A BRIEF HISTORY OF THE MALAYSIAN COURT SYSTEM

The judiciary has always been at the centre of Malaysia’s continued evolution, over the course of its history back from when it was a collection of different colonies and protectorates, into an independent federal nation that we see today. This article serves as a brief overview of the evolutionary history of the modern-day civil court system in Malaysia. As such, discussions relating to the Malaccan Laws under the Malaccan Empire, the Syariah Courts and the Native Courts in Malaysia will not be covered in this article.

The First Penang Courts and the Supreme Court of the Straits Settlement

The arguable starting point of Malaysia’s experience of setting up a formal modern court system can be found on the island of Penang after its acquisition by Captain Francis Light. In 1801, the first local magistrate, John Dickens was appointed and tasked with resolving disputes and administering the law. As the demands placed on him became increasingly onerous, a Royal Charter was granted to Penang to set up a more sophisticated and better funded Supreme Court of Penang, where cases were heard before a single judge titled the ‘Recorder of the Supreme Court’. In 1825, a Second Royal Charter was granted, creating the Court of Judicature of the Prince of Wales’ Island, Singapore and Malacca. This essentially granted jurisdiction of the Supreme Court of Penang over the settlements of Malacca and Singapore. By 1855, a Third Royal Charter was introduced, resulting in the formation of a Supreme Court of Singapore in order to handle the overwhelming caseload in Singapore.

However, once the Courts Ordinance 1868 was passed, the former Court of Judicature of the Prince of Wales’ Island, Singapore and Malacca was abolished. In its stead, the Supreme Court of the Straits Settlement was created. This Supreme Court was headed by a Chief Justice based in Singapore with Resident Judges being based in the Settlements of Penang and Malacca. Subsequently, the passing of the Courts Ordinance 1878, the courts system in the Straits Settlement evolved into a system involving a number of lower courts with an appeal route to the Supreme Court of the Straits Settlement and to the Privy Council being made available.

The Supreme Court of the Federated Malay States

Following the British Intervention in the Malay States of Perak, Pahang, Selangor and Negeri Sembilan around 1888, the British Residents had set up a series of courts system in their respective states, based off the system in the Straits Settlement. This led to the creation of courts headed by either a Magistrate or a Senior Magistrate that had jurisdiction to try all types of cases except for those involving the Malay custom and religion with an appeal avenue being made available to the Residents in Council or the Sultan in Council depending on the nature of the case.

By 1896, the four Malay States had been federated together which led to the creation of the Federated Malay States (“FMS”). The constitutional restructuring of these Malay Sultanate states under the FMS meant that the court system needed to be reconstituted as well. Initially, this led to the creation of a common court of appeal called the Court of Commissioner to hear cases from the courts set up in the respective FMS states. By 1906, the courts in the FMS were reconstituted once more through the creation of the Supreme Court of the Federated Malay States consisting of a Court of Appeal and the Court of Judicial Commissioners. The Supreme Court of the Federated Malay States was not considered a federal court at the time of its creation and a branch of the court was set up in each state of the FMS. By 1918, the Courts Enactment 1918 was passed which created for a single federal Supreme Court to hear all cases from the different states in the FMS with a further appeal avenue being made available to the Privy Council.

The Courts in the Unfederated Malay States

The courts in the Unfederated Malay States of Kedah, Perlis, Kelantan, Terengganu and Johor had its own respective histories.

Prior to 1909, the northern and east coast states of Kedah, Perlis, Kelantan and Terengganu were under Siamese control. So, by the time the British had intervened in these states, most of these states already had functioning judiciaries in place in the form of its own High Court that was staffed by its own judges where judicial business was conducted based on its own procedures. However, over time, these judges and procedures were gradually phased out in favour of English trained judges and English influenced laws and procedures that mirrored the laws and procedures across the rest of the peninsular.

In Johor, the exact time frame of the establishment of the Supreme Court of Johor is unclear to the author. However, it can be inferred that around the time of the appointment of a British Adviser in 1914, who was vested with equal powers to that of the Residents in the FMS, judicial business was already being conducted by the Supreme Court of Johor. By 1921, an avenue of appeal from the Supreme Court of Johor to the Privy Council was enacted.

