Malaysia just like other countries does possess its own system of judiciary. Our law is actually originated from the common law of England as we have been colonized by them before. The common law can be mentioned as our mother law as we used it as our framework but the contents are ours.
Prior 1985, our judiciary was using the 3-tiers system. The Privy Council at that moment was the highest appealing court and it can be said that the Supreme Court was not that supreme prior 1985. That was why this hierarchy of courts then evolved to apply the 2 tiers-system post 1985. This will be the hierarchy of courts at the time (Prior 1985):-
Privy Council
I
Supreme Court
I
High Courts
(3 tiers-system)
Post 1985, we have changed our judiciary system by removing the Privy Council as the highest appealing court. The Supreme Court then being the highest court in terms of hierarchy.Due to that, the 2 tiers-system was adopted. This was the hierarchy of courts post 1985:-
Supreme Court
I
High Courts
(2 tiers-system)
If I'm not mistaken, the hierarchy and the structure of the courts has been altered in 1996. This was done in order to enhance a better system of judiciary in upholding the rule of law of the nation.
Currently, the court's structure has revolutionized to a better look. Besides than applying the 2 tiers-system, instead we are adopting the 3 tiers-system. It may not looks like the system we have eventually used prior 1985 but it is a better one of course. This will be the current structure:-
Federal Court
I
Court of Appeal
I
High Courts
(3 tiers-system)
The Supreme Court has evolved to be the Federal Court. The Court of Appeal has been added to the structure of the judicial system. The High Courts remained to be there. The 3 tiers-system makes it better in terms of appealing and in attaining justice. This is due to the chances of appealing till the highest court (referring to the Federal Court) and errors or mistakes committed by the judges of the lower courts can be quashed by the higher courts. That is why the system of appealing is being introduced in the first place.
Questions Raised Due to the changed of the hierarchy of Courts?
1) Can justice be attained if the system is allowing appeals to be made?
2) Will the decision of cases of the Supreme Court be binding to the Federal Court?
3) What will be the effects of applying a 3 tiers-system instead of a 2 tiers-system?
In my humble view, chances to appeal must exist for the sake of fairness and justice. Judges are humans. They do make mistakes. That is why if a party of a case is not satisfied with the decision of the court, he can bring the matter to a higher court. That is to prevent any injustice to keep on prevailing. I have read a book by Professor Ahmad Ibrahim regarding to the issue of whether the cases of the Supreme Court must be followed by the Federal Court or not. Professor Ahmad Ibrahim in the book has stated that the decision of the Supreme Court on their cases will still be binding on the Federal Court. It is irrelevant to say that the cases of the Supreme Court cannot be used anymore prior to the evolve of the Supreme Court to be the Federal Court. The 3 tiers-system literally looks to be more dynamic as it maintained the structure by keeping the Federal Court (previously the Supreme Court) and the High Courts as before and at the same time, the Court of Appeal is added to the system. Hopefully the revolution in the system can be beneficial for the sake of justice of the Malaysians.
MOHD HAKIMI ZULKIFLY (MHZ),
UUM Legum Baccalaureus (LL.B)
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Many thanks.
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