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22 December 2020
In Yong Tshu Khin v Dahan Cipta Sdn Bhd & Other Appeals,(1) seven motions were filed contesting the validity of the appointment of two judges and challenging their respective decisions.
Pursuant to Rule 137 of the Rules of the Federal Court 1995, the seven motions were filed in the apex court, requesting it to invoke its inherent power to review its decisions delivered in seven separate lawsuits. Interestingly, a common question arose from these motions premised on coram failure and further questions that were peculiar to the circumstances of each case. While the apex court dismissed all of the motions, its unanimous decision on coram failure is significant for ongoing and future cases.
The basis of coram failure was twofold. First, the failure stemmed from the appointments of former Chief Justice Tun Md Raus bin Sharif, and President of the Court of Appeal Tan Sri Zulkefli bin Ahmad Makinudin, as additional judges of the apex court by His Majesty the Yang di-Pertuan Agong on the advice of former Chief Justice Tun Arifin Zakaria, who was an outgoing judge. The parties contended that such advice may be given only by a sitting chief justice and must take effect during their tenure. Second, the two judges could not have occupied the position of additional judges of the apex court by virtue of their respective positions as chief justice and president of the Court of Appeal upon the proper interpretation of Article 122(1A) of the Federal Constitution.
Article 122 (1A) of the Federal Constitution reads as follows:
Notwithstanding anything in this Constitution contained, the Yang di-Pertuan Agong acting on the advice of the Chief Justice of the Federal Court may appoint for such purposes or for such period of time as he may specify any person who has held high judicial office in Malaysia to be an additional judge of the Federal Court:
Provided that no such additional judge shall be ineligible to hold office by reason of having attained the age of sixty-six years.
Accordingly, the applicants argued that neither judge was entitled to sit in these cases that were brought before the apex court.
This argument was rebutted on two grounds:
However, the applicants opined that the de facto doctrine does not apply to constitutional appointments. To answer the common question in the seven motions, the apex court had to consider the application of the de facto doctrine to constitutional appointments.
The de facto doctrine is a trite legal principle which can be traced back to 1431.(2) The doctrine was born out of public policy and the necessity for finality in litigation and therefore protects public interests. The Malaysian court accepted the doctrine in All Malayan Estates Staff Union v Rajasegaran.(3) The de facto doctrine preserves the integrity of judicial decisions by protecting the decisions made by a de facto judge from collateral attacks and saves the integrity of court judgments if a judicial appointment is later found to be invalid. Two conditions must be fulfilled for the de facto doctrine to apply – namely:
Both judges were appointed to office pursuant to the Federal Constitution – it was the propriety of the appointment which was contested. Further, the judges did not seek refuge under the de facto doctrine for their own protection. Therefore, the de facto doctrine applied. The doctrine also prohibits the challenge of a judge's appointment in collateral proceedings, even though such defective appointments may be questioned in a proceeding to which the judge is a party.
In responding to the contention that the application of the de facto doctrine is limited to the appointment of subordinate officers and judicial arbiters, in a unanimous ruling, the apex court ruled that the de facto doctrine also applies to constitutional appointments. Citing the Indian Supreme Court case Gokaraju Rangaraju v State of Andhra Pradesh and Section 33C(b) of the Eleventh Schedule of the Federal Constitution read together with Article 161(1) of the Federal Constitution, the apex court stated that the de facto doctrine has always existed in Malaysian common law – the constitutional and statutory provisions are merely declarative.
The apex court reasoned that judicial decisions of superior courts, particularly the appellate courts, are weightier. Further, administrative decisions by the chief justice and the president of the Court of Appeal, such as recommending appointments and the elevation of judges or exercising discretion to empanel the appellate courts, carry significant ramifications. Hence, the justice system might crumble if superior-court judges' decisions are not protected by the de facto doctrine if their appointments are later deemed invalid.
In dismissing the motions, with respect to the common question raised therein, the apex court held that the applicants could not challenge the validity of the appointments of both judges through review motions. If the appointments are later found invalid by the courts in separate proceedings against the de facto judge, the decisions of both judges will remain valid under the de facto doctrine.
The apex court's ruling clears the air for ongoing and future actions in which a similar question arises. This decision will also save judicial sitting time and litigants' resources, as it clarifies that a judgment passed by a properly constituted court is final and valid. The finality of judgments is crucial for litigants to finally rest their case, and the sanctity of the judicial system must be upheld in all circumstances.
For further information on this topic please contact Gan Khong Aik or Yuen Wah Foo at Gan Partnership by telephone (+603 7931 7060) or email (firstname.lastname@example.org or email@example.com). The Gan Partnership website can be accessed at www.ganlaw.my.
(3) All Malayan Estates Staff Union v Rajasegaran  6 MLJ 97, which accepted Gokaraju Rangaraju v State of Andhra Pradesh (1981) 3 SCC 132; Milward v Thatcher (1787) 100 ER 45; Fawdry & Co v Murfitt  4 All ER 60; Norton v Shelby County (1886) 118 US 425; and Re James (an insolvent)  1 All ER 364.
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