Friday, September 21, 2007

Civics 3: Powers of the Judiciary

Part 3 Continuation of 1970s Compulsory Malaysian Civics Lessons: Powers of the Judiciary

Brother: In the last class, I talked about the Malaysian constitution. Today we talk about the powers of the judiciary.

In Malaysia, all judicial power rests with the Federal Court and the High Courts, which control all the subordinate courts.

The Federal Court of Malaysia comprises of the Lord President* as the Head, the two Chief Justices of the High Courts and two judges*. It is within its capacity to interpret the Constitution and to determine the validity of any enactment made by Parliament or a State legislature.

The Federal Court also has the exclusive jurisdiction to advise the Yang di-Pertuan Agong, when called upon to do so, as to the effect of any provision of the Constitution.

Disputes between States, or between the Federation and any State, can be determined by the Federal Court.

So can appeals from the decisions of a High Court. In this case, the Federal Court decides on the propriety of these decisions, and may uphold these decisions or amend them.

However it may not pardon offenders in capital cases. Only the Yang di-Pertuan Agong has this right to exercise clemency, though he cannot interfere with the judicial proceeding while it is being conducted or administered, and though the judges are responsible to him for its administration.

There are two High Courts in Malaysia-one in Malaya, the other in Borneo. They have equal powers, though these are more limited than those of the Federal Court. They are equal in rank and status as well.

Each of these courts has a Chief Justice* and a number of other judges, the least of which is four. It exercises control over all the subordinate courts in its particular division, the Sessions Courts and Magistrates' Courts. Religious Courts do not come under its control.

Major offences against the law, criminal, civil or regulatory, are tried in the High Court, which may also hear and determine appeals from the subordinate courts. Criminal law offences are taken to mean those against the community, though the acts themselves may affect certain members. In cases where capital punishment may be involved, trial is by jury*. Such trials may be conducted only in the High Court.

Civil law matters concerns disputes between individuals, or groups of individuals, on infringements of rights and obligations; while regulatory law cases usually involve violations against registration and licensing rulings.

In criminal and civil law offences, judgement is not based solely on a written code of law, as new and more complex cases constantly arise. It is also based on precedence, where previous judgements on cases of a similar nature are taken as a guide. Thus the law, in this respect, is constantly changing, as new judgements are made and new precedents set.

In contrast, laws which regulate our daily lives and activities are codified and enacted by Parliament. However, such laws are open to interpretation, and in many past instances, the Judiciary has resorted to the use of its wide discretionary powers.

It may also exercise these powers when it determines the degree of punishment each criminal offender should receive. The kind of punishment he should receive for his offence has been established by Parliament. So were the maximum and minimum penalties...

** No longer practised in Malaysia.
To be continued

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