JUDICIARY

Part A

The main principles of constitutional interpretation in Malaysia

There are two main principles of constitutional interpretation in Malaysia:

Literal Approach:

- The Constitution should be interpreted in accordance with the original intention of its
framers.
- The “plain language” of the provision and its grammatical and ordinary sense
should be given effect.
- In Datuk Harun v PP: The court held that it is not “at liberty to stretch or pervert the
language of the Constitution in the interests of any legal or constitutional theory, or
even, …for the purpose of supplying omissions or of correcting supposed errors.”
- In Jabar v PP: The court held that any law is valid and binding so long as it is validly
passed and that it is not concerned with whether it is also fair, just and reasonable.

Liberal Approach:

- It is for judges to give life and meaning to the letters of the law.
- Judges should adjust legal principles to changing social conditions and should assist in
social engineering.
- In Dato Menteri Othman Baginda: The court expressed the view that on
constitutional issues, previous precedents need not be strictly followed and
must be subjected to the situation. A Constitution being a living piece of
legislation must be construed broadly, with less rigidity and more generosity
than other Acts.
- A provision of the Constitution should be read in the overall context of the
Constitution and in the light of non-rule standards, principles and doctrines.
- Explicit rules should be balanced against the implicit principles.
- Interpretation should be based on rights and principles, where the central concern of
the interpreter should be with purposes and not with meanings.
Functions of the judiciary/court

Adjudicatory role:

- The courts supply a dispute-resolving mechanism whenever the rights of citizens clash
with the rights of others citizens or with the power of the State, or when various
organs of the State disagree over the scope and extent of their jurisdiction.

Penal function:

- The courts help legitimise the application of institutionalised sanctions against those
who disobey the law.

Enforcing constitutional supremacy:

- Article 4(1): The courts have the power and duty to review legislative and executive
actions on the ground of “unconstitutionality”.
- Article 162(6): The courts have the power to invalidate or modify pre-Merdeka laws
that contravene the Constitution
- This means that neither Parliament nor the Government is supreme.
- The courts have the power to determine whether an enactment or statute is
valid under the Constitution.
- Citizens are allowed to challenge the validity of any government action on the ground
of unconstitutionality.

Judicial review of administrative law:

- The courts are entrusted with the crucial duty of ensuring that the government stays
within the limits of its powers.
- The courts carry out such duty through the use of the notion of
constitutionality; the doctrine of ultra vires; and the principles of natural
justice.
- The power of judicial review is part of the theory of check and balance that courts
must ensure that every institution and functionary of the State stays within its limits.

To balance the wheel of federalism:

- The judiciary has been given this role through its power of adjudicating disputes
between the Federal government and State government, and disputes among States.

Safeguarding human rights:

- Articles 4(1), 128(1), 130, and 162(6) confers upon the superior courts power and duty
to preserve, protect and defend the Constitution in which the fundamental liberties,
right to citizenship, pension rights, right to go to court and other rights are enshrined.
Interpreting laws:

- The courts are required to interpret “static” clauses of the Constitution and statutes
in order to give them life and meaning.
- If the law has ambiguities the judge has to remove them.
- If the law has gaps, the judges have to fill them with principles, presumptions,
doctrines and standards.
- If the law has conflicts, the judge has to bring harmony and consistency to it.
- Judges have to make explicit the matters that are implicit within the law.
Part B

Whether the objectives of Article 121(1A) of the FC have been achieved

Up until 10th June 1988, Syariah Courts were regarded as subordinate to the High Courts.

Through Act A704, an amendment was made to Article 121 of the Federal Constitution adding
Clause (1A), which provides: The courts referred to in Clause (1) (High Courts) shall have no
jurisdiction in respect of any matter within the jurisdiction of the Syariah Courts.

Objectives:

- To give independence to the Syariah Courts in matters within their jurisdiction

- To forbid the civil courts from engaging in interpretation of those issues of Syariah law
that are assigned to State jurisdiction (State List, Ninth Schedule)

In Mohamed Habibullah Mahmood v Faridah Dato’ Talib: In assessing the intention of the
Parliament, the court held that by introducing Article 121(1A), the Parliament intended to
take away the jurisdiction of the High Courts in respect of any matter within the jurisdiction
of the Syariah Court.

However, the introduction of Article 121(1A) has still left several issues not clarified:

Whether the power to determine if a matter is within or outside the jurisdiction of the
Syariah Courts lies with the Civil Courts or the Syariah Courts.

