Judicial decisions

Judicial Decisions.The effective law making process of modern Malaysia
Table of Content
Introduction
Malaysian Judiciary
Judiciary Administration
Law Making Process
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Conclusion
Introduction
History of Malaysian Law
Different countries practices difference types of legal system. Some country practices one type of legal system while other practices the mixed legal system which means a combination of two or more legal systems. Malaysia for example, practices the mixed legal system which includes the common law (British law), Islamic law and customary law.
Malaysia’s legal system comprises laws which have arises from three significant periods in Malaysian history dating from Malaccan sultanate, to the spread of Islam to south east Asia and following the absorption into indigenous culture of British colonial rule which introduced a constitutional government and the common law. Malaysia’s unique legal system is designed to balance the delicate racial and religious needs of its heterogeneous people.
Malaysian Judiciary
The Malaysian Judiciary is the government agency that ensures that the Malaysian Federal constitution is upheld at all times and complied with in all cases
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It attains to disputes between individuals, individuals and the states, between states and between Federal government and the state where matters related with the constitution is affected.
In all cases and situation, the Judiciary ensures that the Malaysian constitution is interpreted accordingly through the various courts under its portfolio. The Malaysian Judiciary operates by means of various courts with differing levels of authority.
Malaysian Judiciary Structure
The hierarchy of courts of Malaysia starts with the Magistrates Court as the first level followed by the Sessions Court, High Court, Court of Appeal and the Federal Court of Malaysia, which is the highest level.
The High Court, Court of Appeal and the Federal Court are superior courts, while the Magistrates Court, the Court for Children and the Sessions Court are subordinate courts. A Magistrate 's Court and a Court for Children are presided by magistrates.
There are also various other courts outside of the hierarchy. There are the Penghulu 's Courts, the Syariah Courts and the Native Courts. A court, which is paralleled in jurisdiction with the Magistrates ' Court, is the Juvenile Cournote: Penghulu 's Court has been abolished by Subordinate Courts (Amendment) Act 2010 (Act A1382), which came into force in March 2013.

Diagram 1: Malaysian Judiciary Structure
Superior courts
The apex court – the Federal court – has the authority to accept the decisions of the Court of Appeal (criminal or civil) tried in Malaysia.It provides the final interpretation of the laws in the Constitution of Malaysia and validates laws issued by State governments. It has jurisdiction to decide on disputes between States or between the Federal government and the State.
The Court of Appeal decides on appealed cases originating from the High courts. Appealed cases are decisions that are unacceptable to any of the parties to the case for which the aggrieved party seeks redress from a higher court.
The High Court decides on appealed cases from the subordinate courts. Subordinate courts are generally represented in all the Malaysian states.It is authorised to settle all disputes of a criminal or civil nature that is beyond the jurisdiction of the subordinate courts. Cases resulting in the death penalty are handled by this court. It receives advocates and solicitors of the High Court.
Subordinate courts
Sessions Courts has the authority to decide on civil and criminal cases. The criminal cases do not include cases involving the death penalty.
The Magistrate Court has jurisdiction to try civil cases whose claim does not exceed RM 25,000. It also has jurisdiction to try cases whose maximum penalty does not exceed 10 years in prison with a fine only.
The Children Court is designed to decide on cases involving children less than 18 years of age.
Organization Chart of Judiciary Administration

