©Malay Mail (Used by permission)
IN the last Rakyat Guides 6 Part 1, we discussed about the courts and the limits of judicial power.
This week, Part 2 will continue explaining about who can be a judge, the code of ethics guiding them, and what are the Sessions and Magistrate's courts.
Who can be a judge?
A person is qualified to be appointed as a judge of the Superior Courts if he or she is a Malaysian citizen and either:
a lawyer who has practised in any of the Superior Courts for at least 10 years just before his or her appointment; or a member of the Judicial and Legal Service or of the legal service of a State for at least 10 years just before his or her appointment.
This week, Part 2 will continue explaining about who can be a judge, the code of ethics guiding them, and what are the Sessions and Magistrate's courts.
Who can be a judge?
A person is qualified to be appointed as a judge of the Superior Courts if he or she is a Malaysian citizen and either:
What is the ‘Judicial Appointments Commission’?
The Judicial Appointments Commission was set up under the Judicial Appointments Commission Act 2009 (JAC Act) to assist the Prime Minister (PM) in advising the Yang di–Pertuan Agong (YDPA) on the appointment of judges of the Superior Courts and judicial commissioners, including the appointments of the Chief Justice, the President of the Court of Appeal and the Chief Judges of the two High Courts.
The Commission selects and recommends to the PM, people who are qualified for appointment. However, the JAC Act does not say the PM must accept the names recommended by the Commission.
The Act also says to be appointed as a judge, judicial commissioner, Chief Justice, President of the Court of Appeal or Chief Judge of a High Court, a person must have qualities like integrity, competency, experience, impartiality, fair and good moral character, and physical and mental health.
Can a judge be removed from his position?
All judges of the Superior Courts must retire when they reach 66 years old, or not later than six months after they reach 66 years old if the YDPA consents. However, a judge can resign at any time by informing the YDPA in writing.
A judge of the Superior Courts can be removed if he or she:
does not follow the Judges’ Code of Ethics; or is physically or mentally unable to carry out his or her duties.
To remove a judge, either the PM, or the Chief Justice after consulting the PM, must give the YDPA reasons why the judge should be removed.
The YDPA must then set up a tribunal consisting of at least five judges or former judges of the Superior Courts to decide if the judge should be removed. If the tribunal decides the judge should be removed, they recommend this to the YDPA, who then directs the judge be removed.
What is the Judges Code of Ethics?
The Judges' Code of Ethics 1994 sets out how judges are supposed to behave while they are judges.
For example, under the Code, a judge cannot:
put his private interest over his judicial duties; use his judicial position for his personal advantage; bring the judiciary into disrepute or discredit; or be a member of any political party or participate in any political activity.
Can the conduct of judges be discussed in Parliament?
No, unless at least one quarter of the members of the Dewan Rakyat or the Dewan Negara agrees to table a Motion to discuss it.
The conduct of a judge cannot be discussed in a State Legislative Assembly.
Must judges take an oath of office?
Yes. Judges of the Superior Courts take an oath to discharge their duty to the best of their ability, that they will bear true faith and allegiance to Malaysia and preserve, protect and defend the Constitution.
Are judges paid?
Yes. Parliament fixes the amount paid to judges and it is paid from the Consolidated Fund. These amounts are set out in the Judges' Remuneration Act 1971.
What are the Sessions Courts and Magistrates’ Courts?
The Sessions Courts and Magistrates’ Courts are created by Acts of Parliament and only have the jurisdiction given to them by Parliament. Under the Subordinate Courts Act 1948 and the Criminal Procedure Code, the Sessions Courts and Magistrates’ Courts have the jurisdiction to hear some civil and criminal matters.
’Judges’ sit in the Sessions Courts. They are appointed by the YDPA on the recommendation of the Chief Judge of the High Court and must be members of the Judicial and Legal Service. We talked about the Judicial and Legal Service in The Rakyat Guides: 2. Constitutional Institutions & The Separation of Powers.
