The Limitations of the Review Jurisdiction of the Federal Court By Tommy Thomas

The following is a comment on the law written and published by Tan Sri Tommy Thomas, the former Attorney General of Malaysia who initiated the legal prosecution of the 1MDB related cases - which has resulted in the first ever Court conviction and sentencing to jail and fines of a former prime minister of Malaysia. Certainly a landmark in the history of the country. 

This commentary pertains to the recent and final ruling by the Federal Court on an appeal that was decided upon relating to 1MDB. It is long and must be read carefully but it will be worth your while. I have some comments at the end.

The Limitations of the Review 

Jurisdiction of the Federal Court

Judges are expected to be impartial, independent, honest and competent in the discharge of their vital duties to society.  However, justice being administered by judges who are human, infallibility is not expected in any legal system.  Appeals to superior courts comprising more senior judges is society’s response to correcting mistakes of judges of first instance.  Thus, in Malaysia, appeals automatically proceed from the High Court to the Court of Appeal, and thereafter in civil matters by leave or permission of the Federal Court, and automatically in criminal matters to the Federal Court, our final and apex court.

No one claims that judges of the apex court, whether our Federal Court or the Supreme Courts of United Kingdom, Canada or India are infallible and perfect.  They too make mistakes.  But because of the importance of finality in litigation, in every society a balance is reached between achieving finality and ensuring that appeals exist to correct errors.  However, in every country there must be an apex court over which no superior court or judges can correct their errors. Such inability never detered the court system receiving the confidence of the Bar and the people.  Public confidence in the administration of justice was not diminished by applying strictly and unconditionally the doctrine of finality, as in the past.  A decision of the House of Lords (UK highest court until 2010) and our Federal Court was final, conclusive and binding on all.

That this represented the law of Malaya prior to Merdeka, and thereafter throughout the rest of the 20th century is demonstrated by the decision of the Supreme Court (the former name of our Federal Court) in Lye Thai Sang v. Faber Merlin Sdn Bhd [1986] 1 MLJ 166 when an unsuccessful litigant having lost before the Supreme Court, thereafter filed an application to review that judgment.  In delivering the judgment of the Supreme Court in dismissing the review application, Abdul Hamid C.J. Malaya declared:

“Where, therefore, a final decision has been delivered, an appeal is in effect heard and disposed of.  In other words, it is brought to a final conclusion.  And that being the case, the Supreme Court has no power to re-open, re-hear and re-examine its decision for whatever purpose.”

Hence, our great judges, Tun Suffian L.P., Raja Azlan Shah L.P. (as His Majesty was then known) and Justice Eusoffe Abdoolcader did not recognise a review jurisdiction of the apex court.  Likewise, practitioners in Malaya.  That too was the legal position in the United Kingdom, the home of the common law system, later exported to over 50 countries across the globe.

The position in India was markedly different.  The Constitution of India, the supreme law of that nation, as is our Constitution, expressly grants in Article 137 jurisdiction to the Supreme Court to review its judgments and orders.  It reads:

“Article 137: Review of Judgments or Orders by the Supreme Court 

Subject to the provisions of any law made by Parliament or any rules made under Article 145, the Supreme Court shall have power to review any judgment pronounced or made by it.”

Our laws do not have an equivalent to the Indian Article 137, which may explain why it has never been applied in our Courts.  Hence, that is not the legal basis of the review jurisdiction in Malaysia.

Although the word “landmark” is overused (primarily by lawyers when referring to their own cases) the decision of the House of Lords given on 15th January 1999 in R v. Bow Street Magistrate, Ex P. Pinochet (No. 2) was a landmark decision which had transformational consequences, not only in the United Kingdom, but globally.  In an earlier decision, another 5-member panel of the House of Lords had ruled that the Chilean dictator, General Augusto Pinochet could be extradited to Spain to face criminal charges arising from torture in Chile while he was Head of State.  One of the judges in the majority decision of 3-2, Lord Hoffman was discovered, after the decision was delivered, to have some links (as was his wife) with Amnesty International, which had intervened before the House of Lords, and had submitted through counsel against Pinochet.  A setting aside application was then filed by Pinochet in the House of Lords, which heard it before another panel of also 5 judges.  The Senior Law Lord, Lord Browne-Wilkinson decided on jurisdiction of the Court to hear the matter, observing:

“In principle it must be that your Lordships, as the ultimate court of appeal, have power to correct any injustice caused by an earlier order of this House.  There is no relevant statutory limitation on the jurisdiction of the House in the regard and therefore its inherent jurisdiction remains unfettered.

However, it should be made clear that the House will not reopen any appeal save in circumstances where, through no fault of a party, he or she has been subjected to an unfair procedure.  Where an order has been made by the House in a particular case there can be no question of that decision being varied or rescinded by a later order made in the same case just because it is thought that the first order is wrong.” 

