A consideration of whether a judge should be permitted to change his mind about a legal issue he decided previously to the contrary.
The Federal Court decision of Lombard Commodities Ltd. v Alami Vegetable Oil Products Sdn Bhd  1 CLJ 137 (judgment dated 3 November 2009) is interesting not so much for the legal issue decided, but the implicit issue that arises of whether judges should be allowed to change their mind on a legal issue they decided to the contrary previously. Let us consider this decision a little closer.
In this case, the very dry legal issue to be decided by the Federal Court was simply this:
“Does the failure of the Yang di-Pertuan Agong to issue a Gazette Notification pursuant to s. 2(2) of the CREFA declaring the United Kingdom to be a party to the New York Convention render a Convention Award made in the United Kingdom unenforceable in Malaysia, notwithstanding the fact that all the conditions ordinarily required for the enforcement of the said Award under CREFA have been satisfied?”
The Federal Court panel presiding over this issue comprised of Arifin Zakaria CJ (Malaya), Hashim Yusoff FCJ and Gopal Sri Ram FCJ. The Chief Judge of Malaya wrote the majority judgment answering the question in the negative and allowed the appeal. Hashim Yusoff FCJ agreed with the Chief Judge of Malaya and so they formed the majority. His Lordship did not provide any written grounds. Gopal Sri Ram FCJ however dissented and gave his reasons. This following portion of his judgment is of interest:
“This very question arose, albeit in a slightly different factual matrix, in Sri Lanka Cricket v. World Sport Nimbus Pte Limited  2 CLJ 316. The Court of Appeal of which my learned brother Hashim Yusof and I were members answered the question in the negative. It held that Singapore (which was the seat of the arbitration there) had not been gazetted under the Act as a party to the New York Convention which the Act had been passed to give effect to and the award in that case could not therefore be summarily enforced under the Act. The present appeal therefore tests the correctness of the decision in the Sri Lanka Cricket case.”
The Court of Appeal that decided the case of Sri Lanka Cricket v. World Sport Nimbus Pte Limited  2 CLJ 316 comprised of Gopal Sri Ram JCA, Hashim Yusoff JCA and Azmel Ma’amor JCA (as all their Lordships were formerly known; they all made it up to the Federal Court eventually) and that decision was unanimous (judgment dated 14 March 2006). Gopal Sri Ram FCJ in dissenting basically maintained his position in Sri Lanka Cricket. In his dissent his Lordship wrote:
I would add that I have found nothing in the arguments of the appellant to persuade me that the view I expressed in the Sri Lanka Cricket case is mistaken or erroneous.
What is interesting is that Hashim Yusoff FCJ more than 3 years after concurring with Gopal Sri Ram FCJ earlier in the Sri Lanka Cricket decision appears to have changed his mind in agreeing with the learned Chief Judge of Malaya.
Should a judge be allowed to change their mind or thoughts on a legal issue that they have already decided earlier?
I should think so. A judge should be entitled to change their mind provided there are meaningful and legitimate reasons to do so. What a judge found persuasive earlier may subsequently change because of a change in their approach or thinking as a result of experience, or developments in the law either statutorily or in decided cases, or due to the particular facts of a case.
To insist that a judge be bound by a previous decision would fetter his very ability to do justice in the case before him at that moment. To demand rigid adherence to their previous approach would be to restrict if not hinder development of the law because the law too must follow if not anticipate the change in society. It was also famously said by Geoffrey F. Abert, a French philosopher, “It often takes more courage to change one’s opinion than to stick to it.”
In this case, the Chief Judge of Malaya has provided reasons for deciding one way and Gopal Sri Ram FCJ has done so the other way. To my mind, the most crucial judgment would be that of Hashim Yusoff FCJ since his Lordship essentially had the pivotal vote. More importantly, his Lordship previously agreed with Gopal Sri Ram FCJ but has now disagreed with him and his own stance earlier. His Lordship is perfectly perched to give us insight into the evolution and development of the legal issue from one position to the other in explaining the reasons for his change of mind.
Was it due to a different argument that was put forward in Lombard Commodities Ltd. as compared to Sri Lanka Cricket? What about the argument heard this time that inspired a change of mind? Were there authorities not cited in Sri Lanka Cricket but cited in Lombard Commodities Ltd. that revealed a different facet that provoked the change?
We don’t know and look set to never know.
A judge should always have the right to change his mind so long as it is for legitimate and proper reasons. When he does so there is an incumbent duty to explain how that change of mind came about in the most explicitly honest terms. It is only in his explanation that we can evaluate whether that change of mind was truly for legitimate and proper reasons.
But when there is none forthcoming, this lacuna tends to invite unkind speculations.