APRIL 1 — Counsel representing Datuk Seri Najib Razak indicated on Friday that it was “not the end” for the SRC International case, following the Federal Court’s decision to dismiss the former prime minister’s bid for the apex court to review its ruling last year upholding Najib’s conviction, sentence and fine for misappropriating RM42 million from the company.
Defence lawyer Tan Sri Muhammad Shafee Abdullah said this in response to questions over the finality to litigation after the majority decision by four judges on the Federal Court panel rejected Najib’s challenge against his conviction and sentence in the SRC case.
Shafee said the minority judgment had provided his client further avenues to possibly mount a new court action.
“As result of the minority judgment, there is avenue that is open. There are cases whose reviews are done not only once. As long as there are grounds for fresh review it can be done,” he said.
However, when pressed further if Najib would seek to file a new review bid, Shafee declined to confirm.
The case of Adorna Properties Sdn Bhd v Kobchai Sosothikul [2005] is a good example of a case where review was done not once but twice. In that case, a second application to review under Rule 137 of the Rules of the Federal Court 1995 was made, but on a different ground from the first.
The first application was made on the ground of coram failure whereas the second application was made on the ground “to prevent injustice.”
The second application was dismissed like the first. The Federal Court was however mindful that counsel for respondent conceded that under Rule 137 successive applications are permissible provided grave injustice could be shown.
In India, the power of the country’s apex court — the Supreme Court — to review its own judgment is specifically provided under Article 137 of the Indian Constitution.
However, the Supreme Court has relied on Article 142 of the Indian Constitution instead. It gives very wide powers to the Supreme Court “to do complete justice” between the parties. Article 142(1) reads as follows:
“The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or orders so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe.”
There are very stringent conditions, though, for such exercise of jurisdiction so that floodgates are not opened for filing a second review under the guise of doing complete justice between the parties. In Rupa Ashok Hurra v Ashok Hurra and another (2002), Justice Banerjee, in no uncertain terms, said that a second review “cannot be said to be maintainable.”
If Najib were to mount another bid, it would be a review upon a review or a second review. It cannot be supported if the review were to be on the same ground as the first as there would be no end to litigation.
In Adorna’s case, the fear of having no end to litigation was expressed by the Federal Court in the following passage:
“There is much force to be given to the contention that there should be finality to any litigation. The main judgment was handed down by this Court which is the apex court of this country. If the application of Rule 137 is made liberally the likely consequence would be chaos to our system of judicial hierarchy.
“There would then be nothing to prevent any aggrieved litigant from challenging any decision of this court on the ground of ‘injustice’ vide Rule 137. And if he succeeds in his application there is also nothing to bar the other party from making his own application to overturn such success.
“In short, there will be no end to the matter. We do not think that was the intention of the legislature when promulgating the said rule.”
Parties, therefore, should not come for another review, be it a review upon review or a second review or by whatever name it is called, on the very same grounds that were canvassed earlier in the first review. (See the recent case of Chin Wai Leong & Ors V Public Prosecutor [2021])
Simply put, Rule 137 should not be abused.
* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
