The history of a centralised and unified Court of Appeal in this country began with the Malayan Union Supreme Court which opened on 1st June 1946. It was established under a Malayan Union Order in Council with further provisions being made by the Courts Ordinance 1946 which came into force on 1st July 1946.

 

      The Malayan Union Supreme Court consisted of a Court of Appeal and a High Court. Decisions of the Court of Appeal were appealable to the Privy Council.

 

      The Malayan Union Supreme Court was succeeded by the pre-Merdeka Supreme Court established under the Federation of Malaya Agreement 1948. The structure of the Malayan Union Supreme Court was preserved. So was the avenue of appeal to the Privy Council from the decisions of the Court of Appeal. Subsequently, the Courts Ordinance 1948 came into force on 1st January 1949 to regulate further the jurisdiction and procedure of the courts, including the Supreme Court.

 

      Under the Federation of Malaya Agreement 1948 and the Courts Ordinance 1948, there was no division of judges of the Supreme Court into Court of Appeal judges and High Court judges. They sat both in the High Court and the Court of Appeal, except that where an appeal to the Court of Appeal was from the decision of a particular judge of the Supreme Court sitting in the High Court. He naturally could not sit in the Court of Appeal.

 

      When the Federation of Malaya gained independence on 31st August 1957, the pre-Merdeka Supreme Court continued as the post-Merdeka Supreme Court by virtue of Article 172 of the Federal Constitution.

 

      The Supreme Court of post-Merdeka Malaya underwent a change upon the establishment of Malaysia on 16th September 1963, under the terms of the Malaysia Act 1963 and later under the Courts of Judicature Act 1964.

 

      The Court of Appeal was renamed the Federal Court. The avenue of appeals to the Privy Council remained.

 

      Thus ended the life of the first unified Court of Appeal in this country.

 

      On 1st January 1985, upon the coming into force of subsection 16(1) of the Constitution (Amendment) Act 1983, the Federal Court was renamed the Supreme Court. Section 17 of that Act also came into force on that date, repealing Article 131 of the Federal Constitution. With that repeal, the appellate recourse to the Privy Council ceased to be available.

 

      With the repeal of Article 131 of the Federal Constitution the Supreme Court became the final tier for judicial appeals for this country. For cases which began in the High Court, the Federal Court was the only court an aggrieved party could appeal to.

 

      Some five years after the closure of the appellate door to the Privy Council, the absence of a three tier superior court became sorely felt.

 

      The Supreme Court now bore the burden of dealing with all the appeals from the High Courts from all the then 58 stations throughout the country. The number and complexity of cases were increasing. The increasing number meant that the Supreme Court was unable to have the time and energy to perform the function, as the final court in the judiciary, of providing a definitive interpretation of the laws involved in the various appeals.

 

      In July 1990 the Government directed that a study be done on the creation of an intermediate appellate court level between the High Court and the Supreme Court. The proposal for such a court was discussed by a committee of the relevant officers chaired by the Chief Secretary to the Government with the participation of a judge of the Supreme Court, the late Tan Sri Harun Hashim.

Meanwhile, at a meeting of the Council of Judges held on 17th December 1990 under section 17A of the Courts of Judicature Act 1964, a paper was presented proposing the creation of an intermediate appellate court between the High Court and the Supreme Court which would act as a “filter” of appeals from the High Court before the level of the Supreme Court.

 

      Under the proposal, appeals from the High Court would go automatically to that new court, and appeals from that new court would only be heard by the Supreme Court with its leave if certain conditions were met. The new court would be the second and final tier of appeal for appeals from decisions of the High Courts in their appellate jurisdiction. Those second tier appeals to the new court would also be subject to conditions.

 

      The Council of Judges unanimously passed a resolution approving the proposals in the paper.

In January 1991, the then Lord President, the late Tun Dato’ Abdul Hamid bin Hj. Omar, wrote to the then Prime Minister, forwarding the proposal paper, while the then Chief Registrar forwarded the letter and the paper to the Minister in the Prime Minister’s Department responsible for the administration of the courts and legal matters.

 

      Unfortunately word came from the Ministry of Justice (which had been created by then) by way of a letter dated 27th March 1991 that the proposal was directed to be put on hold.

The need for the establishment of an intermediate appellate tier between the High Court and the Federal Court was raised in the adjournment speech of Mr. Karpal Singh in the Dewan Rakyat on 11th June 1991.

