What Can You Do If Your Appeal at the Federal Court Fails?
Once your case reaches the Federal Court, you are at the final stage of appeal in the Malaysian legal system. If your appeal fails here, generally that is the end of it. However, Rule 137 of the Rules of the Federal Court 1995 (‘Rule 137’) provides a narrow doorway to seek a review of the Court’s decision, but only in exceptional circumstances.
What is Rule 137?
Rule 137 states:
“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.”
Rule 137 is not a specialised provision for review, but rather a mechanism to safeguard rare instances of grave injustice. It is to prevent major legal errors and not to reassess merits of the case. What are merits? Merits of the case means the actual facts, evidence or the law applied in the case. Federal Court is consistent in interpreting this principle: –
DATO’ SRI MOHD NAJIB HJ ABDUL RAZAK v. PP [2023] 4 CLJ 343
[7] In a review application the court scrutinises the record of proceedings – the official neutral record and no more – to examine the events that took place, to consider all the circumstances, and to see whether it can be said that the applicant has suffered a breach of natural justice, denial of the right to a fair trial, and denial of the right to counsel. It must be reiterated that the court hearing a review application should not go into the merits of the appeal.
YONG TSHU KHIN & ANOR v. DAHAN CIPTA SDN BHD & ANOR AND OTHER APPLICATIONS [2021] 1 CLJ 631
[78] 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.
When is Review Allowed?
This jurisdiction is rarely invoked and is reserved for exceptional situations involving a miscarriage of justice. Some examples that require a review includes: –
DATO’ SRI MOHD NAJIB HJ ABDUL RAZAK v. PP [2023] 4 CLJ 343
[83] Therefore, it is not entirely correct to say that a review under r. 137 is only confined to those circumstances mentioned by Abdul Hamid Mohamad CJ in his judgment in Asean Security Paper Mills Sdn Bhd (supra at [7]) because a clear infringement of the law for example, is a ground for review as decided by Zaki Tun Azmi PCA in the same case, citing Adorna Properties Sdn Bhd v. Kobchai Sosothikul [2005] 1 CLJ 565. So is failure by the appellate court to hear the merits of the case. Abdul Hamid Mohamad CJ’s judgment restricting the applicability of r. 137 to cases where the court had applied repealed laws must be understood in that light.
TR SANDAH TABAU & ORS v. DIRECTOR OF FOREST, SARAWAK & ANOR AND OTHER APPLICATIONS [2019] 10 CLJ
[185] The rationale of r. 137 in my view reminds this court that rendering justice
is just as important as the concept of finality of its judgment. … I have shown earlier that there was in fact no majority and at best it was a superficial majority with no legal standing. Such a circumstance does not create any finality as there was no certainty.
A mere disagreement with the Court’s interpretation of case law does not amount to a miscarriage of justice. Judicial reasoning, even if disputed, is regarded as the Court’s opinion and must be respected. Arguments based on public interest might be considered merit-based and therefore might be unsuccessful. If the review is perceived by the Court as a rehearing of merits, the Court will have even less reason to consider it.
TR SANDAH TABAU & ORS v. DIRECTOR OF FOREST, SARAWAK & ANOR AND OTHER APPLICATIONS [2019] 10 CLJ
(1) The grounds as postulated by the applicants do not constitute grounds for a review under r. 137 RFC. The majority of the Federal Court was entitled to come to its decision even when such decision may be questioned, whether on law or facts. On questions of law, it is not for the review panel to resolve whether the earlier panel had interpreted or applied the law correctly for the reason that it is a matter of opinion. (para 17).
Why is Malaysian Courts strict about this?
Malaysian courts uphold the principle of finality in litigation. This means that once a case is concluded, it should remain concluded. It is viewed that there must be finality in litigation as a matter of public interest and which must be protected. If an appeal at the apex court can be reviewed, it would open the door to a review of a review, and further reviews, which would leave the legal system without closure and render justice uncertain.
