In the recent decision of Yakin Tenggara Sdn Bhd v Gula Perak Berhad & 3 Ors and other appeals1 ("Yakin Tenggara"), our Apex Court had the opportunity to consider the effect of the appointment of both Tun Md Raus Sharif ("CJ") and Tan Sri Zulkefli bin Ahmad Makinudin ("PCA") as Additional Judges on the decision(s) delivered by a panel of the Federal Court which was empanelled by the CJ and/or which the CJ and/or PCA sat as a member.
As a recap, in 2017, the CJ and PCA were appointed as Additional Judges in the Federal Court despite reaching the compulsory age of retirement pursuant to Article 125(1) of the Federal Constitution. Their appointment as Additional Judges were allegedly made on the advice of the then Chief Justice prior to his retirement. The appointments came under heavy attack and were even the subject of a legal challenge by the Malaysian Bar in Bar Council Malaysia v Tun Dato' Seri Arifin bin Zakaria  4 MLJ 773. However, before a decision could be pronounced by the Federal Court on the challenge, both the CJ and PCA resigned on 31 July 2017. In the opinion of the Federal Court, this rendered the challenge academic. Status quo therefore remained until Yakin Tenggara had its day in Court.
The Federal Court's decision in Yakin Tenggara was in respect of a total of seven review motions brought pursuant to Rule 137 of the Rules of the Federal Court 1995. The common point in all the seven motions was one of coram failure, namely whether the appointment of the CJ and the PCA (collectively the "two Judges") were invalid therefore rendering the panels which were empanelled by the CJ and/or the panels on which either the CJ and/or the PCA sat on to be invalid as the two Judges were not entitled to sit in these cases. This argument was premised on the basis that the advice given by the outgoing Chief Justice to the Yang di-Pertuan Agong to appoint the two Judges as Additional Judges of the Federal Court was to take effect several months after the outgoing Chief Justice had retired was invalid because such advice may only be given by a sitting Chief Justice to take effect during his tenure. Further, it was asserted that the CJ and PCA could not be persons appointed as Additional Judges of the Federal Court pursuant to Article 122(1A) of the Federal Constitution.
THE DE FACTO DOCTRINE
In determining the common point above, the Federal Court recognised that the answer would hinge on the application and interpretation of the de facto doctrine. In summary the de facto doctrine provides that the decisions of a judge or judicial arbiter can be deemed valid on grounds of public policy even if his appointment is invalid. The de facto doctrine has been recognised in Malaysia both statutorily (Section 41(a) of the Interpretations Act 1948 and 1967) and judicially (All Malayan Estates Staff Union v Rajasegaran & Ors  6 MLJ 97 ("Malayan Estates")).
Malayan Estates was decided in reliance on the Indian Supreme Court decision of Gokaraju Rangaraju v State of Andhra Pradesh (1981) 3 SCC 132 ("Gokaraju"). In Gokaraju, the Supreme Court was faced with a consolidated appeal by two accused persons who were convicted of certain offences by two different District Court judges. By the time the appeal came up to be heard, the Supreme Court had in a separate matter held that the appointments of the two District Court judges were invalid for having violated Article 233 of the Indian Constitution. The appellants therefore argued that the convictions should be set aside as the judgments were allegedly not lawful. The Supreme Court rejected this argument driven by the 'de facto doctrine'. In essence the Supreme Court held that that as long as the judge in question acted under some colour of lawful authority, his decision may be saved and preserved even if his appointment is later found to be invalid.
It is important to emphasise that both Gokaraju and Malayan Estates were not decided in isolation. Rather, they were just the latest in a long line of Commonwealth decisions upholding the de facto doctrine. The Federal Court therefore took the opportunity in Yakin Tenggara to explain the rationale behind the de facto doctrine. Firstly, the Federal Court explained that the 'de facto doctrine' exists to preserve the integrity of judicial decisions by insulating the judge's decision from collateral attack. Otherwise, the floodgates will be opened for unsuccessful private litigants to reserve the issue on the validity of the appointment of the judge as ammunition to re-litigate their case or to have the outcome changed solely for the reason that the judge who heard the case was no judge at all. Doing so would put the prestige and integrity of justice and the justice system into jeopardy and disrepute. Secondly, the Federal Court held that the doctrine is necessary not so much to save the integrity of the impugned judge per se, but to save the integrity of all decisions made by him either judicially or administratively.
