
practice in Malaysia for a total period of not less than 7
years immediately preceding the date of
commencement of his pupillage - Section 13(1), Legal
Profession Act 1976.
 EXEMPTION OF PUPILLAGE

Bar Council may exempt qualified person from any period up to 6 months’ pupilage - Section 13(3),
Legal Profession Act 1976

A qualified person who has served in the Judicial and Legal Service for 7 years shall be exempted
forms serving any period of pupilage subject to support from the Attorney General - Section 13(4),
Legal Profession Act 1976
THANK YOU

Khalid Zanudin
Faculty of Social Sciences and Humanities,
Universiti Malaysia Sarawak
zkhalid@unimas.my
+6012 3231 796