Tuesday, November 23, 2010

Penghakiman dalam bahasa Inggeris sah: Mahkamah Persekutuan


Penghakiman dalam bahasa Inggeris sah: Mahkamah Persekutuan

2010/11/24

PUTRAJAYA: Mahkamah Persekutuan hari ini memutuskan penghakiman yang ditulis dalam bahasa Inggeris adalah sah.

Panel tiga hakim diketuai Hakim Besar Malaya, Tan Sri Ariffin Zakaria, membuat keputusan itu selepas menolak bantahan Datuk Seri Anwar Ibrahim berhubung keputusan Mahkamah Rayuan mengenai kes saman malu RM100 juta terhadap Tun Dr Mahathir Mohamad.

Mahkamah menolak permohonan itu dengan kos RM70,000.

sumber: http://www.bharian.com.my/bharian/articles/PenghakimandalambahasaInggerissah_MahkamahPersekutuan/Article

KEPUTUSAN PENUH:

IN THE FEDERAL COURT OF MALAYSIA
CIVIL APPLICATION NO. 08(F)-319-2009(W)


[ 7 ] In the present case, it is common ground that all the three grounds
of judgments delivered by the courts below were in the English
language. The issue is whether they contravene the provision of s.8 of the NLA 1963/67, and hence rendering the grounds of
judgments, null and void. We are of the view that this is an issue
which warrants our consideration because of the serious
consequence that may follow should we agree with the Applicant.

[ 8 ] For ease of reference, the relevant provision of the Constitution is
reproduced below:
“152. National language.
(1) The national language shall be the Malay language and shall be in
such script as Parliament may by law provide:
Provided that -
(a) No person shall be prohibited or prevented from using (otherwise
than for official purposes), or from teaching or learning, any other
language; and
(b) Nothing in this Clause shall prejudice the right of the Federal
Government or of any State Government to preserve and sustain the
use and study of the language of any other community in the
Federation.

[ 9 ] In illustrating his stand, learned counsel for the Applicant has
drawn the attention of this Court to the development of the national
language as the language of the courts. He submitted that, from
1957 until 1967, the language of the court is governed by Article
152(4) and (5) of the Constitution. It reads as follows:
152(4).Notwithstanding the provisions of Clause (1), for a period of ten
years after Merdeka Day, and thereafter until Parliament otherwise
provides, all proceedings in the Federal Court, the Court of Appeal or a
High Court shall be in the English language:
Provided that, if the Court and counsel on both sides agree, evidence
taken in language spoken by the witness need not be translated into or
recorded in English.
(5).Notwithstanding the provisions of Clause (1), until Parliament
otherwise provides, all proceedings in subordinate courts, other than
the taking of evidence, shall be in the English language.

[10] The first enactment on national language was the National
Language Act 1963. It came into force on 1st April 1963. There was
no provision in the Act as regards the language of the court since
the ten year period had not passed. Then, came the National
Language Act 1967, which came into force on 1st September 1967.
It contains section 8 which makes provision for the language of
courts. The National Language Act 1963 and the National
Language Act 1967 had since been consolidated and revised as
the NLA 1963/67 with effect from 1st July 1971. Section 8 of the
NLA 1963/67 reads as follows:
“8. Language of Courts.
All proceedings (other than the giving of evidence by a witness) in the
Federal Court, the Court of Appeal, the High Court or any Subordinate
Court shall be in the national language:
Provided that the Court may either of its own motion or on the
application of any party to any proceedings and after considering the
interests of justice in those proceedings, order that the proceedings
(other than the giving of evidence by a witness) shall be partly in the
national language and partly in the English language”.
(Emphasis Added)

[11] Central to the argument of counsel for the Applicant is the word
“proceedings” in s.8 of the NLA 1963/67, which he maintained
includes the “grounds of judgment” of the court. He relied on
P.Ramanatha Aiyar’s Advanced Law Lexicon at page 3745 in
support of his contention, where the word “proceedings” is stated
to mean:
“‘Proceedings’ is a word much used to express the business done in
Courts. A proceeding in Court is an act done by the authority or
direction of the Court, express or implied. It is more comprehensive
than the word ‘action’, but it may include in its general sense all the
steps taken or measures adopted in the prosecution or defence of an
action, including the pleadings and judgment. As applied to actions, the
term ‘proceeding’ may include – (1) the institution of the action; (2) the
appearance of the defendant; (3) all ancillary or provisional steps, such
as arrest, attachment of property, garnishment, injunction, writ of ne
exeat; (4) the pleadings; (5) the taking of testimony before trial; (6) all
motions made in the action; (7) the trial; (8) the judgment; (9) the
execution; (10) proceedings supplementary to execution, in code
practice; (11) the taking of the appeal or writ of error; (12) the remitter,
or sending back of the record to the lower Court from the appellate or
reviewing Court; (13) the enforcement of the judgment, or a new trial,
as may be directed by the Court of last resort.” EDWIN E. BRYANT,
The Law of Pleading Under the Codes of Civil Procedure 3-4 (2nd edi.
1899).”

[12] Black’s Law Dictionary, 7th Edn., at page 1221 defines the word
“proceeding” in the following term:
“1.The regular and orderly progression of a lawsuit, including all acts
and events between the time of commencement and the entry of
judgment.
(See also Stroud’s Judicial Dictionary of Words and Phrases, 7th
Edn., Volume 3 at page 1426)

[13] S. 3 of the Court of Judicature Act 1964 (“the CJA”) defines
“proceeding” as follows:
“‘Proceeding’ means any proceeding whatsoever of a civil or criminal
nature and includes an application at any stage of a proceeding”.

