Structure of Judicial System in Malaysia and Its Challenges

The Malaysian judiciary, like the judiciaries of other countries, has been thrust into the middle of a constitutional tempest. A judicial power or authority, as well as a court system, can be defined as the judiciary. In addition, the judiciary is an independent arm of government since it ensures that justice and fair interpretation and application of the law are upheld in court trials. Constitutionalism and the moderate state have been defended or promoted in the context of judicial independence, rather than as a condition. As a result, the judiciary occupies an unquestionably difficult situation. Although conservative, the Malaysian court was well respected and trusted for three decades after the country's independence from Britain in 1957, as an unbiased, incorruptible, and independent judiciary.

Malaysia has a unified legal system, with federal and state laws being recognized by all courts. The legal system is based on the common law of the United Kingdom. The majority of matters are heard by magistrates and sessions courts. Islamic law and tradition are decided by religious tribunals. The Federal Court, as Malaysia's highest court, hears appeals from the High Court of Peninsular Malaysia, the High Court of Sabah and Sarawak, and lower courts. The Federal Court, whose lord president is the Yang Di-Pertuan Agong, has original jurisdiction over disputes between states or between states and the federal government. The Chief Justice, two Chief Judges from the High Courts, and seven additional judges make up the Federal Court.

Historically, the judiciary has operated with a great degree of independence. The majority of civil and criminal cases are fair and transparent. Within 24 hours of being arrested, the accused must be brought before a judge. Defendants are entitled to legal representation and bail. In court, strict evidentiary requirements apply, and higher courts can hear appeals. Criminal defendants may also petition the supreme monarch or the local state ruler for clemency. For drug-related offences, severe sanctions, including the death penalty, are applied. All significant criminal matters and the majority of civil cases are heard by high courts. Landlord-tenant conflicts and car accidents are heard in the sessions courts.

The constitution makes various measures to ensure judicial independence. To begin with, the process for appointing judges is exclusive. Judges, unlike other public officials, must be appointed through a particular method in which judges are nominated by a special organization known as the Judicial Appointments Commission (JAC). It can be observed in Article 122B, where a multi-layered, complex, and sophisticated approach is used. When a vacancy occurs in the superior court, for example, the prime minister (PM) must first communicate with the Chief Justice, as specified in Article 122B clause 2.This is because the constitution wants to ensure that the Prime Minister took the best decision possible after speaking with the Chief Justice. However, because the nominated judges are chosen by the Judicial Appointments Commission (JAC) in the first place, the PM does not have many options, which could prohibit him from selecting a judge who will be biased against him. Furthermore, the JAC Act 2009 imposes a further requirement in relation to judicial appointments. The Prime Minister is also obligated by statute to 'uphold the continued independence of the judiciary' and 'must have regard to the need to defend that independence.' These provisions were enacted in response to concerns about judicial appointment interference.

Following that, the Malaysian judiciary is free from insulation from politics. According to Article 127, the Parliament and State Legislative Assembly are not permitted to discuss the court's decision or any other judicial process. As a result, the court is free and independent to issue any judicial decision based on logical law application, free of political criticism and pressure. In the Judicial crisis of 1988, has defined the judiciary and the limits of judicial power more than any other. The crisis had an international impact, defined a generation of lawyers, and destroyed overnight the Malaysian judiciary's strong reputation for independence from the executive power. The story is complicated, involving a series of events in which the judiciary was caught in a perfect storm: it was embroiled in an internal conflict within the dominant party. It is both a tragic and instructive episode in terms of preserving the constitutional value of judicial independence. Following the elimination of the final appeal from Malaysian courts to the Judicial Committee of the Privy Council on 1 January 1985, the Malaysian judiciary took a more activist stance in constitutional matters than previously. The judges, according to the Lord President at the time, Tun Mohamed Salleh Abas, now had the responsibility to 'chart a new judicial course'. In doing so, they recognized that they needed to move slowly due to the nature of the country and the litigants before them. It does not appear that they had preconceived philosophy in mind to implement, but rather a heightened sense of the importance of their role in a new situation in which they had final authority over legal interpretation.Further to that, according to Article 126 of the Federal Constitution, the court has the authority to punish anyone who shows disrespect or contempt for the court. To put it another way, anyone who attempts to interfere with the administration of justice or challenges the integrity, dignity, or independence of courts, the court has the power conferred by the constitution to punish them. In the case of PCP Construction Sdn Bhd v Leap Modulation Sdn Bhd, the Federal Court found a lawyer guilty of contempt for scandalizing the court and sentenced him to 30 days in prison and an RM 40,000 fine because he wrote two articles claiming that the Federal Court was corrupt. The goal of this article is to ensure that no one, including politicians, interferes with the administration of justice because they are all afraid of being punished if they do. Part IX of Malaysia's Federal Constitution (Art.121-131A) contains specific provisions to ensure judicial independence from the control and interference of the executive and legislature. The Federation's judicial power is provided for in Article 121(1), which states that there shall be two high courts of co-ordinate jurisdiction and status, with jurisdiction and powers conferred by or under federal law. Article 127 of the Federal Constitution of Malaysia stipulates as follow: The conduct of a judge of the Federal Court, the Court of Appeal, or a High Court shall not be discussed in either House of Parliament except on a substantive motion to which not less than one-quarter of the total number of members of that House has given notice, and shall not be discussed in any State's Legislative Assembly.

Furthermore, there is security of tenure. Superior court judges have permanent tenure contracts with other civil servants under Article 125 clauses 3 and 4. To put it another way, they cannot be easily removed from their positions by Parliament; in fact, there is a complicated procedure in place to remove them if they have violated the Code of Ethics, are unable to perform their duties due to physical or mental infirmity, or for any other reason. The YDPA may appoint a judicial tribunal of at least five local or commonwealth judges, either retired or serving, to investigate the allegation and make recommendations to the King. Furthermore, our Constitution requires that those judges be investigated by their brother or sister judges, rather than by the Executive or the Legislature. As a result, it demonstrates that the judiciary operates independently and without the assistance or interference of others. The Constitution provides the number of judges for the superior courts so that it is not easily possible for the government to pack the courts with political nominees. Under Articles 122, 122A and 122AA, currently the numbers are:

1. The maximum number of judges of the Federal Court is eleven;
2. For the Court of Appeal it is thirty-two;
3. The membership of the High Court in Malaya increased to sixty;
4. In the High Court in Sabah and Sarawak the number increased to thirteen.

Overall, the judiciary system in our country acts as an independent branch of government in the performance of judicial functions because our Federal Constitution provides constitutional protection that allows judges, counsel, and witnesses to speak and act fearlessly in the interest of justice. Tengku Maimun, the first lady appointed to the highest position in the country’s judiciary, said: 'The main issues that the judiciary faces are maintaining public trust and managing negative perception'. The judiciary should work to re-establish public trust in the court system and move past allegations of judicial misconduct. Many allegations levelled against the judiciary are unfounded and have been spread by social media.