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INTRODUCTION

First of all, our full gratuitous and praise to Allah S.W.T for given us the power and
ability to finish this assignment. We have been assigned an assignment by our Malaysian
Legal System‟s Lecturer, Dr Farid Sufian Shuaib and had given an independent to choose the
title for the assignment related to our subject. After some discussion, we unanimously agreed
to choose the title “ The Comparison between Syariah Court‟s Judges and Civil‟s Court
Judges‟‟ after considering some matters in our discussion to ease our work.
We need to conduct two researches in two different courts that is syariah court and
civil court in order to get the actual and precise information. For that matter, we had picked
Syariah High Court of Wilayah Persekutuan and Civil High Court to be our interview‟s
institution to get the information about our related title. We admitted that to go for a research
is not an easy job because we have to plan properly and contact the related institution to book
an appointment with the respective person. We have gone many difficulties in order to get the
booking as most of the suitable person in that institutions are busy with their work so we have
to wait for about one week and half to get the confirmation date. At last, we got the
confirmation date to go for an interview in both institutions on the last day before mid-
semester break.
This had taught us about the formalities and process that we should have to deal with
the important persons in our legal profession that we would not get much in our class. Even
we were unable to interview our „target man‟ according to our actual plan that is judges from
both institutions, we still possesses the adequate information by their officers, Puan
Halimatun Saadah binti Mohd Mandee as a research officers in Syariah High court of
Wilayah Persekutuan and Puan Siti Noraida Binti Sulaiman as the deputy registrar of High
court from Civil Division. That was enough for us as both of them entertained us well with
full of latest information about the courts. We are glad to have them as our interviewee.
Therefore, with this opportunity we would like to thank first our beloved lecturer Dr Farid
Sufian for asking us to conduct such interview. Without his command we wouldn‟t done such
a thing and may not gain this knowledge as what we have now. Our appreciation also to Dr
Haniff as the Deputy Dean of Student Affairs and to all our lecturers who given permission
for us to skip our class on that day. We know that we have to loss something in order to gain
something. On that particular day, we lost all the lectures however we gained the knowledge
and information about the judges. Even that would not sufficient to repay the lectures that we
skip on that day there was still consideration that we gave back in return.

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CIVIL COURT‟S JUDGES

An overview of the Malaysian Judiciary

Before discussing further in matters regarding judges, it is important for us to know


the structure of the court in Malaysia first. Malaysian courts are divided into two major courts
which are the superior courts and the subordinate courts. The Federal Court, Court of Appeal,
and two High Courts are the superior courts. The courts below the High Courts are the
subordinate courts. Among the subordinate courts are the Sessions Courts, Magistrates‟ and
the Penghulu Courts in West Malaysia. The Malaysian Judiciary is headed by the Chief
Justice (formerly called the Lord President). The President heads the Court of Appeal whilst
two Chief Judges head the High Courts in Malaya and Sabah and Sarawak. They also sit in
the Federal Court, the apex court in Malaysia, together currently with two other Federal Court
judges. The President of the Court of Appeal and the Chief Judges of the High Courts shall be
responsible to the Chief Justice.

Appointment of the judges

Under Article 122B of the Malaysian Constitution, the appointment of the Chief
Justice, like those of the President of Court of Appeal, the two Chief Judges, judges of the
Federal Court, the Court of Appeal and the High Court, are made by Yang di-Pertuan Agong
on the advice of the Prime Minister after consulting the Conference of Rulers.

However, before tendering his advice as to the appointment of a judge other than the
Chief Justice of the Federal Court, the Prime Minister shall consult the Chief Justice. As
regards to the appointment of the Chief Judge of a High Court, the Prime Minister shall
consult the Chief Judge of each of the High Courts and, if the appointment is to the High
Court in Sabah and Sarawak, the Chief Minister of each of the States of Sabah and Sarawak.
Further, before tendering his advice as to the appointment of a judge other than the Chief
Justice, President or a Chief Judge, the Prime Minister shall consult, if the appointment is to
the Federal Court, the Chief Justice of the Federal Court, if the appointment is to the Court of
Appeal, the President of the Court of Appeal and, if the appointment is to one of the High
Courts, the Chief Judge of that Court. The Prime Minister is also entitled to advise His
Majesty the Yang di-Pertuan Agong after consulting the Chief Justice as respects the order of
precedence among the judges notwithstanding the dates of their respective appointments as
judges of the Federal Court, of the Court of Appeal or of the High Courts.

On the advice of the Chief Justice, Yang di-Pertuan Agong may also appoint a person
who has held high judicial office in Malaysia to be an additional judge of the Federal Court.
The Chief Justice may also, if the interests of justice so require, nominate a Court of Appeal
Judge to sit as a Judge of the Federal Court. All judges of the Superior Courts retire at the age
of 66. However, the validity of anything done by a judge of the Federal Court shall not be
questioned on the ground that he had attained the age at which he was required to retire1.

1
Federal Constitution; Article 125 (1)
2
Judicial commissioners shall be appointed to become the High court judges

All judicial commissioners appointed before the coming into operation of the Judicial
Committee Act may file their applications with the Commission if they are desirous of being
selected as High Court judges in accordance with the provisions of this Act within the time
and manner specified by the Commission.2

The Chief Justice of the Federal Court, Precedent of the Court of Appeal and the
Chief Judge of the High Court may appoint to be members of the judicial commission.
Besides, The Chief Justice of the Federal Court shall be the chairman of the Commission.
The President of the Court of Appeal and the Chief Judge of the High Court in Malaya as
well as in Sabah and Sarawak are the members of the Commission.3 Federal Court judge also
can be appointed by the Prime Minister and shall hold office as the commissioner for a period
of two years and are eligible for reappointment for not more than two terms4.