Important decisions of the House of Lords are followed by Bench and Bar elsewhere in the common law held.  Taking inspiration from Pinochet (No. 2), and as the 21st century dawned, Malaysian practitioners quickly applied to the Federal Court in droves, inviting one Federal Court panel to review the decision of another.  Although the success rate of review applications in Malaysia can be counted on the fingers, it has not deterred the fused legal profession to advise their clients in too many appeals to have “another bite at the cherry”.  Thus, in the last 23 years we had hundreds of review applications, the vast majority of which were hopeless and doomed: they were promptly dismissed.

What must be kept in mind is the jurisdictional basis of the review jurisdiction in the United Kingdom and Malaysia.  Neither country has the equivalent of the Indian Article 137.  So there is no express law empowering review.  In such circumstances, the courts invariably rely on their inherent powers – judges, particularly of apex courts, do not wish to be powerless when grave injustices occur in a case before them.  In Malaysia, the inherent power is put in subsidiary legislation, that is, in the Rules of the Federal Court, 1995.  Rule 137 reads:

“Rule 137: Inherent Powers of the Court

“For the removal of doubt it is hereby declared that nothing in these Rules shall be deemed to limit or affect the inherent powers of the Court to hear any application or to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the Court.”

The SRC Case

It is against this background, that Najib Razak’s review applications in the SRC matter should be considered.  I declare my interest at the outset.  I was the Public Prosecutor who charged the former Prime Minister, not just in the SRC case but also in 4 other prosecutions.  I made the Opening Speech on behalf of the Prosecution at the SRC trial, which I attended from time to time until I resigned in late February 2020 when defence was presenting its case at trial.  Along with millions of Malaysians, I have closely followed the SRC case as it meandered through the different courts.  I write this as a private citizen and a member of the Bar, where I practise.

Being dissatisfied with the decision of the Federal Court in dismissing his appeals, and affirming his conviction and sentences, Najib filed 4 separate review applications with the Federal Court under Rule 137 in relation to the following matters:-

1. to adduce additional evidence with a view to disqualifying the trial judge, Justice Nazlan;

2. seeking an adjournment of the hearing of the appeals;

3. seeking to recuse Chief Justice Tengku Maimum from sitting in the panel to hear his appeals; and

4. the decision to convict and sentence him to imprisonment.

In legal terms, the first 3 review applications are doomed to fail because they are “interlocutory” in nature, where the discretion to decide is widely and broadly conferred on the court that first exercises it, the Federal Court, in this instance.  Thus, even appeals in these matters seldom succeed because of the extent and scope of the discretion given to the first decision-maker.  On a review application at the apex court, this is an insurmountable hurdle.

Accordingly, based on past precedents of the sparing and exceptionally few cases where review has succeeded before the Federal Court, the outcome was plain and obvious.  They had to be rejected.  That was the inevitable result of the majority of 4 judges, who have delivered their written grounds: itself, unusual.  In a typical review case which is dismissed, the Federal Court does not provide written reasons.  The Presiding Judge, Justice Abdul Rahman Sebli delivered a minority judgment in writing, focussing solely on the 2nd review application relating to the refusal of the Federal Court in granting the adjournment sought by Najib.  As to the other 3 review applications, the dissenter stated in Paragraph 5 of his grounds “I shall express no opinion on the other three motions”.  Apart from being unusual, it was unsatisfactory because it is unclear whether he had dismissed those 3 motions (in which case the court is unanimous on the 3 motions) or decided in their favour.  As a judge, he cannot remain neutral; he has to decide.

Adjournment

In Paragraph 41 of his judgment, Justice Rahman Sebli states:

“[41] It was submitted that if at all any blame is to be attributed to anyone, it should be to his lawyers and not the applicant. In my humble opinion that is a fair statement to make. There is no justification to make the applicant pay such a heavy price, as the price that he is paying now, for his lawyers' mistake.”

Likewise, in Paragraph 89:

“[89] But more importantly, it would be grossly unfair to make the applicant suffer the consequences of his lawyer's fault in accepting the brief knowing that he was only prepared to argue the motion to adduce additional evidence…..”.

Hence, even the dissent accepted that the lawyers appointed by the accused had committed mistakes with regard  to the adjournment point; where he departed from the majority was that Justice Rahman Sebli decided that such mistakes were not binding on the client.

It is critical to note that the hearing date for the SRC appeals was given by the Federal Court 4 months previously (April 2022) on dates acceptable to all counsel and the Court.  The hearing was for 10 successive days from 15th to 26th August.  Thus, Najib’s lawyers had 4 months to prepare for the hearing of his final appeal.  But what is most significant is the generous amount of time allotted to this hearing  ̶  10 days.  Time is a luxury in all apex courts (indeed, each counsel is only given 30 minutes in the US Supreme Court).  A typical criminal or civil appeal would be completed in 2 to 3 hours before the Federal Court:  this has been my experience since the early 1980’s.  For special cases which have voluminous documentation, the Federal Court accommodates requests from Counsel for longer hearing.  But even securing 2 or 3 days of hearing before the Federal Court is exceptional.  It is extremely rare to be given 10 hearing days.  What that means is that other appeals – equally deserving of determination – have to wait longer because so much precious judicial time is reserved for one appeal.  In this context, I wish to point out the strong words of 2 very experienced law lords in the House of Lords decision in Ashmore v. Lloyds [1992] 2 All ER 486 [HL]:

“The Court of Appeal appear to have taken the view that the Plaintiffs were entitled as of right to have their case tried to conclusion in such manner as they thought fit and if necessary after all the evidence on both sides had been adduced.  With great respect, like my noble and learned friend, I emphatically disagree.   In Commercial Court and indeed in any trial court it is the trial judge who has control of the proceedings.  It is part of his duty to identify the crucial issues and to see they are tried as expeditiously and as inexpensively as possible.  It is the duty of the advisers of the parties to assist the trial judge in carrying out his duty.  Litigants are not entitled to the uncontrolled use of a trial judge’s time.  Other litigants await their turn.  Litigants are only entitled to so much of the trial judge’s time as is necessary for the proper determination of the relevant issues.”