- Tongiah Jumali v Kerajaan Johor: The plaintiff, a Muslim at birth, had converted to
Christianity and married the second plaintiff, a non-Muslim. She claimed that her
marriage was valid under Malaysian law. The issue was whether her conversion out of
Islam was valid, and who had the power to determine such issue. Held: The jurisdiction
of the Syariah Court to deal with conversions out of Islam, although not expressly
provided for in the State Enactments, may be read into them by implication derived
from the provisions concerning conversion into Islam.

- However, in Norlela Mohamad Habibullah v Yusuf Maldoner: The High Court held that
Syariah courts have no inherent jurisdiction unlike civil courts which are courts of
general jurisdiction and have inherent powers.

Whether a case involving parties of a Muslim and a non-Muslim should proceed in the Civil
Courts or the Syariah Courts.

- Saravanan v Subashini: The couple married under Civil law and had two infant
children. In 2006, the husband converted himself and his infant son to Islam. The wife
complained that the son’s conversion was carried out without her knowledge and
consent and she sought an ex parte injunction to restrain the husband from converting
either child and commencing or continuing any proceeding in any Syariah Court with
regard to the marriage or the children. Held: The court had no jurisdiction to grant an
 injunction against a court not subordinate to the High Court. On appeal to the Court
of Appeal, the majority expressed its inability to grant the injunction sought because
the matter was within the jurisdiction of the Syariah Court.

Whether a case involving a Syariah-related law or decision involves a grave constitutional

law question about fundamental rights or federal-state division of power should proceed
in the Civil Courts of the Syariah Courts.

- Priyathaseny v Pegawai Penguatkuasa Agama: The first plaintiff, who was a Muslim,
had renounced Islam, adopted Hinduism, changed her name, married the second
plaintiff, and gave birth to two children. She was arrested and charged for insulting
Islam by her act of conversion, and for cohabitation outside of lawful Muslim wedlock
with a non-Muslim. After her arrest, her Hindu husband converted to Islam. The first
plaintiff sought a declaration that she was a Hindu and that her constitutional rights
were being violated. The second plaintiff also sought a declaration that he was not
subject to Islamic law because he had been coerced into converting into Islam in order
to save his wife from jail. Held: The High Court denied both declarations and refused
to answer the constitutional issues. The court held that the core issue was whether
the first plaintiff was still a Muslim despite her alleged conversion and whether the
second plaintiff remained a Muslim despite his allegation that he was coerced into
conversion, and that both issues were for the Syariah Courts.

Whether a case involving elements of both Syariah law and Civil law should proceed in the
Civil Courts or the Syariah Courts.

- In Islamic banking cases, vigorous arguments have been submitted that the High Court
should not exercise jurisdiction.

Sometimes the remedy being prayed for is not available in the Syariah Courts.

- Azizah Shaik Ismal v Fatimah Shaik Ismail: There was a custody dispute between the
natural mother and her sister over an infant child. The natural mother applied to the
civil High Court for the writ of habeas corpus. The Federal Court, in following the
subject matter approach, refused the writ, as the subject matter was in the exclusive
jurisdiction of the Syariah Courts, even if the remedy was not.

Although the objectives of Article 121(1A) are clear, the existence of these issues makes it
difficult to determine whether such objectives have truly been achieved.

- Since 1988, the civil courts have started interpreting their powers narrowly and have
generally shown great reluctance and restraint in any matter involving an Islamic
religious issue.
- The view of the civil courts seems to be that as long as there is any element of Syariah
law, the matter must be referred to the Syariah Courts.
 - Civil courts have declined jurisdiction even though questions of
constitutionality were often at stake.
- Where one party is a Muslim, and the other a non-Muslim, the civil courts
refused jurisdiction and advised the parties to turn to the Syariah Courts
despite the fact that Syariah Courts only have jurisdiction over Muslims.
- On the other hand, Syariah Courts have begun to exercise jurisdiction on all matters
relating to Islam even if those matters are not defined under the State List.
- A legislative initiative is therefore necessary to clarify issues arising under Article
121(1A) in order for its objectives to be fully achieved.

Judicial Independence

Security of tenure (Removal from office)

Superior court judges have a form of permanency in their tenure.

- Superior court judges cannot be removed from office by the Parliament as in the
United States and United Kingdom.
- The Parliament also does not possess the power to dismiss judges abruptly like in the
days of the colonial practice before Merdeka.
- Lord Goddard C.J. in Terrell v. Secretary of State for the Colonies: a superior
judge in a colony was removable at the pleasure of the Crown.

