The Invocation of the Malaysian Apex Court’s Review Jurisdiction & The De Facto Doctrine
Chia Yan Tek v Ng Swee Kiat (2001)
On 19 December 2000, the then Chief Justice of the Federal Court of Malaysia was due to retire. There was one particular decision of the Federal Court that was due before he retired and, on that day, the Chief Justice signed a document which was to be his decision. That decision was to be read out in open Court. The other two Judges of the Federal Court intimated their concurrence with the Chief Justice’s decision and, with that, the decision of the Chief Justice was to be the decision of the Federal Court. This having been done, the Deputy Registrar was instructed to write to the solicitors for the parties and to fix 22 December 2000 for the Federal Court to pronounce judgement. At the end of the day on 19 December 2000, the then Chief Justice retired having reached the constitutionally mandated age of retirement.?
By 22 December 2000, the day when the Federal Court was to pronounce judgement, another Judge of the Federal Court had also retired. As such, come 22 December 2000 when the Deputy Registrar was to pronounce judgement in open court, there was only one of the original panel of three Judges who was still a Judge of the Federal Court. The remaining two, including the then Chief Justice, had retired and, as such, were no longer serving Judges of the Federal Court.
On 22 December 2000, the Deputy Registrar of the Federal Court pronounced the brief decision of the Federal Court in the presence of solicitors and counsel for the parties. The appeal was allowed. No grounds were given. The Order that was drawn up reflected the date 22 December 2000. All three judges were reflected in the Order as constituting the coram on that day.?
The respondent, having not succeeded, challenged the decision of the Federal Court. This was in the year 2000 when they were no Malaysian decisions which supported such a novel proposition: The setting aside of a decision of the apex court. As it turned out, the application was primarily based on the inherent jurisdiction of the Federal Court as confirmed in Rule 137 Rules of the Federal Court 1995. Such an application was unprecedented and entirely novel in Malaysia.
The applicant/respondent cited 4 other authorities to support this novel application:?section 78(1) Courts of Judicature Act, 1964;?Rule 63 Rules of the Federal Court 1995; the decision of the court of criminal appeal in Singapore of?Ramachandran a/l Suppiah v PP (1992)?and a decision of the Supreme Court of India in?Surendra Singh & Ors v State of Uttar Pradesh (1954).
After hearing argument, the Federal Court allowed the motion and, for the first time, set aside an earlier decision of its own. The Federal Court ordered the appeal to be re-heard before a different panel. In so doing, the Federal Court held, for the first time (following the decision of the Supreme Court of India), that judgements of our courts take effect from the date of pronouncement in open court in the presence of parties and members of the public. A judge must remain a judge of the court in question at the time of pronouncement of judgment in open court.
With this judgement, it became clear that a judge having reached a decision in the quiet of his/her chambers, after studying the papers and the evidence, and having fixed a date for parties to be present in open court, was, so to speak, entitled to change his/her mind at any time before pronouncement of the decision in open court.
In reaching this decision in 2001, the Federal Court created precedent and set the stage for the very many challenges to its decisions in the years to come. As at 2020, our law reports are replete with decisions of our apex court (including our Court of Appeal, where it is the final court of appeal) on its review jurisdiction.?
Broad Categories Permitting Review
In the roughly two decades that have passed since the decision of Chia Yan Tek our Federal Court has more or less settled the law on review applications. An applicant must show a substantial or serious miscarriage of justice and that the impugned decision falls within one of the following established categories –?
The above list is not exhaustive. It is clear that the categories justifying review are neither fixed nor closed. New cases and novel circumstances will, undoubtedly, arise from time to time, and, therefore, the reader will have to watch the space, so to speak.?
However, the jurisdiction is, as clearly stated in many decisions of our Federal Court, to be exercised sparingly and in clearly exceptional cases. What is also very clear is that a review does not lie where the reviewing party questions the decision of a court on its merits. Admittedly, this would have to be read with the list set out above.
Dahan Cipta & Faithmont Estates (2020)
There is no better decision to exemplify the large number of review applications that have been filed over the years than the seven review motions that came up and were heard together before the Federal Court on 19 August 2020. The Federal Court rendered a single judgement in these seven review motions on 30 November 2020. We represented the respondents in five of the seven review motions.
