YOURSAY | There must be finality in Federal Court decisions

 

YOURSAY | 'Otherwise, there will be no end to litigation'.

‘Najib can try 2nd SRC review’ - lawyers

Apanama is back: There was a good case regarding review in Federal Court. The learned judges explained it eloquently.

Under Rule 137 of the Rules of the Federal Court, the Federal Court has the inherent power to review its own decision, but this is exercised only in rare and exceptional circumstances.

Abdul Hamid CJ in Asean Security Paper Mills Sdn Bhd v Mitsui Sumitomo Insurance (Malaysia) Bhd [2008] 2 MLRA 80 in his usual eloquent manner explained the invocation of the rule:

"In an application for a review by this court of its own decision, the court must be satisfied that it is a case that falls within the limited grounds and very exceptional circumstance in which a review may be made.

"Only if it does, that the court reviews its own earlier judgment. Under no circumstances should the court position itself as if it were hearing an appeal and deciding the case as such.

"In other words, it is not for the court to consider whether this court had or had not made a correct decision on the facts. That is a matter of opinion.

"Even on the issue of law, it is not for this court to determine whether this court had earlier, in the same case, interpreted or applied the law correctly or not. That too is a matter of opinion.

"An occasion that I can think of where this court may review its judgment in the same case on the question of law is where the court had applied a statutory provision that has been repealed.

"I do not think that review power should be exercised even where the earlier panel had followed certain judgments and not the others or had overlooked the others. Not even where the earlier panel had disagreed with the court's earlier judgments.

"If a party is dissatisfied with a judgment of this court that does not follow the court's own earlier judgments, the matter may be taken up in another appeal in a similar case. That is what is usually called ‘revisiting’.

"Certainly, it should not be taken up in the same case by way of a review. That had been the practice of this court all these years and it should remain so.

"Otherwise, there will be no end to litigation. A review may lead to another review and a further review. This court has so many times warned against such attempts.

" A review may lead to another review and a further review. This court has so many times warned against such attempts."

So Najib's second review could be rejected with a warning.

In the same case, it was also mentioned by Abdul Hamid Mohamad CJ and Zaki Tun Azmi PCA:

Review jurisdiction should never be allowed to be used to question a finding of this court in an appeal on the question of facts.

In the instant application, the applicant was simply asking this court to exercise its review jurisdiction to set aside the decision of this court overturning the finding of facts made by the Court of Appeal and reinstating the decision of the trial judge on the facts.

That was clearly outside the jurisdiction of this court. To allow the application was to invite all the vices that this court had been repeatedly warning against, that is, there would be no finality in its judgment and it would encourage judge-shopping.

Examining the facts adduced by both parties at the trial, the arguments at the Court of Appeal and this court, it was not possible to say that there had been a manifest error committed by this court when it decided to restore the decision of the High Court.

It was not right for this court to say whether it was the High Court or the Court of Appeal or the Federal Court that was right or wrong.

According to this country's system, it must be held that the Federal Court was right in arriving at its decision. There must be finality. There was no assurance that even if leave were given to review that decision of the Federal Court, the losing party would not claim injustice and seek another review.

Where does it end? This court was not satisfied that there was any probability of the Federal Court's judgment being wrong and that injustice had or would occur to the applicant/respondent.

Therefore, this was not a fit and proper case for this court to exercise its inherent jurisdiction to make an order for the case to be reviewed.

"There must be finality. Where does it end?" It a common sense.

Oct: All 1MDB cases around the world had been dealt with and concluded efficiently and swiftly without any appeal or review.

In Malaysia, former premier Najib Abdul Razak's case had gone through so many courts and reviews that took years to complete. Najib is taxing and testing the judicial system and the government to the fullest.

After all these judgments his lawyers still say that Najib did not get a fair trial. In addition, it was political persecution.

Every 1MDB case overseas had pointed out that M01 (Najib) is the main culprit and mastermind behind it. There won't be any 1MDB cases without his permission, authority and oversight.

The amount of money pilfered by him is in billions of ringgit.

IndigoTuscan1627: Review of a review. As though our judicial system has not been mocked enough.

The case has already taken a great number of years to settle with the various courts bending over backwards to accommodate the idiosyncrasies of the defendant who, from the onset has been seeking to drag the court processes for as long as possible, in the hope a change of government will help his case.

Postponements have been requested and granted for the flimsiest of reasons like the defendant's lawyer being bitten by his dog, to allow the defendant to attend Parliament, and to visit his daughter in Singapore, among others.

Surely there must be an end to this saga. Time to move on. - Mkini