If under any circumstances, a superior judge ought to be removed, there are procedures for
their dismissal.

- Articles 125(3) and (4): If representations are made to the YDPA that a judge should
be removed the YDPA may appoint a judicial tribunal of not less than five local or
Commonwealth judges, either retired or serving, to investigate the allegation and to
make recommendations on the case to the YDPA.
- The representation must come from the PM or from the Chief Justice after
consulting with the PM.
- The representation to the YDPA must be that a judge should be tried for either:
- Breach of the judicial Code of Ethics, or
- On the ground of inability, from infirmity of body or mind or any other
cause, to discharge the functions of his office properly.
- Upon receiving such representation, the YDPA cannot act immediately or
indiscriminately towards the dismissal.
- Under Article 125(4), the YDPA is obliged to appoint a tribunal and refer the
representation to it and act only on the findings of the tribunal.

The underlying principle behind Articles 125(3) and (4) is that the tribunal shall consist of a
judge’s brother or sister judges and not by the executive or legislative branch.
 - The tribunal must consist of no less than five present or past, local or Commonwealth
judges.
- The common law rules of “openness, fairness and impartiality” apply.
- The tribunal is bound by the principles of natural justice to provide the accused
a fair chance in answering the grounds upon which his removal is sought.

Articles 125(3) and (3B): After having reached a decision, the tribunal can recommend the
dismissal of the judge or some other sanction.

- However, pending the report of the tribunal, the judge on trial may be suspended
from office under Articles 125(5) and (9).

The dismissal of Tun Salleh Abas, LP, in 1988: Where the constitutional safeguard against the
dismissal of judges was tested, and many flaws were found.

- The initiative to place Tun Salleh Abas before the tribunal came from the YDPA,
whereby His Majesty was angered by the Lord President’s letter to him, after which
he told the PM that Tun Salleh should be dismissed.
- However, there is nothing improper about the YDPA referring an alleged
judicial misconduct to the PM and seeking his advice on the matter.
- Several judges on the Tan Sri Hamid tribunal picked to try Tun Salleh were juniors in
standing.
- There were a number of very senior retired judges, but they were not chosen.
- Article 125(4) is silent on the seniority of tribunal members in relation to the
judge to be tried.
- It is in contrast with the general rule under Article 135(1) as well as
other statutes that members of a disciplinary board should not be
inferior in ranking to the officer being tried.
- The application of Article 125(4) led to the permission for justices who would benefit
from the removal of the accused to sit in judgment over him.
- A violation of the rule of natural justice as a person should not be a judge in his
own cause.
- In this case, the Chairman, Tan Sri Hamid, who as the Acting Lord President
would clearly benefit from Tun Salleh’s removal, was allowed to sit at the
tribunal.
- The legal issues and the challenges before the court were not given more time.
- The tribunal proceeded with the dismissal despite Tun Salleh’s refusal to
attend because of his objections towards the composition of the tribunal.

In 2006, in an attempt to fix the flaws found, Article 125(3A) was inserted to permit the Chief
Justice to refer minor breaches of the Code of Ethics to a body constituted under federal law
to deal with such breach.
Appointment of judges

The constitution seeks to ensure that only those with proper qualifications, integrity and
calibre are appointed to the judiciary.

Qualifications:

Article 123 prescribes two formal rules of eligibility for appoint to the superior courts:

- The nominee must be a citizen whether by operation of law, registration or

naturalisation.
- He or she must possess the minimum professional experience of being “for the ten
years preceding his appointment, an advocate of the courts or a member of the
judicial and legal service of the Federation or a State.”
- The words “for the ten years preceding his appointment” are not entirely clear.
This has raised two issues:
- Whether the “ten years preceding” must be immediately preceding, or
whether 10 years of accumulated experience over a long period of time
is sufficient
- E.g: If an advocate or solicitor of 8 years took time off from legal
practice to teach at a law faculty, does the break from active
legal practice cause him to forfeit the eight years of legal
practice?
- Whether the experience at the Bar must be in active legal practice with
a practising certificate, or whether it is sufficient to be “called to the
Bar” ten years preceding the appointment
- Badan Peguam Malaysia v Kerajaan Malaysia: The court held
that once called to the Bar, a person is lawfully “an advocate of
those courts” and is therefore, eligible for elevation to the
Bench.

Procedure for appointment:

In Malaysia, there is no special body to nominate judges. For a superior court judge to be
appointed under Article 122B(1), an extensive, multi-layered process of consultation must be
undergone.