The Sarawak Courts under Rajah Brooke and the Courts in North Borneo

Around 1842 when Sir James Brooke was made the First Rajah of Sarawak, he had enacted the Code of Laws which dealt with the administration of the Raj of Sarawak. The First Rajah Brooke had also taken on judicial duties in order to maintain law and order in Sarawak where he had heard cases within his own residence. Under the Second Rajah Brooke, Sir Charles Brooke, a number of courts were constituted to administer justice in the Raj of Sarawak. This included the Native Courts, the Chinese Courts and the Supreme Court of the Kingdom of Sarawak that served as the highest court of the land. At the time, however, the judges of the Sarawak courts were only administrative officers and were not legally trained until around 1928 when Sarawak had its first legally trained judicial commissioner, Mr Justice Stirling-Boyd, who had also ensured the establishment of a proper judicial system based on legal principles.

As for North Borneo, the origins of the courts system can be traced back around 1888 during the administration of North Borneo under the North Borneo Company. The Company had set up the Supreme Court of North Borneo who was led by the Governor of North Borneo. A number of Sessions Courts were set up as well as the appointment of a number of magistrates were made in order to hear cases in the land. By 1905, the position of Judicial Commissioner was created due to the need to have a legally qualified person to be appointed to sit in the Supreme Court of North Borneo and this remained in place until 1929 when the position was converted into that of the Chief Justice of North Borneo.

The Fires of War and the Reorganisation of the Courts

The various judiciaries in Malaya and Borneo had remained operational in their then present structures up till the declaration of World War 2. During the war, some of the civil courts continued to operate but the difficulties in maintaining the administration of justice was apparent due to the ongoing war efforts causing severe disruptions. Following the fall of Singapore in 1942 and the commencement of the Japanese Occupation, the Japanese forces had set up Special Courts across Malaya to try political or military cases. The various Civil Law Courts in Malaya were allowed to open and operate in some capacity after May 1942 utilising the laws of the lands that were already in place so long as there was no interference with the authority of the Japanese Military Administration.

Following the end of World War 2 and the establishment of the British Military Administration, the civil law courts were largely replaced by military courts that were presided by British military officers while the British Military Administration had sought to re-establish the previous court systems across Malaya in the meantime. Following the end of the British Military Administration, the Malayan Union was constituted through the composition of the federated and unfederated Malay states and the territories of the Straits Settlements with the notable exception of Singapore which remained a Crown Colony under the British Government. Under the Malayan Union, the Supreme Court of the Malayan Union was established which consisted of a High Court and a Court of Appeal. However, the Malayan Union arrangement did not last and the Federation of Malaya was reconstituted in its place. The Federation of Malaya maintained the same court system as that of the Malayan Union under a federal Supreme Court of the Federation of Malaya consisting of a High Court and a Court of Appeal that could hear cases from the states in the Federation of Malaya. Upon the declaration of independence of the Federation of Malaya on 31 August 1957, the Malayan Court System was structured into the Superior Courts and the Subordinate Courts. The Superior Courts consisted of the High Court of Malaya and a court of appeal termed the “Federal Court”. Further appeals to the Privy Council were still made available at this time. The Subordinate Courts of the Federation of Malaya were also substantially reorganized under the Subordinate Courts Act 1948 and it still appears substantially similar today albeit with minimal modifications.

The author presently does not have any knowledge of the status of the courts in Sarawak and North Borneo during World War 2 and during the aftermath of the end of the war but it is inferred that the operations of the courts were suspended in a similar fashion to the courts in Malaya. After the end of World War 2, North Borneo and Sarawak were seceded to Great Britain where they became Crown Colonies. The British Government then established the Unified Judiciary of Borneo consisting of a High Court and a Court of Appeal which had jurisdiction to deal with cases across the Crown Colonies of North Borneo, Sarawak and Brunei, which had been a British protectorate since 1888.

