Judges Can Fly – in the face of Rule 137 of the Federal Court Rules! (Part 1)

A thorough and critical consideration of the Federal Court’s inconsistent and dishonest approach to Rule 137 of the Rules of the Federal Court 1995 in 2 parts. This part considers the recent Federal Court decision dismissing Dato’ Seri Anwar Ibrahim’s application to review a previous Federal Court decision dismissing his application for disclosure of documents for his second sodomy trial.

(Comments will be allowed once the second part is published.)

Devastating and shocking news.

The headline of the online news portal Malaysiakini declared:

Anwar fails to get Federal Court to review its decision

Feb 25, 2010

The Federal Court has today decided not to review its Jan 29 decision barring Anwar Ibrahim from gaining more key evidence such as CCTV footage, medical reports, and witness statements from the prosecutors.

The three-member panel led by justice Zulkefli Ahmad Makinuddin made the unanimous decision that it has dismissed Anwar’s application for review.

“This is not a suitable case for review by another panel of the court. We should not relitigate[sic] the matter of one that has been decided,” said Zulkefli.

The other two Federal Court judges are Mohd Ghazali Mohd Yusoff and Heliliah Mohd Yusof. A review at the Federal Court is not an automatic right as an applicant has to satisfy that “there was an error in law” for the court to agree to a review, which is extremely rare.

Today’s decision may effectively deny the Federal Court the powers to review its own decision.

“Rule 137 (of the Rules of the Federal Court) does not confer jurisdiction on the Federal Court to review its own decision,” said the judges of the Federal Court.

The Star, Friday 26 February 2010 carried this headline:

Anwar’s bid for more evidence ends

Federal Court rules it has no power to review earlier decision
By Lisa Goh

KUALA LUMPUR: The Federal Court has ruled that it does not have the jurisdiction to review its Jan 29 decision denying Opposition Leader Datuk Seri Anwar Ibrahim access to documents he is seeking for his defence in his sodomy trial.

In a unanimous decision, Federal Court judges Justices Zulkefli Ahmad Makinudin, Mohd Ghazali Mohd Yusoff and Heliliah Mohd Yusof said: “Rule 137 (of the Rules of the Federal Court) does not confer jurisdiction on the Federal Court to review its own decision.”

“Even assuming that there is a limited inherent power, the applicant has failed to come within the limited exceptions that have been distilled from earlier decisions of the Federal Court,” said Justice Zulkefli in delivering the oral judgment yesterday.

Justice Zulkefli added that the issues raised by Anwar in the motion for review had been “duly considered and dealt with in the judgment of the Federal Court in this instant case.”

There must be finality. To re-litigate a case which has been heard and finally disposed of is not one of the circumstances as envisaged by Rule 137 of the Federal court,” he said.

The judges of the Federal Court fly in the face of Rule 137

Why not? Why can’t the earlier decision of the same Federal Court be reviewed?

Rule 137 of the Rules allows it. This is what it says:

137. 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.

Aren’t the words, “Nothing in these rules shall be deemed to limit or affect the inherent powers of the Court … to prevent injustice or to prevent an abuse of the process of the Court” in Rule 137 clear enough? Those words clearly allow the Federal Court to review its own decision so as “to prevent injustice or to prevent an abuse of the process of the Court.”

We, the ordinary citizens of this country, are stunned by the ignorance of our judges of the highest court in the land for saying “Rule 137 (of the Rules of the Federal Court) does not confer jurisdiction on the Federal Court to review its own decisions.”

What utter nonsense are those ignoramuses talking about? These inane judges cannot even understand plain English when even a child can understand the plain meaning of these ordinary words. Now you can appreciate what I have been saying all the time that the ordinary people are better qualified than most of our judges when it comes to understanding the law. Since the common people are smarter than those judges, they can judge them. They would not be wrong if they think the judges are incompetent.

These three judges also say, “There must be finality. To re-litigate a case which has been heard and finally disposed of is not one of the circumstances as envisaged by Rule 137.” No one is asking for the case to be re-litigated. All that the aggrieved party, in this case Anwar Ibrahim, was asking is for the earlier judgment of the Federal Court declared null and void because it was an unjust decision. Unequivocally, the Federal Court has the inherent power to prevent an injustice whenever it had been occasioned by an earlier decision of the same court. This is clearly defined in Rule 137 where it says “Nothing in these rules shall be deemed to limit or affect the inherent powers of the Court … to prevent injustice.”

As if this atrocity is not enough, there is yet another horror to come out of those three judges. Only an incompetent lawyer or judge could say something as silly as this, “Even assuming that there is a limited inherent power, the applicant has failed to come within the limited exceptions that have been distilled from earlier decisions of the Federal Court,” said Federal Court Judge Zulkefli Ahmad Makinuddin.

