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SUBLIC
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Reference-
C.O.882/12
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6. The arrangements for the places of residence of the judges in the Federated Malay States are made by the Chief Justice with the concurrence of the Chief Secretary to Government (Section 6 (vi) of the Courts Enactment). At present there is a judge resident in each of the States except Pahang where assizes are held from time to time. But the Court of a Judge in a State is neither by law nor nomenclature identified with the State. It is merely one of the Courts constituting the Supreme Court of the Federated Malay States. I propose that the separate entity of the several States should be recog- nized by constituting a High Court of Justice" for each State. The High Courts would replace the present Courts of a Judge, and might be styled respectively the Perak High Court of Justice, the Selangor High Court of Justice, the Negri Sembilan High Court of Justice, and the Pahang High Court of Justice. Each High Court would have unlimited jurisdiction in its own State, and correspond in status to His Majesty's High Court of Justice in England.
7. The present system whereby process issued in one State can be executed in another State without formality and whereby, generally speaking, a suit may be insti- tuted either in the State in which the defendant resides or in the State where the cause of action arose (Chapter II of the Federated Malay States Civil Procedure Code) should be preserved.
8. I have already referred (paragraph 4) to the provisions giving power for the puisne judges of the Colony to function in the Federated Malay States, and for the judges of the Federated Malay States to function in the Colony, arrangements for the interchange of judges being made by the Governor and High Commissioner. But this arrangement does not work satisfactorily. Owing to the two Chief Justices living so far apart it is difficult for them to co-operate so as to insure the judicial strength being used to the best advantage. And there is a tendency for the two benches to be regarded as separate entities, making it difficult to insure equality of treatment in the allotment of stations, the granting of home leave, and similar matters., I am of opinion that this defect would best be remedied by the appointment of a single Chief Justice for the Colony and the Federated Malay States. The simplest means of effecting this seems to be to create a Supreme Court, which might be styled the Supreme Court of Malaya," having jurisdiction over the Colony and the Federated Malay States, and having a single Chief Justice at its head. The Supreme Court of Malaya would comprise a High Court of Justice in the Colony, replacing the present Supreme Court in its original jurisdiction, the State High Courts, and a Court of Appeal having jurisdiction to hear appeals from all the High Courts.
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9. The present Courts of Appeal consist entirely of judges of first instance. The Chief Justice usually presides. But where the appeal is against the decision of the Chief Justice or he is unable to be present, the Court consists of three puisne judges, of whom one or even two may be acting judges. Another objection to the present system is the tendency to hurry caused by judges of first instance sitting in the Court of Appeal. The judges are away from their permanent stations staying either as guests or in hotels or borrowed quarters, and at the conclusion of the appeal sittings have to take up their ortlinary first instance work. The Court, therefore, tends to avoid reserving judgments when possible, and consultation between the judges when writing their judgments is rendered difficult. For these reasons I do not regard the present arrangement as satisfactory, and I consider it desirable that the new Court of Appeal should be strengthened by the appointment of specially selected judges who should receive higher salaries than do the puisne judges. It must be remembered that in most cases an appeal to the Privy Council is impracticable on the ground of expense, and the Court of Appeal is the final tribunal.
10. It would be desirable, and may ultimately be possible, for the Court of Appeal to consist of the Chief Justice and specially appointed judges who would be relieved of all first-instance work; though at present the volume of appellate work is insufficient fully to occupy the time of the judges. But if the Unfederated Malay States and Sarawak and North Borneo decide to utilize the services of the new Court of In the mean- Appeal, the appeal court judges will not have much unoccupied time
time there seems to be no reason why selected judges should not be appointed for the Court of Appeal, whose primary work will be appeal work. They will be available for first-instance work when their services are not required in the Court of Appeal.
