Judiciary

• Main Authors: Ali Mohamed, Ashgar Ali, Ahmad, Muhamad Hassan, Ramalingam, Chithra Latha
• Format: Book Chapter
• Language: English
• Published: LexisNexis Malaysia Sdn Bhd 2022
• Subjects: K3165 Constitutional Law
• Online Access: http://irep.iium.edu.my/103972/1/103972_Judiciary.pdf; http://irep.iium.edu.my/103972/; https://store.lexisnexis.com.my/products/constitutional-law-in-malaysia-skuSKUMYCONSTILAWMY#:~:text=It%20covers%20topics%20such%20as,and%20emergency%20powers%2C%20constitutional%20interpretation
• Institution: Universiti Islam Antarabangsa Malaysia

The ordinary courts of law or the civil courts in Malaysia are categorised into the superior civil courts and the subordinate civil courts. The hierarchy of courts from lower to higher begins with the Magistrates' Courts, Sessions Court, the two High Courts namely the High Court of Malaya and High Court of Sabah and Sarawak, the Court of Appeal, and finally, the Federal Court. The two High Courts, the Court of Appeal, and the Federal Court are superior courts, while the Magistrates' Courts and the Sessions Court are the subordinate courts. The law that governs the jurisdiction and powers of the superior courts and the subordinate courts are the Courts of Judicature Act 1964 and the Subordinate Courts Act 1948, respectively. However, proceedings by or against the Yang di-Pertuan Agong or the Ruler of a State in civil and criminal matters are brought in the Special Court established pursuant to Article 182 of the Federal Constitution. While criminal offences involving a child are adjudicated in the Court for Children established pursuant to the Child Act 2001. It is a cardinal principle in the administration of justice that judges must be allowed to perform their judicial functions freely and fearlessly without any external interference. Further, their conduct should be beyond reproach. Their intellectual honesty is also essential such as being independent, impartial, accountable, transparent and good governance, among others. As judges have absolute and unchallengeable control of the court domain, in the performance of their constitutional duty they should keep away from situations that can prevent them from being seen to be just and should avoid all appearance of bias. In fact, judges are seen as the beacon of justice and therefore it is their humanity and integrity that ensure that justice not only is seen to be done but is done. The judiciary is perceived as a collective institution that affects every judge in the judiciary. Hence, to safeguard justice, the judicial independence is a central rule to safeguard judges' tenure. Disciplining and removal of judges due to judicial misconduct affects the sanctity of the institution. Having said the above, this chapter discusses on the subject of the judiciary with a focus on the appointment and removal of the superior court judges. At this juncture, it is worthwhile noting the doctrine of separation of powers ensures inter alia, the discharge of power by independent institutions and avoid the over-concentration of power in the hands of some. The legislature enacts laws, the executive and its subjects are bound by the enacted laws and the judiciary ensures its compliance. Trespassing or encroaching into the domain of another political body, for example, the executive encroaching on the domain of the judiciary or legislature, among others, violates this doctrine and hence, acting undemocratically. The judiciary ensures that there is no encroachment or overstepping of power by the legislature and the executive. They are empowered to determine the constitutionality or legality of the executive decisions or any constitutional amendments or legislation enacted by the legislature. When it can be shown that any executive decision or any legislature was arbitrary or violated the constitutional framework, the judiciary is empowered to strike it down.