Malaysia 1957 Constitution (reviewed 2007) - Page 9 of 29

Table of Contents

PART IX. THE JUDICIARY

121. Judicial power of the Federation

There shall be two High Courts of co-ordinate jurisdiction and status, namely-
1. one in the States of Malaya, which shall be known as the High Court in Malaya and shall have its principal registry at such place in the States of Malaya as the Yang di-Pertuan Agong may determine; and
2. one in the States of Sabah and Sarawak, which shall be known as the High Court in Sabah and Sarawak and shall have its principal registry at such place in the States of Sabah and Sarawak as the Yang di-Pertuan Agong may determine;
3. (Repealed),
and such inferior courts as may be provided by federal law and the High Courts and inferior courts shall have such jurisdiction and powers as may be conferred by or under federal law.
The courts referred to in Clause (1) shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts.
There shall be a court which shall be known as the Mahkamah Rayuan (Court of Appeal) and shall have its principal registry at such place as the Yang di-Pertuan may determine, and the Court of Appeal shall have the following jurisdiction, that is to say:
1. jurisdiction to determine appeals from decisions of a High Court or a judge thereof (except decisions of a High Court given by a registrar or other officer of the Court and appealable under federal law to a judge of the Court); and
2. such other jurisdiction as may be conferred by or under federal law.
There shall be a court which shall be known as the Mahkamah Persekutuan (Federal Court) and shall have its principal registry at such place as the Yang di-Pertuan may determine, and the Federal Court shall have the following jurisdiction, that is to say:
1. jurisdiction to determine appeals from decisions of the Court of Appeal, of the High Court or a judge thereof;
2. such original or consultative jurisdiction as is specified in Articles 128 and 130; and
3. such other jurisdiction as may be conferred by or under federal law.
Subject to any limitations imposed by or under federal law, any order, decree, judgment or process of the courts referred to in Clause (1) or of any judge thereof shall (so far as its nature permits) have full force and effect according to its tenor throughout the Federation, and may be executed or enforced in any part of the Federation accordingly; and federal law may provide for courts in one part of the Federation or their officers to act in aid of courts in another part.
In determining where the principal registry of the High Court in Sabah and Sarawak is to be, the Yang di-Pertuan Agong shall act on the advice of the Prime Minister, who shall consult the Chief Ministers of the States of Sabah and Sarawak and the Chief Judge of the High Court.

122. Constitution of Federal Court

The Federal Court shall consist of a president of the Court (to be styled “the Chief Justice of the Federal Court”), of the President of the Court of Appeal, of the Chief Judges of the High Courts and, until the Yang di-Pertuan Agong by order otherwise provides, of four* [now “shall not exceed eleven”-see P.U. (A) 163/2009] other judges and such additional judges as may be appointed pursuant to Clause (1A).
Notwithstanding anything in this Constitution contained, the Yang di-Pertuan Agong acting on the advice of the Chief Justice of the Federal Court may appoint for such purposes or for such period of time as he may specify any person who has held high judicial office in Malaysia to be an additional judge of the Federal Court:Provided that no such additional judge shall be ineligible to hold office by reason of having attained the age of sixty-six years.
A judge of the Court of Appeal other than the President of the Court of Appeal may sit as a judge of the Federal Court where the Chief Justice considers that the interests of justice so require, and the judge shall be nominated for the purpose (as occasion requires) by the Chief Justice.

122A. Constitution of Court of Appeal

The Court of Appeal shall consist of a chairman (to be styled the “President of the Court of Appeal”) and, until the Yang di-Pertuan Agong by order otherwise provides, of ten* [now “shall not exceed thirty-two”-see P.U. (A) 164/2009] other judges.
A judge of a High Court may sit as a judge of the Court of Appeal where the President of the Court of Appeal considers that the interests of justice so require, and the judge shall be nominated for the purpose (as occasion requires) by the President of the Court of Appeal after consulting the Chief Judge of that High Court.

122AA. Constitution of the High Courts

Each of the High Courts shall consist of a Chief Judge and not less than four other judges; but the number of other judges shall not, until the Yang di-Pertuan Agong by order otherwise provides, exceed-
1. in the High Court in Malaya, forty-seven* [now “shall not exceed sixty”-see P.U. (A) 384/2006); and
2. in the High Court in Sabah and Sarawak, ten** [now “shall not exceed thirteen”-see P.U. (A) 385/2006).
Any person qualified for appointment as a judge of a High Court may sit as a judge of that Court if designated for the purpose (as occasion requires) in accordance with Article 122B.