All seven review applications involved one main point: coram failure. All applicants took the point that the person occupying the offices of the immediate past Chief Justice of the Federal Court or President of the Court of Appeal suffered some constitutional defect in appointment. Accordingly, this (i) impaired either the constitution of the bench that heard the appeals or the applications for leave to appeal; and/or (ii) the decisions rendered in said appeals or leave applications.?
In resisting the review applications, the respondents drew the Court’s attention to the fact that the constitutionality (or otherwise) of the appointment of the judges in question to the offices of Chief Justice of the Federal Court of President of the Court of Appeal were matters of some public debate. The legal fraternity was well aware of (and to an important extent, participated in this debate). Certainly, counsel who appeared either before the Federal Court presided over by the then Chief Justice or the then President of the Court of Appeal were well aware of the competing points of view on the question of the constitutionality of the appointments. One had, in fact, issued various press statements on the subject. For reasons that were not addressed in argument or affidavit, these points were neither brought up at case management before or during the hearing of the appeals or the leave applications. These points were only raised once the appellants/applicants found themselves unsuccessful.?
After hearing argument, the Federal Court held that these arguments need not be considered. It held that the?de facto?doctrine was a sufficient answer to these points.
The appointments
The question that arose as to the appointment of the two persons who occupied the offices of Chief Justice and President of the Court of Appeal was, briefly as follows. The former past Chief Justice, when he was shortly due to retire, advised the King that upon his successor’s retirement as Chief Justice, that he be appointed an Additional Judge of the Federal Court and, thereafter, be further appointed as Chief Justice for a period of 3 years. Similar advice was given insofar as the then President of the Court of Appeal was concerned but for a shorter period: 2 years. The King accepted this advice and consented to said appointments. This had never been done and hence gave rise to public discussion as to its constitutionality.?
The person who occupies the office of Chief Justice determines the members of the Federal Court who sit to hear appeals. If the Chief Justice is present, he/she presides. The President of the Court of Appeal is the second most senior Judge of the Malaysian superior courts and determines the members of the Court of Appeal who sit to hear any appeal. If the Chief Justice administratively empanels the President of Court of Appeal to sit in the Federal Court, the President of the Court of Appeal presides in the absence of the Chief Justice.?
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The applicants’ arguments
The applicants in the seven review motions took issue with the appointments of the Chief Justice and President of the Court of Appeal. They argued that the appointments were unconstitutional and, therefore, these persons were not Judges and could not exercise the powers that came with the office. As such in an instances where the Chief Justice had delivered the decision of the Federal Court, said decision was not, constitutionally, a decision of the Federal Court. In other cases where the Chief Justice had empaneled judges to sit and hear matters in the Federal Court, that administrative decision was not his to make for the same reason. In either case, the decisions rendered by the Federal Court were liable to be set aside.
In two of the seven motions, the President of the Court of Appeal had in fact retired when the decisions of the Federal Court were read out in open court. The President had, however, written grounds for his decision in which he had dissented from the majority. This decision was adopted and read out by the only other minority Judge. The decision of the Federal Court, therefore, was 3:2 in the respondents’ favour.?
The applicants applied to set aside the majority judgement on the basis that although that of the minority, the decision of the President was nevertheless a decision of the Federal Court and this tainted the entire judgement of the Federal Court, both majority and minority.
The de facto doctrine
To fully appreciate the doctrine, one must bear in mind the distinction between the person and the office. The offices, in this case, were that of the Chief Justice of the Federal Court and the President of the Court of Appeal. These offices are creatures of the Federal Constitution. An office exists whether or not a person has been appointed to fill that office. Once this is appreciated, the distinction between the office?per se?and the person who is appointed to that office becomes clear.
The?de facto?doctrine is a creature of the common law. It has been applied by the courts of the United Kingdom, the United States, New Zealand, Australia, India and even Malaysia. In one decision of the American courts, the doctrine has been traced back to the 14th?century.?
There are two limbs to the doctrine. The?first?is that a decision of a judge is not to be challenged collaterally. Stated simply, a dispute between parties cannot descend into a dispute as to the judge’s lawful occupation of his seat as a judge. If the appointment of a judge is to be challenged, it ought to be challenged in proceedings specifically brought for that purpose. And the judge should be a named party to those proceedings. In?Dahan Cipta?and?Faithmont Estate, the former Chief Justice and the former President of the Court of Appeal were not named parties to the seven review applications. It would appear, therefore, that in the seven review applications, the parties had descended to attacking the appointments of the immediate past Chief Justice and President of the Court of Appeal as a ground to re-litigate the dispute.
