JUDICIAL INDEPENDENCE IN

MALAYSIA
AHMAD
HANIS AHMAD
AFIQ AHMAD FAREZ
AMIR
AZFAR
WHAT WILL WE TELL YOU……

 Mysteries Behind The People Who Wear Curly White

Wigs and Extremely Huge Long Robes.

 Judicial Independence?

 The 1988 Constitutional Crisis – That Old Man Got

Sacked Pretty Bad Really

 Why After This You Should Really Care If Those

People at The Palace of Justice Don’t Really Care
About The Law, Seriously.
 THE MYSTERIES?

PURPOSE & POWERS:

THE SYSTEM IN MALAYSIA: YOU CHECK, I CHECK
WHO’S ON THE BENCH? YOU BACK!

THE
JUDICIARY

HISTORY OF THE COURTS

IT CAN BE DEFINED AS;

“A system of courts of law for the

administration of justice ”

“A judicial tribunal established to

administer justice. It hears and settles
disputes between conflicting parties
and handles the questions of law arises
from it”
RIDING THE TIME MACHINE……
 The first court in Malaya was established by a charter in 1807 known as the
First Charter of Justice, where the British East India Company obtained the
right from the British Crown to establish a Permanent Court of Judicature
of The Prince of Wales in Penang.
 In 1787, the United States Constitution establishes the Supreme Court of
the US as part of the federal branch;

“The judicial Power of the United States, shall be vested in one supreme Court, and in
such inferior Courts as the Congress may from time to time ordain and establish .”
- ARTICLE III
 As early in 1066, Curia Regis or the King’s Court, consisted of tenants-in-
chief and ecclesiastics heard cases from the people with the King, forming
the Coram Rege (later developed into the Court of King’s Bench). In 1178 as
judicial workload grew, all common pleas were moved to a separate court
– called Court of Common Pleas. In 1215, King John of England signed the
Magna Carta, establishing that Common Pleas shall not follow the King.
 ROLES OF THE COURT

To interpret the
Federal
Constitution
and State
Constitutions
To declare any
laws or
To hear and government
determine both actions as null
criminal and civil and void
matters (inconsistent
To interpret with Federal
statutory laws Constitution)
passed by
Parliament or
State
Legislatures
WHAT DID MONTESQUIEU DREAMED ABOUT?

Under the Doctrine of

Separation of Powers, there
shall be a court to interpret
laws of the land and check the
powers of the Legislature
together with the Executive to
prevent abuse of power.
 THE SYSTEM IN MALAYSIA
 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 four Federal Court judges.

 There are presently 8 Court of Appeal Judges excluding the President of the
Court of Appeal. There are 48 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.
 WHO'S WHO ON THE BENCH?
 Here are the list of past Lord Presidents and Chief Justices of Malaysia:

 Tun Sir James Beveridge Thomson 1963 - 1966

 Tun Syed Sheh Hassan Barakbah (1906 - 1975) 1966 - 1968
 Tun Mohamed Azmi Mohamed (1909 - 1996) 1968-1974
 Tun Mohamed Suffian Mohamed Hashim (1917 - 2000) 1974 - 1982
 Raja Tun Azlan Shah (later Sultan of Perak and Yang di-Pertuan Agong of Malaysia)
(1928 - ) 1982 - 1984
 Tun Mohamed Salleh Abas 1984 - 1988
 Tun Abdul Hamid Omar 1988 - 1994
 Tun Abdul Hamid Omar (1994, previously Lord President)
 Mohamed Eusoff Chin (1994 – 2000)
 Mohamed Dzaiddin Abdullah (2000 – 2003)
 Ahmad Fairuz Abdul Halim (2003 – 2007)
 Abdul Hamid Mohamad (2007 - 2008)
 Zaki Tun Azmi (2008 - present)
CHIEF JUSTICE OF THE FEDERAL COURT

The Right Honourable Tun Dato' Seri Zaki bin Tun

Azmi
PRESIDENT OF COURT OF APPEAL

The Right Honourable Tan Sri Dato'

Seri Alauddin bin Dato' Mohd.
Sheriff
CHIEF JUDGE OF HIGH COURT IN MALAYA

The Right Honourable Tan Sri Arifin bin

Zakaria
CHIEF JUDGE OF HIGH COURT IN SABAH &
SARAWAK

The Right Honourable Tan Sri Datuk

Seri Panglima Richard Malanjum
 JUDICIAL INDEPENDENCE?!

LAYING DOWN THE

JUDICIAL INDEPENDENCE: LAW FOR THE JUDGES
CONSTITUTIONAL
ANALYSIS

THE JUDGE

WHAT’S UP WITH THE JUDGE

NEXT DOOR?
 SO WHAT IS IT?
“A judge should be free of any pressure
from the government or anyone else as
to how to decide any particular case” Sir
Browne-Wilkinson

“The exercise of judicial functions without

interference and influence from the
executive or legislature, private and
partisan groups”
 WHAT REALLY OUR CONSTITUTION SAY?

