CHAPTER 8: THE JUDICIARY

The creation of a new Federation necessitated the organization of a new judicial structure. Two High Courts to co-ordinate jurisdiction and status were designated: one for Peninsular Malaysia and the other for Sabah and Sarawak. A new Court, called the Federal Court was created above these two Courts, with its principal registry in Kuala Lumpur. Each of these Courts is headed by a Chief Justice assisted by Judges, whose number varies from 4 to 12 in Peninsular Malaysia and 8 in Sabah and Sarawak. However, the Parliament has the power to increase the number, if and when the need arises.

The Federal Court is made up of the Lord President of the Federal Court, the two Chief Justices of the High Courts and four other Judges. Once again, Parliament has the power to increase or reduce the number of Judges. In cases where the Lord President feels that it is in the interest of justice to do so, then he can appoint a Judge of a High Curt, other than the Chief Justice, to sit in the Federal Court.

As far as Sabah and Sarawak are concerned, a special provision had been made in view of the somewhat undeveloped communication network. As a judge of a High Court is not available for the time being, a Judicial Commissioner had been appointed. He is subject to certain limitations, which are included in his order of appointment. His jurisdiction is limited to the area of his appointment. Nevertheless, he maintains the same powers and privileges as accorded to a High Court Judge. It is obvious that this arrangement is of a temporary nature. Actions taken by the Commissioner are for cases which are of utter and immediate importance.

APPOINTMENT OF JUDGES

All appointments to the Federal and High Courts are made by the Yang Dipertuan Agong, on the advice of the Prime Minister. But before His Majesty does this, the Constitution states that a number of individuals and certain bodies must be consulted with. These are:

1.The Conference of Rulers.

2.The Prime Minister must have the views of the Lord President and all the Chief Justices.

3.The Prime Minister must consult both the Chief Justices of the High Courts, and in the case of Sabah and Sarawak, the Chief Ministers of the States.

4.The Prime Minister must consult with the Chief Justice of the High Court concerned, as to the appointment of a judge of that Court.

In the case of the appointment of the Lord President, the Prime Minister is not obliged to consult anyonq in making the recommendation. Finally, if the Prime Minister is determined in appointing a certain Judge,'then the Yang Dipertuan Agong has no option but to make the appointment, whether he likes it or not.

As for the Judicial Commissioner, the power to appoint one is entirely in tl]e hands of the Governor of the State concerned. But he must get the advice of the Chief Justice of the High Court of Peninsular Malaysia. The Yang Dipertuan Agong is also invested with the power to make the above appointment, but it is a reserved one which is to be used in exceptional circumstances only. It may be pointed out here that a Judicial Commissioner need not have the qualifications of a High Court Judge. He needs only to be an advocate or a person professionally qualified to be admitted as an advocate of the High Court. Transfer of High Court judges, other than the Chief Justice, is permitted from one High Court to another. Such a transfer is done by the Yang Dipertuan Agong on the recommendation of the Lord President of the Federal Court, after consulting the Chief Justices of the two High Courts concerned. The qualification for the appointment of a judge, the Federal Court and the High Court are the same. These include:

1.Citizenship

2.Experience and service for the ten preceding years as advocate of High or Federal Courts, or a member of the judicial or legal service of the country.

INDEPNDENCE OF JUDICIARY

To ensure that judges can without fear or favour do their duty, there are several provisions in the Constitution designed to secure their independence so that they are not subject to control or direction either by the legislature or the executive. Judges are allowed to hold office till 65 years of age, after which it may be extended for another six months, on the approval of the Yang Dipertuan Agong. But a judge may resign at any time. A judge can be removed from office by a procedure established in the Constitution. Parliament provides for the remuneration of judges.

The conduct of a Judge of the Federal or the High Court is not to be discussed in either houses of Parliament, except under special circumstances; but certainly, no discussion at all in a State Legislative Assembly. Any contempt of Court will be tried in the Federal Court and the High Courts and the appropriate punishment given.

REMOVAL OF JUDGES

A judge can be removed from office for two reasons.