Qualifications and Requirements become a judge

A person must fulfil certain requirement to him or her qualified for become a High
Court judge. Under article 123 of the Federal Constitution, a person is qualified for
appointment to become a High Court judge if he/she is a citizen of the Federation5 and have
ten years of experiences being as an advocate of those courts, the High Court, Court of
Appeal or the Federal Court; or they are a member of the judicial and legal service of the
Federation or of the legal service of a State.

Powers and jurisdiction of the judge of the Federal Court, the Court of Appeal and the
High Court

A judge has powers to give jurisdiction according to the respective court jurisdiction as stated
in the statute.

The Federal Court


The jurisdiction of the Federal court judge is divided into four which is original jurisdiction,
appellate, referral and advisory.

(a) Original Jurisdiction


The Federal Court has the same original jurisdiction as the High Court. In
addition, the Federal Court has an executive original jurisdiction to determine
whether a law made by the parliament or by the legislature of a state is invalid
and to decide dispute on any other question between the States of the Federation
or between the Federation and the State6. The judge of the Federal Court may, in
2
Judicial Committee Act 2009; Section 29
3
Judicial Committee Act 2009; Section 5
4
Judicial Committee Act 2009; Section 6 (1)
5
Interpretation Act 1967; Section 3: “federation” means Malaysia
6
Federal Constitution; Article 128 (1)

3
its original jurisdiction, also exercise a consultative jurisdiction when the need
arise.

(b) Appellate Jurisdiction


CIVIL
The Federal Court judge is work to hear and determine civil and criminal appeals.
Section 96 of the Court of Judicature Act 1964 provides that an appeal can be
made from the Court of Appeal to the Federal Court with the leave of the Federal
Court. Such an appeal can be made on any final judgment or order of the Court
of Appeal, or on a matter decided by the High Court in the exercise of its original
jurisdiction in any matter where the matter in dispute amounts to or the value of
RM250 00 or more; or the appeal involves directly or indirectly a claim or
respecting property or some civil right of the like amount or value. The Federal
Court may also hear appeals arising from any decision as to the effect of any
provision of the Federal Constitution, including the validity of any written law
concerning any such provision.

CRIMINAL
The Federal Court has jurisdiction to hear and determine any appeal against any
decision of the Court of Appeal in its appellate jurisdiction concerning any
criminal matter decided at first instance by the High Court. The Federal Court
may summarily dismiss an appeal that comes before it and it may also confirm,
reverse, or vary the decision of the Court of Appeal, or order a retrial or remit the
matter with its opinion to the High Court, or make such other order as may seem
just.7
(c) Referral Jurisdiction
The Federal Court may determine constitutional provisions which have arisen in
proceedings in the High Court or in any of the subordinate courts, but which are
referred to it for a decision by way of a special case. When the Federal Court has
decided, it remits the case to the trial court to be disposed of in accordance with
the decision.

(d) Advisory Jurisdiction


The Federal Court may give its opinion on any question which has arisen or
appears likely to arise, and which has been referred to it by the Yang Di-Pertuan
Agong, concerning the effect of any provision of the Constitution. The Federal
Court shall pronounce in open court its opinion on the question so referred8.

7
Court of Judicature Act 1964; section 90
8
Federal Constitution; Article 130
4
The Court of Appeal
The Court of Appeal has jurisdiction to determine appeals arising from the decisions of the
High Court or a judge thereof and any other jurisdiction as may be conferred by or under
federal law.
CIVIL
Under Section 67 of the Court of Judicature Act1964, the Court of Appeal has
jurisdiction to hear and determine appeals from any judgment or order of any
High Court in any civil cause or matter. An appeal to the Court of Appeal is by
way of rehearing a case, in which the Court of Appeal has all the powers and
duties of a High Court. The Court of Appeal may order a new trial under Section
71 of the Court of Judicature Act 1964 or reverse or vary the decision of the High
Court which does not affect the merits or jurisdiction of that court.

CRIMINAL
The Court of Appeal may hear and determine any criminal appeal against any
decision made by the High Court judge in the exercise of its original jurisdiction
and appellate or revisionary jurisdiction in respect of any criminal matter decided
by the Session Court. The Court of Appeal has the power to summarily dismiss the
appeals; confirm, reverse, or vary the decision of the trial court; order a retrial or
remit the matter with its opinion thereon to the trial court or to make such other
order in the matter as may seem just, and may by that order exercise any power
which the trial court might have exercised. The Court of Appeal may also quash
the sentence passed by the trial court and pass such other sentence warranted in
law if it thinks that a different sentence should have been passed.

High Court
The jurisdiction of the High Court judge is divided into three types of jurisdiction which are
the original, appellate and revisionary and supervisory.

(a) Original Jurisdiction


The High Court has unlimited jurisdiction in both civil and criminal matters. It can
try any civil case and of any value (normally it tries cases where the amount
involved exceeds RM250 000) or any criminal case, no matter how grave.