- Article 122B(2): When a vacancy of a post other than that of the Chief Justice of the
Federal Court, the PM must consult the Chief Justice.
- Article 122B(4): The President of the Court of Appeal and the Chief Judges of the High
Courts must be consulted by the PM for appointments of judges to their courts.
- Article 122B(3): For the appointment of the Chief Judge of the High Court, the Chief
Judge of each High Court must be consulted; if the appointment is to the High Court
of Sabah and Sarawak, the Chief Minister of each State must be consulted.
After consultation with the senior judges, the PM then advises the YDPA.

- The YDPA is required to act on the advice of the PM, but only “after consulting the
Conference of Rulers” under Article 122B(1).
- The CORs’ role is one of check and balance.
- It has the power and duty to scrutinize, to call for further information, to delay,
to caution, and to warn.
- However, it does not have the power to veto the PM’s proposals.
- PM has a duty to give due consideration to the views of the CORs, the Chief Justice,
President of the Court of Appeal, the Chief Judges of the High Courts and the Chief
Ministers of Sabah and Sarawak.
- But none of them has the right to insist that their views must be obeyed.
- The weightage of their views is a matter of constitutional convention.

The consultative procedures do not apply to the appointment of temporary Judicial

Commissioners.

- Article 122AB: Judicial Commissioners are appointed for a specified period or purpose
by the YDPA on the advice of the PM after consulting the Chief Justice.
- Due to appointments of Judicial Commissioners being regarded as a probationary
period before a full appointment, direct appointments to the High Court have become
rare.

Terms of Service

In Malaysia, superior court judges enjoy terms of service that are more favourable than those
of civil servants.

Article 125(1): Their retirement age is 66 years and can be extended by six months by the
YDPA.

Article 125(7): Judicial salaries and others terms of service, including pension, can be
improved but cannot be changed to their detriment.

- Article 122C: The YDPA cannot transfer a High Court Judge except on the
recommendation of the Chief Justice, who must consult the Chief Judges of the High
Courts.

Promotions are in the hands of the YDPA who acts on the PM’s advice after consultation with
the CORs.

- Article 122B: The PM consults the Chief Justice, President of the Court of Appeal and
the Chief Judges of the High Courts on appointments to their courts before advising
the YDPA.
Insulation from politics

- To protect the judiciary against politically inspired criticisms, Article 127 bars
parliamentary discussions on the conduct of judges, except where the motion is
supported by more than one quarter of the members of the House.
- Article 125(6): The remuneration (wage) of judges is charged on the Consolidated
Fund and is thereby excluded from the politically charged budget debate.
- By statute, judges are completely disqualified from membership of either House of
Parliament or the State Assemblies.
- Conventionally, they refrain from activities that would draw them into
controversy.
- In Malaysia, judges retain links with social, sports and non-political
organizations.

Contempt of Court

Article 126: The courts have power to punish for contempt any person who interferes with
the administration of justice or challenges the dignity or independence of the courts.

- Definition: Any challenge to the authority and dignity of the judicial process.
- Any words/acts/publications that are calculated to bring a judge into disrepute
or to lower his/her authority or to interfere with the due course of justice or
the lawful process of the courts is punishable as contempt.
- Civil contempt:
- Disobedience to a court order in a civil case.
 E.g: Ignorance of an order of injunction.
- Violation of an undertaking given to the courts.
- Criminal contempt:
- Includes failure to respond to a court order; disobedience to a court order to
erase remarks or information; disrupting court proceedings; threatening or
bribing witnesses, lawyers or court officials.
- Ag v Pang Cheng Lian: The court held that accusing the judge of bias, partiality
or of unwillingness to listen to the truth amounts to contempt.
- AG v Manjeet Singh Dhillon: Allegations that the Acting Lord President had
tried to interfere with the administration of justice was regarded as amounting
to scandalising the court.

Court System

The existence of courts, the judicial hierarchy, and the jurisdiction and composition of the
courts are prescribed by the law and are not open to tampering by the executive.

- However, the Constitution gives power to the YDPA to increase the number of
superior court judges.
Judicial Immunity

The Constitution is silent on the issue of judicial immunity. Thus, other laws must be looked
into.

- Section 11(1), Defamation Act: Absolute privilege on reports of judicial proceedings

including pleadings, judgments, sentences or findings.
- This is so if the reports are fair, accurate and contemporaneous and the
proceedings were publicly heard before a lawful court.
- Section 6(3), Government Proceedings Act: There is absolute immunity in torts for all
acts performed in a judicial capacity.