 The Federal Constitution contains express provisions to secure

independence, either from the control or interference by the
executive or the legislature:

a) the procedure for the removal of superior judges, Art 125(3);

“If the PM or the CJ after consulting the PM represents to the YDPA that a judge
of the federal court ought to be removed on the ground of any breach of any
provisions of the codes of ethics prescribed under clause (3B) or in the ground
of inability from infirmity of body or mind or any other caused properly to
discharge the functions of his office, the YDPA shall appoint a tribunal in
accordance with (4) and refer the representation to it : and may on the
recommendation of the tribunal remove the judge from office. ”
b)guarantees on the judges’ remuneration and terms of office, Art 125(7)

“The remuneration and other terms of office (including pension rights) of a judge of a federal
court shall not be altered to his disadvantage after his appointment”

c) prohibition on public discussion on judges’ conducts, Art 127

“The conduct of a judge of the Federal Court, The Court Of Appeal, or a High Court shall
not be discussed in either house of parliament except on a substantive motion of which
notice has been given by not less than one quarter of the total number of members of that
house and shall not be discussed in the legislative assembly of any state.”

d) power of the judges to punish contempt of court, Art 126

“The Federal Court, The Court of Appeal, or a High Court shall have the power to punish any
contempt of itself.”
 JUDGING THE JUDGES

 The Judges’ Code of Ethics 2008

 Judges’ Ethics Committee Bill 2008

 Judicial Appointments Commission Act 2008

COMPARING WITH YOUR
NEIGHBOUR…

US Supreme Court
&
Judiciary in the United Kingdom
HOW THAT OLD MAN GOT SACKED
PRETTY BADLY...
 Its all started on 24 April 1987 when Dr. Mahathir
won the election…

 Subsequently, the losers (team B) began to find

faults within the election system because they
cannot accept the defeat.

 They sought to annul the elections based on

unregistered UMNO branches and therefore hoping
the courts would declare that the elections were
null and void and have no effect.
 On 4th February 1988, the judge Dato Harun Hashim
declared that UMNO itself is an unlawful society, due to
some branches were not registered.

 Dr Mahathir made scathing attacks towards the judiciary

by declaring them to be too fiercely independent up to a
point of willing to jeopardize the security of the nation.

 Judges began to feel uneasy by the attacks from the

legislative branch of the government as they accused
the judges as wanting to be above criticisms.

 Hence, a complaint letter, an idea from Tun Salleh Abbas,

was drafted and signed by 20 judges to be sent to the then
Agong on 25th March 1988.
 Two days before the commencement of the tribunal,
the other rulers met Tun Salleh Abas and they were
willing to forgive him for the breach of protocol in the
said letter. But to his utter dismay, the Agong was
adamant in his decision to suspend him.

 In the mean time, Tun Hamid Omar who complained to

the Prime Minister had led to the setting up of another
tribunal, chaired again by Tun Hamid Omar to suspend
all five Supreme Court judges.

 In the end, together with Tun Salleh Abas, Datuk George

Seah and Tan Sri Wan Sulaiman were removed from
office.
 Then, Tun Salleh Abbas` was suspended on the 26th May
1988 and was eventually charged on 4 counts of improper
conduct and misbehavior unbecoming of a Lord President.

 Among others, were the distribution of letters to

all rulers dated 25th March 1988 which the Agong took
exception. This date would be the point of reference for
all the subsequent events that will flow through. In other
words, the conspirators used this letter to tarnish the Lord
President’s good name.

 Later, a tribunal was duly set up, headed by Tun Hamid

Omar himself as the Acting Lord President at that time.
 This sad episode actually illustrates the huge chasm of the
interpretation of the law between 2 branches of the
government.

 Tun Salleh Abbas was backstabbed by his own junior, Tun

Hamid Omar who heads the conspiration along with a few
more judges.

 Tun Salleh Abas stressed that Tun Hamid Omar tried to

undermine his appointment as Lord President in 1984 and
repeatedly made unilateral decisions during his tenure
as Acting Lord President in 1988.
 “although the Prime Minister at that time was deemed
responsible for bringing down the judiciary, the
judiciary itself could not have been brought down without
the help of its own self. But there were also desperate
judges then who had no qualms about stabbing a friend in
his back in order for their own dreams to be fulfilled”

 This dark history remarks that if the judges themselves

lack of integrity and courage to defend the constitution
and its ideals, they will not be able to maintain the
independence of judiciary.
SO WHAT
NOW?
DO YOU STILL
BELIEVE IN THE
JUDICIARY?
 CAN YOU
REALLY TRUST
YOUR JUDGES?
HEARD OF VK
LINGAM?
ITU BUKAN SAYALAH
DEI!
Fiat justitia ruat caelum
Do Justice, Let The Sky Fall
 “…..to ensure the two essentials
of The Rule of Law, The
Independence of The Bar, and The
Independence of The Judiciary.”
TUN SUFFIAN