CIVIL
The general civil jurisdiction of the High Court is set out in the section 23 CJA
1964. Subject to the limitation in Article 128 of the Federal Constitution, the High
Court has jurisdiction to try all civil matters regardless of value as where the cause
of action arose within the local jurisdiction of the court, or where the defendant or
one of several defendants resides or has his place of business within its local
jurisdiction; where the facts on which the proceedings are based exist or are alleged
to have occurred within its local jurisdiction and where any land, the ownership of
which is disputed, is situated within its local jurisdiction. The High Court judge has
specific jurisdiction in matters enumerated in section 24 CJA 1964 where such
jurisdiction includes the divorce and matrimonial causes, admiralty matters,
bankruptcy, companies and others.

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CRIMINAL
The general rule is that the High Court has jurisdiction over people and offences
committed within its territory. Thus the High Court in Malaya tries only offences
committed in Peninsular Malaysia and its counterpart in Sabah and Sarawak, only
offences committed in East Malaysia.

(b) Appellate Jurisdiction


A High Court hears appeals from both subordinate courts in both civil and criminal
matters. It can also hear appeals from quasi-judicial bodies if so authorized by law.

CIVIL
There is no appeal to the High Court from a decision of a subordinate court in any
civil matter where the amount in dispute or the value of the subject matter is less
than RM10 000, except the question of law.

CRIMINAL
The High Court can hear appeals from subordinate courts according to any law then
in force within the territorial jurisdiction of the High Court. No appeal can be made
to the High Court from a subordinate court concerning any offence punished only
with a fine of RM25 or less.

(c) Reversionary and Supervisory Jurisdiction


The High Court has revisionary jurisdiction over criminal and civil proceedings in
the subordinate courts. The High Court has power to revise criminal proceedings in
subordinate courts in accordance with any law for the time being in force
concerning criminal procedure. The High Court also has power to the civil matter
where it has power to call for and examine the record of any proceedings before any
subordinate court to satisfy itself as to the correctness, legality, or propriety of any
such subordinate court. Thus, it would appear that the High Court‟s revisionary and
supervisory jurisdictions overlap. The general intention seems to be to give the High
Court adequate control and supervision over the subordinate courts.

Exercise powers by judges

Each judge has their own limitation powers. The Chief of the Federal Court and a
judge of the Federal Court has a wider powers compare to other courts judges as the Federal
Court is the supreme court of the Federation. The Chief Justice of the Federal Court and a
judge of the Federal Court may exercise all or any of the powers of a judge of the Court of
Appeal and of a judge of a High Court.

The President of The Court of Appeal and a judge of the Court of Appeal may
exercise all or any of the powers of a judge of a High Court and a judge of the High Court in
Malaya may exercise all or any powers of a judge of the High Court in Sabah and Sarawak
and vice versa9.

9
Federal Constitution; Article 125A (1)
6
Security of tenure of the judges

A judge of the superior court holds office until he attains the age of sixty-five years or
such later time, not being later than six months after he attains that age, as the Yang di-
Pertuan Agong may approve10. However, they may resign at any time by writing under his
hand addressed to the Yang di-Pertuan Agong but they shall not be removed from the office
except in accordance with Article 125 of Federal Constitution, that is, if the Prime Minister or
the Chief Justice after consulting the Prime Minister, represents to the Yang di-Pertuan
Agong that he ought to be removed on the ground of any breach of the code of ethics or
inability, from infirmity of body or mind or any other cause, properly to discharge the
functions of his office11.

According to the Article 125 (4) of the Federal Constitution, the representation shall
be referred to a tribunal appointed by the Yang di-Pertuan Agong and he may be removed
from office on the recommendation of such tribunal. The said tribunal shall consist of not less
than five persons who hold or have held office as judges of the superior courts or have held
equivalent office in any other part of the Commonwealth. Besides, the Civil Court judges
may also be suspended from the exercise of his functions as a judge pending the report of the
tribunal12.
Immunity of judge

The law casts a wide immunity around acts done in the administration of justice and
other judicial officers have statutory protection against civil actions or prosecutions in the
exercise of their judicial duties13.

Thus, a judge could write anything in his judgment. For example, a judge could write
in his judgment that a Cabinet Minister, not a party in the suit, had underhand or shady
dealings with one of the party in dispute. If that finding turns out to be wrong, the judge has
made false statement that may lower the reputation of the Cabinet Minister. However, the
Minister cannot sue the judge for defamation.

In Section 77 of the Penal Code provides that nothing is an offence which is done by a
Judge when acting judicially in the exercise of any power which is, or which in good faith he
believes to be, given to him by law.

Furthermore, in order to protect the credibility of a judge, people including members


of the House of Parliament and the Legislative Assembly of any state are strictly restricted to
discuss upon the conduct of the judge of the superior court14. The independence of judiciary is
not limited only to the independence from the executive pressure or influence. It is a wider
concept which takes within its sweep independence from any other pressure and prejudices. It
has many dimensions, fearlessness of other centerer, economic or political, and freedom from
prejudices acquired and nourished by the class to which the judge belong to.

10
Ibid.
11
Ibid; Article 125 (2) and (3)
12
Ibid; Article 125 (5)
13
Court of Judicature Act 1964; Section14
14
Federal Constitution; Article 127
7
Remuneration of the Judges

Before discussing on the remuneration of the High court judge, it is important for us
to know that there are some differences between the Superior Court judges and the
Subordinate Court judges i.e. the remuneration of judges in each court.