Extent: In the performance of his judicial functions, a judge is protected from both civil and
criminal process.

- He cannot be sued in the civil courts or prosecuted in the criminal courts.

- He is protected as long as he acts under the honest belief that his conduct was within
his powers even though a mistake of law or fact had led him outside his jurisdiction.

Limits: Judicial immunities relate to function, not to person.

- When judges act in their personal capacities, they are answerable to the ordinary law
before the ordinary courts.
- Members of the judiciary perform not only adjudicatory, but also other non-judicial
functions.
- In the performance of such non-judicial functions there is no immunity from
the law or crime and torts.
- Though judges are shielded from the law of torts, this is not a license to be corrupt of
oppressive.
- The Anti-Corruption Act applies to judges just as it applies to public officers.
- Oppressive of improper conduct may also be a ground for a judge’s dismissal
under Article 125.

All immunities, whether partial or total, are a departure from equality before the law under
Article 8.

- Thus, all immunities must be kept as narrow as possible and must always be subjected
to rational and critical assessment.
Part C

Issue: Validity of conversion by Muslims

- Article 11(1)
- Muslims have a right to convert, provided that they obtain a certificate of
renunciation from the Syariah Court first.
- Lina Joy v Majlis Agama Islam Wilayah & Anor: The plaintiff, a Muslim, applied the
National Registration Department to change her name to Lina Joy and to remove the
word ‘Islam’ from her new identity card. Held: Even though Article 11(1) provides that
every person has the right to profess and practise his religion, this does not mean that
the plaintiff can hide behind this provision without first settling the issue with the
religious authority, which has the right to manage its own religious affairs under
Article 11(3)(a).
- Only after the person has complied with the requirements and the authorities
are satisfied that she has apostatized, can she brace Christianity. A person
cannot at one’s whims and fancies, renounce or embrace a religion.

- Dalip Kaur v Pegawai Polis Daerah: The appellant applied for a declaration that her
deceased son at the time of his death was not a Muslim and had renounced the Islamic
faith and for the consequential declaration that she was entitled to the body of the
deceased. The deceased was born a Sikh and brought up in the Sikh faith. He
converted to Islam before the District Kadi of Kulim. The appellant contended that
after the conversion the deceased had renounced the Islamic faith and resumed the
practice of the Sikh faith. At the hearing of the appeal, the Supreme Court remitted
the case to the High Court for the learned judicial commissioner to refer certain
questions of Islamic law to the Fatwa Committee of Kedah. Held: The learned judicial
commissioner was entitled to accept the answers of the fatwa committee which was
of the opinion that the deceased was a Muslim as he had been duly converted to
Islam and there was no decision of a Syariah Court which decided that he had
renounced or left the Islamic faith.

Issue: Validity of conversion by non-Muslims

- Article 11(1)
- Non-Muslims have a right to convert, provided that they have attained the age
of majority.

- Teoh Eng Huat v Kadhi Pasir Mas: The court held that a child below 18 must conform
to the wishes of his or her parents in matter of religious faith. Here, a Buddhist girl of
seventeen had no constitutional right to abandon her religion and embrace Islam.
Issue: Which court has the jurisdiction to decide on the validity of conversion

- Article 121(1A)
- Mohamed Habibullah Mahmood v Faridah Dato’ Talib: In assessing the intention of
the Parliament, the court held that by introducing Article 121(1A), the Parliament
intended to take away the jurisdiction of the High Courts in respect of any matter
within the jurisdiction of the Syariah Court.

- Tongiah Jumali v Kerajaan Johor: The plaintiff, a Muslim at birth, had converted to
Christianity and married the second plaintiff, a non-Muslim. She claimed that her
marriage was valid under Malaysian law. The issue was whether her conversion out of
Islam was valid, and who had the power to determine such issue. Held: The jurisdiction
of the Syariah Court to deal with conversions out of Islam, although not expressly
provided for in the State Enactments, may be read into them by implication derived
from the provisions concerning conversion into Islam.

- If a person has obtained a certificate of renunciation from Islam from the Syariah
Court, his conversion is then valid, and any issues regarding his conversion can be
brought to the High Court.

- If a Muslim wishes to opt out of Islam, but has not obtained a certificate of
renunciation, he must first bring the matter to the Syariah Court, and only after
obtaining the certificate will the conversion be valid.