Review motion – Validity of the appointment of judges – Constitutional appointment – De facto doctrine – Whether the de facto doctrine applies to constitutional appointments

Yong Tshu Khin & Anor v Dahan Cipta Sdn Bhd & Anor and other appeals
[2020] MLJU 1983, Federal Court

- see the grounds of judgment here

Facts The seven review motions were filed by seven aggrieved parties in civil cases (the “applicants”). All the seven review motions raised a common point alleging coram failure. In sum, that the appointments of Tun Md Raus bin Sharif as Chief Justice and of Tan Sri Zulkefli bin Ahmad Makinudin as President of the Court of Appeal (the “two Judges”) were respectively invalid. Arguments were advanced to the effect that the advice given by the outgoing Chief Justice, Tun Arifin bin Zakaria, to the Yang di-Pertuan Agong to appoint the two Judges as Additional Judges of the Federal Court was invalid because such advice may only be given by a sitting Chief Justice to take effect during his tenure and that in any event, the two Judges could not have occupied their respective positions as Chief Justice and President of the Court of Appeal as Additional Judges of the Federal Court on a proper interpretation of Article 122(1A)[1] of the Federal Constitution (FC). Accordingly, it was argued that Tun Raus was not entitled to empanel the Federal Court panels which heard the appeals and in any event, that the two Judges were not entitled to sit in these cases. In gist, the applicants argued that the appointments of the two Judges were invalid having been made ultra vires the FC. The thrust of the respondents’ rebuttal is that the validity of the two Judges’ appointments cannot be challenged collaterally and that even if their appointments are deemed invalid, their decisions (judicial or administrative) are saved by the de facto doctrine[2] (the “doctrine”). In reply, the applicants acknowledged the existence of the doctrine but argued that it does not apply to constitutional appointments.

Issue The main issue in this case is whether the de facto doctrine applies to constitutional appointments.

Held In dismissing the review motions, the Federal Court ruled that the doctrine seeks to avoid chaos and confusion that may be occasioned in the event the appointment of a decision-maker is found to be invalid and the stain that it might leave on the administration of justice. The Court further held that the decisions of Superior Court judges are weightier especially those of the Court of Appeal and Federal Court. In addition, administrative decisions of the Chief Justice or President of the Court of Appeal such as recommendations on the appointments and elevation of Judges or their discretions to empanel the Federal Court or the Court of Appeal, respectively carry significant ramifications. If the decisions of a Superior Court Judge are not preserved by the doctrine, the entire justice system might crumble to dust if such appointments are later deemed invalid. Thus, the Court ruled that the doctrine applies equally to constitutional appointments, which includes Superior Court judges.

ZUL RAFIQUE & partners
{30 December 2020}
[1] 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.
[2] The de facto doctrine validates, on grounds of public policy and prevention of a failure of public justice, the acts of an official who functions under color of law even though it is later discovered that the legality of that person’s appointment or election to office is deficient.