Judiciary

 Vested with Judicial Power to (1) Interpret & (2) Apply Law

Judiciary Role – overlap with Judiciary Act (see below)

 Interpreting & Enforcing Legislative – Legislature Enacted Laws
 Interpreting & Defending Constitution – esp. People’s Fundamental Rights
o J as referee to ensure acts L & E comply with constitution
 Mechanism to Resolve Disputes
o Btw Individuals
o Btw Gov – inc. FG & SG
 Ensure Fair Trial
o Rules of Evidence – Observed
o Protection of Witnesses – Observed while having questioned by lawyers of both sides
o Listen to the Other Side – Audi Alteram Partem

Judiciary Act – overlap with Judiciary Role (see above)

 Rules of Nature Justice – Rules of Fair Play
 Impartial Justice – Honesty & Good Faith – Bona Fide
 Rights to Fair Trial – Listen to the Other Side – Audi Alteram Partem
– Accused’s Opportunity to Consider / Challenge / Contradict Evidence
Doctrine of Biasness – Maxim Nemo Debet Esse Judex in cause Propria Sua
 One estopped from acting justice; when one is interested in disputed subject matter
 BOP of Biasness not required; so long presence of Opportunity of Biasness

Independence of Judiciary
 Pressure Free from influence/power by E/L in deciding any case
o Based on merits strictly in accordance with (1) law and (2) individual conscience
o × Pressured
o × Threatened

 Public Confidence on Impartiality of J → Vital

o × Favour Gov / People
o × Against Gov / People
o × Seen to Erode Rights of People
o √ Seen as Neutral; × Taking Sides
o √ Seen Free from Biasness – Doctrine of Biasness (refer top)

 Protected by FC + AOP (Legislation)

o Judges’ Remuneration Act 1971
o FC Art 125(6): Disbursed through Consolidated Fund – free from control by E
o FC Art 125(7): Judges’ Remuneration / Pensions / Benefits ≠ Altered to Judges’ Disadvantage after
their appt.
o FC Art 127 Restriction on Parliamentary Discussion of Judges’ Conduct in FC ∙ COA ∙ HC
 restricts public discussion of judges’ conduct in FC ∙ COA ∙ HC except motion by ¼ of
Parliament
 prohibits discussion in SLA
o FC Art 126 + Courts of Judicature Act 1964 S13 Punish for Contempt
 Judges empowered to punish for contempt of court
o CJA 1964 S14(1) Immunity of Judges + Judicial Officers
 Immune from legal action for judicial duties discharged in good faith by judges
Judges
1. FC CJ (Ketua Hakim Negara)
2. President of COA → also FCJ
3. HC (Malaya) CJ → also FCJ
4. HC (Sabah & Sarawak) CJ → also FCJ
o M’sia Top 4J
o May sit in any court
5. FC J
6. J COA
7. HC J

Judges – Tenure
 × treated as normal public servant
 Exempted from FC Art 132(2)
o FC Art 132(2):
o Public servants hold office at YDPA’s pleasure
o Can be dismiss with or w/out reason at YDPA’s royal prerogative
 Employment Age Ceiling: 65-yr-old + 6mth extension with YDPA’s permission
 Judge Remuneration & Pensions
o Judges’ Remuneration Act 1971
o FC Art 125(6): Disbursed through Consolidated Fund – free from control by E
o Payable w/out Annual Parliamentary Approval
o FC Art 125(7): Judges’ Remuneration / Pensions / Benefits ≠ Altered to Judges’ Disadvantage after
their appt.
 FC Art 127 Restriction on Parliamentary Discussion of Judges’ Conduct in FC ∙ COA ∙ HC
o restricts public discussion of judges’ conduct in FC ∙ COA ∙ HC except motion by ¼ of Parliament
o prohibits discussion in SLA
 FC Art 126 + CJA 1964 S13 Punish for Contempt
o Judges empowered to punish for contempt of court
 CJA 1964 S14(1) Immunity of Judges + Judicial Officers
o Immune from legal action for judicial duties discharged in good faith by judges

Judges – Qualification
 FC Art 123 Qualification of FC ∙ COA ∙ HC Judge
o FC Art 123(a) M’sia Citizen
o FC Art 123(b) 10 Yrs Exp: -
 As advocate of superior courts; or
 Part of Judicial & Legal Service of Fed / State

o Badan Peguam Malaysia v Kerajaan Malaysia [2008]

