Federal Court: We have no power to review own ruling 2010/02/25

By V. Anbalagan

PUTRAJAYA: The Federal Court yesterday ruled that it has no jurisdiction to review its own ruling, adding that there will be no end to the litigation process if the reopening of cases is allowed.With that, the apex court unanimously dismissed an application by Datuk Seri Anwar Ibrahim to review its ruling last month which denied him access to key documents in preparation of his ongoing sodomy trial.

The decision by a three-man panel comprising Datuk Zulkefli Ahmad Makinudin, Datuk Wira Mohd Ghazali Mohd Yusof and Datuk Heliliah Mohd Yusof, was seen as departing from at least 10 other Federal Court rulings since 2000.

All these cases had consistently held that Rule 137 of the Federal Court Rules 1995 gave the apex court the jurisdiction to review its own ruling to prevent injustice or abuse of the court process.

Some of the previous decisions were made by panels chaired by chief justices who held that a review was possible in exceptional circumstances.

The latest decision on a review application was by Chief Justice Tun Zaki Azmi in a criminal case on Feb 11.

Zulkefli in his oral decision, said Rule 137 did not confer jurisdiction on the Federal Court to review its own decision. He said the issues raised by Anwar was duly considered and dealt with in the judgment of the Federal Court on Jan 29.

"Even if this panel were to disagree with the findings of the earlier bench, it would not constitute grounds that warranted a review. There must be finality."

Earlier, senior deputy public prosecutor Datuk Mohd Yusof Zainal Abiden said the Federal Constitution, the supreme law of the land, did not expressly confer the Federal Court the jurisdiction to review its own case.

"The constitution only provided for the apex court to hear appeals, referrals and to provide advice on constitutional matters," he said.

Yusof said Rule 137 was only made by a Rules Committee but this power was only derived from the Court of Judicature Act 1964

Karpal Singh, who appeared for Anwar, said the Federal Court had unfairly held that his client was not entitled to the documents.

"There is injustice because the prosecution is conducting trial by ambush by withholding documents, including the witness list," he said.

He said a review was necessary because the Federal Court had misinterpreted the law on the discretionary power of a trial judge to compel the prosecution to hand over documents to the defence.

On Jan 29, a three-man bench ruled that Anwar could apply for key documents only when his trial was in progress, adding that he was only entitled to material pertaining to the charge itself.

Anwar, 62, is alleged to have sodomised his former aide Mohd Saiful Bukhari Azlan, 25, at a condominium in Bukit Damansara, Kuala Lumpur, between 3pm and 4pm on June 26, 2008.

Among the documents sought are the chemist's notes on DNA samples taken from Anwar and Saiful, the medical report from Pusrawi Hospital which Saiful visited and closed-circuit television footage from the condominium in Bukit Damansara where the alleged crime was to have taken place.

The prosecution had given some documents to Anwar, which his defence team claimed were insignificant.

http://www.nst.com.my/Current_News/NST/articles/11anwar/Article