The remuneration of the Subordinate Court judges is provided and organized by the
JPA as they are considered to be an employee of the government although they are working
in an independence body. In contrast to the Superior Court judges where their remuneration is
provided by the parliament and the remuneration so provided shall be charged on the
Consolidated Fund15. Furthermore, the remuneration and other terms of office including the
pension right of a judge of the Superior Court shall not be altered to his disadvantage after his
appointment16. Art. 125 (6) (7) must be apply with Art.125 (9) of the constitution for the High
Court judge.

Basically, all civil judges in Malaysia are paid according to what has been stated in
the Judges‟ Remuneration Act 197117. All of these judges salary are pensionable. The Judges
Remuneration Act 1971 comes into force at 1st January 2004. They are paid differently
according to their holding position due to the different level of the hierarchy of courts in
Malaysia.
There are several kinds of judges in Malaysia, as follows:-
(a) Chief Justice will receive RM15,972.00 per month.
(b) President of the Court of Appeal monthly is paid RM14,002.12.
(c) Chief Judge of the High Court in Malaya is paid RM13,869.02 per month.
(d) Chief Judge of the High Court in Sabah and Sarawak monthly are paid
RM13,509.65.
(e) Judges of the Federal Court monthly will get RM13,017.18 per month
(f) Judges of the Court of Appeal will receive RM12,531.37 per month
(g) Judges of the High Courts in Malaya and Sabah and Sarawak RM12,045.55
per month.

Specialties given to the judges

Under second schedule of the Act, there are explanations on the specialties of judges.

Accommodation18
When one was appointed as a judge, he will receive and enjoy all of the privilege and
allowance provided and given to him. The Judge has been granted a loan under the housing
loans scheme. Under sec.4 of the Act, the accommodations for judges are listed as follows:-

Chief Justice
Get free fully furnished institutional quarters, or a house rent subsidy of RM3,150.00
per month, RM2,100.00 per month for domestic help and RM4,100.00 per annum for
house and garden upkeep.

15
Ibid; Article 125 (6)
16
Ibid; Article 125A (7)
17
Judges‟ Remuneration Act 1971; Act 45; Fifth schedule
18
Judges‟ Remuneration Act 1971; Part II; Section 1
8
President of the Court of Appeal
Get free fully furnished institutional quarters, or a house rent subsidy RM2, 500.00
per month, RM2, 000.00 per month for domestic help, RM3, 000.00 per annum for
house and garden upkeep.

Chief Judges
Receive free fully furnished institutional quarters, or a house rent subsidy of RM2,
500.00 per month, RM2, 000.00 per month for domestic help, RM3, 000.00 per
annum for house and garden upkeep.

Judges of the Federal Court


Enjoy free fully furnished institutional quarters which (including the compound) shall
be maintained free of charge or a house rent subsidy of RM2,250.00 per month,
RM1,000.00 per month for domestic help of RM3,000.00 per annum for house and
garden upkeep.

Judges of the Court of Appeal


Granted free fully furnished institutional quarters which (including the compound)
shall be maintained free of charge, or a house rent subsidy of RM2,250.00 per month,
RM1,000.00 per month for domestic help, RM3,000.00 per annum for house and
garden upkeep.

Judges of the High Courts


Awarded free fully furnished institutional quarters which (including the compound)
shall be maintained free of charge, or a house rent subsidy of RM2, 250.00 per month,
RM1,000.00 per month for domestic help, RM3, 000.00 per annum for house and
garden upkeep.

Entertainment Allowance19
(a) Chief Judge of the High Court in Sabah and Sarawak, RM5,100.00 per month
(b) Chief Judge of the High Court in Malaya, RM5,100.00 per month
(c) President of the Court of Appeal, RM5,100.00 per month
(d) Chief Justice RM5,400.00, per month
(e) Judges of the Federal Court, RM5,000.00 per month
(f) Judges of the Court of Appeal, RM4,800.00 per month
(g) Judges of the High Courts in Malaya and Sabah and Sarawak, RM4,600.00 per
month.

Regional allowance20
A monthly regional allowance at the rate of 10 per centum of monthly salary shall be
paid to the Chief Judge and Judges of the High Court in Sabah and Sarawak for so long as
they serve in the States of Sabah and Sarawak.

19
Ibid; Section 2
20
Ibid; Section 3
9
Special Allowance21
According to section 4A, there is special allowance for carrying out duties of a higher
office. Besides that, one fourth of the substantive salary for the higher officer will be paid to a
Judge who is carrying out the duties of a higher office on the direction of the Chief Justice for
a period of not less than 28 days.

Official Car22
A Government car is provided to each of the Judges including maintenance, provision
of petrol/diesel, oil and lubrication by approval of Chief Justice.

Syce Allowance23
The allowance is (including lodging, subsistence and overtime allowances) for one
syce for each of the Judges and it may be paid shall be the same as the salary and allowances
paid to drivers in Government service.

Subsistence Allowance24
It is payable for officers serving in super scale “A” and above in the Managerial and
Professional Group of the public services, as revised from time to time and provided that
where a Judge is on duty exceeding eight hours away from station, he shall be paid the full
allowance.

Lodging expenses25
It is payable in respect of officers serving in super scale “A” and above in the
Managerial and Professional Group of the public services, as revised from time to time.

Advance to purchase a motor car26


The car loans scheme applicable to officers that serve in super scale “A” and above in
the Managerial and Professional Group of the public services, as revised from time to time.

