3/2/2019 0 Comments
Whether the Federal Court's decision in setting aside its previous decision on the ground of 'coram failure' was rightly made?
I. A BRIEF HISTORY OF BELLAJADE V CME GROUP & TAN SRI LIM CHENG POW
In the recent judgment on Bellajade v CME Group & Tan Sri Lim Cheng Pow, the Federal Court set aside a judgment it delivered last year on the ground of coram failure. The Federal Court had heard the case at an earlier date and reserved judgment until 25 September 2018. Then, on the 31st of July, Tan Sri Zulkefli Ahmad Makinudin resigned by virtue of Article 125(2) of the Federal Constitution. On the 25th, Tan Sri Azahar Mohamed pronounced in court the written judgment authored by Tan Sri Zulkefli on his behalf. The judgment, being the sole composition and reasoning of Tan Sri Zulkefli, was concurred and adopted by three other judges, who then comprised the majority.
The judgment was contested by the appellants under Rule 137 of the Rules of Federal Court (RFC) which states the Federal Court’s inherent power to hear applications to prevent injustice. The judgment was argued to be inoperative because it was pronounced in an open court only after Tan Sri Zulkefli’s resignation, when he was no longer an active member of the court. This situation may be termed as ‘coram failure’.
II. UNDERSTANDING CORAM FAILURE AND THE PROPER CONSTITUTION OF A COURT
Before delving into the arguments of the case in question, one must understand the meaning of ‘coram failure’, which may appear as a term relatively novel to law students, especially to those who have yet to study Civil or Criminal Procedure. In essence, coram failure occurs when a court is improperly constituted, whether in the course of trial or when the judgment is being pronounced. The next question which follows is ‘what is meant by proper constitution of the court?’ This may be understood by looking at several relevant statutory provisions.
As the case decided concerns the decision of the Federal Court, we may refer to S.74 of the Courts of Judicature Act (CJA)  to examine the proper constitution of the court. It states that every proceeding in the Federal Court must be heard and disposed by three judges or any greater uneven number as the Chief Justice decrees. Supplementary to that, S.78 of the CJA then states:
‘(1) If, in the course of any proceeding, or, in the case of a reserved judgment, at any time before delivery of the judgment, any Judge of the Court hearing the proceeding is unable, through illness or any other cause, to attend the proceeding or otherwise exercise his functions as a Judge of that Court, the hearing of the proceeding shall continue before, and judgment or reserved judgment, as the case may be, shall be given by, the remaining Judges of the Court, not being less than two, and the Court shall, for the purposes of the proceeding, be deemed to be duly constituted notwithstanding the absence or inability to act of the Judge as aforesaid.
(2) In any such case as is mentioned in subsection (1) the proceeding shall be determined in accordance with the opinion of the majority of the remaining Judges of the Court, and, if there is no majority the proceeding shall be re-heard.’ [Emphasis added].
Upon the plain reading of S.78, it appears that a judge’s failure to appear before the court will not render it to be improperly constituted. In fact, the hearing may continue, and the judgment may be given by the remaining judges of the court. In considering S.78, we must have regard to Rule 63 of the RFC  which states that a judgment of the court shall be pronounced in open court, and such judgment may be pronounced notwithstanding the absence of the judges who composed the court.
To fully appreciate the impact of these provisions, Chia Yan Teck is relevant where the court identified a clear distinction between the giving of judgment under S.78 and the pronouncement of judgment in Rule 63. In S.78, it is clearly provided that other judges may deliver the judgment in the absence of a judge. However, there is no mention of when a judgment takes effect. In Rule 63, this was answered; A judgment takes effect during the pronouncement in an open court by a judge or registrar.
Referring to the Indian case of Surendra Singh v State of Uttar Pradesh, the Supreme Court observed the importance of a formal intimation of the decision in open court. Bose J meticulously observed that judges may often discuss the issue and reach a tentative conclusion, which is usually signed. However, that is not their judgment in finality. He opined that judges must be given the flexibility to change their minds right up until its pronouncement in open court. He aptly concluded that ‘The final operative act is that which is formally declared in open court with the intention of making it the operative decision of the court. That is what constitutes the “judgment”.’
It is this principle the bench in Chia Yan Teck considered and with which it agreed. Mohammad Dzaiddin CJ (as he then was) held that ‘the effective date of the judgment in the instant case is the date of pronouncement in open court, and not the date when it was signed by the remaining two judges of the court.’ With that, he decided that the court in that case was not duly constituted as two of the three residing judges retired, and therefore the judgment declared in open court was not done in accordance with the law.
Other than Chia Yan Teck, MGG Pillai  is also of relevance to this discussion. In this Federal Court case, the late Tan Sri Chong Siew Fai, the then Chief Judge of Sabah and Sarawak retired several days before the pronouncement of the reserved judgment. The court, again, considered Surendra Singh and extracted the principle that ‘the judge who “delivers” the judgment or causes it to be delivered by a brother judge, must be in existence as a member of court at the moment of delivery so that he can, if necessary, stop delivery and say that he has changed his mind.’ The authoring judge ‘need not be physically present in court, but he must be in existence as a member of court and be in a position to stop delivery and effect an alteration should there any last-minute change of mind on his part.’ As further elaboration on this point, Bose J expounded that ‘The mere signing of the draft does not necessarily indicate a closed mind,’ and felt that it would be against public policy to question whether a draft sent by a judge was intended to embody his final and unalterable opinion or was only meant as a tentative draft where it was implied that he may change his mind ‘should fresh light dawned upon him before delivery of judgment.’ [Emphasis added].
