Ensure all members of apex court bench deliver ruling, say legal eagles

PETALING JAYA: A retired judge has urged newly minted Chief Justice Tengku Maimun Tuan Mat to ensure that when a full Federal Court bench hears arguments, then the full bench also delivers judgment.

Alternatively, Gopal Sri Ram said, Tengku Maimun could suggest amendments to Section 78 of the Courts of Judicature Act (COJA) 1964 to disallow a reduced number of judges delivering judgment, unless the parties consent.

“It is necessary, especially in the apex court, that all the judges who heard the appeal be present when judgment is delivered, unless the parties agree,” he told FMT.

Gopal Sri Ram.

He said this in response to several recent Federal Court rulings which were delivered by three or four members when five judges had originally heard the appeals, due to retirement.

Even in the first ever nine-member bench to hear a constitutional issue, only eight were present as one judge had retired.

Sri Ram, who retired as a Federal Court judge, said it was unfair to the losing or winning litigants to be deprived of the legal opinion of the judge who had retired.

“After all, it is the legitimate expectation of every litigant that the judges who heard the appeal also deliver the judgment,” he added.

Section 78 of COJA currently allows a minimum of two judges to deliver a ruling.

R Kengadharan.

Sri Ram said litigants would not know what the result might have been if the absentee judges had participated in the decision making process.

Sri Ram, who was elevated straight to the Court of Appeal in 1994 and who had the privilege of siting in the Federal Court on an ad-hoc basis before his elevation to it in 2009, narrated two incidents at the apex court.

He said there was a murder appeal in which he had the privilege of sitting with the late Wan Adnan Wan Ismail, the then chief judge of Malaya, and the late Abdul Malek Ahmad.

“Both Malek and I thought that the appeal should be dismissed. But Wan Adnan felt the misdirection was serious enough to warrant an acquittal. After some deliberation, we were convinced that our initial view was wrong and that Wan Adnan was correct.

“I have also seen that happen in a court of five judges. When we went up, we all thought that an appeal before us had no merit. The only person in dissent was Azmi Kamaruddin.

“We stood down the matter and during the adjournment Azmi managed to convince three of us that his view was correct. And so we delivered a judgment with one dissent (4-1). Therefore, views may change through discussion,” he added.

Sri Ram said the above incidents revealed the advantage of all the legal minds who heard the appeal to be present when judgment was delivered.

Syed Iskandar Syed Jaafar Al Mahdzar.

He said if one judge was not present, then the opportunity was lost to the litigant to have the absentee judge’s view.

Meanwhile, lawyer R Kengadharan said all judges on the panel must deliver judgments even if there was going to be a split decision.

“Sometimes the argument advanced by the minority is more convincing compared with that of the majority. This will be good as lawyers can wait for an opportunity to revisit the case and argue that the legal position advanced by the minority is correct,” he said

Kengadharan said this happened very frequently in the United Kingdom and also in Malaysia, albeit on rare occasions.

Lawyer Syed Iskandar Syed Jaafar Al Mahdzar said the chief justice or the bench chairman must ensure all judges were available to deliver a ruling, unless there was a death or someone had been incapacitated due to illness.

“It is important for every Federal Court to deliver the legal opinion of all members who hear an appeal, especially in civil cases, because they are actually interpreting the law in a new situation and setting a judicial precedent,” he said.

Syed Iskandar said the chief justice should, if possible, exclude judges who were about to retire to hear such cases, as the bench could take a longer time to deliver its verdict.