Report of The Inter-Governmental Committee, Malaysia/Judiciary

by Commission of Enquiry in North Borneo and Sarawak Regarding Malaysian Federation

26. The Judiciary

(1) In addition to a supreme Court of Malaysia the Federal Constitution should establish three High Courts, for the States of the existing Federation, Singapore and the Borneo States^[1] respectively.

(2) The supreme Court of the Federation of Malaysia would consist of—

(a) the Chief Justice of Malaysia, who would be President of the Court;

(b) the Chief Justice of the High Court of Malaya;

(c) the Chief Justice of the High Court of Singapore;

(d) the Chief Justice of the High Court of the Borneo States; and

(e) such number of Judges of the supreme Court as Parliament may provide.

The Chief Justice of Malaysia should have power to designate as an Acting Judge of the supreme Court any of the Puisne Judges of the High Courts when he considers that the interests of justice so require.

(3) The Federal Constitution should provide that the supreme Court shall have—

(i) exclusive jurisdiction to hear appeals from the High Courts;

(ii) exclusive original jurisdiction in cases between States and between any State and the Federation; and

(iii) power to determine constitutional questions in accordance with Articles 129 and 130 of the existing Federal Constitution subject to an amendment of Article 129 to permit reference of such a question to the supreme Court from a High Court.

(4) The domicile of the supreme Court should be in Kuala Lumpur. Normally at least one of the Judges of the supreme Court should be a Judge with Bornean judicial experience when the Court is hearing a case arising in a Borneo State; and it should normally sit in a Borneo State to hear appeals in cases arising in that State.

(5) The High Court of the Borneo States should consist of a Chief Justice and not less than four nor, unless the Federal Parliament enacts a law increasing the maximum number, more than eight Puisne Judges.

(6) Each of the High Courts should have—

(a) unlimited original jurisdiction in the State or States for which it is established except matters within the exclusive original jurisdiction of the surpeme Court, and

(b) such appellate and revisional jurisdiction over inferior Courts in that State or States as may be provided by Federal Law

(7) The domicile of the High Court of the Borneo States should be in such centre in the Borneo States as may be convenient.

(8) As regards appointment of Judges of the supreme Court and the High Courts—

(a) the Chief Justice of Malaysia should be appointed by the Yang di-Pertuan Agong after consulting the Conference of Rulers on the advice of the Prime Minister of Malaysia;

(b) the Chief Justice of the High Court of the Borneo States should be appointed by the Yang di-Pertuan Agong after consulting the Conference of Rulers, on the advice of the Prime Minister of Malaysia, who would be required before tendering his advice to consult the Chief Justice of Malaysia, the Chief Justices of the High Courts and the Chief Ministers of the Borneo States;

(c) the permanent Judges of the supreme Court should be appointed by the Yang di-Pertuan Agong after consulting the Conference of Rulers, on the advice of the Prime Minister of Malaysia, who would be required before tendering his advice to consult the Chief Justice of Malaysia and the Chief Justices of the High Courts;

(d) the Puisne Judges of the High Court of the Borneo States should be appointed by the Yang di-Pertuan Agong after consulting the Conference of Rulers on the advice of the Prime Minister, who would be required before tendering his advice to consult the Chief Justice of Malaysia and the Chief Justice of the Borneo States; and

(e) the consultation by the Prime Minister with the Chief Justices would be direct

(9) The qualifications for appointment as a Judge of the supreme Court or any of the High Courts should be as provided in the existing Federal Constitution subject to—

(a) provision on the lines of Article 174(1) for the continuance in office^[2] as Judges of the High Court of the Borneo States of existing members of the unified Judiciary in the Borneo States notwithstanding anything in Article 123,

(b) provision applying Article 123 (b) to advocates of the future High Courts and of the existing Supreme Courts of Singapore and of Sarawak, North Borneo and Brunei and to members of any of the existing judicial and legal services in Singapore or the Borneo States;

(c) provision additional to, but on the lines of Article 174 (3)^[3] with the substitution of a reference to Malaysia Day for the reference to Merdeka Day and a reference to the existing judicial and legal services in Singapore or the Bomeo States for the reference to the judicial and legal service of the Federation; and

(d) provision additional to, but on the lines of Article 174 (4)^[4] should be made referable to Malaysia Day but applicable only to the appointment of a Judge of the High Court of the Borneo States.

(10) The retiring age for Judges of the supreme Court and the High Courts should be 65, subject to extension for up to six months in the case of a particular Judge as provided in Clause 125(1) of the Federal Constitution.

(11) The provisions of Article 125(3) of the Federal Constitution should apply to the removal of Judges of the supreme Court and Judges of the High Courts.

(12) Article 125(5) of the Federal Constitution should be amended so as to provide that—

(a) the Chief Justice of Malaysia may be suspended by the Yang di-Pertuan Agong upon the recommendation of the Prime Minister,

(b) other Chief Justices and other Judges of the supreme Court may be suspended by the Yang di-Pertuan Agong on the recommendation of the Prime Minister after consulting the Chief Justice of Malaysia; and

(c) Puisne Judges of the High Courts may be suspended by the Yang di-Pertuan Agong on the recommendation of the Prime Minister after consulting the Chief Justice of the High Court concerned.

(13) The Federal Constitution should enable the Yang di-Pertuan Agong on the recommendation of the Chief Justice of Malaysia, after consulting the Chief Justice of the High Courts concerned, to transfer a Puisne Judge from one High Court to another. This power should, however, only be exercisable with the consent of the Judge concerned in the case of a Judge serving on Malaysia Day.

(14) Appointments of acting Judges of a High Court should be made in the same way as substantive appointments.

(15) The Federal Constitution should contain provision enabling Judicial Commissioners to be appointed in the Borneo States on the lines of the existing section 10 (i)(b) of the Sarawak, North Borneo and Brunei (Courts) Order in Council subject to the following two modifications:—

(a) there should be two methods for the appointment of Judicial Commissioners—

(i) by the Yang di-Pertuan Agong on the advice of the Chief Justice of Malaysia; and

(ii) by the Head of State of North Borneo or Sarawak on the advice of the Chief Justice of the High Court; and

(b) Judicial Commissioners should be appointed only from among persons qualified under Section 4(1) of the Advocates Ordinances of North Borneo and Sarawak to practise as advocates before the High Court.

(16) The Federal Constitution should provide that the provisions establishing the High Court of the Borneo States and providing for the appointment and removal of Judges and for the Court's jurisdiction may not be repealed or amended without the concurrence of the Governments of the Borneo States.

(17) The Chief Justice of each High Court would be responsible to the Federal Ministry for the administration of his Court, on the understanding that the Registrar of the supreme Court would be the channel of communication between the High Courts and the Ministry.

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1. In this paragraph the term "Borneo States" could include Brunei.
2. to permit the continuance in office of these Judges their eligibility of full compensation payable by instalments should be preserved and they would remain designated officers under the Overseas Service Aid Scheme.
3. This dispenses with the citizenship requirement of Article 123 in the case of a person who was a member of the judicial and legal service of the Federation immediately before Merdeka Day.
4. This enables an appointment to be made within ten years after Merdeka Day of a person who is not qualified under Article 123, if he is and has been for not less than five years an advocate of a superior court in any Commonwealth country; and enables such an appointment to be made for a fixed period.