Should a Judge be Allowed to Change His Mind?

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 [2010] 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 [2006] 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 [2006] 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.

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Fahri Azzat practices the dark arts of the law. Although he enjoys writing and reading, he doesn't enjoy writing his own little biographies of himself. Like this one. He wished somebody else would do it for him. He has little taste in writing about himself in third person. He feels weird doing it. But the part he finds most tedious is having to pad up the lack of his accomplishments, or share some interesting facts about his rather uneventful life, as if there were some who found that oh-so-interesting; as if he were some famous person, like Michael Jackson. When he writes these biographies, the thought, 'Wei, Jangan Perasaan- ah!' lights up in his head. So he usually just lists what he got involved with, positions he held and blah, blah. But this time. Right here. Right this very moment. Uhuh. This one. This one right here. He's finally telling it like it is.

Posted on 15 February 2010. You can follow any responses to this entry through the RSS 2.0.

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4 Responses to Should a Judge be Allowed to Change His Mind?

  1. Hi 'Original Stupid Judge',

    Your comment is rather cynical but it feels like there's a knowing strength about it!

    In answer to your question, I would be terribly grateful if his Lordship troubled himself to explain his change of mind.

    I really don't mind if his Lordship comes up with it 4 – 5 years later written entirely in Russian or Latin with Hello Kitty stickers stuck on the four corners of the judgment. Even if his Lordship wrote it as a musical in classic German and had it performed by the Paper Dolls, I will even volunteer to play the bongos and purchase a ticket so I can understand what possessed his Lordship to change his opinion. Hell, I'm so desperate for his Lordship to write one, I'll even take his grounds of judgment of why he didn't write one and call it a day.

    That is the lengths I will go to in encouraging and waiting for a grounds of judgment. Why?

    Because so long as his Lordship remains silent then, we are left with just your 'unkind speculation'. The law on affidavits may have some relevance – a material assertion left unrebutted by an opposing party will be deem admitted by them.

    So here's hoping his Lordship butts back.

  2. the original stupid

    Easy la Encik Fahri. Lemme explain why he changed his mind.

    In the Court of Appeal, this judge was frightened of Sri Ram. Sri Ram would shout and scream at him. And of course, he did not have the knowledge to disagree with Sri Ram. So he greed with Sri Ram la.

    Now he is in the Federal Court. He is not frightened of Sri Ram anymore. Now he is frightened to the Chief Judge. So he agreed with the Chief Judge lah.

    You want him to write why he changed his mind?

  3. Hi Lim, sorry about that.

    I don't usually respond on TMI and prefer to do so on our own blawg. I have not yet been arrested by any government agencies just yet so will try to respond to your comment as I understand it.

    The Lombard majority decision to me is more of a commercial decision to account for the commercial interests we seek to encourage in our country than a strictly legal one which I tend to think was correctly opined by Gopal Sri Ram FCJ.

    This decision must be evaluated in the context of our country's approach where international treatise and instruments are concerned. If Malaysia subscribed to a monist system then I would agree with the majority decision. But Malaysia claims a dualist system (see Mohamad Ezam Mohd Noor v Ketua Polis Negara & Other Appeals [2002] 4 CLJ 309. For an explanation between a monist and dualist system see here: http://en.wikipedia.org/wiki/Monism_and_dualism_i

    Since we have a dualist tradition i.e. we must enact specific legislation before we can incorporate an international treatise or instrument to have domestic application, Gopal Sri Ram FCJ is correct in that you must follow through with the necessary legal processes to make it domestic law before it has application. This I think was the underlying logic behind Sri Ram's judgment.

    Now that you understand that, you can appreciate the wider significance of Lombard, which is this: a foreign international award is enforceable even though we have not complied with the legal requirement of gazetting.

    This is astounding especially when you consider that no law in our country will be effective until it is gazetted. The act of gazetting is an important requirement because the gazette functions as official notice to all citizens in the country that this law or whatever is being passed. The gazette is not simply an inconvenience. It is fundamental to the Rule of Law because it announces what the current laws are before they are enforced.

    Enforcing law before it is gazetted is like enforcing a law we not know and cannot possibly know because it was not properly brought to the public attention. Now imagine, if you can be arrested or persecuted for laws that were never revealed to you – what kind of state would that be?

    I would recommend Franz Kafka's The Trial if you want to understand how that feels like.

  4. I responded to your article in MalaysianInsider but they feared to publish. So maybe you too are afraid? If so, we can say the SB (and CIA, FBI and other agencies) are indeed able to put a stop to natural and truthful comments.

    Here goes: My friends told me about the text of a talk delivered by former Justice Dato' Syed Ahmad Idid at the ALA or ASEAN Law Association's General Assembly in mid-October 2009 in Hanoi Vietnam. The text and presentation was on "Recognising (foreign) Arbitral Awards". The Lombardie and Sri Langka Cricket decisions were given full treatment. UNCITRAL as well as Malaysia's standing in the international arbitral fraternity were exponded which might have led the Federal Court to change its earlier stand (which many say were INcorrect!) to the present more legal, more international and better educated judgment!

    I want to suggest that law lecturers (if they are real good but not otherwise where they just "makan gaji" in the universities) must study some of the judgments and comment heartlessly with the view that the lecturers must go for justice…and not for any narrow-minded decisions.