CO885-(11-12) — Page 625

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PUBLIC

PFCORD OFFICE

། ༴། ། ། ྃ།

Reference :-

C.O.882/12

PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BF REPRODUCED PHOTOGRAPHIC-

COPYRIGHT PHOTOGRAPH-NOT TO

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should be uniformity in decisions both as to punishments for crime and in the interpre- tation of laws, and this object would be greatly facilitated by the existence of a single service under a common head. Moreover, the maintenance of an independent judiciary free from any suspicion of interference by the executive is a fundamental principle of good government. For the above reasons we advise that the existing system of a common judicial service for the four States should be maintained. Though, as will appear dater (paragraph 5), we are of opinion that by a change in the nomenclature of the Courts the individuality of the several States can be emphasized.

4. Under the Federated Malay States Courts Enactment, 1918, the Supreme Court of the Federated Malay States comprises the Court of Appeal and the Courts of a Judge. The arrangements for the duties and places of residence of the Judges are made by the Chief Justice with the concurrence of the Chief Secretary to Govern- ment (section 6, vi). At present there is a judge resident in each State except Pahang. 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 comprising the Supreme Court of the Federated Malay States. In Pahang there is no resident judge, but assizes are held periodically at Raub and Kuantan.

5. We suggest that the separate entity of the several States should be recognized by constituting a "High Court of Justice" for each State. There would be a High Court of Justice for each State replacing the present "Courts of a Judge

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to 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 the English High Court of Justice.

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6. 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 instituted either in the State where the defendant resides or in the State where the cause of action arose (chapter II of the Civil Procedure Code) should be preserved.

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7. The present Court of Appeal in the Federated Malay States consists entirely of judges of first instance. The result is that the work tends to be hurried. tendency is accentuated by the fact that the judges are living away from their per- manent stations either as guests of others or in borrowed quarters or hotels. At the conclusion of the Court each judge has to take up his ordinary first instance work. The Court, therefore, naturally tends to avoid reserving judgments when possible. In our opinion it is most important that members of the Court of Appeal should be relieved of first instance work so far as will enable them to do the appeal work with due deliberation and without the slightest suspicion of hurry. It may also be observed that the Court consists of the Chief Justice and two puisne judges or, where the appeal is against the decision of the Chief Justice, of three puisne judges of whom one or possibly two may be acting judges. The constitution of the Court of Appeal thus differs from that of the West Indian Court of Appeal which is composed entirely of Chief Justices, while in East Africa, although the puisne judges are also members of the Court of Appeal, the Chief Justices usually sit. In our opinion it is desirable that the Court 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. These remarks are also applicable to the Court of Appeal in the Straits Settlements.

8. The ideal would be for the Court of Appeal to consist of a Chief Justice and specially appointed judges who would be relieved of all first instance work. At the present time the volume of appellate work is insufficient fully to occupy the time of the judges. But that is no reason why specially selected judges should not be appointed for the Court of Appeal whose primary work will be appeal work. The appeal judges would be available for first instance work when their services are not required in the Court of Appeal.

9. If the Chief Justice and judges of the Court of Appeal are to take first instance work, there will, of course, be appeals from their decisions. It will also be necessary to allow for leave and casualties. We think, therefore, that there should be three Court of Appeal Judges in addition to a Chief Justice. But if circumstances remain as at present, we do not think it would be necessary to increase the total number of judges. All the puisne judges should be ez officio members of the Court of Appeal so that their services may be available if required.

10.

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We are not in favour of the suggestion made by the Legal Adviser of the Federated Malay States that the Court of Appeal should consist of two judges only. Experience shows that a Court of two judges does not give satisfaction to litigants. In the event of disagreement beween the two judges, the appeal is dismissed. unsuccessful appellant then considers that his case has been decided not on its merits but by an arbitrary rule. The English Divisional Court of two judges to which the Legal Adviser refers takes appeals only from the inferior Courts, i.e., County Courts and Magistrates, and a judge in chambers, and not from the final decision of a High Court judge. The present arrangement whereby three judges sit on appeals in the Federated Malay States was made in consequence of the recommendation in para- graph 28 of the report of the special committee on the administration of justice dated 18th January, 1923, and, in our opinion, should be maintained.

11. It would obviously be impracticable, on the ground of expense, and unnecessary to have separate Appeal Court judges for the Straits Settlements and the Federated Malay States. And we consider it desirable, in the interests of economy and efficiency, that a single Court of Appeal should be constituted for the Straits Settlements, the Federated Malay States, and such of the other Malay States as may desire to avail themselves of the services of the Court. It would also be possible for the States of North Borneo and Sarawak to join if they so desired.

12. If the Courts of Appeal are to be reorganized, the question arises whether the opportunity should not be taken for unifying the whole judicial service of Malaya. Under section 6 (iv) of the Federated Malay States Courts Enactment, 1918, the puisne judges of the Straits Settlements (but not the Chief Justice) are, at present, supernumerary judges of the Federated Malay States, and under section 5 (ii) of the Straits Settlements Ordinance No. 101 (Courts), the judges of the Federated Malay States are supernumerary judges of the Straits Settlements. But the two judicial services are administered as separate entities, and appreciable waste of judicial strength is the result. In our opinion the time is opportune for the organization of a judicial service for the whole of Malaya, under a single Chief Justice. This will enable the judicial strength to be utilized to the greatest advantage, and will ensure equality of treatment in such matters as promotions and allotments of stations. It will also, by saving the salary of a Chief Justice, enable suitable salaries to be paid to the Court of Appeal judges without appreciably adding to the total cost of salaries.

13. We, therefore, propose that a Supreme Court of Malaya should be constituted consisting of a Malayan Court of Appeal and a High Court of Justice for the Straits Settlements 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.

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14. The existing jurisdiction, powers, and privileges of the Supreme Court of the Straits Settlements in its original jurisdiction would be preserved, the only change being in its title, which would be altered from " Supreme Court" to The law to be administered by each High Court would be the law applicable to the

High Court. 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.

15. We attach an opinion* by Mr. Roland Braddell in which he criticizes the proposal to create a single Supreme Court for Malaya on both juristic and political grounds. But, as will be apparent from paragraph 14 of this memorandum, the scheme does not involve any merger of jurisdictions or fusion of laws. Each High Court will retain its own law and jurisdiction. As regards the Court of Appeal, the West Indian, East African, and West African Courts of Appeal are instances of Appeal Courts which have been created for the purpose of hearing appeals from politically and legally distinct High Courts or Supreme Courts.

16. The Supreme Court could be constituted either by reciprocal legislation or by Order of His Majesty in Council made under the reserved power as regards the Straits Settlements and at the request of the Rulers under the Foreign Jurisdiction Act, 1890, as regards the Malay States. It would not be necessary for the constituent States to alter their laws in other respects though it would be desirable for reciprocal

* Printed as enclosure in No. 75.