Having established that the de facto doctrine was enshrined in Malaysian jurisprudence, the Federal Court found that the review applications had no merit as the challenges were clearly collateral challenges as the validity of the appointments of the two Judges had not been raised before them during the hearing of the appeals proper. Therefore, the assertions that the two Judges' appointments were unlawful were irrelevant, as the two Judges' were not mere intruders or usurpers but were holding authority under some colour of lawful authority as their appointments had been made under the Federal Constitution. It was the office that held the authority and power, not the person. Accordingly, all decisions of the two Judges could not be nullified as otherwise it would cause endless confusion and needless chaos.
One of the applicants in Yakin Tenggara did however take the position that de facto doctrine does not apply to constitutional appointments. This, the applicant said, was distinguishable from Gokaraju and Malayan Estates which dealt with appointments concerning inferior tribunals and not Superior Courts. This argument was given short shrift by the Federal Court which held that the de facto doctrine was applicable to the appointment of Superior Court judges as their appointments were constitutional, as in the case of the District Court Judges in Gokaraju.
Even though the 'de facto doctrine' in Gokaraju was applied within the context of the appointment of two District Court judges, the Federal Court was nevertheless of the view that the said doctrine applied to constitutional appointments as the District Judges in Gokaraju were in fact appointed pursuant to Article 233 of the Indian Constitution. It should also be noted here that section 41(a) read together with the definition of "written law" in section 3 of the Interpretation Acts 1948 and 1967 clearly show that the de facto doctrine is to apply to constitutional appointments as well.
The Federal Court also acknowledged that limiting the applicability of the de facto doctrine would result in the danger that chaos and confusion may occasion 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. This is especially in light of the fact that the decisions of Superior Court Judges as well as the administrative decisions of the CJ and the PCA are weightier with significant ramifications.
On this basis and without deciding on the validity and/or constitutionality of the appointment of the two Judges, the Federal Court was of the view that the decisions delivered by the Federal Court panel which was either empanelled by the CJ or where either one of the two Judges sat on the panel, would be preserved by the 'de facto doctrine'.
An ancillary argument that was raised in two of the motions in Yakin Tenggara related to the minority judgment authored by the PCA but adopted and pronounced by Dato' Sri Balia Yusof FCJ only after the PCA had resigned. The applicant contended that the PCA's judgment could not be read out and adopted given that he had already resigned at that point. The applicant placed significant reliance on the decision in Bellajade Sdn Bhd v CME Group Bhd and another appeal  5 MLJ 141 ("Bellajade") where the Federal Court held that the majority judgment was invalid as it was based solely on the judgment which was authored by the PCA and adopted by the remaining judges. In Bellajade, the Federal Court held that there was coram failure as the PCA was no longer a member of the court during the pronouncement of the judgment and therefore the judgment that was adopted by the concurring judges was an expired judgment that is void.
However, the Federal Court distinguished Bellajade. In Bellajade, the attack was on the invalidity of a majority judgment. However, in Yakin Tenggara the impugned judgment was a minority judgment, and the majority judgment remained valid. In interpreting Section 78(2) of the Courts of Judicature Act 1964 ("Section 78(2) CJA"), the Federal Court found that there were two possible interpretations. Firstly, the dissenting judge is still to be counted towards the coram, even though the majority judgment is delivered by the remaining judges. If this were the case, the applicant would be correct in its argument that there was a coram failure. On the other hand, Section 78(2) CJA could be interpreted in a manner that as long as there is a decision from an uneven number of judges (not being less than two) from among the judges who composed the court and who have not retired, there is a valid majority decision. Under this second case, it matters not whether there was a dissenting judgment or for that matter, whether his dissenting judgment was valid or not.
The Federal Court in adopting a purposive interpretation of Section 78(2) CJA held that the minority judgment was severable and therefore the majority judgment was protected. Accordingly, as the minority judgment has no force of law and would not impact the majority's findings, the challenge was dismissed.
The Federal Court's decision in Yakin Tenggara is noteworthy in two respects. First, it is a reminder to litigants who wish to challenge the validity of a court judgment that such judgment cannot be attacked collaterally. Second, it clarifies that the 'de facto doctrine' applies to constitutional appointments and validates any acts of a judge done in his official capacity even if his appointment was subsequently nullified.
However, the question that remains unanswered is whether the appointments of the CJ and the PCA as Additional Judges were valid. With the application of the de facto doctrine, the tide of challenges on this point of law seems to be stemmed.
1. This case is one of the seven decisions reported under Yong Tshu Khin and Annie Quah v Dahan Cipta Sdn Bhd and N. Letchumanan  1 LNS 1650.
Originally published 27 January 2021
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