Latest Decision by a Nine-Member Bench of the Federal Court

Today, the Federal Court delivered another decision from its nine-member bench of Federal Court judges. This is another historical judicial event as Federal Court appeals are usually heard by a panel of five judges. The background to the hearing of this appeal on 28 August 2018 has been covered in our earlier note.

To recap, the crux of the constitutional issue in this dispute was whether sections 56 and 57 of the Central Bank of Malaysia Act 2009 (“CBA 2009”) took away the court’s power to determine legal issues. If so, those sections would be unconstitutional for being in conflict with the Federal Constitution which provides for the court’s exclusive power to determine legal issues.

The Federal Court ultimately decided that the said sections 57 and 57, CBA 2009 are not unconstitutional. However, there are several noteworthy features in today’s historic decision:

1. Firstly, the Federal Court was virtually split down the middle in its decision with the majority of five judges deciding that sections 56 and 57, CBA 2009 are not unconstitutional, and a minority of four judges who decided that the said sections are unconstitutional and should be struck down. That the decision was split into a 5 – 4 is significant because this strongly indicates how controversial the issues are. When issues are simple and straightforward, the Federal Court would most likely give a unanimous decision. This is clearly not the case here. The reasons given by the minority decision here cannot be simply dismissed or brushed aside.
2. Secondly and flowing from the first, the split 5 – 4 decision indicates that this matter is not entirely resolved. It is certainly possible that, notwithstanding today’s decision, the constitutionality of sections 56 and 57 could still be reconsidered by the Federal Court in a latter dispute. It is not uncommon for the Federal Court to revisit an issue and decide differently if it finds sufficient reasons to do so. That this decision was given on the narrowest possible margin indicates that this issue is still fertile ground for it to be reconsidered in future.
3. Thirdly, it is of no small significance that the Federal Court judges in the minority of this decision comprised Chief Justice Richard Malanjum, Chief Judge of Malaya Zaharah Ibrahim, Chief Judge of Sabah and Sarawak David Wong Dak Wah and Federal Court Justice Idrus Harun. It is also striking that the Chief Justice was emphatic in His Lordship’s decision that, “It is a complete mockery if Parliament delegates judicial power to a branch of the executive,” and that the sections in question were unconstitutional and should be struck down. Again, all this lends credence to the view that the minority view in this decision is not something that can be easily ignored.
4. Fourthly, today’s decision by the Federal Court is decisive on this issue, but it does not prevent sections 56 and 57 from still being lawfully removed if Parliament is persuaded by the minority view. As aptly put by lawyer Malik Imtiaz Sarwar who was counsel in this dispute:

“Though the majority of the court upheld the validity of the provision, the strong view of the minority is reason enough for the attorney-general and the government to consider whether the legislative framework should be amended.”

A brief look into the reasons given by some of the Federal Court judges can be seen from an online news report by Free Malaysia Today and also by The Edge.

Lastly, the Federal Court should certainly be commended in showing great vigour in: firstly, empanelling nine judges to hear constitutional issues; and secondly, in each of the nine Federal Court judges giving well considered reasons to arrive at their respective decisions. This is a most welcomed sign of our judges being dynamic and ready to stand by their views.