The second limb to the doctrine is (where the first limb is satisfied and the appointment of the judge is held to be invalid in such direct proceedings) the decisions taken by the judge whilst in office are nevertheless saved. The reasoning is that so long as the judge in question was appointed under colour of some lawful authority (in this case, having been appointed by the King, on advice) the judge’s actions and decisions may be saved even if the appointment is later found invalid or unconstitutional.?
As an aside, the reader should note that the appointment of the past Chief Justice and the past President of the Court of Appeal have not been found invalid or unconstitutional by any court of competent jurisdiction at this point in time.
The Federal Court examined the?de facto?doctrine and past decisions of the English, Indian and American courts that had occasion to apply it. These courts examined the doctrine and found that the need for the doctrine was necessitated by public policy. A judge may have his title impeached only after some time has passed. During this time, the judge may have heard civil and criminal matters?and reached decisions that have been put into effect. Are those decisions and convictions to be set aside? And at what cost to society, the public interest, the public purse and certainty in judicial administration and decision-making??
Decisions of the Indian courts state that the doctrine was engrafted as a matter of public policy and necessity. It served to protect the public interest and individuals involved in?bona fide?official acts where such persons exercised duties of an officer without actually being such an officer, strictly, in point of law. The?de facto?doctrine states that although this person’s appointment as a public officer is not recognised?de jure?(that is, in law) by virtue of particular circumstances, these persons are nevertheless officers in fact. Hence, the?de facto?doctrine. The decisions and acts performed in such office, therefore, are such which public policy requires that the law treats as valid––where performed?bona fide.
The last point for consideration is whether the?de facto?doctrine has application to appointments to a constitutional office. The applicants in the two?Faithmont Estates?review motions argued that the doctrine may well save statutory appointments but they could not save constitutional appointments. The Chief Justice and President of the Court of Appeal were constitutional offices. This argument was given short shrift because it was uncontroversial that the Supreme Court of India had, on at least one occasion, applied the doctrine to a judicial appointment that was provided for under the Constitution of India.?
The legal effect of a dissent
The last important decision that the Federal Court had to make was whether the action of the dissenting judge adopting the ‘judgement’ of the then retired President of the Court of Appeal invalidated the decision of the entire Federal Court. The Federal Court confirmed that as a matter of general law, minority judgements do not have the force of law. In this case, the minority judgement did not affect the validity of the majority judgement. As a matter of statutory law, the majority judgement conveyed the decision of the Court and the matter ended there.
Costs Considerations
For many years, many a failed applicant (for leave to appeal to the Federal Court) or an appellant (in an appeal before the Federal Court) has almost invariably applied for a review of the adverse decision––almost as if a review was a third tier of appeal. Going by past decisions, a dismissal of a review application generally attracted an order of costs in the range of RM10,000 to RM30,000.
In?Bellajade Sdn Bhd v CME Group Bhd and another appeal?(2019), the Federal Court allowed a review application based on coram failure: the majority judges of the Federal Court purported to adopt grounds of judgement written by the same President of the Court of Appeal (who had retired by the time a decision was pronounced by the remaining Judges in open court). The decision of the Federal Court was correctly set aside. The party who opposed the review application then applied to review the Federal Court’s decision to review. This second review was dismissed. The author is given to understand that when it came to the subject matter of costs (for review of the review order), the respondent sought a figure of RM20,000 as costs. The Federal Court, of its own motion, awarded RM100,000 in costs.
In another review application before the Federal Court in 2020 involving a challenge to the Sultanate of Terengganu, a failed applicant was ordered to pay costs of RM100,000. The Federal Court had initially offered the respondent costs in the sum of RM300,000 but this was reduced after taking into account the applicant’s plea of impecuniosity.
In?Dahan Cipta, the three successful respondents sought RM300,000 for each of the three review applications. They were awarded RM100,000 each. In?Faithmont Estates, the Federal Court awarded RM50,000 for each of the two review applications.?
The Federal Court’s approach as to costs when it comes to review applications should therefore be borne in mind by an intending applicant when contemplating a review application. This author conjectures that this approach to costs is due to the number of review applications that have been filed in the past. Respondents to such applications should also bear these costs considerations in mind in if and when an apex court dismisses a review application.