122AB. Appointment of judicial commissioner

For the despatch of business of the High Court in Malaya and the High Court in Sabah and Sarawak, the Yang di-Pertuan Agong acting on the advice of the Prime Minister, after consulting the Chief Justice of the Federal Court, may by order appoint to be judicial commissioner for such period or such purpose as may be specified in the order any person qualified for appointment as a judge of a High Court; and the person so appointed shall have power to perform such functions of a judge of the High Court as appear to him to require to be performed; and anything done by him when acting in accordance with his appointment shall have the same validity and effect as if done by a judge of that Court, and in respect thereof he shall have the same powers and enjoy the same immunities as if he had been a judge of that Court.
The provisions of Clauses (2) and (5) of Article 124 shall apply to a judicial commissioner as they apply to a judge of a High Court.

122B. Appointment of judges of Federal Court, Court of Appeal and of High Courts

The Chief Justice of the Federal Court, the President of the Court of Appeal and the Chief Judges of the High Courts and (subject to Article 122C) the other judges of the Federal Court, of the Court of Appeal and of the High Courts shall be appointed by the Yang di-Pertuan Agong, acting on the advice of the Prime Minister, after consulting the Conference of Rulers.
Before tendering his advice as to the appointment under Clause (1) of a judge other than the Chief Justice of the Federal Court, the Prime Minister shall consult the Chief Justice.
Before tendering his advice as to the appointment under Clause (1) 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.
Before tendering his advice as to the appointment under Clause (1) 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.
This Article shall apply to the designation of a person to sit as judge of a High Court under Clause (2) of Article 122AA as it applies to the appointment of a judge of that court other than the Chief Judge.
Notwithstanding the dates of their respective appointments as judges of the Federal Court, of the Court of Appeal or of the High Courts, the Yang di-Pertuan Agong, acting on the advice of the Prime Minister given after consulting the Chief Justice, may determine the order of precedence of the judges among themselves.

122C. Transfer of judge of one High Court to another

Article 122B shall not apply to the transfer to a High Court, otherwise than as Chief Judge, of a judge of another High Court other than the Chief Judge; and such a transfer may be made by the Yang di-Pertuan Agong, on the recommendation of the Chief Justice of the Federal Court, after consulting the Chief Judges of the two High Courts.

123. Qualifications of judges of Federal Court, Court of Appeal and of High Courts

A person is qualified for appointment under Article 122B as a judge of the Federal Court, as a judge of the Court of Appeal or as a judge of any of the High Courts if-

he is a citizen; and
for the ten years preceding his appointment he has been an advocate of those courts or any of them or a member of the judicial and legal service of the Federation or of the legal service of a State, or sometimes one and sometimes another.

124. Oath of office of judges

The Chief Justice of the Federal Court shall before exercising the functions of his office take and subscribe the oath of office and allegiance set out in the Sixth Schedule, and shall do so in the presence of the Yang di-Pertuan Agong.
A judge of the Federal Court, the Court of Appeal or a High Court, other than the Chief Justice of the Federal Court, shall before exercising the functions of a judge take and subscribe the oath of office and allegiance set out in the Sixth Schedule in relation to his judicial duties in whatever office.
A person taking the oath on becoming the President of the Court of Appeal shall do so in the presence of the senior judge available of the Court of Appeal.
A person taking the oath on becoming Chief Judge of a High Court shall do so in the presence of the senior judge available of that High Court.
A person taking the oath on becoming a judge of the Federal Court shall do so in the presence of the Chief Justice or, in his absence, the next senior judge available of the Federal Court.
A person taking the oath on becoming a judge of the Court of Appeal shall do so in the presence of the president of the Court of Appeal or, in his absence, the next senior judge available of the Court of Appeal.
A person taking the oath on becoming a judge of a High Court (but not Chief Judge) shall do so in the presence of the Chief Judge of that Court or, in his absence, the next senior judge available of that Court.

