Friday 29 Mar 2024
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PUTRAJAYA (Dec 1): Despite questions surrounding the validity of judgments made by former chief justice (CJ) Tun Md Raus Sharif and former Court of Appeal president Tan Sri Zulkefli Ahmad Makinudin after their appointments were challenged, the apex court ruled that they should stand, to maintain the court's integrity.

This was decided by the Federal Court yesterday by current CJ Tun Tengku Maimun Tuan Mat, who led a five-member bench to review seven cases under Rule 137 of the Rules of Federal Court, where each of them tried to overturn the decisions made in the coram consisting of the two judges, following questions surrounding the validity of their appointments and extension of tenure.

Justice Tengku Maimun cited in her 46-page judgment the need to abide by what she called “the de facto doctrine”.

“The de facto doctrine exists to preserve the integrity of judicial decisions for at least one of two reasons. Firstly, it insulates the de facto judge’s decision from collateral attack. Otherwise, unsuccessful private litigants will reserve the point as ammunition to attack the judge’s lack of authority as a ground to re-litigate their case or to have the outcome changed for the reason that the judge who heard their case was no judge at all," she wrote.

If this was allowed, the CJ warned, the prestige and integrity of justice and the justice system would be put into jeopardy and disrepute.

“Secondly, even if a judge’s appointment is set aside de jure, meaning that his appointment is directly and successfully assailed in proceedings against him be it in quo warranto or other proceedings, all decisions made by him either judicially or administratively are saved — not so much to save the integrity of that judge per se, but to save the integrity of the judgment of the court,” she ruled.

She added that the de facto doctrine should not only apply to lower rank judicial members that are magistrates or Sessions Court judges, but also to senior judges who are appointed according to the Federal Constitution.

“With respect, we do not agree (with the submissions made by the seven applicants). It is our view that the de facto doctrine (the rule and its exceptions) applies equally to constitutional appointments,” she said.

Md Raus and Zulkefli were supposed to have retired once they reached the age of 66 years and six months, as stipulated in the Constitution, but their tenure was extended during the Barisan Nasional government's time under then premier Datuk Seri Najib Razak, owing to their appointment as additional judges to the Federal Court.

The applicants — who among others included Yakin Tenggara Sdn Bhd, Datuk Lim Sue Beng, Tan Boon Lee and MH370 claimants Tan Wei Hong, Tan Wei Jie, Tan Hun Khong, Lai Chew Lai, Chuan Hung Chien — have tried to have the decisions against them reviewed due to coram failure.

Review motions dismissed to avoid 'chaos and confusion'

Justice Tengku Maimun said the five-member bench opined that the applicants are not entitled to collaterally challenge the validity of Md Raus and Zulkefli's appointment as judges through these review motions.

“In any case, even if they were successful in that challenge, the decisions of the two judges will continue to stand by virtue of the de facto doctrine. It therefore follows that the common point in all the review motions fails,” she said when dismissing the motion by the seven applicants.

The top judge said the bench disagreed with arguments by the counsels for the applicants that the doctrine should be confined to subordinate officers and judicial arbiters.

“The danger the de facto doctrine seeks to avoid is the chaos and confusion that may be occasioned in the event the appointment of a decision-maker is found to be invalid and the stain that it might leave on the administration of justice,” Justice Tengku Maimun said.

While the judgments of magistrates and Sessions Court judges are subject to appeal or review, the decisions made by Superior Court judges, especially those at the Court of Appeal and Federal Court, are weightier, said the CJ.

“In addition, administrative decisions of the CJ or president of the Court of Appeal such as recommendations on the appointments and elevation of judges or their discretions to empanel the Federal Court or the Court of Appeal, respectively carry significant ramifications.  

“If the decisions of a Superior Court judge are not preserved by the de facto doctrine, the entire justice system might crumble to dust if such appointments are later deemed invalid,” she warned further.

For the reasons cited, Justice Tengku Maimun dismissed all seven review applications alleging coram failure as without merit.

“The appointments of the two judges and their decisions are both saved by the de facto doctrine. Further, upon our interpretation of the Courts of Judicature Act 1964, and our consideration of decided cases, it is our view that the specific points alleging coram failure, breach of natural justice, or general injustice in the respective sets of motions, are also without merit.”

The CJ sat with Justices Puan Sri Zabariah Yusof, Datuk Seri Hasnah Mohammed Hashim, Datuk Harmindar Singh Dhaliwal and Datuk Rhodzariah Bujang.

Edited ByLam Jian Wyn
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