Can Federal Court Leave Applications be heard without counsel?
The answer is a ‘No’. Here are my reasons.
What the Chief Registrar of the Federal Court announced on March 26, 2020
This morning Free Malaysia Today reported that Deputy Registrar of the Federal Court allegedly said that all Leave Applications to the Federal Court will be heard without counsel being present: see here.
No doubt the Chief Justice meant well, but…
The move fell prey to legal fatalities: what are those?
. A senior throws a verbal squib
Once a senior counsel, as he departed the Federal Court, threw a verbal squib1a small firecracker at colleagues.
‘These judges treat a Leave Application by focusing on the verb rather than the noun. They asked me to ‘leave’.
His attempts to ‘move’ a court had been met with a court that was, on that occasion, unmoved.
. ‘To move a court’ means to ‘apply to the court’
If what the Chief Registrar says is right, the Federal Court does not even wish to have counsel ‘move the court’.
This has caused considerable consternation at the Bar.
. A Leave Application is the most specialised – and difficult – area of litigation: and it is full of pitfalls
Legal practitioners consider the Federal Court Leave Application as the most difficult area of litigation.
It has many pitfalls: as to how to avoid them, see here.
. What law is there to help us answer the question?
One has to look at the sources of law that regulate the conduct of the Federal Court.
If the sources of law give that power to the court, then the judges may use the power.
If the sources do not, the judges cannot use their power.
Do they have that power?
. The several sources of Law
These are several sources of law that grant jurisdiction and powers2For the difference between ‘power’ and ‘jurisdiciton’ see here. to judges.
(1). The supreme law of the nation3Article 4 of the Federal Constitution is the Federal Constitution itself.
(2). Acts of Parliament, the most important one of which is the Courts of Judicature Act 1964.
This is the primary act ‘relating to the Superior Courts of Judicature’.4Preamble to the Act
If other written laws, acts or rules conflict with the CJA, the CJA takes precedence.5Section 4, CJA
(3). The Federal Court Rules 1995 (‘FCR’).
These regulate Federal Court proceedings. They explain what the judges and the litigants can, or cannot, do.
The FCR also includes Forms. These are statutory precedents on how applications should be made.
The courts have always considered the Forms to be part and parcel of the FCR.
Let us deal with the first one.
. First source: what does the Constitution say?
Article 121(2) states that the Federal Court shall have jurisdiction to determine appeals in accordance with the jurisdiction conferred to it ‘by federal law’. 6 Article 122(a): ‘The Federal Court shall have the following jurisdiction, that is to say: (a) jurisdiction to determine appeals from decisions of the Court of Appeal,…; (b) such original or consultative jurisdiction…; and (c) such other jurisdiction as may be conferred by or under federal law.’ Article 121 (3) states that any order made by the Federal Court shall have ‘full force and effect… throughout the Federation’.
Yet there is nothing in the Federal Constitution that empowers the Federal Court to issue orders to not ‘hear’ cases before it.
Since the Constitution says the Federal Court can act ‘in accordance with the jurisdiction conferred to it ‘by federal law’’, we now turn to Acts of Parliament.
. Second Source: the Courts of Judicature Act
Much was made in the press this morning about section 75 of the Act.7See here. It concerned a complaint about how the Chief Justice could determine where the Federal Court conducted its ‘sittings’.
That, however, is not the real point.
They missed a rather important issue.
It concerns what section 74 says:
‘Section 74.(1)… Every proceeding in the Federal Court shall be heard and disposed of by three judges or such greater or uneven number of judges as the Chief Justice may… determine’.
The important words of section 74 are:
‘… [Every] proceeding in the Federal Court shall be heard and disposed of’.
The phrase ‘heard and disposed of’, implies that the judges themselves have a right to pose questions to counsel before they decide.
Hence, to dispose of a matter with mere written arguments serves only to stultify the development of the Law in important cases.
. Next, note the word ‘heard’: what does ‘heard’ mean?
You know the answer to that.
That is not the only place that the word ‘heard’ occurs.
Section 75 states that:
‘75 (1): The court shall sit on such date and at such places as the Chief Justice may from time to time appoint,
Provided that the Chief Justice may… direct that any appeal be heard at any time and in any place in Malaysia.’
. Several points are important in section 75
The first is the word ‘hear’.