Official Costume, etc27


Eligible to claim a subsidize payment of RM750.00 once in 3 years as allowance for
official attire used while presiding and will be provided with ceremonial costume at a price
approved by the Treasury. The judges also received warm clothing allowance of RM600.00
once in 3 years when required to carry out duties overseas or in a country with temperate
climate and subsidized payment for “Black Tie” attire of RM500.00 once in 3 years.

21
Ibid; Section 4
22
Ibid; Section 5
23
Ibid; Section 6
24
Ibid; Section 7
25
Ibid; Section 8
26
Ibid; Section 9
27
Ibid; Section 10
10
Medical Facilities28
All medical facilities accorded to officers serving in Principal Grade A post in the
public service, as revised from time to time. Besides, for treatment overseas, a certificate
shall be issued by a medical board established by the Chief Justice by the approval of the
Prime Minister. For a retired Judge, the spouse, and children, the Judge are eligible to receive
the same medical benefits as an officer retired on Principal Grade A post in the public
service.

Leave29
(a) Vacation Leave
35 days in a year excluding public holidays and weekly holidays. If the leave has not
been taken in that year, then the leave may be carried forward up to the next two
years, if it has still not be taken, it will lapse at the end of the third year. A Judge
commonly uses vacation leave for the purpose of overseas travel.
(b) Pilgrimage leave
Only eligible to a Muslim Judge, who never perform pilgrimage, once during the
period of service, subject to a maximum of 40 days, including weekly holidays and
public holidays.

Payment in lieu of leave


According to section 12A, a Judge is unable to take his annual vacation leave and use
up the current yearly vacation leave maximum of 15 days in a year, on his retirement or
death, be granted a cash award equivalent to one thirtieth of his last-drawn monthly salary for
each day up to a maximum of ninety days; or to have converted such accumulated leave, up
to a maximum of one hundred and eighty days, as reckonable service in computing his
pension and gratuity.

Death and Injury benefits in aircraft accidents30


There are some benefits to a Judge or his dependants. For death caused by an injury
sustained in an accident, a sum of RM150, 000.00 and for permanent disablement caused by
an injury sustained in an accident, a sum of RM275, 000.00

Housing loan scheme31


Applicable to officers serving in super scale “A” and above. Judges who have already
obtained a housing loan from the Government are no longer eligible.

Supply of Electricity and Water32


The judge doesn‟t have to pay the bill for electricity and water for the house occupied
by him.

28
Ibid; Section 11
29
Ibid; Section 12
30
Ibid; Section 13
31
Ibid; Section 14
32
Ibid; Section 15
11
Paid passage for overseas travel33
Once in every five years of his service, a Judge is eligible to have passage paid by
Government for overseas travel to a destination of his choice for himself, his spouse and three
of his dependent children below twenty-one years of age. The fare for such travel shall not
exceed the equivalent return fare for travel by air from Kuala Lumpur to London by first class
for the Judge and his spouse and by economy class for any or all of the three accompanying
dependent children.

Paid passage to visit place of origin


Section 16A provided that, once in every 2 years of service, a Judge from Peninsular
Malaysia who is serving in Sabah or Sarawak or a Judge from Sabah or Sarawak who is
serving in Peninsular Malaysia is eligible for paid air fare from the Government to travel to
Peninsular Malaysia or Sabah or Sarawak for himself, the spouse (first class fare) and three
children below the age of twenty-one years (economy class fare).

Special Judicial Allowance34


Chief Justice RM6, 000.00 per month
President of the Court of AppealRM4, 500.00 per month
Chief Judge of the High Court in Malaya monthly paid RM4, 500.00
Chief Judge of the High Court in Sabah and Sarawak RM4, 500.00 per month
Judges of the Federal Court RM3, 750.00 per month
Judges of the Court of Appeal RM3, 675.00 per month.
Judges of the High Courts in Malaya and Sabah and Sarawak RM3, 600.00 per month

33
Ibid; Section 16
34
Ibid; Section 17
12
13
Pension given to the Judges
Pension and gratuity35
When a Judge is retired, he/she would be entitled to a pension and other benefits in
accordance with this Act. As far as it is concern, a Judge is entitled at the rate of 1/360 of his
last drawn salary in respect of each completed month‟s service as a Judge. The period of
service for him/her to qualify for maximum pension shall be 15 years service as a Judge. On
the same hand, as the Judge entitled to a pension, he/she also would be entitled to gratuity of
an amount of seven and a half per centum of the amount arrived at by multiplying his total
completed months of service as a Judge by his last drawn salary.

Pension and gratuity in certain cases of retirement, resignation and ceasing to hold office36
A Judge is retires from the office of a Judge of the Federal Court, of the Court of
Appeal or of the High Court on attaining the age of sixty-six years or plus six months after he
attains that age. The Judge would has pension when he resigns such office after reaching the
age of sixty years or ceases to hold such office before attaining the age of sixty-six years or at
any time after he attains that age.

Retirement on ill-health37
A Judge who has not attained the age of sixty years may make representations in
writing to the Chief Justice for permission to retire on grounds of ill-health. If his report is
satisfied by the Chief Justice, it will be recommended to the Prime Minister, and the Prime
Minister may submit the matter to the Yang di-Pertuan Agong who shall refer the same to a
tribunal appointed by him in accordance with Clauses (4) of Article 125 of the Constitution
for its recommendations.