11. In order to allow for leave and casualties, there should, I think, be at least three Court of Appeal judges in addition to the Chief Justice. And all the puisne judges should be ex officio judges of the Court of Appeal, so that their services may
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available if required. The puisne judges being normally relieved of appeal work will have more time at their disposal for first-instance work, and if the volume of work remains as at present, it should not be necessary to increase the total number of judges. 12. In brief, my proposal is that a Supreme Court of Malaya "' should be con- stituted consisting of a Malayan Court of Appeal and a High Court of Justice for the Colony and each of the Federated Malay States and such of the other Malay States as desire to join. The judges would consist of a Chief Justice (to be styled the Chief Justice of Malaya), Court of Appeal judges, and puisne judges.
13. The existing jurisdiction, powers and privileges of the Supreme Court of the Colony in its original jurisdiction would be preserved, the only change being in its title, which would be altered from "
Supreme Court " to "High Court." The law to be administered by each High Court would be the law applicable to the country of the Court, and no change in the law or procedure would be necessary, though it would probably be desirable to make reciprocal arrangements whereby the process of each High Court would run throughout the whole area within the jurisdiction of the Supreme Court. But there would be no merger of jurisdictions or fusion of laws. Similarly the Court of Appeal would administer the law of the country in which it is sitting.
14. The Supreme Court of Malaya could be constituted either by reciprocal legis- lation or, preferably, by Order of His Majesty in Council made under the reserved power as regards the Colony and, at the request of the Rulers, under the Foreign Jurisdiction Act, 1890, as regards the Malay States. The Federated Malay States Appeals Order in Council, 1906, published in the Selangor Government Gazette for 1908 at page 401 is a precedent for the use of the Foreign Jurisdiction Act in the Federated Malay States.
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15. I enclose herewith an opinion written at the request of Sir William Murison by Mr. Roland Braddell, an advocate and solicitor of the Supreme Court of the Colony, in which he criticizes the proposal to create a single Supreme Court for Malaya. His criticism is based on the assumption that it is proposed to merge the Courts of the Colony and the Federated Malay States. He points out that in the Colony the fount of Justice is His Majesty the King, while in a Malay State the fount of justice is the Ruler, and that the Supreme Court of the Federated Malay States is the creation of the joint enactment of the Rulers in Council. He observes that the Supreme Court of the Colony is a Court of Record established by Royal Charter, though re-constituted by local ordinance, and has practically all the powers of the Supreme Court in England, while the Supreme Court of the Federated Malay States has no powers save such as are conferred upon it by enactments, and only such inherent powers as are necessary to the proper administration of such justice as it is empowered to administer. He also states that, while the basis of the law administered in the Colony is English law, the basis of the law administered in the Federated Malay States is Mohammedan law tempered by Malay custom and statutory law. From these premises he concludes: such entirely different courts and jurisdiction are to be merged into a hybrid I respect- fully fail to see.' But Mr. Braddell's criticism seems to be based on a misconception of the true nature of the proposed scheme. The scheme does not involve any merger of jurisdictions or fusions of laws. The new High Court of Justice for the Colony will retain all the jurisdiction, powers, rights, and privileges formerly possessed by the Supreme Court in its original jurisdiction, and will administer the law of the Colony. Similarly the High Court of each State will exercise the same jurisdiction as is now possessed by the Court of a Judge in the State, and will administer the laws of the State.
16 Mr. Braddell also writes: "I am very sure that the Colony will not consent to lose its Royal Courts and accept in their place what can only be a creation of statutes. Once you have a court depending merely upon statutory powers, all sorts of difficulties are bound to arise however cleverly the statute may be drafted." answer to this is that the original Supreme Court constituted by Royal Charter was The merged by statute in the present Supreme Court many years ago, and, so far as I aware, the merger has not given rise to any difficulty.
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This answer also applies to Mr. Braddell's criticism that "the proposal is deroga- tory to His Majesty whose Royal prerogative of justice will merge into a statute and moreover will merge with that of Malayan Rulers who are under his protection." I have already pointed out that there will be no merger between the High Court of the Colony and the High Courts of the States.
17. It will be seen that Mr. Braddell supports the proposal to appoint special judges of appeal, but suggests that the existing separate Courts of Appeal with two