MTCY v Court of Appeal of Malaysia & ORS [2017] 6 MLJ 254

MTCY v Court of Appeal of Malaysia & ORS [2017] 6 MLJ 254

Court of Appeal, Putrajaya

Civil Procedure on setting aside Respondents’ Memorandum of Appearance filed by senior federal counsel

1. This appeal is begun by the Appellant, MTCY, who is a firm of solicitors, against the Respondents. The First Respondent is the Court of Appeal of Malaysia. The Second Respondent is the Chairman of the Court of Appeal. The Third Respondent is another member of the presiding judges in the Court of Appeal panel who have heard the trial in the High Court Sabah and Sarawak before the present appeal. 
2. This appeal is about a Memorandum of Appearance that is filed by the learned senior federal counsel on behalf of the Respondents in relation to a civil action by the Appellant.
3. The Appellant premised his argument on the ground that the senior federal counsel has no locus to file the memorandum of appearance on behalf of the Respondents because the judiciary is a separate establishment under the Federal Constitution. 
4. The Appellant wished for the decision of the High Court that sets aside his application to strike out the Respondents’ memorandum of appearance to be reviewed by the Court of Appeal.

1. Whether the Court of Appeal can hear the present appeal.
2. Whether the Respondents could be represented by the Federal Counsel of the Federal Attorney General’s Chamber.

(1) Whether the Court of Appeal can hear the appeal.

(a) This is a preliminary issue raised and is answered in the positive.  First, the court is of the view that since it is the Appellant himself who appealed to this Court of Appeal, it signifies that the appellant is submitting himself to this court’s jurisdiction. 

(b) Secondly, according to the Courts of Judicature Act 1964, the Court of Appeal has the duty to determine appeals from the High Courts and other jurisdictions, as the federal law allows.  The Court of Appeal opined that it is within the court’s capacity too that the Appellant was sued in the first place. 

(c)Therefore, the Appellant could no longer raise any questions on the issue of the court’s jurisdiction, as it has the power to hear and decide on the present appeal.

(2) Whether the Respondents could be represented by the Federal Counsel of the Federal Attorney General’s Chamber.

(a) This issue is also answered in the positive.  The Court relied on Article 145 of the Constitution and made a finding that the representation by the Attorney General’s Chamber (“AGC”) is correct and within its wide-ranging power to represent anybody performing their duties under the Constitution. 

(b) The Court of Appeal adopted the precedent in Indah Desa Saujana Corp Sdn Bhd & Ors v James Foong Cheng Yuen, Judge, High Court Malaya & Anor [2008] 2 MLJ 11, CA, that the Attorney General, being the creature of the Federal Constitution, must defend the judges sued in the course of performing their judicial duties and in the interest of the administration of justice. 

(c) Since the Respondent in this case is one of the branches of government, known as the judiciary, the representation by the AGC is constitutional and appropriate. 

(d) In the same vein, as stated, since the AGC is acting under its constitutional role, not merely as a lawyer for an individual government worker, the Appellant’s reliance on section 24 of the Government Proceedings Act 1956 to argue that the AGC cannot represent is legally unsustainable.

The Court of Appeal unanimously dismissed the Appellant’s appeal with costs of RM5,000.00, with the deposit refunded to the Appellant. The decision of the High Court is upheld. 

1. The AGC has a constitutional duty under Article 145 to step in and defend judges who are sued for actions taken in the course of their judicial duties. This is not about the executive controlling the judiciary; it is about protecting the integrity of the entire justice system.
2. The AGC does not represent a judge as a private client or a generic “public officer” under the Government Proceedings Act 1956. They represent the constitutional office of the judge. Therefore, technical arguments limiting how “public officers” are represented do not apply to the AGC’s broad powers under Article 145.
3. An appellant cannot file an appeal into a specific court (the Court of Appeal) and then simultaneously argue that the very same court lacks the jurisdiction or capacity to hear the matter. By choosing to appeal there, the appellant legally submits to that court’s authority.