Retirement on special ground38


A Judge of the Federal Court, of the Court of Appeal or of a High Court who has not
attained the age of sixty years but has held the office for a period in the aggregate of not less
than ten years may, with the approval of the Chief Justice, make representations to the Yang
di-Pertuan Agong for permission to retire to serve in another capacity.

Derivative pension and derivative gratuity where Judge dies in service39


The Yang di-Pertuan Agong may grant a derivative pension and gratuity to his spouse
or child, or both spouse and child, and to his mother or, if his mother is not living, to his
dependent father, the amount of derivative pension granted shall not be less than 1/5 of the
last drawn salary, shall be payable for a period of twelve and a half years, paid seventy per
centum of the amount granted.

Disability pension for Judge40


When a Judge ceases to hold office on the ground of inability of body or mind as a
result of sustaining an injury when performing his official duty or due to a travel accident or
contracting a disease from his working environment, he shall be entitled to a disability
pension.
35
Judges‟ Remuneration Act 1967; Part III; Section 1
36
Ibid; Section 2
37
Ibid; Section 3
38
Ibid; Section 4
39
Ibid; Section 5
40
Ibid; Section 6
14
Dependant‟s pension41
When a Judge dies within seven years of the date of sustaining the injury or
contracting the disease his dependants shall be entitled to a dependant‟s pension determined
upon situation of the dependants.

Judges appointed from the public service42


They shall be eligible for a pension or gratuity in accordance with reference to the
number of completed month‟s reckonable service prior to the date of such appointment and
pension not assignable or attachable. There also no pension or other benefit granted under the
Judges‟ Remuneration Act 1971 shall be assignable or transferable, for or in respect of any
debt or claim other than a debt due to the Government.

Judges ethic

In exercise of the powers conferred by Clause (3A) of Article 125 of the Federal
Constitution, the Yang di-Pertuan Agong on the recommendation of the Chief Justice, the
President of the Court of Appeal and the Chief Judges of the High Courts, and after
consulting the Prime Minister, prescribes the code of ethics cited as the Judges‟ Code of Ethic
1994.

During the tenure of the office, the judges must act under this code of ethics and the
breach of any provision of this Code of Ethics may lead to the removal of a judge from
office.43 According to the code, a judge shall not subordinate his judicial duties to his private
interest, not to conduct himself in such manner as is likely to bring his private interests into
conflict with his judicial duties44.
As a judge, he shall not to conduct himself in any manner likely to cause a reasonable
suspicious that he allowed his private interests to come into conflict with his judicial duties,
so as to impair his usefulness as a judge or he has used his judicial position for his personal
advantage45. He also may be removed if conducting dishonestly or in such manner as to bring
the Judiciary into disrepute or to bring discredit thereto lack efficiency or industry;
inordinately and without reasonable explanation delay in the disposal of cases, the delivery of
decisions and the writing of grounds of judgment; refuse to obey a proper administrative
order or refuse to comply with any statutory direction; absent himself from his court during
office hours without reasonable excuse or without prior permission of the Chief Justice, the
President of the Court of Appeal or the Chief Judge, as the case may be; and be a member of
any political party or participate in any political activity46.

Furthermore, a judge shall, on his appointment, cease to have any connection with the
firm where he was practicing as an advocate and solicitor prior to his appointment by ensure
at his name is removed from the firm‟s name, the firm‟s letterheads and he must ensure that
he has no dealing with the firm or any member of the firm47.

41
Ibid; Section 7
42
Ibid; Section 8
43
Judges‟ Code of Ethics; Section 2(1)(2)
44
Ibid ; 3 (1)(a)(b)
45
Ibid; Section 3(1)(c)
46
Ibid; Section 3(1)(d)
47
Ibid; Section 4

15
Besides that, a judge shall, on his appointment or at any time thereafter as may be
required by Chief Justice, declare in writing all his assets to the Chief Justice in order to
maintain the transparency of the judge48.

Preference use of language by the judge in court

In the court, the judge is free to use either national language or English language. It
depends on the circumstances of the case which means that if the parties involved are Malay
and European, then the lawyers as well as the judge shall use the English Language. In some
situation, if the judge is likely to preside by using National Language, but the counsels used
to speak in English, thus they shall seek the permission from the presiding judge.

Indeed, in section 8 of National Language Act 1963/67 Act 32 stated that all
proceedings in lower courts shall be in the national language however for the higher court, it
is provided that the Court may either of its own motion or on the application of any party to
any proceedings and after considering the interest of justice in those proceedings, order that
the proceedings (other than the giving of evidence by a witness) shall be partly in the national
language and partly in the English language.

Working hour of the judges

A judge must work according to the office hours which means the normal office hours
applicable to the Federal Government officers in the State or in Wilayah Persekutuan where
the judge is stationed49. Normally, a judge will spend most of their time in their respective
court hearing for the case, having trial, prepared their judgment and many more. Moreover, a
judge may also spend their limited time by having a conference, seminar, and many other
vacations outside and inside the country.

Social life and security of Judges

Live as a judge is quiet silent because their social life is limited to a certain portion.
As a judge, they have their own ethics and privacy because they are different from other
public officers. This would only happen to the higher court judges due to the responsibilities
they are bearing. On the other hand, the magistrate can move freely without fear of anybody.
Their life is totally contrasted with the life of a judge50.

