Federal Confusion

Access to justice is a fundamental human right. There should be no doubt whether one is procedurally entitled to file a case or not because lawyers and litigants rely on judicial precedent to guide their conduct in litigation.

Rule 137 of the Rules of the Federal Court states as follows:

For the removal of doubts, it is hereby declared that nothing in these Rules shall be deemed to limit or affect the inherent powers of the Court to hear any application or to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the Court.

The Federal Court in a series of inconsistent decisions have caused much confusion as to whether Rule 137 allows a review of its previous decisions.

In the most recent (Jan 18, 2012) reported case Simpang Empat, the Court held that Rule 137 could be invoked. On the Bench were Sharif, Maarop and Lah FCJJ.

On Jan 26, 2012, V. Anbalagan of the NST reported that in Panflex, the Court held not:

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.

On the Bench were Ghazali, Hashim Yusoff and Maarop FCJJ.

With regard to using Rule 137 to review previous Court of Appeal decisions, a similar pattern has now arisen.

It was thought settled that litigants could not rely on Rule 137 to review Court of Appeal decisions: see Sia Cheng Soon (2008) not following Eric Chia.

On Nov 14, 2011, this position changed. The Federal Court in the Kota Siputeh case reinstatedEric Chia and held that Rule 137 may be used. On the Bench were Makinudin, Hashim Yusoff and Maarop FCJJ.

Reading Panflex and Kota Siputeh together as being the latest Federal Court pronouncements on the issue, the net result is that Rule 137 may be invoked to review previous Court of Appeal decisions but not previous Federal Court decisions.

Criminal Lawyers: Unscrupulous or Champion of Justice?

There is a common negative perception of criminal defence lawyers. This perception stems from the simple fact that defence lawyers often work for some of the most evil and horrid people imaginable. How, one is inclined to ask, can anyone with some moral scruples justify this?

To understand what would motivate a man of morals to defend the lowest scum of society, it is important to be aware of one basic presumption — the presumption that all accused are innocent until proven guilty.

After all, many a case has ended in the acquittal of a suspect who everyone had thought was guilty, until some new evidence came to light. On more than one occasion, years after a trial, DNA evidence has overturned the conviction.

Clearly, then, it is more than money that could motivate a lawyer to defend the accused criminal. After all, it is in the interest of justice that there is a fair trial — justice must not only be done, but be seen to be done, in the words of one famous English jurist.

Beyond that, it is important to note the complexity of the law. I am not a student of criminal law, although when studying the English legal system, I was particularly fond of answering questions on the English Police and Criminal Evidence Act 1984. Nevertheless, the civil law is incredibly complicated, with an immense maze of rules and nuanced precedents that can take years to even partially unravel.

The same applies for criminal law. Any advanced society needs to be able to handle a wide variety of situations and circumstances. In the days of cavemen, doling out justice would have been simplicity itself — and yet, even then, I am sure that on more than one occasion, complex cases with grey areas would arise.

In a modern society, we are forced to confront cases, both criminal and civil, that can be mindboggling in their complexity. A decision that would be suitable for one circumstance may not do justice in another circumstance. To address this problem, judges distinguish and create new precedents.

This growing array of laws presents a problem for the layman, and that is where lawyers come in. Defence lawyers exist to preserve justice through a simple economic concept — competition.

If the prosecution did not have to argue with a fellow lawyer, but contend instead with the layman (be he guilty or not), it would have a field day. The constant walkovers would make the prosecution complacent, and before long, they would be doing a shoddy job of handling trials.

Judges too would tire of constantly facing the same walkovers, and after a while become conditioned to be naturally predisposed against the accused, or just as bad, begin to take trials less seriously than they ought to be. It is quite likely that if criminal lawyers only defended clients that they truly believed to be innocent, travesties of justice would begin to be committed in much larger numbers than they are at the present.

The purpose of defence lawyers was summed up beautifully by one counsel, famous for his practice of defending some of the most malevolent men to be tried in a court of law. This man said that the purpose of a lawyer is not to act as an independent agent defending the accused, but to act as a legal mouthpiece — to say what the accused would have said, had he legal training.

It is of course true that many lawyers are unscrupulous people. Certainly, some have less than fine motives for defending their clients. But it is impossible to deny that they serve a purpose in our society, and that this purpose has been, to date, much underrated.

Source: http://www.infernalramblings.com/articles/Law/155/