’Magistrates’ sit in the Magistrates’ Courts. There are First Class Magistrates and Second Class Magistrates who are appointed by the YDPA on the recommendation of the Chief Judge of the High Court. First Class Magistrates must be members of the Judicial and Legal Service.
Frequently Asked Questions
1. What is the Judiciary’s most important role?
The Judiciary’s most important role is to protect the supremacy of the Constitution, to make sure that everyone obeys the Constitution. Only the Judiciary has the power to interpret the Constitution and to decide if any law passed by Parliament or any act of the Executive is constitutional and valid.
Through this power, the Judiciary can check any abuse of powers by the Executive and the Legislature, and can protect our fundamental rights.
2. Are our judges appointed by the Executive?
Yes. Ultimately, the PM decides or must approve the appointment of every judge of the Superior Courts and every Chief Justice, President of the Court of Appeal and Chief Judge.
3. Can our Judiciary act as an effective check to prevent all abuse of power by Parliament or the Executive?
Not in all cases. The Federal Court has accepted that under the Constitution, the Courts only have the legal jurisdiction given to them by Parliament. This means that the Courts will not question whether the laws made by Parliament are fair or just, but only whether Parliament has the power to make those laws under the Constitution.
For example, the Courts have held as valid, laws limiting the right to equality before the law and an arrested person’s right to consult a lawyer.
This also means that Parliament can make laws that prevent the Courts from examining something the Executive has done. For example, the Courts have held as valid, laws preventing the Courts from questioning the reasons behind an order by the Minister or police to detain a person without trial under the Internal Security Act (ISA).
4. Can our Judiciary protect the Constitution from being changed?
The Constitution gives Parliament the power to change what the Constitution says. However, many people say that the basic structure of the Constitution, like the parts on fundamental liberties, the distribution of power between the Federal Government and the States and the separation of powers between the Executive, the Legislature and the Judiciary, cannot be changed by Parliament.
Previously, the Federal Court said Parliament had the power to amend and change any part of the Constitution. Recently however, the Federal Court has accepted the Constitution has a basic structure which cannot be changed by Parliament, and this includes the part on fundamental liberties.
What’s Next?
Learn about your Constitution in our other Rakyat Guides on Constitutional Institutions & the Separation of Powers, Federal–State Relations, Parliament, the Executive and more!
You can also learn and follow the MyConstitution Campaign on:
www.perlembagaanku.com
www.malaysianbar.org.my/
www.facebook.com/
www.twitter.com/MyConsti
www.youtube.com/user/
READ: MyConstitution: The judiciary
The Judicial Appointments Commission was set up under the Judicial Appointments Commission Act 2009 (JAC Act) to assist the Prime Minister (PM) in advising the Yang di–Pertuan Agong (YDPA) on the appointment of judges of the Superior Courts and judicial commissioners, including the appointments of the Chief Justice, the President of the Court of Appeal and the Chief Judges of the two High Courts.
The Commission selects and recommends to the PM, people who are qualified for appointment. However, the JAC Act does not say the PM must accept the names recommended by the Commission.
The Act also says to be appointed as a judge, judicial commissioner, Chief Justice, President of the Court of Appeal or Chief Judge of a High Court, a person must have qualities like integrity, competency, experience, impartiality, fair and good moral character, and physical and mental health.
Can a judge be removed from his position?
All judges of the Superior Courts must retire when they reach 66 years old, or not later than six months after they reach 66 years old if the YDPA consents. However, a judge can resign at any time by informing the YDPA in writing.
A judge of the Superior Courts can be removed if he or she:
To remove a judge, either the PM, or the Chief Justice after consulting the PM, must give the YDPA reasons why the judge should be removed.
The YDPA must then set up a tribunal consisting of at least five judges or former judges of the Superior Courts to decide if the judge should be removed. If the tribunal decides the judge should be removed, they recommend this to the YDPA, who then directs the judge be removed.
What is the Judges Code of Ethics?