Second, the Act empowers the Chief Justice to direct that, ‘any appeal may be heard at any time and in any place in Malaysia’.
If what the Chief Registrar says is true, then what is missing in section 75 is the phrase ‘in any manner’.
Suppose the phrase ‘in any manner’ is inserted into section 75: then it will read:
‘Provided that the Chief Justice may, when he deems it expedient, direct that any appeal may be heard at any time, in any manner, and in any place in Malaysia’.
If it was there, perhaps the Federal Court could have said that it could do what it just did – difficult though the argument may be, when contrasted with other, well-established legal principles: e.g. ‘Hear both sides’: ‘audi alteram partem’.
Again, no legal maxim ever said, ‘Do not hear both sides at all’.
But that phrase is not there in the CJA.
And so, the ‘manner’ of the ‘hearing’, presumably of the parties, cannot be determined by the Chief Justice – well at least in the manner the Chief Registrar has suggested – without parties – and without counsel.
. Both the provisions of section 74 and 75 CJA have been breached
Thus, when the Judiciary decided that Leave Applications could be ‘heard’ in the absence of counsel, both the provisions of section 74 and 75 have been breached.
. A further difficulty lies in sections 96 and 97(3)
But there is a further difficulty in sections 96 and 97(3):
When Leave Applications are ‘heard’ in the absence of counsel, it would be difficult to know whether the Applications had been heard by the usual quorum of three judges, 8as set out in section 74 or if in reality only one judge sat to make the decision: for sec. 97(3) allows a single judge to hear a Leave Application.9Section 97(3) of the CJA reads: ‘Notwithstanding section 74, an application for leave to appeal to the Federal Court may be heard by a Judge of the Court, and any direction or order that could be given or made by the Court on such application may be given or made by such Judge.’
The normal – and minimal – quorum of judges in a Federal Court, is a panel of three judges. 10Section 74, CJA
. The Third source: the Rules of the Federal Court
The Rules state how a Leave Application is to be filed – it is by filing a ‘Notice of Motion’.11Rule 55 of the RFC states: ‘Where leave of the Federal Court to appeal is required, the application for such leave, shall be made in accordance with the provisions of Chapter V.’ When one moves down to Chapter V, one encounters Rule 107 which says nothing about whether the ‘hearing’ of a ‘Leave Application’ could be heard in the absence of counsel of either party. However, Rule 107 states: ‘107 (1): Every application in a simple matter to the Court for leave to appeal shall be made by motion, supported by an affidavit… filed with the Registrar’.
Rule 98 FCR prescribes how a Notice of Motion should appear.
‘Rule 98: Applications:
(1) All applications to the court shall unless otherwise provided be made by motion and shall be heard in open court.’
I trust that you did not miss the word ‘shall be heard’ and the next phrase: ‘in open court’.
If Counsel for the parties are absent, how is a motion to be ‘heard’, and why have an ‘open court’ when neither counsel not parties are present?
Why would not three judges, in their chambers, decide the fate of any Leave Application?
These applications are to be heard, as the law says, ‘in open court’.
Second, note that Rule 98 (2) states that, ‘[A] Notice of Motion shall be substantially in Form 11 in the First Schedule to these Rules.’
. Which brings us to Form 11
It is Form 11 that is immediately relevant.
It is part of the First Schedule to the Rules of the Federal Court.
Form 11 sets out how a Notice of Motion should look like:
NOTICE OF MOTION
‘Take notice that on… the … day of… 19… at… o’clock in the forenoon or as soon thereafter as he can be heard Mr A … of counsel for the above-named… will move the court for an order that…
(Here set out the order sought) etc.’
First, you would have noted the word ‘heard’.
Second, you would have seen that even the Federal Court Rules require, in the Notice of Motion that a particular named counsel Mr A is to ‘move the court for an order… for [leave]’.
Need more to be said?
So that puts the entire question on a plain footing.
The Federal Court cannot discard the presence of counsel.
. Then, the Legal Profession Act 1976 – every advocate has a right of audience before the Courts
The Legal Profession Act grants a mandatory right to every advocate and solicitor to appeal and place his client’s case in the best light before the Federal Court.
