With regard to my post “The RPK case – a significant victory”, I would like to inform that the Federal Court’s grounds of judgment, as written by the Chief Judge of Borneo, Justice Richard Malanjum, may be found at the the Court’s website. Here are some key extracts from the Judgment.

Among others, the Court said:

18. In the present case the two-member panel considered the application for the recusal of Augustine Paul FCJ. Ordinarily such sitting is contrary to section 74(1) of CJA which stipulates that “every proceeding in the Federal Court shall be heard and disposed of by three Judges or such greater uneven number of Judges as the Chief Justice may in any particular case determine”.

19. However for the reasons given in their Judgment as indicated above the two member panel ruled that they could continue with the hearing.

20. With respect we do not think it is tenable to say that the hearing had commenced just because an application for adjournment was made and allowed.

(emphasis mine)

Quite ironically, the Federal Court had quoted, with approval, Justice Augustine Paul’s minority judgment (when he was in the Court of Appeal) in the case of Wan Khairani Bte Wan Mahmood v Ismail Bin Mohamad & Anor [2007] 4 MLJ 409, where he said:

The phrase “..in the course of a proceeding…” in s 42(1) of the CJA is a reference to a proceeding that has already commenced. What requires consideration is the stage to which the proceeding must have moved before resort can be had to s 42(1) of the CJA to enable the remaining judges to continue with the proceeding. It must be remembered that the object of the section is to prevent the inconvenience of a rehearing of a proceeding to the parties when a member of the panel hearing it is unable to continue to do so. This will certainly not include a proceeding which has been merely called up for hearing. The phrase “..in the course of a proceeding…” must therefore refer to a proceeding where its hearing has commenced and proceeded to such an extent that it will be inconvenient to have it reheard.

The Court therefore concluded:

26. Accordingly, when the two-member panel proceeded to hear the recusal application, section 74(1) of CJA was offended. Unlike in Wan Khairani (supra) where the majority judgment was dealing with an order which even a single judge could hear, the present case did not have that option.

27. It is therefore our considered opinion that there was a quorum failure. …

(emphasis mine)

The Court then set aside the order made by the previous sitting on the 4 motions.

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One reply on “The RPK case – Grounds of Judgment on Quorum Failure issue”

  1. It is nonsensical to have an even number (in this case, two) of judges to hear any case, whatever the reason.

    One judge can decide one way and the second judge may decide the other way. Which means both judges need not decide the same. Unless……

    It is always better to err (if at all) on the side of justice and fair play.

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