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No review of federal court rulings

Thursday, 26 January 2012 10:01am

©The New Straits Times (Used by permission)
By V. ANBALAGAN

The apex court says it cannot review its own judgments

A FEDERAL Court bench has ruled that it is unconstitutional and illegal to review an earlier judgment of the apex court.

Federal Court judge Tan Sri Mohd Ghazali Mohd Yusoff said the Constitution and the Courts of Judicature Act (Coja) 1964 did not provide the apex court the jurisdiction to review such substantive matters.

"This court cannot sit as a court of appeal," Ghazali said in his judgment, which dismissed a review application by Panflex Sdn Bhd over a breach of contract case decided last year.

He said paving the way for a appeal would open the floodgates and cause further uncertainty in the law.

"It would be intolerable and most prejudicial to the public if cases, once decided by the Federal Court, could be reopened and reheard."

The judgment was made available on Jan 16.

Judges Datuk Hashim Yusof and Datuk Ahmad Maarop were the other members who reached the unanimous decision.

Ghazali said the Rules Committee, which enacted Rule 137 of the Federal Court Rules, could not confer jurisdiction to the Federal Court to review its own ruling.

The panel also indicated that only a constitutional amendment could confer authority to the Federal Court to reopen a matter already decided.

Ghazali, who retires tomorrow, said the apex court was the "court of last resort" after the right to appeal to the Privy Council was abolished.

He said unlike India, the Malaysian Constitution did not empower the Federal Court to review its own decision.

Ghazali said the Constitution only allowed the Federal Court to hear matters by way of reference from a High Court, by the Yang di-Pertuan Agong for a legal opinion or by federal law.

He said Coja was a federal law and the Federal Court was only empowered to hear leave to appeal applications and civil appeals.

There have been conflicting decisions by several Federal Court benches whether Rule 137 could be relied upon to rectify an injustice or abuse of the court process.

Malaysian Bar president Lim Chee Wee said Ghazali's judgment was inconsistent with previous Federal Court decisions.

He said in at least two judgments, the apex court, among others, had held that in order to succeed under Rule 137, the applicant must show that there was injustice.

"A court of final instance must be equipped with residual jurisdiction to rehear its own earlier decision in a fit and proper case, but it must be done in exceptional cases."

Lim said the uncertainty caused must be resolved by another enlarged Federal Court bench.

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