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Judges & The Judicial Legal Service - Coggle Diagram
Judges & The Judicial Legal Service
Role of Judges
Primary role of a judge is to ensure fair trial
In the adversarial system like Malaysia, judge acts as a referee ensuring the rules of evidence & procedure are followed in deciding the winning party
Duty to adjudicate various disputes:
Individual - Individual
Individual - State
State - Federation
State - State
Defend the constitution & protect the fundamental rights provided in the Federal Constitution - the Supreme Law
:
As we have a written constitution, judges must apply & interpret legislations
To ensure every organ of government complies with provisions of the Constitution
Judicial review - the judiciary must examine & declare the constitutionality - legality of legislative, executive & judicial acts
Independence of the judiciary
A judiciary is free from pressures of other bodies of government to decide any case on its merits in accordance with laws & individual conscience
Plays an important role to ensure that all acts of every body of government are discharged according to law
Ensures public confidence in the impartiality of the judiciary is deemed important - trials conducted fairly
Independence of the judiciary is protected under the Federal Constitution & other ordinary legislation:
The Federal Constitution provides that:
The procedures for the appointment & removal of judges of the superior courts - Part IX (Art.121-1311A)
Guarantees on the judges remuneration & pension
Art.125(6) c/f The Judges Remuneration Act 1971
Art 125(7) - remuneration & pension of the judges cannot be altered to their advantage after their appointment
Empowers the judiciary to punish for contempt of court:
Criminal offence
Art 126 & S.13 of the Courts of Judicature Act 1964
Contempt of court covers any act / writing calculated to bring a court into contempt or to lower the authority of a judge or interfere with the administration of justice
S.14(1) CJA 1964 - immunity of judges from being sued or prosecuted for their acts is in the discharge of their judicial duty
Qualification of Judges
Pursuant to Art 123 FC the criteria is as follows:
Must be a citizen; and
10 years of preceding such appointment he / she must be an advocate of the Malaysian courts or a member of the Judicial & Legal Service of the federation or of the state
Can a non-practitioner be appointed as a Judge?
Badan Peguam Malaysia v Kerajaan Malaysia (2008):
Facts: Dr Badariah did not fulfill the requirement as laid down in Article 123. She was appointed Judicial Commissioner on 1st March 2007. Prior to that she was an Assistant Professor at UM. She was called to the bar but never practiced as an advocate nor was she in the Legal Service. The Bar Council challenged her appointment.
Held: The appointment of Dr Badariah as a Judicial Commissioner is valid. The requirement for active practice of 10 years before an appointment is unnecessary A candidate qualifies to be appointed as judicial commissioner / judge 10 years after being called to the bar.
Selection & Appointment of Judges
Art 122B
Art 122B(1) - the Chief Justice of the FC, the President of the CA, the Chief Judges of the HC's, & the judges of these courts shall be
appointed by the YDPA acting on advice of the Prime Minister after consultation with the Conference of Rulers
However in practice, its the PM who actually selects these candidates
Art 122B(2) - The PM shall consult the Chief Justice before giving his advice on the appointments except in the appointment of the CJ himself
Art 122(3) - For the Chief Judge of a HC, the PM shall consult the Chief Judge of each HC. Appointment to the HC in Sabah & Sarawak, the Chief Minister of both Sabah 7 Sarawak
Art 122(4) - The appointment of judges to the FC, the CA & the HC other than the heads of these courts, require consultation with their respective heads
Tenure of Appointment
Retirement age for judges of the superior courts is 66
Art 125(1):
may be extended for no more than 6 months with the approval of the YDPA
Art 125(2):
A judge may at any time resign from office by handing over his resignation to the YDPA
Art 125(8):
A judge may be dismissed by the YDPA only on grounds of breach of any provisions of the code of ethics / inability from infirmity of body or mind or any other cause, properly to discharge the functions of his office
but only
with recommendation of a tribunal appointed by the YDPA
Removal of Judge
Art 125 - The procedure for removal of judges:
2 modes in removing judges from office:
Tribunal procedure
- this is the procedure in Malaysia
Parliamentary address procedure (resolution passed by 2/3 majority) - Australia
Code of Ethics
The Judges Code of Ethics was enacted under Art 125(3B)
Applies to judges of the Superior courts throughout their service
Breach of code may result in dismissal under Art 125(3)
But this Code of Ethics has never been implemented
Temporary Judges
Art 122(1A)
A person who has held high judicial office in Malaysia may be appointed by the YDPA as an additional judge of the FC on advice of the CJ for a specific period / purpose
Even if the person is above 66 years old
Art 122AA(2) read with Art 122(B):
A person may sit as a judge in the HC is designated for the purpose. Such a person must be qualified for appointment as a judge & designated by the YDPA acting on advice of the PM after consulting the Conference of Rulers & the Chief Judge of HC concerned
Art 122AB:
Appointment as a Judicial Commissioner by the YDPA on advice from the PM after consulting the CJ but without referring to the Conference of Rulers. They are appointed for a specified period / purpose on a contract basis
Judicial Officers of the Subordinate Courts
Session Courts & the Magistrates:
SsC judges are appointed by the YDPA on recommendation of the Chief Judges of the relevant HC
Must be members of the Judicial & Legal Service - S.60 Subordinate Courts Act 1948
In the Federal Territory, Magistrate's are appointed by the YDPA, those in States are appointed by their respective State Rulers
1st Class Magistrates are appointed only on recommendation of the Chief Judges - must be members of the Judicial & Legal Service
2nd Class Magistrate's are not legally qualified
Judicial officers of the subordinate courts hold office at the pleasure of the YDPA - they can be dismissed for any / no reason
Art 138 - established the Judicial & Legal Services Commission:
Established in 1957, abolished in 1960, revived in 1963
Members: the Chairperson of the Public Services Commission as Chairperson, the Attorney General / Solicitor General & 1 or more members appointed by the YDPA after consultation with the CJ from among judges, ex-judges or persons qualified in the eyes of the judges of the superior courts
Appoints, confirms, promotes, transfers & disciplines members of the Judicial & Legal Service:
Members are qualified lawyers
SsC judges, 1st class Magistrates, Senior Assistants Registrar, Deputy Public Prosecutors, Federal Counsels, & assistant parliamentary draftpersons