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Challenge to validity of the appointment of former CJ and PCA and effect on their decisions.

On 19.8.2020, the Federal Court heard seven applications filed by various parties, to review decisions handed down by the Federal Court and reserved decision on the same. [We had on 28.8.2020 issued a summary of the hearing as a legal update].

These review applications concerned a common contention, ie., that the Federal Court decisions granted earlier were made by panels of Judges which had included either the then Chief Justice (CJ), Tun Md Raus bin Sharif, or the then President of the Court of Appeal (PCA), Tan Sri Zulkefli bin Ahmad Makinudin.

It was contended that their appointments, as the CJ and PCA, after their retirement age had been reached and the manner of their appointments, were unconstitutional. The contention therefore was that any decision by Federal Court judges which had included either of them and any panel of judges empanelled by either of them would render that decision invalid.

Our Ms Yoong Sin Min together with Mr Poh Choo Hoe were involved in two of the said seven matters and had opposed the applications to review the Federal Court decisions made in favour of our clients. The lead opposing counsel for the applicants in our matters was Dato Seri Gopal Sri Ram.

On 30.11.2020, the Chief Justice, Tun Tengku Maimun binti Tuan Mat, delivered the Federal Court’s unanimous decision in dismissing all seven review applications. The Federal Court held that even if the appointments of the CJ and PCA were unconstitutional (although no decision was made on this), the decisions of the Federal Court were saved by the de facto doctrine.

Such doctrine states that where a person holds office and his appointment to that office was defective or alleged to be defective, nonetheless acts done by the person holding such office would be valid. The Federal Court in this case held that the de facto doctrine, which is a common law principle dating back to the year 1431, is applicable to preserve the integrity of the judiciary and its judgments from collateral attacks by an unsuccessful party who may choose to re-litigate the matter by attacking the judge’s authority and/or appointment.

The Federal Court also considered how section 78(2) of the Courts of Judicature Act, 1964 should be interpreted. This provision states that:

“In any such case as is mentioned in subsection (1) the proceedings shall be determined in accordance with the opinion of the majority of the remaining Judges of the Court, and, if there is no majority the proceedings shall be re-heard.”

The Federal Court in considering that this issue was raised where judges who had heard the appeals had retired before the decision was delivered, held that so long as there was a majority decision delivered by the remaining sitting judges, this would be a valid majority decision of the Federal Court.

This Federal Court decision finally lays to rest all further challenges to decisions made by the Federal Court which had included the ex-CJ or ex-PCA, as well as to conclusively establish that a Federal Court decision may be valid even if one or two of the judges may have retired before delivery of the decision.

This article is intended for general information of the clients of our Firm. It should not be regarded as legal professional advice. If you need advice based on specific facts, please feel free to contact us.

 

 

 

 

Yoong Sin Min
Senior Partner
[email protected]
Poh Choo Hoe
Partner
[email protected] 
English China