The Judges' Code of Ethics 1994 sets out how judges are supposed to behave while they are judges.
For example, under the Code, a judge cannot:
Can the conduct of judges be discussed in Parliament?
No, unless at least one quarter of the members of the Dewan Rakyat or the Dewan Negara agrees to table a Motion to discuss it.
The conduct of a judge cannot be discussed in a State Legislative Assembly.
Must judges take an oath of office?
Yes. Judges of the Superior Courts take an oath to discharge their duty to the best of their ability, that they will bear true faith and allegiance to Malaysia and preserve, protect and defend the Constitution.
Are judges paid?
Yes. Parliament fixes the amount paid to judges and it is paid from the Consolidated Fund. These amounts are set out in the Judges' Remuneration Act 1971.
What are the Sessions Courts and Magistrates’ Courts?
The Sessions Courts and Magistrates’ Courts are created by Acts of Parliament and only have the jurisdiction given to them by Parliament. Under the Subordinate Courts Act 1948 and the Criminal Procedure Code, the Sessions Courts and Magistrates’ Courts have the jurisdiction to hear some civil and criminal matters.
’Judges’ sit in the Sessions Courts. They are appointed by the YDPA on the recommendation of the Chief Judge of the High Court and must be members of the Judicial and Legal Service. We talked about the Judicial and Legal Service in The Rakyat Guides: 2. Constitutional Institutions & The Separation of Powers.
’Magistrates’ sit in the Magistrates’ Courts. There are First Class Magistrates and Second Class Magistrates who are appointed by the YDPA on the recommendation of the Chief Judge of the High Court. First Class Magistrates must be members of the Judicial and Legal Service.
Frequently Asked Questions
1. What is the Judiciary’s most important role?
The Judiciary’s most important role is to protect the supremacy of the Constitution, to make sure that everyone obeys the Constitution. Only the Judiciary has the power to interpret the Constitution and to decide if any law passed by Parliament or any act of the Executive is constitutional and valid.
Through this power, the Judiciary can check any abuse of powers by the Executive and the Legislature, and can protect our fundamental rights.
2. Are our judges appointed by the Executive?
Yes. Ultimately, the PM decides or must approve the appointment of every judge of the Superior Courts and every Chief Justice, President of the Court of Appeal and Chief Judge.
3. Can our Judiciary act as an effective check to prevent all abuse of power by Parliament or the Executive?
Not in all cases. The Federal Court has accepted that under the Constitution, the Courts only have the legal jurisdiction given to them by Parliament. This means that the Courts will not question whether the laws made by Parliament are fair or just, but only whether Parliament has the power to make those laws under the Constitution.
For example, the Courts have held as valid, laws limiting the right to equality before the law and an arrested person’s right to consult a lawyer.
This also means that Parliament can make laws that prevent the Courts from examining something the Executive has done. For example, the Courts have held as valid, laws preventing the Courts from questioning the reasons behind an order by the Minister or police to detain a person without trial under the Internal Security Act (ISA).
4. Can our Judiciary protect the Constitution from being changed?
The Constitution gives Parliament the power to change what the Constitution says. However, many people say that the basic structure of the Constitution, like the parts on fundamental liberties, the distribution of power between the Federal Government and the States and the separation of powers between the Executive, the Legislature and the Judiciary, cannot be changed by Parliament.
Previously, the Federal Court said Parliament had the power to amend and change any part of the Constitution. Recently however, the Federal Court has accepted the Constitution has a basic structure which cannot be changed by Parliament, and this includes the part on fundamental liberties.
What’s Next?
Learn about your Constitution in our other Rakyat Guides on Constitutional Institutions & the Separation of Powers, Federal–State Relations, Parliament, the Executive and more!
You can also learn and follow the MyConstitution Campaign on:
www.perlembagaanku.com
www.malaysianbar.org.my/
www.facebook.com/
www.twitter.com/MyConsti
www.youtube.com/user/
READ: MyConstitution: The judiciary