But what “limited exceptions” can there be? The inherent powers of the court to prevent injustice or an abuse of the process of the court have no limitations nor are they affected by exceptions. The words in Rule 137 are so precise and clear that even a child could understand them. The Rule says that nothing is to limit or affect “the inherent powers of the [Federal] Court … to make any order as may be necessary to prevent injustice.”

Yet those three incompetent judges – perhaps they were clowns as their statements were laughable – still insist that the applicant, namely, Anwar Ibrahim, has failed to come within “the limited exceptions” when nowhere in Rule 137 are such preconditions imposed. The Rule allows for review by the Federal Court of its own decision if Anwar Ibrahim, the aggrieved party, can show that the earlier decision of the Federal Court was unjustly made against him.

The errant judges fail to understand that it is not the duty nor function of a judge to administer injustice.

A wrong decision based on an error of law is not the same as an unjust decision. Anwar Ibrahim is applying for a review because the decision of the Federal Court is unjust and not because it is wrong in law.

If you have been following the 5 Part LoyarBurok Interview of me, (it is also reproduced in the MalaysianInsider) you will find at the end of the interview, this statement where I said:

DOING JUSTICE is the only duty of a judge. INJUSTICE IS NEVER HIS DUTY. It is never the function of a judge to be unjust.

But then how do the judges know what is the right thing to do? This is how I answered the question in How to Judge the Judges, 2nd edition, pp 102, 103:

There are no two ways about this. When it comes to choosing between right and wrong; between justice and injustice, there is only one choice or nothing at all. To all right thinking people, lawyers and judges alike, right or wrong matters, justice or injustice does matter. … This is about doing justice according to law where there can be no place for injustice. Injustice is not an option here because the judges and the lawyers are all responsible to the community at large. They must seek to do their part “to see that the principles of the law are consonant with justice.” They must not fail in their endeavour to do justice for failure will forfeit the confidence of the people. As said by Lord Denning, “The law will fall into disrepute; and if that happens the stability of the country will be shaken.” To quote Professor Faruqi, we need “to advance justice and maintain its stability”. For “no one can calculate the aggregate amount of evil inflicted on the community” by a bad decision: John Lord Campbell, Lives of the Lord Chancellors (5th edn, 1868), Vol 2, p 381; Vol 4, p 254: Pannick’s Judges, p 63.

When it comes to truth and justice, there is never to be any choice at all because falsehood and injustice must never be the alternative. It has to be Hobson’s choice. So that for those who do not know right from wrong; who do not know justice from injustice, such lowly individuals should never be allowed to sit on the seat of Justice. They should never be allowed to be judges at all. And yet there are so many of them in the judiciary today ever since the rot begun.

I think I have said enough to prove my point.

If our judges say that there are “exceptions that have been distilled from earlier decisions of the Federal Court”, then they and those other judges of the Federal Court who have held that there are such exceptions are unfit to sit on the seat of Justice as judges. They are unfit to be judges because they do not know the difference between right and wrong; between justice and injustice and between truth and falsehood. Our country does not need impostors, who pose as judges, to deceive the common people any longer. The common citizenry can now uncover the impostors hiding beneath the mantle of the judicature.

The two misguided judgments on the “exceptions that have been distilled from earlier decisions of the Federal Court” on Rule 137

Having said that, I can now proceed to identify the errant “earlier decisions of the Federal Court” on Rule 137. There are two.


LoyarBurok Editorial Note: Part 2 of this article will appear tomorrow.

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NH Chan, a much respected former Court of Appeal Judge, is a gavel of justice that has no hesitation in pounding on Federal Court judges with wooden desks for heads. Retired from the Judiciary to become the People’s Judge. Wrote the explosive “Judging The Judges”, now in its 2nd edition as “How To Judge The Judges”. Once famously hinted at a possible “case match” between lawyer and judge by remarking that “something is rotten in the state of Denmark” (see Ayer Molek Rubber Company Berhad & Ors v Insas Berhad & Anor [1995] 3 CLJ 359). We need more people like NH Chan. That is why you should buy PASOC and his book.

Posted on 8 March 2010. You can follow any responses to this entry through the RSS 2.0.

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One Response to Judges Can Fly – in the face of Rule 137 of the Federal Court Rules! (Part 1)

  1. shafeek taff

    Because we have a clown as a (de facto) law minister, it's only befitting that our courts are presided over by court jesters; altho' the traditional court jesters were more intelligent than our versions, they both nonetheless serve the ruler of the day.