In addition, the judges are not allowed to have a meal outside i.e. any restaurant
because sometimes their live are threatened and in danger. In handling criminal cases, surely
if the fault party did not satisfied with the decision made by the judge, he would do anything
as revenge against the judge. Thus, because of such circumstances, the judges‟ home
commonly would be supervised under the supervision of the appointed authority i.e. patrol
and personal assistance as well as personal security51.

48
Ibid; Section 3
49
Ibid; Section 2
50
Source from interview session with the deputy registra of High Court, Civil Division
51
Ibid.
16
SYARIAH COURT‟S JUDGE

Syariah court structure


Before explaining about the judges in syariah court, we should study first the structure
of syariah court in Wilayah Persekutuan.
The establishment of syariah court in Wilayah Persekutuan is stated in section 4052 in,
where it read as Yang Di Pertuan Agong with the advice of minister by published in Gazette
may establish syariah lower courts in any suitable places, one syariah High Court and one
syariah court of Appeal in Wilayah Persekutuan.
From section 40, in Wilayah Persekutuan there shall have a number of syariah lower
courts, syariah High Court and Syariah Court of Appeal. For each of the courts stated above,
there also must have a number of judges to be presided in the courts. For the purpose of that,
section 41, 42, 43 and 44 explain further about the appointment of judges in those courts
either in lower courts, high court or court of appeal.
Under section 4153, the Yang di-Pertuan Agong may on the advice of minister after
consultation with Majlis appoint a Chief Syariah judge. In regard to that, subsection (2)
explain further the basic requirement to be fulfilled to be a Chief Syariah Justice where his
nationality must be a Malaysian, must has been a Judge of a Syariah High Court or a Kadhi
or a Registrar or a Syariah Prosecutor of a State or sometimes one and sometimes another and
also a person learned in Islamic Law.
For the appointment of judges of Syariah Court of Appeal, section 42 54 stated that
Yang di-Pertuan Agong may on the advice of Minister, after consultation with the Majlis,
appoint for a period not exceeding three years not more than seven Muslims to constitute a
standing panel of judges and the Chief Syariah Judge shall select two from amongst them to
form a quorum of judges in the Syariah Appeal Court in respect of every hearing.
While for judges of syariah High court, the appointment is made by the Yang di-
Pertuan Agong with the advice of the Minister after consultation with Majlis. The judges to
be appointed as Syariah High Court judges should be a Malaysian and besides that he has
experienced for a period of not less 10 years been a Judge of a Syariah Subordinate court or a
Kadhi or a Registrar or a Syariah Prosecutor of a State or sometimes one and sometimes
another. He also should be a person learned in Islamic Law.
The appointment of judges for Syariah subordinate courts is slightly different from the
appointment of Chief Syariah Judge, syariah Court of appeal Judges and High Court judges
where except for the appointment is make by the Yang di-Pertuan Agong, the judges is
appoint with the advice of Chief Syariah judge from amongst members of the general public
service of the Federation Judges of the Syariah Subordinate Courts.

52
Administration of Islamic Law (Federal Territories) Act 1993
53
Ibid
54
Ibid
17
Preference use of language
According to the Syariah Court Civil Procedure (Federal Territories) Act 1998,
language that needs to be used during the proceedings in the court is the national language,
Bahasa Melayu. However, it is subject to the order of the Chief Justice. If he wants English to
be used in his court, he is free to do so. When he does not give any comment about the
language to be used, national language would be used. This provision is explained in section
232 (1)55.
While for the purpose of documentation of any document pursuance to this Act, as
mention in section 23 (2,)56 it should be in the national language that is Bahasa Melayu. For
the document which used English in its documentation shall be accompanied by a translation
in the national language.

Average age of the appointed judges


There is no specific provision or section stated that to be a syariah judge but they need
to achieve a certain age. So, we assumed that all legal practitioners have the chance to be
appointed as a judge. Referring to section 4457, for judges of syariah subordinate court there is
no stated in this section about the recommended age to be appointed as a judge. The only
provision mentioned is the judge is to be appointed from amongst the members of the general
public service of the Federation Judges of the Syariah Subordinate Courts.

However, it is different for the Chief Syariah Judge, judges Syariah Court of Appeal,
and judges of Syariah High Court. Before they can be elected to hold all the mentioned post,
they need to have 10 years experienced holding the below post first. For example, for Chief
Syariah Judge they should have the experience of 10 years in holding the post of Judge of a
Syariah High Court or a Kadhi or a Registrar or a Syariah Prosecutor of a State or sometimes
one and sometimes another. With that, the logical averaged age of judge for the High Court
(Chief Syariah judges, Syariah Court of Appeal‟s judges and High Court‟s judges) can be
assumed as between 40 years and above.

Number of judges hearing a case

The number of judges should be presided in hearing any case is subject to the level of
the court. For the subordinate court, only one judge is to present in the court to hear the case
as mentioned in section 4758. Similar also with Syariah High court where only one judges
required hearing all the cases bring upon him on the virtue of section 4659.

Different with the High Court and Subordinate Court, Syariah Court of Appeal
required the number of three judges to be sat together in the court to hear all the cases bring

55
Syariah Court Civil Procedure (Federal Territories) Act 1998
56
Ibid.
57
Ibid.
58
Ibid.
59
Ibid.
18
upon them. The reason for this is because the decision in the Syariah Court of Appeal is made
after considering the opinion of majority of the members of this court stated in section 5560.