 Academician Dr. Badariah Sahamid appointed as HC J
 COA: Appointment of HC J = Valid
Judges – Selection & Appointment
 FC Art 122B Process of Selection & Appointment
o YDPA appoints FC CJ based on PM’s advise, after COR consultation
o YPDA appoints P COA ∙ 2 HC CJs (Malaya ∙ Sabah & Sarawak), after COR & FC CJ consultation
 Judicial Appointments Commission Act 2009
 JAC est. to assist PM when advising YDPA in appointment of superior court judges
 JAC → PM → COR → YDPA
 JAC Committee – 9 pax
o FC CJ – Chairman
o President of COA
o 2 HC CJs of Malaya ∙ Sabah & Sarawak
o FCJ – appointed by PM
o 4 Eminent Individuals (not from E) – appointed by PM; after consultation with: -
 Bar Council
 Sabah Law Association
 Advocates Association of Sarawak
 AG of Fed
 AG of State
 JACA 2009 S11: Disclosure of Relationship btw JAC Committee & Candidate
o JAC committee - disclose “related / connected relationship” with candidates to be appointed
o Avoid Biasness / Unfairness in Selection & Appointment Process
 JACA 2009 S23(2): Candidate Criteria
o Competency ∙ Integrity ∙ Experience
o Objective ∙ Fair ∙ Impartial ∙ Good Moral Character
o Decisiveness ∙ Time Judgments ∙ Good Legal Writing Skills
o Industriousness ∙ Ability to Manage Cases Well
o Physical ∙ Mental Health
 Judicial Commissioner (Probationery HC J) ≠ Selected if one has at least 3 written & unwritten judgments
overdue > 60days

 JACA 2009
o Pro: More Standardised & Systematic Process of Superior Court Judges Selection
o Con: Empower PM (E) to encroach to J through JAC committee
o Con: JAC ≠ Bind PM on Superior Court Judges Selection

Judges – Removal
 PM → represents to YDPA
 FC CJ → represents to YDPA, after consulting PM
 Representation of: -
o Breach of Code of Ethics
o Inability
o Infirmity of Body/Mind
o Other cause
 Tribunal, appointed by YDPA, will attend Representation
Subordinate Court Judges
 Public Servants (E) of Judicial & Legal Service
 Reports to AG
 × Permanent Subordinate Court J – might be reposted to elsewhere by AGC
 × Independent
 × Secured
 Reports to AG

Subordinate Court Judges – Appointment

 Governed by Subordinate Courts Act 1948
 SCA 1948 S59: Sessions Court Constitution
 Sessions Court J → Recommended by CJ & Appointed by YDPA
 1st Class Magistrate J → Recommended by CJ & Appointed by SA
 2nd Class Magistrate J → Appointed by SA
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Judges’ Code of Ethics 2009 – Replaced 1994 ver. as of 1st July 2009
 Enabled by FC Art 125(3A)
 JCE 1994: Enhance Control of Judges’ Ethics while discharging duties
 JCE 2009:
o A Standard to Govern Judges’ Conduct
o Maintain High Standards of Personal & Judicial Conduct
o JCE 2009 S4
 Judges adhere & comply JCE 2009
 Failing which, judges face disciplinary action in JCE 2009
o Duty discharged with Integrity
o Ensure Judiciary Independence
o JCE 2009 S5
 Judge Jurisdiction – exercised independently according to (1) assessment of facts and (2)
understanding of law
 Judge Jurisdiction – free from (1) extraneous (2) influence (3) inducement (4) pressure (5)
threat or (6) interference
o JCE 2009 S7 – 8 Guidelines of Judicial Duties
 (1) Judicial Duties of Judge to take precedence over all his other activities
 (2) × Participate / Associate cases related to family member
 (3) Judicial Duties w/out bias / prejudice
 (4) Judicial Duties – Fairly ∙ Efficiently ∙ Diligently ∙ Promptly
 (5) × Comment pending cases which alter outcome of the case
 (6) × Disclose / Use classified info obtained through judicial capacity for unrelated purpose
 (7) Judgment Proceedings – Diligently ∙ Efficiently ∙ In Writing
 (8) × Inappropriate / Disreputable Conduct
- litigant may report against a judge for (1) misconduct (2) recusal or (3) failure of judge / judiciary to uphold
administration of justice will – pursuant to FC Art 126
- if litigant fails → Contempt of Court