125. Tenure of office and remuneration of judges of Federal Court

Subject to the provisions of Clauses (2) to (5), a judge of the Federal Court shall hold office until he attains the age of sixty-six years or such later time, not being later than six months after he attains that age, as the Yang di-Pertuan Agong may approve.
A judge of the Federal Court may at any time resign his office by writing under his hand addressed to the Yang di-Pertuan Agong but shall not be removed from office except in accordance with the following provisions of this Article.
If the Prime Minister, or the Chief Justice after consulting the Prime Minister, represents to the Yang di-Pertuan Agong that a judge of the Federal Court ought to be removed on the ground of any breach of any provision of the code of ethics prescribed under Clause (3B) or on the ground of inability, from infirmity of body or mind or any other cause, properly to discharge the functions of his office, the Yang di-Pertuan Agong shall appoint a tribunal in accordance with Clause (4) and refer the representation to it; and may on the recommendation of the tribunal remove the judge from office.
Where a judge has committed a breach of any provisions of the code of ethics prescribed under Clause (3B) but the Chief Justice is of the opinion that the breach does not warrant the judge being referred to a tribunal appointed under Clause (4), the Chief Justice may refer the judge to a body constituted under federal law to deal with such breach.
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 may, after consulting the Prime Minister, prescribe in writing a code of ethics which shall also include provisions on the procedure to be followed and sanctions which can be imposed other than the removal of a judge from office under Clause (3), in relation to a breach of any provision of the code of ethics.
The code of ethics prescribed under Clause (3B) shall be observed by every judge of the Federal Court and every judicial commissioner.
The tribunal appointed under Clause (3) shall consist of not less than five persons who hold or have held office as judge of the Federal Court, the Court of Appeal or a High Court or, if it appears to the Yang di-Pertuan Agong expedient to make such appointment, persons who hold or have held equivalent office in any other part of the Commonwealth, and shall be presided over by the member first in the following order, namely, the Chief Justice of the Federal Court, the President and the Chief Judges according to their precedence among themselves, and other members according to the order of their appointment to an office qualifying them for membership (the older coming before the younger of two members with appointments of the same date).
Pending any reference and report under Clause (3) the Yang di-Pertuan Agong may on the recommendation of the Prime Minister and, in the case of any other judge after consulting the Chief Justice, suspend a judge of the Federal Court from the exercise of his functions.
Parliament shall by law provide for the remuneration of the judges of the Federal Court, and the remuneration so provided shall be charged on the Consolidated Fund.
Subject to the provisions of this Article, Parliament may by law provide for the terms of office of the judges of the Federal Court other than their remuneration.
The remuneration and other terms of office (including pension rights) of a judge of the Federal Court shall not be altered to his disadvantage after his appointment.
Notwithstanding Clause (1), 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 retire.
This Article shall apply to a judge of the Court of Appeal and to a judge of a High Court as it applies to a judge of the Federal Court, except that the Yang di-Pertuan Agong before suspending under Clause (5) a judge of the Court of Appeal or a judge of a High Court other than the President of the Court of Appeal or the Chief Judge of a High Court shall consult the President of the Court of Appeal or the Chief Judge of that High Court instead of the Chief Justice of the Federal Court.
The President of the Court of Appeal and the Chief Judges of the High Courts shall be responsible to the Chief Justice of the Federal Court.

125A. Exercise of powers by judges

Notwithstanding anything contained in this Constitution, it is hereby declared that-
1. 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;
2. 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
3. a judge of the High Court in Malaya may exercise all or any of the powers of a judge of the High Court in Sabah and Sarawak, and vice versa.
The provisions of this Article shall be deemed to have been an integral part of this Constitution as from Malaysia Day.

126. Power to punish for contempt

The Federal Court, the Court of Appeal or a High Court shall have power to punish any contempt of itself.

127. Restriction on Parliamentary discussion of conduct of judge

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 of which notice has been given by not less than one quarter of the total number of members of that House, and shall not be discussed in the Legislative Assembly of any State.

128. Jurisdiction of Federal Court

The Federal Court shall, to the exclusion of any other court, have jurisdiction to determine in accordance with any rules of court regulating the exercise of such jurisdiction-
1. any question whether a law made by Parliament or by the Legislature of a State is invalid on the ground that it makes provision with respect to a matter with respect to which Parliament or, as the case may be, the Legislature of the State has no power to make laws; and
2. disputes on any other question between States or between the Federation and any State.
Without prejudice to any appellate jurisdiction of the Federal Court, where in any proceedings before another court a question arises as to the effect of any provision of this Constitution, the Federal Court shall have jurisdiction (subject to any rules of court regulating the exercise of that jurisdiction) to determine the question and remit the case to the other court to be disposed of in accordance with the determination.
The jurisdiction of the Federal Court to determine appeals from the Court of Appeal, a High Court or a judge thereof shall be such as may be provided by federal law.

129. Repealed

130. Advisory jurisdiction of Federal Court

The Yang di-Pertuan Agong may refer to the Federal Court for its opinion any question as to the effect of any provision of this Constitution which has arisen or appears to him likely to arise, and the Federal Court shall pronounce in open court its opinion on any question so referred to it.

131. Repealed

131A. Provision for incapacity, etc. of Chief Justice, President or Chief Judge

Any provision made by federal law for the functions of the Chief Justice of the Federal Court or the President of the Court of Appeal or the Chief Judge of a High Court to be performed, in the event of a vacancy in the office or of his inability to act, by another judge of the Federal Court may extend to his functions under this Constitution.
Any provision made by federal law for the functions of the President of the Court of Appeal or the Chief Judge of a High Court to be performed, in the event of a vacancy in the office or of his inability to act, by another judge of the Court of Appeal or the High Court, as the case may be, may extend to his functions under this Constitution other than functions as judge of the Federal Court.