When Did Dato Seri Najib Razak Exhaust All Avenues of Appeal?

In August 2022, the Federal Court upheld Dato Seri Najib bin Tun Razak (“DSNR“)’s conviction and sentence (“the August 2022 Decision”).[1]

DSNR then, in September 2022, filed a motion to review the August 2022 Decision (“Motion”)[2] pursuant to Rule 137 of the Rules of the Federal Court 1995.

The Federal Court recently dismissed the Motion in a split 4-1 decision (“the March 2023 Decision”).[3]

Ong Lam Kiat Vernon FCJ, Rhodzariah binti Bujang FCJ, Nordin bin Hassan FCJ, and Abu Bakar bin Jais JCA[4] formed the majority which dismissed the Motion.[5]

Abdul Rahman bin Sebli CJSS was the sole dissenting judge.[6]

In a press conference regarding the March 2023 Decision, Datuk V Sithambaram, the ad hoc prosecutor for DSNR’s SRC International case,[7] was quoted as saying inter alia that DSNR has “exhausted all avenues of appeals.”[8]

It is submitted that DSNR exhausted all avenues of appeal back in August 2022 and not in March 2023.

It is trite law that:

(a) the Motion involves an exercise of the Federal Court’s inherent power;[9]

(b) the Motion is not intended to review the merits of the August 2022 Decision;[10] and

(c) the Motion is not intended to operate as another tier of appeal.[11]

This would mean that the appellate process for DSNR’s matter concluded in August 2022 with the August 2022 Decision.

DSNR’s matter originated in the High Court[12] and DSNR subsequently appealed to the Court of Appeal[13] and then to the Federal Court.[14]

The final outcome was the August 2022 Decision.

Thus, the August 2022 Decision marks DSNR’s exhaustion of all avenues of appeal.

The March 2023 Decision, however, practically and realistically, marks DSNR’s exhaustion of all local judicial avenues/routes.[15]


5 Things About The Review of Federal Court Decisions

1. An exercise of Federal Court’s inherent power

Rule 137 of the Rules of the Federal Court 1995 provides the following:

“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 Golden Star & Ors v Ling Peek Hoe & Ors [2021] 2 MLJ 259 expressly recognised that it has the inherent power to review its own decision pursuant to Rule 137 of the Rules of the Federal Court 1995:

“Under r 137 of the RFC the Federal Court has the inherent power to review its own decision but this is exercised only in rare and exceptional circumstances.”[1]

Previous Federal Courts have also taken a similar position [see e.g. Asean Security Paper Mills Sdn Bhd v Mitsui Sumitomo Insurance (Malaysia) BHD [2008] MLJU 1090 (FC)].

2. Cannot be invoked to review the merits of earlier Federal Court decision

In Kerajaan Malaysia v Semantan Estates (1952) Sdn Bhd [2019] 2 MLJ 609, Ahmad Maarop PCA held that:

“The inherent power of this court under r 137 cannot be invoked to review its own decision on its merits.”[2]

This position has consistently been taken by the Federal Court [see e.g. Datuk Seri Anwar Ibrahim v Government of Malaysia & Anor [2022] 1 MLJ 1 (FC), at para 29; TR Sandah ak Tabau & Ors (suing on behalf of themselves and 22 other proprietors, occupiers, holders and claimants of native customary rights (NCR) land situated at Rumah Sandah and Rumah Lajang, Ulu Machan, 96700 Kanowit, Sarawak) v Director of Forest, Sarawak & Anor and other appeals [2019] 6 MLJ 141 (FC), at para 13; Chan Yock Cher v Chan Teong Peng [2005] MLJU 673 (FC)].

3. Not intended to operate as another tier of appeal

Tengku Maimun CJ was of the view, in Yong Tshu Khin & Anor v Dahan Cipta Sdn Bhd & Anor and other appeals [2021] 1 MLJ 478 (“Yong Tshu Khin”), that:

“The review process is not intended to give the losing litigant a second bite at the proverbial cherry. Motions for review are not meant to operate as another tier of appeal. It is confined to the very specific purpose to prevent a manifest miscarriage of justice. While ‘miscarriage of justice’ is not an easy phrase to define, the development of our case law makes it abundantly clear that the correctness of a decision of the Federal Court is not, per se, a valid reason to seek a review of it. The public policy reason for setting this high threshold is premised on a simple fact that there must be finality to litigation, and if we may add: due respect to the decision of the final court of appeal.”[3] (Emphasis mine)

Nivesh Nair a/l Mohan v Dato’ Abdul Razak bin Musa, Pengerusi Lembaga Pencegahan Jenayah & Ors [2021] 5 MLJ 320 referred to and relied upon the above dictum in Yong Tshu Khin.[4]

4. Will only be successfully invoked in exceptional circumstances

The Federal Court in Asean Security Paper Mills Sdn Bhd v Mitsui Sumitomo Insurance (Malaysia) BHD [2008] MLJU 1090 provided some circumstances in which the Federal Court could exercise its power to review:

“(a) that there was a lack of quorum e.g. the court was not duly constituted as two of the three presiding judges had retired (Chia Yan Tek & Anor v Ng Swee Kiat & Anor [2001] 4 MLJ 1);

(b) the applicant had been denied the right to have his appeal heard on merits by the appellate court (Megat Najmuddin bin Dato Seri (Dr) Megat Khas v Bank Bumiputra (M) Bhd [2002] 1 MLJ 385);

(c) where the decision had been obtained by fraud or suppression of material evidence (MGG Pillai v Tan Sri Dato’ Vincent Tan Chee Yioun [2002] 2 MLJ 673);

(d) where the court making the decision was not properly constituted, was illegal or was lacking jurisdiction, but the lack of jurisdiction is not confined to the standing of the quorum that rendered the impugned decision (Allied Capital Sdn Bhd v Mohd Latiff bin Shah Mohd and another application [2005] 3 MLJ 1);

(e) clear infringement of the law (Adorna Properties Sdn Bhd v Kobchai Sosothikul [2006] 1 MLJ 417);

(g) where an applicant under r 137 has not been heard by this court and yet through no fault of his, an order was inadvertently made as if he had been heard (Raja Prithwi Chand v Sukhraj Rai [AIR] 1941);

(h) where bias had been established (Taylor & Anor v Lawrence & Anor [2002] 2 All ER 353);

(i) where it is demonstrated that the integrity of its earlier decision had been critically undermined eg where the process had been corrupted and a wrong result might have been arrived at (Re Uddin [2005] 3 All ER 550);

(j) where the Federal Court allows an appeal which should have been consequentially dismissed because it accepted the concurrent findings of the High Court and Court of Appeal (Joceline Tan Poh Choo & Ors v V Muthusamy [2007] 6 MLJ 485).”

5. There must have been an error which obviously was an injustice

Tun Zaki Azmi CJ in Badan Peguam Negara v Kerajaan Malaysia [2009] 2 MLJ 161 held the following:

“Before the application can succeed, he must be able to show on the face of the record that there was injustice. That error must be obvious on the face of the record. It should be able to be seen just by reading the record that there was an error which obviously was an injustice … It cannot apply where a decision of this court is only questioned, whether in law or on the facts of the case.”[5] (Emphasis mine)

This test was applied by subsequent Federal Courts [see e.g. Golden Star & Ors v Ling Peek Hoe & Ors [2021] 2 MLJ 259 (FC), at para 43].