Section 35 of the Act states:
Right of advocate and solicitor:
‘35.(1) Any advocate and solicitor shall, subject to this Act and any other written law, have the exclusive right to appear and plead in all Courts of Justice in Malaysia according to the law in force in those Courts; and as between themselves shall have the same rights and privileges without differentiation.’
As the Federal Court is bound to exercise its jurisdiction within the written law of the Federation, it cannot dismiss, out of hand, this statutory right of counsel in section 35 of the LPA.
. The Federal Court represents the apex structure in the judicial system
It is not unreasonable to expect that judges who sit at the highest posts in the Judiciary, are the very best the nation has to offer.
They also need to be deeply learned in the law, particularly in Constitutional Law and the laws relating to the ever-present disputes of commerce – and therefore Commercial Law.
Our Federal Court judges need to be scholars of the law. Their knowledge is – or should be – second to none. Most of them are.
. It is from commerce that a great many disputes arise – and these have to be resolved by the Court
Ballads and plays are written on it, one of which is a Shakespearean play, Merchant of Venice.
There Shakespeare relished in the many complications in the law and brought them to life: e.g. see Quentin Skinner here. 12 Skinner speaks of the ‘juridical method’ in the art of the rhetoric. He says, ‘Among these, the most complex is said to be the juridical, in which all parties agree that some action has taken place, and the question is whether or not it was performed according to law and right. I have come to feel that this provides us with the most illuminating way of approaching Shylock’s opening claim in the trial scene in The Merchant of Venice. Shylock has a penal bond with conditional defeasance, which grants him a pound of Antonio’s flesh upon non-payment by a date that has passed. As Shylock declares, he is ‘doing no wrong’ in putting forward his case. ‘The pound of flesh which I demand of him/Is dearly bought, tis mine and I will have it. If you deny me, fie upon your Law.’ He takes himself to be acting wholly in accordance with law and right’.
The nation profits when the judges expound clear principles of law in commercial disputes, particularly upon litigants who demand a ‘pound of flesh’.
. The law is an organic, living thing – and Leave Applications lend it vitality
The law never stands still: it is in constant motion.
This is why Leave Applications – and counsels’ arguments on them – are crucial.
. A ‘hearing’ of a Leave Application is a Golden Opportunity for the growth of the Law
It is the Leave Questions that give the Federal Court a golden opportunity to view the throbbing heart of the law.
It is then that the judges can examine whether the law, or a legal vessel, is correctly placed, so as to increase the efficient and equitable trade of the nation.
The Leave Application affords the apex court an opportunity to inspect whether a ‘legal’ ventricle, atrium, aorta or vena cava needs to be cleared of any blockage, so that the principles of the Constitution flow through them, carrying within their corpuscles the spirit of the Rule of Law. 13See here.
It is at that point the Federal Court judges decide whether these disputes need to become the subject of further examination, study, and scholarship.
“How can all this be achieved without the assistance of highly specialised counsel? Especially when they are absent?
It has been said before that counsel appearing before the court has to be of the highest class. Not necessarily the oldest.
So also, the judges who sit in judgement over exceedingly difficult questions of law should be the very best: they should be the ‘Navy Seals’ that the Bench, the Bar, and the Attorney General’s Chambers can provide.
[I have written on this earlier, for which see here and here].
. Does one need to cite the Oxford Dictionary to discover what ‘hear’ means?
The reader knows what the word ‘hear’ means.
I think it is a word redolent of the human organ, the ear.
I may be wrong, but what do you think?
. In conclusion…
We saw that the Constitution does not explain how hearings should take place before the Federal Court. However, we saw that Article 121 states, in clause (2)(c) that the Federal Court has ‘… such other jurisdictions as may be conferred by or under federal law.’
The relevant Federal Law, in sections 74 and 75 of the Courts of Judicature Act, expressly use the word ‘hear’.
The Federal Court Rules and Form 11, likewise, use the word, ‘hear’.
Particularly the words used in Form 11, say:
‘as soon thereafter as he can be heard Mr … of counsel for the above-named… will move the court for an order…(etc.)’
These provisions clearly stipulate that counsel must be present and heard during Leave Applications.
And there you have it.
[The author expresses his gratitude to Dato Bastian Vendargon, Mr. VK Raj, Ms.KN Geetha, Mr. JD Prabhkirat Singh, Mr. GS Saran, Miss KP Kasturi and Miss Amuthambigai Tharmarajah for their assistance.]