Judiciary of Malaysia - History

History

Although British colonialism deeply influenced the judiciary of Malaysia, law and a system of courts were well established long prior to the arrival of the British. For example, Melaka and Brunei maintained order using Islamic law and unwritten law based on tradition and custom. Judges were appointed by the sultan of their state. Before the creation of the Federated Malay States in 1895, chief judges heard appeals from the Islamic courts and further appeals were heard directly by the sultans in consultation with their religious advisors. Under this system the ruler was the source of justice and supreme judicial authority.

The Islamic system of justice was slowly weakened under British rule due to the emphasis placed on separating religious and civil power and creating a formal bureaucratic state governed by written law. William A. Graham, the first head of state government in Kelantan per the Anglo-Siamese Treaty of 1902, provides an illustrative example. In violation of the treaty with the state ruler Graham worked to curb the power of Islamic courts by refusing police assistance in carrying out their orders and collecting evidence. The marginalization of indigenous courts was formalised with the Judicial Commissioners' Regulations and Order in Council in 1896. This legislation removed the power of the sultans to hear legal appeals and created the office of judicial Commissioner to carry out this function. The Federated Malay States Appeals Orders in Council of 1906 provided for appeals to the Privy Council in London.

Before the Japanese invasion in 1941 the Straits Settlements, the Federated Malay States and the Unfederated Malay States each had their own appeals courts. These appeals courts were later integrated into the Court of Appeal of the Malayan Union in 1946. When the Federation of Malaya was put into place in 1948 following the abandonment of the Malayan Union a Court of Appeal was established for the entire federation that lasted until independence from the British in 1957.

Prior to the formation of Malaysia in 1963, there were three Supreme Courts of Judicature in Commonwealth South-east Asia:

• The Supreme Court of the Federation of Malaya
• The Supreme Court of Singapore
• The Supreme Court of Sarawak, North Borneo and Brunei

Each Supreme Court consisted of a High Court and a Court of Appeal, and was headed by a Chief Justice.

When the Federation of Malaysia was founded in 1963 the Federal Court (not to be confused with the Federal Court in Malaysia's current judicial arrangement) took the place of the Court of Appeal. Upon independence, by mutual agreement of the United Kingdom and Malaysia, and by Article 131 of the Federal Constitution, the Privy Council continued to function as the highest court in Malaysia, formally advising the Yang-di-Pertuan Agong on the determination of appeals from the Federal Court. Appeals to the Privy Council in London were not abolished entirely until 1 January 1985 upon the establishment of the Supreme Court. The Supreme Court was renamed the Federal Court in a further reorganization of the court system in 1994.