III. RECONCILING THE PRINCIPLES WITH THE BELLAJADE CASE
The two principles from Chia Yan Teck and MGG Pillai, both citing Surendra Singh, paints the legal requirement for judges authoring judgments to be in existence as a member of court during its pronouncement, which is the time when a judgment is considered operative and in effect. Therefore, in application, Tan Sri Zulkefli Ahmad Makinudin is clearly not in existence as a member of court during the pronouncement of judgment done on the 25th of September, considering he tendered his resignation to the Yang di-Pertuan Agong (YDPA) prior to that. Hence, he would not, as required by Surendra Singh, be able to effect any last-minute changes in his judgment on the day of pronouncement.
Since this judgment was relied upon by three other Federal Court judges, namely Tan Sri Zaharah Ibrahim CJM, Tan Sri Azahar bin Mohamed and Dato’ Balia Yusof, it is all the more important for Tan Sri Zulkefli to be in existence as a member of court. Even if he did sign the judgment before retirement, ‘it is nothing but a draft till formally delivered as judgment of the court’, as per the decision by Bose J. This position on signed judgments is endorsed in the Singaporean case of Ramachandran a/l Suppiah v PP, where a reserved judgment signed by a retired judge was also held to be inoperative due to the tribunal being legally incompetent to deliver the judgment. Therefore, it is clear that the judgment authored by Tan Sri Zulkefli was inoperative when pronounced, and the concurring judges was adopting an expired judgment that is void in nature.
IV. SIGNIFICANCE OF THE BELLAJADE CASE
This case is significant for many reasons.
First, it is the first case since 2012 where the Federal Court set aside its own verdict. In Gurbachan Singh, the Chairman of the panel left the bench and proceedings were not stood down. Therefore, the Federal Court found that there was indeed coram failure.
Second, this is the first case in the string of precedents on the issue of coram failure which concerns the resignation of a judge. In previous cases, the common issue was pertaining to the retirement of judges. Never before was there a case on coram failure which deals with the incidence of a judge resigning.
Third, this case also impliedly discussed the effect of a judge concurring or adopting the judgment of another. By deciding to set aside its own judgment, the Federal Court alluded the fact that judgments adopted or concurred by another judge would not effectuate the judgment as his or her own composition or reasoning. The adopted judgment shall still be construed to be the reasoning and composition of the authoring judge.
Lastly, this case delivers great impact on other ongoing cases which concern a judgment given by either Tan Sri Raus Sharif or Tan Sri Zulkefli Makinudin, who both resigned on the same day. As this case established a precedent that the judgments of Tan Sri Zulkefli may be challenged for coram failure, it can potentially open a floodgate of litigation for other cases which judgment was pronounced after the ex-judges’ date of resignation.
For these reasons, we may observe the significance of this decision, and its stirring effect on the legal fraternity.
V. CLOSING REMARKS
The ground of coram failure is under the jurisdiction of the Federal Court to review its own decision to prevent irremediable injustice or abuse of process by the court. As much as the decision in Bellajade is impactful, it, again, managed to avoid the crux of the contention, which is the constitutionality of Tan Sri Raus Sharif and Tan Sri Zulkefli’s appointment as additional judges to the Federal Court after their age of retirement. This decision to set aside the judgment by the Federal Court may yet be another attempt to dodge a judgment on this contentious issue. When the Malaysian Bar challenged the extension of Tan Sri Raus and Tan Sri Zulkefli, the Federal Court brushed the claim aside with the argument that it is academic, since both justices have already resigned. Therefore, this case seems to have managed the same result without even having to delve into the merits of the argument against its constitutionality. Although much may be celebrated, the constitutionality of the justices’ extension is still inconclusive to this very day. Will the constitutional fate of this issue be settled one day? We can only wait and see.
Written by Iqbal Harith Liang, a third year law student of the Faculty of Law, University of Malaya.
Edited by Corina Robert Mangharam.
Disclaimer: The opinions expressed in this article are those of the author and do not necessarily reflect the views of the University of Malaya Law Review, and the institution it is affiliated with.
 Malaysian Constitution, art 125(2).
 Rules of Federal Court 1995, rule 137.
 Courts of Judicature Act, S.74.
 Courts of Judicature Act, section 78.
 Rules of Federal Court 1995, rule 63.
 Chia Yan Teck v Ng Swee Kiat  4 MLJ .
  AIR 194.
 MGG Pillai v Tan Sri Dato Vincent Tan Chee Yioun  2 MLJ 673.
 Federal Constitution, Article 125(2).
 Ramachandran a/l Suppiah v PP  2 SLR 707.
 Gurbachan Singh s/o Bagawan Singh & Anor v Vellasamy s/o Pennusamy & Ors  MLJU 36 (FC).
 Chia Yan Teck v Ng Swee Kiat  4 MLJ; MGG Pillai v Tan Sri Dato Vincent Tan Chee Yioun  2 MLJ 673.
 Bar Council Malaysia v Tun Dato’ Seri Arifin bin Zakaria & Ors  MLJU 1288.