Judges ethics
All judges in Wilayah Persekutuan is bound by the rules and regulations made by the
Syariah Judiciary Department of Malaysia. Basically, the department every year had prepared
rulings named Practice Direction to make sure the administration all the syariah court in
Malaysia is standardize although the authority is depend onto the respective state itself. One
of them is Practice Direction No. 1, 2001 which stated about the judge ethics.
These are some examples of ethics which had been established by Syariah Judiciary
Department of Malaysia61.
Ethics outside the court
The judges shall not,
(a) Use his position as a judge for his own benefit
(b) behave in a dishonest way or in such a manner as to aggravate or may aggravate
or bring disrepute to the Syariah Court
(c) mingle freely with people in a way that raises doubts about this ability to do
justice in the judicial duties
(d) accept any gift, the gift was in any way connected with the execution of his
judicial duties
(e) take part in political activities
(f) judicial duty to private interests
(g) give their opinion on a matter or circumstance which it is being said or is
likely to be an issue in any proceedings before him, as his opinion that may be
used by a party to support his argument
Ethics inside the court
When a Judge in the Court and the hearing of a case, he shall
(a) administer justice as required by Islamic law;
(b) carrying out their duties in accordance with and to judgments based on relevant laws
(c) did not hear a case on his condition is not a state of calm like he was
angry, hungry, thirsty, sleepy, tired and unwell
(d) did not hear a case on his condition is not a state of calm like he was
angry, hungry, thirsty, sleepy, tired and unwell
(e) do not try any cases where the parties are enemies or anyone else who is
likely to influence his judicial duties as a Judge
(f) to act firmly and fairly and not be influenced by circumstances
or people who appear before
(g) praise witnesses

60
Ibid.
61
Practice Direction No. 1, 2001

19
Quick interview with The Head Chief of Syariah High Court Negeri Sembilan
Thanks to God Most Almighty, we had managed to conduct a quick interview with Syariah
judge through email in this short time. It was a great opportunity for us that we finally can
ask a real judge regarding his job. Hence, below the results of the quick interview :-

Requirements for becoming a Syariah legal officer


The requirements needed for a person to become a Syariah Officer :-
(a) (i) Syariah Bachelor of Honours, that is recognized by the government from
the university that provided this course or equivalent with this qualification,
and
(ii) Advanced Diploma in Law and Administration of Justice of Islam that is
recognized by the government or equivalent with this qualification, or
(iii) Bachelor of Laws, which is recognized by the government or equivalent
with this qualification and
(b) Pass in Malay Language (includes the Oral Examination) at the SPM level or
equivalent qualification that recognized by the government.
(c) For officers that serving in the service of Islamic Assistant, they are eligible
to be considered to KPSL to Syariah Officer, Grade LS41 when he had
confirmed in service and have the above requirements.

Process to be a judge
The officer had served as a law officer or Syariah officer, a lawyer at Legal Department or
Sulh Officer or research officer or prosecutor or registrar

Average age to be a judge according to the level of the court


Subject to the approval of the foundation and academic qualifications, Syariah judge
candidates are subject to civil service until the age of 58 years old and others with contract,
until the age of 66 years old. The legal officer must be at least in Grade 44 for
the Syariah Subordinate Court Judge and for Syariah High Court judge, he must be at
least in Grade 48 and had serve more than 10 years in the Syariah Court

Language used by judge in the court


The language use is fully in Malay language in the case where the parties do not understand
the Malay language, the court allows the party to use the court interpreter to assist them.

The remuneration of judges


The Syariah judge remuneration is same as well as other public government officers, subject
to the eligibility based on their respective grades. The allowances provided for the judges, for
example, house allowance, the civil service allowance, entertainment allowance, maid, car
and others.

20
Gred L41 : P1T1 RM1989.45 - P1T24 RM4700.07
P2T1 RM2085.46 - P2T24 RM4982.51
P3T1 RM2185.65 - P3T24 RM5274.82

Gred L44 : P1T1 RM 3019.16 - P1T14 RM4990.87


P2T1 RM3343.38 - P2T14 RM5496.05

Gred L48 : P1T1 RM 4391.18 - P1T8 RM5823.03


P2T1 RM 4825.33 - P2T8 RM6374.08

Gred L52 : P1T1 RM 4939.43 - P1T8 RM6371.28


P2T1 RM 5406.98 - P2T8 RM6955.73

Gred L54 : P1T1 RM 5209.39 - P1T8 RM6783.20


P2T1 RM 5669.98 - P2T8 RM7403.81

Working time in the court


The Syariah judges working time is similar as other public government officers that is
starting from 8.00 am until 5.00 pm.

In case of emergency, who should be appointed to replace the judge


Replacement will be taken by the other judges who has the same jurisdiction in their
respective state.

How many days given to him for holidays per year?


It is the same as government servants that is up to 35 days per year excluding the medical
leave.

Do they have to attend any seminars instead of hearing cases only?


Yes, Syariah judge may have to attend some seminar provided for knowledge purpose and
gain experiences. The cases may be postponed and should be rescheduled earlier. Besides, the
schedule is arranged from beginning of the year according the department.

Retired ages for a judge


Basically, Syariah judge will be retired at the age of 58. If their contract of holding the post is
extend their next age of retirement is 66.

21
How about while holding the post they suddenly fall sick?
The judge will be transferred to another position until recovery or be terminated because of
health reason and medical officers advise to do so.

Do they immune from any punishment/liability for their misconduct?


Syariah judges have some immunity subject to their conduct in performing their duties and
job as stated by laws.

22