12 Judges and Judicial Service Flashcards
Judges of the Superior courts can be divided into:
- Federal Court judges
- Court of Appeal judges
- High Court judges
- Judicial Commissioners of the High Courts (who have powers similar to the High Court judges)
Qualifications for judges of the Federal Court, Court of Appeal, and High Courts
Based on Article 123 of the Federal Constitution, a person is qualified for appointment under Article 122B as a judge FC, CA, HC if —
1. He is a citizen.
2. For the ten years before the appointment, he has been:
- An advocate of the relevant courts, or
- A member of the judicial and legal service of the Federation or a State, or
- A combination of both.
These qualifications also apply to the appointment of Judicial Commissioners of the High Courts (Article 122AB(1)).
Steps of appointment process (4)
- Selection by Judicial Appointments Commission (JAC)
- Report of Recommendation to PM
- PM tendering advice to YDPA
- Appointment by YDPA
First Step: Judicial Appointments Commission (JAC)
- Since 2009, the JAC was established via the Judicial Appointments Commission Act 2009 (Act 695).
- To ensure that the process for the nomination, appointment and promotion of Superior court judges is more transparent and comprehensive.
Members of JAC (6)
Section 5 (1) OF Act 695, the Commission shall consist of:
(a) the Chief Justice of FC who shall be the Chairman;
(b) the President of CA;
(c) the Chief Judge of the HC in Malaya;
(d) the Chief Judge of the HC in Sabah and Sarawak;
(e) a FC judge to be appointed by the PM; and
(f) 4 eminent persons, who are not members of the executive or other public service, appointed by the PM after consulting the Bar Council of Malaysia, the Sabah Law Association, the Advocates Association of Sarawak, the Attorney General of the Federation, the Attorney General of a State legal service or any other relevant bodies.
Functions and Powers of JAC (6)
Under Act 695 Part III
- Select qualified candidates for appointment as judges of the superior court for the PM’s consideration.
- Receive applications from qualified individuals for judge positions in the superior court.
- Develop and implement processes for selecting and appointing superior court judges.
- Review and recommend programs to improve the administration of justice.
- Make other recommendations regarding the judiciary.
- Take any necessary actions to effectively perform its functions or are incidental to the performance of
its functions under this Act.
Section 23 of Judicial Appointments Commission Act 2009 : Selection Criteria
Apart from fulfilling the requirements under Article 123 of FC, the Commission in selecting the candidates shall take into account amongst others, the following criteria :
➢integrity, competency and experience;
➢objective, impartial, fair and good moral character;
➢decisiveness, ability to make timely judgments and good legal writing
skills;
➢industriousness and ability to manage cases well and;
➢physical and mental health
Second Step: Report on Recommendation to
Prime Minister
Section 26 - The Commission must submit a report to the PM on who has been recommended to be appointed as a judge.
Section 27 - For the appointment of the Chief Justice of FC, the President of CA, the Chief Judge of the HC in Malaya and Sabah and Sarawak, judges of the FC and CA, the PM may, after receiving the report under s26, request for 2 more names to be selected and recommended by the Commission.
Step Three: PM tendering advice to the YDPA
- PM advise the YDPA on the appointment of judges.
- Based on s 28 of the JAC Act 2009, the PM may proceed to advise the YDPA in accordance with Article 122B of FC after receiving the recommendation from JAC.
Final Step: Appointment by the YDPA
Article 122B(1). All judges of the Superior courts are to be appointed by YDPA, acting on the advice of the Prime Minister, after consulting the Conference of Rulers.
Retirement Age of Judges of the Superior Courts (Article 125 of the Federal Constitution)
- All Superior Court judges retire at age 65, but may have a 6-month extension with the YDPA’s approval.
- Judges can resign by submitting a resignation letter to the YDPA.
- A judge can be removed for breaching the code of ethics or for being unable to perform their duties due to health or other reasons. A tribunal must be appointed to recommend the removal to the YDPA.
- While awaiting the tribunal’s report, the YDPA may suspend the judge based on the PM’s recommendation, or after consulting the Chief Justice for other judges.
Judicial Service
- Personnel of the Subordinate Courts are considered public servants.
- They are appointed by the Judicial and Legal Service Commission (JLSC), which carries out functions under Article 144(1) of the Federal Constitution, such as appointing, promoting, transferring, and disciplining Legal Officers.
- Examples of Subordinate Courts judicial personnel include Magistrates, Sessions Court judges, Senior Assistant Registrars, Deputy Registrars, Registrars, and the Chief Registrar.
- They are civil servants and do not have the same job security as judges of the Superior Courts.
Session Court Judges
- Appointed by the YDPA under s59 of the Subordinate Courts Act 1948 (Revised 1972), based on the Chief Judge’s recommendation, and is assigned a specific jurisdiction.
- For example, a Sessions Court in Klang can only hear cases within its jurisdiction and cannot handle cases from Kuantan.
- Must be a member of the Judicial and Legal Service of the Federation, as outlined in s60 of the Subordinate Courts Act 1948.
Magistrates
- Appointed by the Ruler of the State (or YDPA for the Federal Territories) on the Chief Judge’s advice. The Chief Judge also oversees their work (s78 and 79 of the Subordinate Courts Act 1948).
- There are two types of Magistrates; First Class &
Second Class Magistrate - A First Class Magistrate must be a member of the Judicial and Legal Service of the Federation.
- Second Class Magistrates are usually not legally trained, and are often civil servants or court officials.
