PAD 240:

GOVERNMENT &
POLITICS

CHAPTER 4:
THE JUDICIARY

PREPARED BY:
MISS NURFAIZAH ABBDULLAH
 TOPICS COVERED

• 4.1 Definition and functions

• 4.2 Independence of the judiciary –
meaning and significance
• 4.3 Independence of the judiciary –
evaluation in the context of the US and
Malaysia
-The courts structure in Malaysia
• 4.4 Rule of law and rule by law
 4.1.1 Definition
• The judiciary is the third branch / arm of any
government
• Its existence / establishment is to separate the
three major functions of government to
uphold justice and equality for all.
• It is done through the administration of justice
– through courts.

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 Establishing
facts

Arbiter
between Interpreting
state and laws
federal govt.

Functions
Judicial Creating
reviews laws

Preventing Upholding
infraction of the
laws constitutions
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 4.2 Independence of Judiciary
• The freedom of judges and / or courts from outside pressure
and interference.
• Judges at all levels have to be confident that they will not face
consequences if they act according to the government
decisions.
• The judiciary is free from liability – the government would take
any hostile criticism and not the judiciary as the act was
initiated by the government and not the judiciary.
• They simply enforce the law that created by the Parliament.
• Without independent judiciary, a democratic society cannot
develop.
• It is important to protect people’s right and to uphold justice
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 4.3.1 Factors to Ensure Independence of
Judiciary
• Mode of appointment of the judges
– Election by legislature- not a common method
– Election by the people- some states in U.S.A
– Appointment by the executive- e.g. Malaysia
• Judicial tenure
– Retires at 65
• Removal of the judges
– in all States a provision is made for removal of corrupt and inefficient judges
– Tribunal if no longer fit for duty
• Salary of the judges
– Adequate salary
– To ensure accountably and effectively
– Judicial Appointments Commission (JAC)
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• Promotion
– Merit and seniority
– Committee (JAC)
• Separation of judicial functions
• Guarantees against ‘packing’
– the executive cannot anticipate, or secure the overruling of
the judiciary by packing (filling) the courts with ‘politically
correct’ Judges of its own persuasion

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 4.3.2 Structure of the Malaysian Judiciary

http://www.kehakiman.gov.my/ 8
4.3.2a Composition of the Superior Courts
COURTS HEAD MEMBERSHIP JURISDICTION

FEDERAL -Chief Justice -the President of the Court -highest court of

COURT of Appeal, the two Chief
Judges of the High Courts
of Malaya and Sabah and
Sarawak, and seven other
Federal Court Judges
appeal
-Appellate, original,
consultative or
advisory and referral

COURT -President of the Court -comprises 10 other judges -Only hears criminal
OF APPEAL of Appeal cases from the
Sessions Court

HIGH COURT OF -Chief Judge -Judge -All H.C in Malaya,

MALAYA, Sabah and Sarawak
HIGH COURT OF have equal jurisdiction
SABAH AND and status
SARAWAK -Hears appeals from
parties who are not
satisfies with the ruling
of the lower courts

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 4.3.2b Composition of the Subordinate
Courts
COURTS MEMBERSHIP JURISDICTION

SESSION COURT -87 session court judges -Criminal (all offences other than
offences punishable with death. Except
for the sentence of death, a Sessions
Court may pass any sentence including
natural life sentence)
-Civil (all civil suits does not exceed
RM250, 000.00)

MAJISTRATE COURT -151 magistrates -Criminal (maximum sentence does not

exceed 10 years
imprisonment or with fine only)
-Civil (civil suits does not exceed
RM25,000.00)

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4.3.2c Syariah Courts
• Independent from the civil courts but enjoyed the same status
with any other courts
• Syariah subordinate courts, syariah high courts and syariah
appeal
• Apply Islamic law for Muslims only
• Marriage, divorce, inheritance, etc.

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 4.4.1 Rule of Law
4.4.1a Concept of the rule of law
Dicey in his Introduction to the Study of the Law of the
Constitution in 1885 explained the rule of law as:
(1) the absolute supremacy or predominance of the law as
opposed to arbitrary exercise of power;
(2) that every man is subject to the ordinary law of the country
and
*(3) the principles of the constitution pertaining to personal
liberties were a result of judicial decisions determining the rights
of private persons in particular cases brought before the Courts.

*For number 3, Dicey was referring to the British Constitution which is an unwritten
Constitution and not to a written Constitution like the Malaysian Constitution.

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4.4.1b The essential characteristic of the rule of law

• The supremacy of law, which means that all persons

(individuals and government) are subject to law.
• A concept of justice which emphasises interpersonal
adjudication (judgment), law based on standards and
the importance of procedures.
• The doctrine of judicial precedent (example).
• The common law methodology – an underlying moral
basis for all law. vi. Legislation should be prospective
and not retrospective (backdated).
• An independent judiciary.
• Adjudication of disputes by fair process and
procedures. 13
 4.4.2 The rule of law and the rule by law

• The rule of law means literally what it says the

rule of the law.
– Taken in its broadest sense this means that people
should obey the law and be ruled by it.
– But in political and legal theory it has come to be
read in a narrow sense, that the government shall
be ruled by the law and be subject to it.
– The ideal of the rule of law in this sense is often
expressed by the phrase, government by law and
not by men. END
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