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PUTRAJAYA: The Federal Court has held that the decisions of a former president of the Supreme Court and president of the Court of Appeals, who took office after his mandatory retirement age, were saved by the “de facto doctrine”.
Chief Justice Tengku Maimun Tuan Mat said that it was also the court’s opinion that specific points alleging faults of coram, violation of natural justice or general injustice had no merit after interpreting the Law of Judicial Courts and having considered decided cases.
Tengku Maimun had headed a five-member bench in August consisting of Zabariah Yusof, Hasnah Mohammed Hashim, Harmindar Singh Dhaliwal and Rhodzariah Bujang to deliberate on grievances’ motions for review of seven aggrieved parties in civil cases.
“It follows that the seven motions for review are unanimously dismissed with the costs,” said Tengku Maimun, who delivered the 46-page sentence yesterday.
All seven wanted the adverse decisions made in their cases overturned and the appeals heard again.
One of the parties was the relatives of the victims of flight MH370 bound for Beijing that disappeared in 2014.
The then Chief Justice Md Raus Sharif, in November 2017, who headed a five-member bank, dismissed the appeal of five dependents to include Malaysia Airlines Bhd and the Royal Malaysian Air Force as parties to his lawsuit.
The verdict of the supreme court is expected to finally put an end to the validity of the sentences and decisions of Raus and Zulkefli Ahmad Makinudin, then second in the judicial ladder.
The main complaint of the aggrieved parties was that the advice of Raus’s predecessor, Arifin Zakaria, to the Yang di-Pertuan Agong to appoint the two additional Federal Court judges was invalid because that advice can only be given by a president of the court. in functions. It will enter into force during his term.
In addition, the seven complained that the two judges had not been able to hold their positions in an adequate interpretation of article 122 (1A) of the Federal Constitution.
It was also argued that Raus had no right to recruit the Federal Court panels that heard the appeals and take a seat in these cases.
Both were appointed President of the Supreme Court and President of the Court of Appeals on April 1, 2017 and were supposed to retire on August 3, 2017 and September 27, 2017, respectively, upon reaching the mandatory retirement age of 66 years plus six months.
The then-government of Barisan Nasional announced on July 7, 2017 that Raus would remain in office for another three years from August 4, while Zulkefli would remain in office for another two years from September 28.
However, both resigned their positions after the Pakatan Harapan government assumed power following the general elections on May 9, 2018.
Tengku Maimun said the court judicially recognized and applied the de facto doctrine as decided in the 2006 Federal Court decision in the All Malayan Estates Staff Union v. Rajasegaran & Ors.
He said the doctrine existed to preserve the integrity of court decisions for at least two reasons.
“First, it isolates the de facto judge’s decision from collateral attack. Otherwise, failed private litigants will reserve the point as ammunition to attack the judge’s lack of authority as a reason to re-litigate their case, ”he said.
To do so, he said, would jeopardize and discredit the prestige and integrity of the justice system and the judicial system.
Second, he said, even if the appointment of a judge is annulled de jure, all decisions made by the judge, whether judicially or administratively, must be kept.
“In our opinion, the de facto doctrine (the rule and its exceptions) applies equally to constitutional appointments,” he said.
Tengku Maimun said the doctrine seeks to avoid the chaos and confusion that can arise in the event that the appointment of a decision-maker is found to be invalid and the stain it could leave on the administration of justice.
“If the decisions of a higher court judge are not upheld with de facto doctrine, the entire justice system could fall apart if those appointments are later deemed invalid appointments,” he added.
