‘Federal Court can review Court of Appeal’s decisions’

PUTRAJAYA- The Federal Court has ruled that it has inherent power to review any order or decision of the Court of Appeal.

Chief Judge of Malaya Tan Sri Zulkefli Ahmad Makinudin said the Federal Court, being the apex court, was equipped with the power to uphold the fair administration of justice and prevent injustice or abuse of the process of the court.

He cited case authorities stating that the Federal Court has inherent power under Rule 137 of the Rules of the Federal Court to review not only its own (Federal Court) decisions but also those of the Court of Appeal in cases where injustice was being committed.

"With this inherent power, it (the Federal Court) can therefore maintain its character as a court of justice," said Justice Zulkefli in his 12-page written judgment dated Jan 12, 2012, in a case involving Kota Siputeh assemblyman Datuk Abu Hasan Sarif.

In that case, Justice Zulkefli, chairing a three-man Federal Court panel on Nov 14 last year, allowed Abu Hasan's application to review the decision of the Court of Appeal in respect of a stay order, thus restraining him from attending the Kedah state assembly sitting.

On Aug 18 last year, the Court of Appeal allowed Abu Hasan's appeal and reversed a Kuala Lumpur High Court decision declaring him no longer the assemblyman for the seat and ordered the Election Commission (EC) to hold a by-election.

On Nov 2, 2011, the Court of Appeal allowed an application brought by Kedah state assembly Speaker Datuk Dr Abdul Isa Ismail to stay its (Court of Appeal) earlier decision upholding Abu Hasan's position as assemblyman for Kota Siputeh pending disposal of his (Abdul Isa's) application for leave to appeal to the Federal Court.

Abu Hasan then filed a review to the Federal Court to set aside the stay order.

On Monday, a five-man Federal Court panel chaired by Court of Appeal president Tan Sri Md Raus Sharif, granted Abdul Isa's application for leave to appeal.

On Oct 1, 2009, Abdul Isa filed the judicial review to challenge the EC's decision to accept Abu Hasan's medical certificate for his absence in the assembly and the decision that there was no vacancy of the Kota Siputeh seat.

In his application, Abdul Isa claimed that Abu Hasan failed to attend two consecutive meetings of the state assembly, on April 19 and Aug 9, 2009, without leave from the assembly speaker.

In his written judgment, Justice Zulkefli said the Federal Court dismissed the preliminary objection raised by Abdul Isa's lawyer Sulaiman Abdullah that his (Abu Hasan's) review application was an abuse of court process as he ought to have filed an application for leave to appeal to the Federal Court pursuant to Section 96 of the Courts of Judicature Act 1964 instead of the review application.

In allowing Abu Hasan's application to review the Court of Appeal's decision, he said there was a clear case of injustice being committed against him (Abu Hasan) as a result of the order of the Court of Appeal in granting a stay of its own decision.

"We noted that the applicant was unable to attend the assembly from Nov 16, 2009, until Aug 18 last year, that is for a period of 21 months.

“We are of the view such a prolonged deprivation of rights, especially in light of the applicant's (Abu Hasan's) successful appeal on Aug 18, 2011, is of a grave injustice to him and cannot in any manner whatsoever be compensated by damages or costs," he said.

Justice Zulkefli said that Abu Hasan was democratically elected by the constituents of Kota Siputeh during the general election in March 2008 with a majority of 495 and, therefore, he had a constitutional duty to carry out his duties, functions and responsibilities as an assemblyman.

"It is the democratic right of the people of Kota Siputeh to be represented by an assemblyman and the order of the Court of Appeal dated Nov 2, 2011, deprives them such a right, he said.

- Bernama