Lord Roskill

(At Page 488)

“The parties and particularly their legal advisers in any litigation are under a duty to co-operate with the court by chronological, brief and consistent pleadings which define the issues and leave the judge to draw his own conclusions about the merits when he hears the case.  It is the duty of counsel to assist the judge by simplification and concentration and not to advance a multitude of ingenious arguments in the hope that out of ten bad points the judge will be capable of fashioning a winner… “

“…I also said that the appellate court should be reluctant to entertain complaints about a judge who controls the conduct of proceedings and limits the time and scope of evidence and argument..”

“ ….the control of the proceedings rests with the judge and not with the plaintiffs.  An expectation that the trial would proceed to a conclusion upon the evidence to be adduced is not a legitimate expectation.  The legitimate expectation of any plaintiff is to receive justice.  Justice can only be achieved by assisting the judge and accepting his rulings.”

Lord Templeman

(At Page 493)

These principles, accepted by our courts, apply with greater force with regard to appeals.

Further, requests by Najib’s lawyers to postpone were rejected before the hearing commenced on 15th August 2022.  Although Justice Rahman Sebli had referred to a previous review decision of the Federal Court, viz, Halaman Perdana v. Tasik Bayangan [2014] 4 MLJ [FC] which stated in plain and simple terms that an adjournment decision cannot be the subject of review by the Federal Court, he did not follow it.

Perhaps the worst aspect of his dissent was the decision, unjustifiable in law, set out in Paragraph 115 of the grounds:

“….As for the consequential order to be made, the proper order in my view would be an order of acquittal and discharge for all the offences that the applicant was charged with.”

The only correct decision that would legally follow after he set aside the decision of the Federal Court that affirmed conviction and sentence, was to order a re-hearing of Najib’s appeals before the Federal Court.  What were on appeal before the Federal Court (the “res” in legal parlance) were the conviction and sentence decisions made by the Court of Appeal.  They are wholly unaffected by a process argument in the apex court under review.  The conviction and sentence imposed by the High Court, and upheld by the intermediate Court, the Court of Appeal remain in place.  But Najib’s appeal would have to be re-heard by another panel of the Federal Court if the minority decision is correct.  The fact that Justice Rahman Sebli did not so order is troubling.  The nature of the judicial process and the standing of our judges would be substantially diminished if a member of the apex court does not apply this elementary rule on relief.

Tommy Thomas
  5th April 2023 

My Comments:

Well even if something is written in stone, it can always be rewritten. Just get another stone tablet and a stone cutter and rewrite it again. 

But what we really do not need is an abuse of process or abuse of the system. Especially by clever beggars who know the ins and outs of how things work.

I was astounded at how easily the lawyers made a mockery of the Court process during those sodomy case (or cases). They got the trial delayed by about 60 times on even the flimsiest of excuses. One totally ridiculous excuse they offered the Court was "floods in Australia" which had delayed the departure of one of their expert witnesses. None of the Australian international airports were closed because of the floods which affected large areas of the outbacks. Yet the Court accepted the excuse and delayed the trial.

Then there are the obvious delay tactics. They begin by applying to impeach the prosecutor. This can delay the trial by days and weeks. 

After that, they can apply to impeach the judge, again on the flimsiest of excuses. More delays and postponements. 

Sadly the Court was "obliged" to entertain those obviously fake delay tactics. 

As I have mentioned before other countries have tightened up their Court processes to minimise such abuses. In Singapore they have a system of appellants having to deposit substantial sums of money when they appeal to the higher Courts. If they lose the appeal they also lose the money.

There must also be clearer rules (actually a list of cannot dos) for the Court to sniff out and put a quick stop to fake delay tactics. 

Perhaps the time has come where the defense lawyers should also be held liable for the misconduct of their clients. No doubt lawyers "take instructions" from their clients but without any doubt it is the lawyers who determine how they present their clients in the Courts. Hence phrases like loyar buruk.

If there has been abuse of the Court process, frivolous use of the Court's time etc perhaps the Court can suspend the lawyer from practising for a period of time.  Nothing fatal, maybe a MANDATORY suspension of say six months to a year. 

Man does not fear god. But man does fear his fellow man. We should exploit this fear for the better conduct of cases in our Courts.

We are still a new country. We are still on the learning curve. We have to tighten things as we go along. 

The views expressed are those of the writer and do not necessarily reflect those of MMKtT.