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What are the Courts?

The Constitution sets up these courts:

● the Federal Court;
● the Court of Appeal;
● two High Courts, one for Peninsular Malaysia known as “the High Court in Malaya”, and one for Sabah and Sarawak known as “the High Court in Sabah and Sarawak”.

These courts are referred to as the Superior Courts. The Constitution also sets up a Special Court for the Yang Di-Pertuan Agong (YDPA) and other Rulers. The Constitution also says that Parliament can make laws to set up “Inferior Courts”. Under federal laws, Parliament has set up courts like the Sessions Courts, Magistrates’ Courts, Penghulu Courts and the Industrial Court. The Superior Courts and the courts set up by Parliament do not decide legal cases that only the Syariah Courts can decide.

What do the Superior Courts do?

The Superior Courts have the power (called “jurisdiction”) to make sure that everyone, including the Executive, States, Parliament, public authorities and private bodies, obey the Constitution and all laws.

The Superior Courts can:
● decide what the words in the Constitution or in any law mean when there is a disagreement;
● declare that a law is against the Constitution and therefore invalid and does not have to be followed;
● decide whether any action by the Executive or any State is valid or invalid, by way of “judicial review”;
● enforce criminal law;
● resolve disputes between people, between a person and the Executive, between the Federal Government and a State, or between one State and another.

However, the power of the Superior Courts to decide these matters has limits.

Limits on Judicial Power

Before March 1988, the judicial power of the Superior Courts came directly from the Constitution, because the Constitution declared that the judicial power of the Federation is vested in the High Courts. This meant that the Courts could review all laws to see if they follow the Constitution and also decide if any action is lawful.

In March 1988, Parliament amended the Constitution to remove the declaration that the judicial power of the Federation is vested in the High Courts, and instead said that the High Courts only have the jurisdiction given to them by Parliament under federal law. Some people say that the amendment limits the power of these Courts, because now these Courts can only examine laws and actions that Parliament allows them to examine.

However, there are others who argue that the 1988 amendment is ineffective, because the judicial power that was given to the Courts under the Constitution forms part of the basic structure of the Constitution and cannot be removed from the Constitution by parliamentary amendment.

What is the Federal Court?

The Federal Court is the highest court in Malaysia and any decision made by it must be followed by everyone and by other Superior Courts and Inferior Courts.

Only the Federal Court has the jurisdiction to decide:
● whether a law made by Parliament or a State Legislative Assembly is invalid because the Constitution does not give them the power to make such laws;
● any other disputes between the States or between the Federal Government and any State.

However, any other challenge to a law on the grounds that it is against the Constitution can be brought before any Superior Court.

The Federal Court also hears appeals from the decisions of other Superior Courts. The Federal Court is the final court of appeal in the country. The Federal Court can also give its opinion on the Constitution when the YDPA requests for it.

The Federal Court consists of the following judges:
● the Chief Justice of the Federal Court (Chief Justice);
● the President of the Court of Appeal;
● the Chief Judges of the two High Courts;
● at least 11 other judges.

What is the Court of Appeal?

The Court of Appeal has the jurisdiction to decide appeals from most decisions made by a High Court judge in civil and criminal cases.

It consists of the following judges:
● the President of the Court of Appeal
● 32 other judges.

What is the High Court?

The High Court’s jurisdiction is set out in the laws made by Parliament. For example, the Courts of Judicature Act 1964 says that the High Court has unlimited civil and criminal jurisdiction.

This means that the High Court has jurisdiction to decide all civil and criminal cases, including appeals from Sessions Courts and Magistrates’ Courts.

However, the High Court’s jurisdiction has been limited in certain matters by other laws made by Parliament.

The powers of the High Courts include the power to:
● order any person or authority to do something or to stop doing something;
● declare that the action of a person or authority is invalid and does not need to be followed;
● order any person or authority to produce before the Court people who are held in custody illegally.

The High Court in Malaya has 14 branches in Peninsular Malaysia,  and the High Court in Sabah and Sarawak has six branches in Sabah and Sarawak.

What is the Special Court?

The Special Court is set up to decide civil or criminal cases brought by or against the YDPA or any of the Rulers in their personal capacity.

Any action taken against the YDPA or a Ruler in their personal capacity needs the consent of the Attorney-General. The Special Court's decision is final and cannot be challenged.

How are Judges appointed?

All Judges of the Superior Courts, including the Chief Justice, President of the Court of Appeal and the Chief Judges of the two High Courts, are appointed by the YDPA. The YDPA must follow the advice of the Prime Minister (PM) on who to appoint. However, the YDPA must consult the Conference of Rulers before making an appointment.

Before the PM gives his advice to the YDPA, he or she must consult the following people:
● To appoint Federal Court judges, the PM must consult the Chief Justice.
● To appoint the President of the Court of Appeal, the PM must consult the Chief Justice.
● To appoint Court of Appeal judges, the PM must consult the Chief Justice and the President of the Court of Appeal.
● To appoint a Chief Judge of any of the High Courts, the PM must consult the Chief Justice and the Chief Judge of each of the High Courts. When appointing the Chief Judge of the High Court in Sabah and Sarawak, the Chief Minister of Sabah and Sarawak must also be consulted.
● To appoint High Court judges, the PM must consult the Chief Judge of the relevant High Court.

Apart from judges, ‘judicial commissioners’ may be appointed when more courts are required to hear legal cases. Judicial commissioners have the same powers as a High Court judge. They are appointed by the YDPA, who must follow the advice of the PM, after consulting the Chief Justice.

You can also learn and follow the MyConstitution Campaign on:

www.perlembagaanku.com
www.malaysianbar.org.my/constitutional_law_committee
www.facebook.com/MyConstitution
www.twitter.com/MyConsti
www.youtube.com/user/PerlembagaanKu

READ: MyConstitution: Roles of PM, public services