Organization Chart of Chief Registrar’s office

7.0 Conclusion
History has time and again shown that unlimited power in the hands of one person or group in most cases means that others are suppressed or their powers curtailed. The separation of powers in a democracy is to prevent abuse of power and to safeguard freedom for all.
Separation of Power in simple term means that the tree main arms / organs of the government namely, the executive, the legislature and the judiciary must be separated and independent from one another. They also should act to check and balance each other. Having said that, the “doctrine rule of law” is that all are equal before the law.It is very essential in every democracy that these three arms of the government must be sepratated and acts independently. Without the separation of power there could be real danger, abuse of power and injustice being perpetrated on the citizens.
In Malaysia although we have separation of power, there is no absolute separation in poweras to the brances of government however it applies the system balances between them. In order to analyze the application SEPERATION OF POWER in Malaysia, comparison between executive and legislature, legislature and judiciary and executive branch of government shall be analyze separately.
Firstly in the relationship between executive and legislature branch of government there are overlaps in the context of membership functions and power. Yang Di-Pertuan Agong (YDPA) in Malaysia has authority both in executive branch and under article 39 of FEDERAL CONSTITUTION and legislative under article 44 of Federal Constitution (FC) where a parliament shall consists of YDPA and 2 Majlis , Dewan Negara and Dewan Rakyat. YDPA also under article 45(1) (aa) and (b) appoints the senate who is part of legislative authority. Besides, as to the power of YDPA in executive branch, he may to appoint prime minister according to his discretion as stated in Article 40(2)(a) and appoint cabinet to advise him in exercising this function as stated in article 43(1) of Federal Constitution. While in legislative branch, the YDPA must assent to the bill before implementing it as stated in Article 66 of FEDERAL CONSTITUTION.
Moreover, YDPA may make law and perfrom the function of legislature uring emergency as affirmed in Article 150 of FEDERAL CONSTITUTION. Besides that YDPA as the executive may remove the disqualification for membership of parliament under Article 48(3), summons prorogues and dissolves Dewan Rakyat under article 55 and he also may address both houses as stated in Article 60 of FEDERAL CONSTITUTION.Besides YDPA the Prime Minister and cabinet also have overlaps in both of branch of government. Under Article 32(2) (a)(b) requires the prime minister and his cabinet who is in the executive branch to be members and come from of either house of parliament.
Moreover, the executive may also perform the function of legislative branch ith respect to the delegated legislation conferred by the parent Actmade by legislative branch. The executive also is collectively responsible, answerable and accountable to parliament during question time, debate and motion as stated in Article 43(3) of FEDERAL CONSTITUTION. Even though both branches of government may interfere in another branch, the system of check and balances is required. For example YDPA, who has wide authority power on both executive and legislative branch shall act on advice of cabinet and ministers as stated in Article 40(1A). Besides, parliament may oust the government through the vote of no confidence under Article 43(4) and exercising the political control over executive through the procedure during questioning, debates and select committees under article 43(3). On the other hand, Parliament is guided completely by constitution as to his power to make law.
On the second comparison between legislature and judiciary, there is no overlap in membership between the branches of government as there is no member of parliament can be judges in judiciary branch and vice versa. Besides the conduct of judge cannon be discusses in either house of parliament as stated in Article 127 of FEDERAL CONSTITUTION.
According to article 4 of Federal constitution, it can be concluded that Malaysia applies constitutional supremacy and parliament in Malaysia is not supreme thus judicial review on constitutional ground is provided by Article 128. The judiciary also may perform the function of legislature through the doctrine of judicial precedent. Judiciary branch of government in Malaysia interpret the law made by legislature through the process of statutory interpretation. By this process, judges sometimes escapes from wording of parliament and ruled by him. Besides that, judiciary branch also implement a judicial control over subsidiary legislation where court may declare the subsidiary legislation made as ultra vires the constitution as void. On the other hand, the legislature may perform the function of judiciary by regulating its own composition and procedure for instances as the enforcement of breach of parliamentary privilege or contempt of parliament under Article 63(1). This is to protect member of parliament from the law of defamation. Despite of the interference of both branches of government, there is element of checks and balances between both branches. For instances, there is no member of parliament that can hold a juriditiary office as to maintain the independent of the judiciary branch government. Besides that, the judiciary may declareact of parliament as unconstitutional and it is able to control over subsidiary legislation as affirmed in section 23(1) and 87(d) of the interpretation act 1948 and 1967.
Lastly the comparison between the executive and the judiciary branch of government also is ot overlap in context of membership. However, the executive branch plays an important role in the appointment of judges of Federal Court, Court of Appeal and High Court as stated in article 122Bof federal constitution. It states that YDPA shall appoint the judges on advice of the prime minister after consulting the conference of rulers. Besides that the YDPA also have power to appoint judicial commissioner as stated in Article 122AB of Federal constitution and may pardon offenders decided by judiciary under Article 145(1)(2)(3) performs judicial function. Moreover the chairpersons of administrative tribunals who perform judiciary power, are not judges but members of executive such as administrators or politicians.
On the other hand, judges of session and Magistrate court are member of judicial and legal service. They are transferable from Bench to the AG’s chamber of the government departments. Besides that judiciary branch may conform to judicial review over policy made by executive.
Federal constitution contains express provisions to secure the independence of judiciary as in Article 125(2) which provides the legal procedure tp remove superior judges, Article 125 details on the guarantees on judges remuneration and terms of of office. Article 127, prohibits public discusson on the conduct of judges and Article 126 where judges have power to punish for contempt.
As a conclusion, Malaysia applies the doctrine juridical separation of power in a liberal manner as there is interference of one branch to another; however the sense is restricted by the system of check and balances to avoid the abuse of power from any branch of government as according to Lord Acton, absolute power corrupts absolutely.
References:
http://www.kehakiman.gov.my/www.wikipedia.comLaws of Malaysia- Act 695

References: http://www.kehakiman.gov.my/www.wikipedia.comLaws of Malaysia- Act 695