SHOULD the Federal Court rule the appointments of the country’s top two judges to be unconstitutional, it may lead to a slew of applications to review the cases they had presided over, said lawyers. 

Chief Justice Raus Sharif and Court of Appeal president Zulkefli Ahmad Makinudin are slated to step down on July 31. Both have tendered their resignation to the King on June 7.

However, there remains a pending case filed by the Malaysian Bar and the Advocates’ Association of Sarawak to challenge the appointments of the two judges on grounds they were unconstitutional.

Should the seven-man bench at the apex court decide in the lawyers’ favour, the litigants in cases over which the two judges had presided over have the option of having the cases reviewed.

This process of review can be done by invoking the inherent powers of the Federal Court to correct injustices under Rule 137 of the Rules of the Federal Court 1995. 

“The threshold for review is very high,” said constitutional lawyer Lim Wei Jiet. 

“But one of the categories of cases where a review is permitted is where the court making the decision is not properly constituted, is illegal or is lacking jurisdiction.” 

Arguably, any court panel including Raus or Zulkefli during such an unconstitutional tenure would be regarded as being not properly constituted, illegal or lacking jurisdiction.

“If there is no prospective overruling, then those cases are not automatically reheard. Litigants have to go through the (normal) process of review,” Lim said. 

Legal morass

Apex court cases are typically heard before five-men benches, or other odd-numbered panels to prevent hung rulings. 

“If either of them constituted the minority (in presiding over a case), the decision could still be saved,” said constitutional law expert Gurdial Singh Nijar.

As a matter of principle, a court judgment is retrospective in effect unless a specific direction of prospectivity is expressed. 

To avoid the floodgates of review applications, which could number in the hundreds, the Federal Court deciding on the legality of the appointments can apply the principle of “prospective overruling”.

This means the decision would not have a retrospective effect on previously decided cases, but is only prospective in nature.

“Generally, constitutional cases can reach and have retrospective effect,” said Gurdial, a former law lecturer at Universiti Malaya.

“Alternatively, the ruling on unconstitutionality could be made to only have an effect on future cases. This was done in the Semenyih Jaya Federal Court decision. 

“If such a ruling is made, then all past decisions are saved. Hence the need for a Semenyih Jaya type ruling,” he added.

On April 20, 2017, the Federal Court in Semenyih Jaya Sdn Bhd v. Pentadbir Tanah Daerah Hulu Langat reaffirmed the doctrine of separation of powers and judicial independence.

That ruling was made by a five-judge panel led by Zulkelfi.

The apex court held that the judicial power of the federation was vested with the judiciary, despite the amendment to Article 121(1) following the constitutional crisis in 1988. 

In this case, the court had declared Section 40D of the Land Acquisition Act 1960 to be unconstitutional, but decided its ruling should only have “prospective effect”. 

The panel then applied the doctrine of prospective overruling so as not to give retrospective effect to the declaration, saying it would mitigate “disruptive and seemingly unfair consequences.”

That level of legal morass might never be reached, said criminal lawyer Americk Singh Sidhu, who said the lawyers’ groups might just withdraw their suit before a decision was reached. 

“As both have resigned, the question is now academic. We may never know if the appointments were unconstitutional,” he said.  

“I guess this is why they handed in their resignations instead of waiting for the outcome of the suit.”

Raus and Zulkefli were appointed as additional judges in July last year and remained in their positions past the mandatory retirement age of 66 years and six months. 

Raus was appointed chief justice on April 1 last year and Zulkefli the Court of Appeal president days later on April 4. Their names were recommended by the Prime Minister’s Office of Najib Razak.

Amanah and Dr Mahathir Mohamad have also challenged the constitutionality of the judges’ appointments. Their cases have been set aside pending the deferred decision of the Federal Court. – June 22, 2018.