The Malaysian Merger and the Singapore Separation

Following the independence of the Federation of Malaya on 31 August 1957 and the granting of self-rule to Singapore in 1956, to Brunei in 1959, to Sarawak on 22 July 1963 and to North Borneo (now Sabah) on 31 August 1963, this led to discussions relating to the merger of these states into a larger Federation of Malaysia around 1961. The Malaysian merger was not all plain sailing as Brunei had opted to leave negotiations in 1962 after the state was, amongst other things, embroiled in a standoff known as the Brunei Revolt. Additionally, the Malaysian merger was met with fierce protests from neighbouring countries such as the Philippines as well as the launching of the ‘Konfrontasi’ by Indonesia.

Ultimately the Federation of Malaysia was formed on 16 September 1963 to and it included the states contained in Federation of Malaya, as well as the states of Singapore, Sabah and Sarawak. The Malaysian Merger also meant a reconstitution of the civil law courts. The model that the Federation of Malaysia opted for was similar to that which was in operation in the Federation of Malaya but with three new High Courts that were constituted. As such, the Superior Courts of Malaysia post-merger consisted of the High Courts of Malaya, Singapore and Borneo, and the Federal Court which heard appeals from the three High Courts. The appeal route to the Privy Council was still maintained at this time.

As a result of the Malaysian Merger, the Unified Judiciary of Borneo was abolished with Brunei remaining as a British protectorate consisting of its own court system which remains in place even after Brunei’s independence from Great Britain on 1 January 1984. However, the Malaysian merger did not remain wholly intact as Singapore was expelled from the Federation of Malaysia on 9 August 1965 where it then became the independent Republic of Singapore.

The Malaysian Courts Today

After the separation of Singapore, Malaysia’s court system consisted of the Superior Courts, comprising of the High Courts of Malaya and Borneo (later renamed as the High Court of Sabah and Sarawak), the Federal Court. Although Singapore had separated from Malaysia in 1965, Singaporean cases were still heard in the Malaysian courts system. This remained the case until the Singaporean courts were reconstituted by way of the Singaporean Supreme Court of Judicature Act 1969, which effectively reorganized the Singaporean courts system and effectively cut its ties to the Malaysian court system. An appeal route from the Federal Court to the Privy Council was maintained until 1 January 1985 where the appeal route was abolished and the Federal Court was renamed to the Supreme Court of Malaysia. As such, the Superior Courts had consisted of the Federal Court and the High Court until the Court of Appeal was created in 1994 to re-establish a three-tier court system in the Superior Courts of Malaysia. The court system post-1994 remains in place as of today.

*Disclaimer: The author of this article has attempted to maintain accuracy as much as possible and any errors or inaccuracies are regretted*

Bibliography

1. Dato James Foong, The Malaysian Judiciary: A Record from 1786 to 1993 (Malayan Law Journal 1994)

2. Dr Cheah Boon Kheng, The Encyclopaedia of Malaysia: Early Modern History [1800-1940] (Archipelago Press 2001)

3. ASEAN Law Association, ‘Malaysian Legal System Part 1’ <https://www.aseanlawassociation.org/wp-content/uploads/2019/11/ALA-MAL-legal-system-Part-1.pdf> accessed 23 July 2021

4. Supreme Court of Singapore, ‘Judicial History’ < https://www.supremecourt.gov.sg/who-we-are/the-supreme-court/history#M7> accessed 23 July 2021

5. Council of ASEAN Chief Justices, ‘History of its Development’ < https://cacj-ajp.org/malaysia/judiciary/history-of-its-development/> accessed 23 July 2021

6. Official Portal of the High Court in Sabah & Sarawak, ‘The development of the legal system in the States of Sabah and Sarawak’ < https://judiciary.kehakiman.gov.my/portals/web/home/history> accessed 23 July 2021

7. Pustaka Sarawak, ‘Sarawak Gazette dated 31^st October 1952’ < https://www.pustaka-sarawak.com/gazette/gazette_uploaded/1402646626.pdf> accessed on 23 July 2021