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NOTE 6: Judiciary


Judiciary: ________________________
Legislation :
the courts have authority over the legislative and executive because it has the
authority to:

What are the responsibilities of the judges?

1. decide on the meaning of a law according to the situation
2. accommodate a law with another or new laws with existing ones

Meaning / explanation given by a judge will become a precedent and referred to

in the future.
Aim of having laws: achieve and uphold justice in the society.
justice : an abstract idea of right and wrong, fairness and equality

History of Law
1. Pre-British era;

written laws that existed :

a. Malacca : Undang-undang Melaka, Hukum Kanun Melaka, Undang-undang Laut

Melaka, Risalut Hukum Kanun.
b. Undang-undang Pahang
c. Undang-undang Kedah
d. Undang-undang Johor
e. Undang-undang 99 Perak

unwritten laws were in the form of customs :

a. __________________ - in Negeri Sembilan and Naning

b. ___________________ - in other states

1. During British rule

Straits Settlements


introduction of English laws were through Charters of Justice:

first Charter of Justice (1807) - Penang
second Charter of Justice (1826) - Singapore and Malacca
third Charter of Justice (1855) - all three settlements, to introduce the Common
Law and Law of Equity

Federated Malay States

Laws form India were brought in : Indian Penal Code, Indian Contract Act, Indian
Civil Procedure
laws from the Straits Settlement were also used
English Law (Common Law and Law of Equity) was introduced through the
Federated Malay States Civil Law Enactment ( Civil Law Enactment No. 3 1937)

Non Federated Malay States

English Law was introduced through the Civil Law (Extension) Ordinance 1951
these laws still exist even after independence but changes are made to suit the
Malaysian context. E.g. : appeals to the Privy Council in Britain are not allowed
after 1st of January 1985.

Classification of Law
Public Law

governs relation between individuals and the country

a. Constitutional Law : _____________________________________

b. Criminal Law : ___________________________ by an individual against the
International Law

regarding matters related to other countries or persons from other countries

a. Public International Law : concern relation between countries and would prevail
between the countries; agreed upon / made by the countries concerned
b. Private International Law : concern situations that involves individuals from
another country; looks into the conflict of law between the individual's country
and the country where the offence was committed

Private Law

regarding rights and responsibilities between individuals

a. _____________________ : concern agreements made between two parties;

contains elements of offer and acceptance
b. ___________________ : concern infringement of an individual's rights by
another party, causing damages to that individual; common cases include
defamation and negligence
c. _________________ : concern obligation of a person (trustee) to take care of a
property (trust property) for the benefit of another person (beneficiary)

Sources of Law
1. Written Law
a. Constitution - Federal and State constitutions
b. Legislation - laws made by the Parliament and State Legislative Assembly
c. Subsidiary Legislation - laws made by any body / person given authority by any
2. Unwritten Law
a. Judicial decisions - made by judges of the superior courts
b. Common Law and Law of Equity

Islamic Law

laws made based on Islamic teachings according to Islamic sources

govern Muslims only

The Courts

Federal Court
Court of Appeals

High Court of Malaya / High Court of Sabah and Sarawak

Sessions Courts

Magistrate Courts
Small Claims Courts
Juvenile Courts

Special courts :

a. Industrial Court
b. Labour Court
c. Court Martial
-Syariah Court (at the State level; governs Muslims only)

Syariah Court of Appeals

High Syariah Court
Syariah Court

head of the courts :

a. Chief Justice (Federal Court and whole Malaysia)

b. President of the Court of Appeals (Court of Appeals)
c. Chief Judges (High Court of Malaya and High Court of Sabah and Sarawak)

appointment :

a. heads of the Superior Courts : appointed by the King with advice from the Prime
Minister and consultation with the Conference of Rulers ( but this consultation is
not binding)
b. other judges : appointed by the King with advice from the Prime Minister bsed on
the needs of the courts.
c. Session Court judges and Magistrates : drawn from the Judicial and Legal Service
under the jurisdiction of the Judicial and Legal Service Commission (appointment
similar to other positions in government services)

dismissal of judges is made by the King based on recommendations from a

tribunal (a panel of judges and former judges) that looks into reasons that may
cause a judge to be dismissed:

a. physically or mentally unfit to carry out duties

b. misconduct
c. other reasons that causes a judge to be unfit to carry out his duties

Freedom of the judiciary

the judiciary must be impartial and be seen as impartial, i.e. not taking sides
Freedom is mentioned in the constitution and protected by it.
position of the judiciary makes it free from any control and not influenced by the
Legislative or the Executive
the judiciary would act without fear or favour