164
Chief Justices should be maintained, each Court being presided over by its own Chief Justice. But in my opinion serious administrative difficulties would be caused by having two Chief Justices, each of whom would have the right to call for the services of the same judges. Moreover, if the two Chief Justices are to remain, the appointment of two Appeal Court judges would greatly increase the expense of the scheme. I under- stand that the African and West Indian Courts of Appeal hear appeals from Courts which are both politically and legally distinct, and that no difficulty has resulted.
18. As regards the appointment of the judges to the new Supreme Court, I suggest that the Rulers should request His Majesty to make the appointments, and that each judge should be appointed by His Majesty by Letters Patent. The provision whereby the unofficial members of the Federal Council are nominated with the approval of His Majesty is a partial precedent for this course. Temporary appointments of judges might be made by the Governor and High Commissioner. The approval of the Ruler acting on the advice of the British Resident or British Adviser should be required to the posting of a judge to the High Court of a State. But the Chief Justice should have power temporarily to transfer a judge to another High Court for the purpose of taking assizes, assisting the judge of another State, or functioning in a State, such as Pahang, where the amount of work does not justify the appointment of a separate judge. The Chief Justice should also be ex officio a judge of each High Court so that he may be able to act on an emergency.
19. The work and responsibilities of the new Chief Justice will be materially increased, and I propose that his salary should be $2,000 per month, being $200 per that month more than the present salary of the Chief Justice of the Colony. I
propose the salaries of the Appeal Court judges should be $1,500 per month for the senior judge, who will preside in the Court of Appeal when the Chief Justice is not avail- able, and $1,400 per month for the other two judges. This will result in a monthly increase of $350 in the total salaries of the judges of the Colony, the Federated Malay States and Johore, made up as follows:-
1 Chief Justice at $2,000
$
2,000
1 Senior Appellate Judge at $1,500
1,500
2 Appellate Judges, each at $1,400
2,800
7 Puisne Judges, each at $1,250
8,750
$15,050
as compared with the present salaries, viz. :——
1 Chief Justice, Colony, at $1,800
1,800
1
31
J
Federated Malay States, at $1,600
1,600
i Senior Puisne Judge at $1,300...
=
1,300
8 Puisne Judges, each at $1,250...
10,000
$14,700
=
20. I also propose that all the judges should be given completely furnished houses, including plate, linen, and glass, paying an assessed rent as do the British Residents in the Federated Malay States. Frequent changes in the stations of the judges are inevitable. These changes of station and the consequent trouble and annoyance of packing tend to deter members of the Civil Service from joining the legal side and members of the bar from accepting judgeships. This is an annoyance to which the heads of departments are not subject.
•
21 The two Chief Justices (Sir William Murison and Sir Lancelot Elphinstone) concur in the substance of the above proposals. Sir Lancelot Elphinstone, who this month proceeds to England on leave, informs me that he will be glad to give you any further information in his power.
I have, &c.,
C. CLEMENTI,
Governor.
165
Enclosure in No. 75.
OPINION OF MR. ROLAND BRADDELL.
THE suggestion that there should be a Supreme Court of Malaya under a single Chief Justice is open to the strongest criticism on both juristic and political grounds. It is bound, in my opinion, to be opposed by the entire Bars of the Colony and the Federated Malay States.
To understand the nature of the criticisms from a juristic point of view I deal with the present Courts which it is proposed to merge and I suggest that a perusal of the matters which I set out is sufficient to show the juristic impossibility of merging these Courts.
The Supreme Court of the Straits Settlements. In the Colony the fount of justice is His Majesty the King, and a Judge of the Supreme Court when sitting in his Court represents the person of His Majesty.
The Court is a Royal Court of Record established by Royal Charter of Justice though re-constituted by local ordinance. It has practically all the powers of the Supreme Court of England; and has inherent in it those great powers and duties with which the constitutional and common law of England has endowed the Supreme Court of England. Thus, for instance, it can (and does when necessary) issue the prerogative writs of mandamus, prohibition and quo warranto. Its process runs in the name of His Majesty the King.
The basis of the law administered in the Colony is the common law of England as it stood in 1826 and as extended by the Civil Law Ordinance. The rules of equity are applied fully by the Court save in so far as their application is restricted by the rules of evidence contained in the Evidence Ordinance.
The Supreme Court of the Federated Malay States:-In a Malay State the fount of justice is the Ruler. The Supreme Court of the Federated Malay States is the creature of the joint enactment of the Rulers of the four States in Council. It has no powers save such as are by Enactments conferred upon it and only such inherent powers as are necessary to the proper administration of such justice as it is empowered to administer. As a matter of fact it has adopted and administered the English law of Torts without any Enactment empowering it to do so; and it has also adopted a certain amount of the English Rules of Equity beyond what the Specific Relief Enactment
empowers. rights to do these things is, however, doubtful to say the least.
Its
Its process runs in the name of the Judge under his hand and the Seal of the Court.
The basis of the law administered in the Federated Malay States is Mohammedan law tempered by Malayan custom, that is to say, the Hukum Shara, the Kanun, and the Malayan Hukum Adat. All other laws are (or should be) statutory.
How two such entirely different Courts and jurisdictions are to be merged into a hybrid I respectfully fail to see despite the assent to the proposal of the Chief Justice of the Federated Malay States, the Attorney-General of the Straits Settlements, and Mr. Justice Sproule.
I am very sure that this Colony will not consent to lose its Royal Courts and accept in their place what can only be a creature of Statute. 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.
Turning now to the political aspect of the matter, it appears to me that the proposal is derogatory 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. It further appears to me that the proposal is a direct negation of what I understand the present devolution scheme to be. This scheme, as I read it, has for its main purpose the restoration to the Malay Rulers of their proper sovereign positions and the restriction of Great Britain to its proper functions as a protecting Power. The proposal now made merges the Rulers' Courts with the Royal Courts, and confuses the Colony with the Malay States.
It is my opinion that the Supreme Court of the Federated Malay States should be left untouched, though I think that a good deal could be done by Enactment to improve its powers and jurisdiction
Malayan Court of Appeal. This was first suggested by the late Sir John Bucknill, and as suggested by him the scheme was merely to have four special judges of appeal, two of whom should be the respective Chief Justices ex officio. No new Court was suggested or is necessary. In the Colony the Court of Appeal would consist of three judges of appeal presided over by the Chief Justice of the Straits Settlements. In the
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