1.Misbehaviour.

2.Inability to discharge properly the functions of his office.

The action is taken by the Lord President after consulting the Prime Minister, or by the Prime Minister presenting the circumstances of the case to the Yang Dipertuan Agong. The Yang Dipertuan Agong will then appoint a special tribunal consisting of at least five persons of the High Court. The Yang Dipertuan Agong cannot remove a judge without the recommendations of the tribunal. But the Yang Dipertuan Agong is not obliged to accept the recommendation of removal. He has the final say. It is with a sense of pride that we note that until today, no judge has been removed from his office.

JURISDICTION OF THE HIGH COURTS

The High Courts possess all the judicial power of the federation. They exercise control over the subordinate courts. The Federal Court has exclusive power in dealing with:

1.Appeals from decision of a High Court or the Judges thereof.

2.Disputes between States and the Federation.

3.Any question as to provisions in the Constitution.

4.To render appropriate advice to the Yang Dipertuan Agong regarding any question which may arise with regard to any provision in the Constitution. It is possible to take the appeal from the Federal Council to the Privy Council.

JUDICIAL AND LEGAL SERVICE COMMISSION

The Constitution provides for a Judicial and Legal Service Commission. It is made up of a Chairman (normally the Chairman of the Public Services Commission); the Attorney-General and one or two members appointed by the Yang Dipertuan Agong. As for Sabah and Sarawak, a branch of the Judicial and Legal Service has been created. Its Chairman is the Chief Justice of the High Court. He is assisted by the Legal Adviser of the State; the Chairman of the State Public Services Commission and two persons designated by the Federal Court. The Commission has also to administer certain disciplinary actions concerning members of other services too. This is an addition to the administrative functions connected with the service itself.

FREEDOM AND JUSTICE IN OUR COURTS

We commonly hear people say that a person accused of a crime is innocent until proven guilty. In a democracy, this principle is the basis of justice. It was first established in the Magna Carta (1215), which is referred to as the charter of personal liberties. The same principle is supported in the Constitution of the United States which forbids either the Federal or the State Government to deprive a person of life, liberty or property without ensuring that he is given full justice.

The word “court" which is so closely connected with justice needs a little explan­ation. It originates from the days when offenders were brought before their Ruler for judgement. He did this in the courtyard of his palace — thus the name court. Courts of law have existed from very ancient times. One of the earliest to formulate and issue law was King Hamurabi (about 1950 B.C.). The Roman Empire had an efficient system of civil and criminal courts.

During the Middle Ages in Western Europe, two persons would settle their dispute by either drawing lots or by duelling. The winner was considered to be in the right. Criminal cases were commonly settled by ordeal. Various forms of torture were given. One example of this was compelling a suspected person to put his hand into a fire. It was generally believed that if the accused was innocent, then God would spare him. As far back as the 11th Century, groups of citizens were called in to give their opinion on certain matters, which include some disputes at law. In time, this led to the formation of the jury system, which is familiar to us today.

PROTECTION FOR AN ACCUSED PERSON

Criminal procedures are thrown into operation when a person suspected of having committed a crime is arrested. When a police officer wants to arrest a person, he must have a warrant. This is a court order signed by a magistrate, which authorizes a police officer to seize and search a particular person. A search warrant is required for searching the home of a citizen in cases where the latter refuses a search voluntarily. Awarrant is not required when it becomes necessary for an officer to seize someone in the act of committing a crime or running away when challenged.

After the arrest, the suspected person is taken to a police station where the charges brought against him are officially recorded. In extreme cases, the accused must be brought before a magistrate or a Justice of Peace within a period of time. He is permitted to consult his lawyer and if there is any doubt that he is being held legally, his lawyer can obtain a writ of habeas corpus. This requires that he be brought before a court at a stated time, so that a decision could be made regarding the legality or otherwise of his detention.

If the offence is of a minor nature, then the magistrate has the right to have a trial without jury. If the magistrate finds the accused guilty, he can pronounce sentence which may be a small fine or a short term in jail. The accused has the right to appeal against the sentences to a higher court.

