PETALING JAYA: A retired judge and the Malaysian Bar want Federal Court judgments to be delivered at a reasonable time to avoid any legal complications.
They also said parties in criminal and civil actions had legitimate expectations to have the same judges who heard the appeal to pronounce their verdicts.
Former Federal Court judge Gopal Sri Ram has suggested that the Courts of Judicature Act (CoJA) be amended to allow litigants the option to have a rehearing or accept decisions from a reduced panel of judges due to unforeseen circumstances.
Sri Ram cited the case of former Selangor Menteri Besar, the late Harun Idris, whose conviction for corruption was upheld by a two-member Federal Court bench in 1977.
“A provision in the CoJA then provided the choice and the prosecution and defence jointly agreed that the then Lord President (Mohamed) Suffian (Mohamed Hashim) and Wan Suleiman Pawanteh deliver the verdict,” he said.
A third member of the bench, Ali Hassan, had passed away.
Sri Ram said that was the position then but the CoJA was later amended.
Section 78 (1) of CoJA states that in the event a judge is unable to exercise his function in the midst of the proceeding, the remaining panel of a minimum two judges could deliver judgment.
Section 78 (2) adds that if there is no majority decision, the proceeding will be reheard.
So, litigants do not have the option of a rehearing unless there is no majority decision.
Sri Ram also said all pending judgments must be delivered before the court vacation for the year as practised in the United Kingdom and the United States.
He said this in response to two delayed important apex court rulings, one of which had been delivered by a reduced bench from the original panel and another which is set to follow suit.
Only three judges from the original five-member Federal Court bench will deliver judgment on whether a Muslim child conceived out of wedlock can carry the father’s name.
On Feb 7, the then chief justice Raus Sharif chaired a five-member bench to hear the case and reserved judgment after submissions from the lawyers.
Raus resigned from office in July while another panel member, Hasan Lah, retired last month.
In the second case, a six-member bench last month refused to rule on the constitutionality of the decision to extend the tenures of Raus and Court of Appeal president Zulkefli Ahmad Makinudin.
In this case, brought by the Malaysian Bar and the Advocates Association of Sarawak, a seven-member bench, including the present Chief Judge of Malaya Zaharah Ibrahim, had sat to hear arguments on March 14.
However, Zaharah recused herself from delivering the grounds as she would be in conflict.
Justice Zainun Ali, who delivered the judgment last month, held the matter was academic as Raus and Zulkefli were no longer in office.
Bar president George Varughese said whether Raus and Zulkefli’s appointments were valid could have been determined only if the full bench had delivered their grounds speedily.
“The legal fraternity was looking forward to its outcome as the judges were asked to interpret several Articles in the Federal Constitution that affected the judiciary,” he said.
Varughese said he was informed that there were parties who would now want to challenge the decisions made by Raus and Zulkefli when they remained in office beyond their mandatory retirement age of 66 plus six months.
Prime Minister Dr Mahathir Mohamad, who filed a legal challenge against the appointments of the two men last year in his capacity as opposition leader, is pursuing his appeal, his lawyer Mohamed Haniff Khatri Abdulla said.
Meanwhile, lawyer Zainur Zakaria said the six-member bench used their discretion to declare the case as academic based on legal principles.
“There were far reaching implications if a judgment was delivered before both judges resigned. I think the bench did not want to upset the two in passing a judgment as there is life after retirement,” he added.
Zainur, a former Malaysian Bar president, said administrative action would be sufficient to ensure all apex court decisions were delivered without much delay.