 

      The Council of Judges which held its meeting in November 1991 once again passed a resolution approving the proposal for the establishment of the intermediate appellate court. In January 1992, the proposal paper was again submitted to the relevant Ministry and the Court was again informed that the proposal had to be put on hold.

 

      The green light for the establishment of the intermediate appellate court was finally given on 30th June 1993. Work then began in earnest to put into place the legislative and operational framework necessary towards that establishment.

 

      The initial proposal was for the new intermediate appellate court, to be called the Court of Appeal, to have 10 judges, and a President. It would sit in a quorum of 3 judges.

Decisions of the High Courts from decisions made in their original jurisdiction would be automatically be appealable to the Court of Appeal.

 

      Decisions of the High Courts in their appellate criminal jurisdiction would also be automatically appealable to the Court of Appeal if the cases originated in the Sessions Courts. If the cases originated in the Magistrate’s Courts, appeals could only be made to the Court of Appeal on questions of law.

As against the decisions of the High Courts in their appellate civil jurisdiction, only where the value of the claim exceeded RM 250,000.00 would there be a right of appeal to the Court of Appeal.  In all other cases, appeals would only be allowed on questions of law.

 

      The most crucial legislative requirement for the creation of the Court Appeal was amendments to the Federal Constitution. While the Court was of the view that the amendments would not require the concurrence provided for in Article 161E of the Federal Constitution, consultations were nevertheless held with the representatives of the States of Sabah and Sarawak on 30th July 1993 and 31 July 1993 respectively.

 

      The Bill proposing the amendments which would create the Court of Appeal was tabled for second reading in the Dewan Rakyat on 9th May 1994. The Bill not only proposed the creation of the Court of Appeal, but also renamed the Supreme Court as the Federal Court, and the designation of the head of the Malaysian judiciary was also changed from ‘Lord President’ to ‘Chief Justice’. The designation of ‘Chief Justice’ for the head of each of the two High Courts was changed to ‘Chief Judge’.

 

      The Bill was passed by the Dewan Rakyat 17th May 1994. It was similarly passed by the Dewan Negara and was later assented to by the Yang di-Pertuan Agong and became the Constitution (Amendment) Act 1994.

 

   The Constitution (Amendment) Act 1994 came into force on 24th June 1994, having been published in the Federal Gazette the previous day. With the coming into force of the Act, the country’s Court of Appeal, now headed by the President of the Court of Appeal, was reborn.

The rebirth of the Court of Appeal could not have come too soon. By the time of its rebirth there were 2,052 appeals pending in the Supreme Court (now renamed as the Federal Court)

The Court of Appeal sat for the first time on 18th August 1994 at Bangunan Sultan Abdul Samad in Kuala Lumpur. The Panel consisted of the Chief Judge of Malaya, Tan Sri Eusoff Chin, sitting as acting President of the Court of Appeal, together with Dato’ Dr. Zakaria bin Mohamed Yatim and Dato’ Siti Norma binti Yaacob. The Court of Appeal heard 9 civil appeals, all related to applications for leave to appeal. Barely two months after its establishment, the Court of Appeal already had almost 200 cases pending hearing before it.

 

      On 17th September 1994 the Yang Di-Pertuan Agong, Al-marhum Tuanku Ja’afar Ibni Al-marhum Tuanku Abdul Rahman, officiated at the official opening of the Court of Appeal.

Since 1994, the prescribed number of Judges of the Court of Appeal had been increased from the initial 10 judges (excluding the President of the Court of Appeal) to the current 32, reflecting the number of appeals filed, and the growing complexity of the subject matter of the appeals.

The Court of Appeal celebrated the 20th anniversary of its rebirth on 24th June 2014. But as it ages, it does not and is not expected to slow down.

 

      Not only must it deal with the increasing number and complexity of cases, it must also increase its pace to meet the promised disposal timelines, especially for appeals from the New Commercial Court (NCC) in Kuala Lumpur and the New Civil Courts (NCvC) in the other stations of the High Court of Malaya. Those courts have timelines of between 9 to 12 months from registration to decision, and the Court of Appeal has set itself the target of disposing appeals from those courts within 6 to 9 months. Towards achieving that target the frequency of sittings had been increased. That frequency has now settled at a level seen as the optimum level in relation to the current number of appeals before the Court of Appeal.

 

      As the Court of Appeal, the “workhorse” of the appellate courts, goes into the 21st year of its existence, it continues to administer justice fairly and expeditiously, making its decisions without fear or favour and based on the law and the facts of the cases before it.