In cases where the crime is considered to be a major one, the magistrate will conduct a preliminary hearing. The accused has the right to make his own statement. But he cannot be questioned in order to bring out additional evidence. If the magistrate finds that there is enough evidence to warrant trial, the accused is then bound over to another court. In the meantime, the accused in most cases, has a right to be on bail. This is the money that is deposited as a guarantee that he appears in court at the appointed date and time.

Usually two parties are involved in a criminal case — the State or the people and the defendant or the accused. The State is represented by the Public Prosecutor or his Deputy. If he decides to prosecute, then the State must present a bill of indictment in which the charges and evidence are specified. In cases involving death, the coroner may hold an inquest. This is a sort of trial with witnesses and jury to ascertain the cause of death.

Once an accused is brought to trial in a court, he is first asked by the Clerk (of Court) to state whether he is guilty or not. If he pleads guilty, the judge has the right to pass sentence there and then or defer judgment for further study. The judge cannot pass judgment in the case of crimes which are punishable by death, even if the accused pleads guilty. In cases where a plea of not guilty is returned, the judge will then allow both the prosecutor and the defence to prepare their cases. In some countries, the State appoints a defence attorney in cases where the accused cannot afford to hire one. Witnesses are notified to appear in court for the trial. Anyone who does not do so voluntarily gets asubpoena. This means that if the witness fails to obey the order given, then he may be charged for contempt of court and be punished.

THE JURY SYSTEM AT WORK

With regard to the more important civil and criminal cases, these are conducted at the provincial supreme courts. The accused is summoned to the court at the time set for the trial. As a mark of respect, all those present in the courtroom are expected to stand when the Clerk announces the arrival of the Judge. They remain standing till the Judge takes his seat.

The jury is carefully chosen and any member is liable to be questioned by the attorneys of both sides. If there is any possibility of bias, for or against the accused, then that member of the Jury is removed and a new one takes his place. This goes on

till both parties are satisfied with the jurors chosen. They are then sworn in and seated in court.

The proceedings begin when the prosecution opens its case. The witnesses are then called, one at a time, and sworn in "to tell the truth, the whole truth and nothing but the truth". The main aim of the prosecution is to prove the accused guilty while that of the defence is to free the client. Witnesses are cross-examined by both the prosecuting and defence attorneys. Any witness who tells a lie, under oath, is liable to be charged for perjury and sentenced. The cases for the defence and the prosecution end when they have done their best and summed up their cases before the jury.

The jury then adjourn into the jury room and then begin to consider all the evidence that they have heard. It is important that the jury must reach an unanimous decision. It is for this reason that the trial might drag on for days. Members of the jury are not permitted to discuss the case with anybody, except the Judge and that too in an open court. If a jury fails to reach a verdict within reasonable time, then it is said to be dead locked. A new jury will then be chosen, and a new trial begins.

When a jury has reached a decision, it returns to the courtroom, where the foreman announces the verdict. If the defendant is found "not guilty" he is set free and cannot be charged for the same crime again. If he is found to be guilty, the Judge may pronounce the sentence or he may postpone it. In fases of conviction, the defence can file in an appeal to a higher court, arguing that the trial was in some way unfair. The Court of Appeal may uphold the verdict of the trial court or order a new trial.

JUVENILE COURTS

In nearly all communities, young offenders are treated separately from adults. This is done to avoid giving to a child or teenage offender, the stamp of a criminal that may have an adverse effect on his whole future. Juvenile courts are staffed by judges or magistrates and probation officers who are especially trained. The purpose of the juvenile court is not to determine guilt and punishment but to understand causes and treat these youngsters who need help. It is only the most serious delinquents that are sent to reform schools and other such institutions. Most boys and girls are sent home to their families with no court record or any black mark against them. In this way, they are given another chance to better themselves and follow a new path.

In conclusion, it is therefore not difficult to see the steps and care that our courts take to ensure that justice is meted out to all. This is far different from the French system whereby the accused is guilty until he can prove his innocence.