[14] From the above definitions, we may conclude that “proceeding”
includes amongst others the institution or commencement of
action, judgment, execution and the taking of an appeal or writ of
error. Therefore, by definition “judgment” forms part of the
proceeding. That we think is not in dispute. What is in issue is
whether “judgment” includes “grounds of judgment”.
The same Law Lexicon at page 2503, defines “judgment” in the
following term:
“‘Judgment’ means the statement given by the judge on the grounds of
a decree or order.[CPC (5 of 1908), S.2 (9)]. The sentence of the law,
or decision pronounced by the Court, upon the matter contained in the
record. (3 Comm. 395, c. 24. Tomlin). A judgment in the final
determination of the rights of the parties in an action.
A ‘judgment’ is a sentence of the law pronounced by the Court upon
the matter contained in the record (Co.LIYY. 39 A, 168 A); and the
decision must be one obtained in an ACTION Ex p. Chinery 12 Q.B.D.
342; Onslow v. Inland Revenue, 25 QBD.
[In a proper use of terms the only judgment given by a Court is the
order it makes. The reasons for judgment are not themselves
judgments though they may furnish the Court’s reason for
decision and thus form a precedent (R. v. Ireland (1970) 44 ALJR
263). See also Lake v. Lake, para. (8) Infra.” (Emphasis Added)

[15] Thus, it is clear that “judgment” must be distinguished from
“reasons for judgment” or what we commonly refer to as “grounds
of judgment”. The distinction is made amply clear by Sir Raymond
Evershed MR. in Lake v. Lake [1955] 2 All ER at page 538:
“A party’s right to appeal (which is, of course, a statutory right) is now
regulated by the terms of RSC, Ord 58, r 1. That states that the
appellant, may, pursuant to s 27 (1) of the Supreme Court of Judicature
(Consolidation) Act, 1925, appeal from “the whole or any part of any
judgment or order”. Counsel for the wife strongly argued that the
judgment, for the purpose of the present matter, is not the formal
document which I have already read, drawn up and signed by the
district registrar, but is the statement of his reasons given by the
commissioner at the end of the trial and from the transcript of which I
have read certain short extracts. I will assume that the statement
should be construed and read in the light of the questions and
answers, which I also read, following the delivery of the so-called
judgment, though I must not be taken to be saying that such a dialogue
should necessarily be treated as part of the judgment itself. In my view,
however, the argument cannot be sustained. Nothing from the cases
brought to our attention by counsel for the wife persuades me that by
the words “judgment or order” in the rule or in the sub-section is meant
anything other than the formal judgment or order which is drawn up
and disposes of the proceedings and which, in appropriate cases, the
successful party is entitled to enforce or execute. In other words, I think
that there is no warrant for the view that there has by statute been
conferred any right on an unsuccessful party, even if the wife can be so
described, to appeal from some finding or statement - I suppose it
would include some expression of view about the law - which you may
find in the reasons given by the judge for the conclusion at which he
eventually arrives, disposing of the proceeding. If that is right, I come
back again to the formal judgment or order; and, for the reasons which
I have already made plain, there is no part of that document against
which any appeal or, indeed, any complaint, could be made on the part
of the wife. As counsel for the husband observed, the wife raised as a
substantive defence, that, if she had committed adultery (though she
denied it), then that adultery had been condoned, and in that matter
she was successful. Indeed, on her husband’s petition she was the
successful party at the trial; and it may be said in mitigation of her
apparent embarrassment now because of the finding of adultery, that,
after all, she did succeed in one of the defences she deliberately put
forward and it ill becomes her now to complain of that fact in this or any
other court.” (Emphasis added)

[16] The fundamental principle established in Lake v. Lake [1955] 2
All ER at page 538 is that a party may appeal against the
judgment and not against some findings or statements which may
be found in the reasoning given by the judge in support of a
judgment or order. This is followed in Civil Aviation Safety
Authority v. Central Aviation Pty. Ltd. NSD 160 of 2009, 2009
FCAFC 137, a decision of the NSW District Registry of Australia.
In that case, Bennet, Flick and Mckerracher JJ held that:
“The term “judgment” as it is used in ss 4 and 24 of the 1976 Act has
the same meaning as that used in s 73 of the Constitution and refers to
the formal order of a court: Ah Toy v. Registrar of Companies (1985)
10 FCR 280 at 285. Toohey, Morling and Wilcox JJ there observed:
... [T]he starting point for consideration of the competency of this
appeal must be ... s 24 of the Federal Court of Australia Act 1976.
Unless there is a “judgment, decree or order”, there is nothing against
which an appeal may be brought. ... It is accepted that the expression
“judgment, decree or order” bears the meaning which the word “all
judgments, decree, order ...” have in s 73 of the Constitution: Molley v.
Roy (1975) 132 CLR 622 per Barwick CJ at 625. In that case Mason J,
speaking of s 46 of the Supreme Court Act (NT), said (at 639):
However, I see no alternative but to give the word “judgment” as it
appears in s 46 its accepted legal meaning, that is, the formal order
made by a court which disposes of, or deals with, the proceeding then
before it : see R v. Ireland (1970) 126 CLR 321 at 330; Lake v. Lake
(1955) 366 at 343-344. Any other view would, I think, disregard the
similarity between the provisions of s 46 and those of s 35 of the
Judiciary Act 1903 (Cth) which are so obviously based on the
provisions of s 73 of the Constitution where the word “judgments” is
used in the same sense”.

[17] There is, therefore, a clear distinction between “judgment” and the
term, “grounds of judgment” or “reasons for judgment”. Similarly,
our Rules of Courts draw such a distinction. (See S.62 and 63 of
the CJA, R.63 of the Rules of the Federal Court 1995 , R.24 and
25 of the Rules of the Court of Appeal 1994, O.42, 44 and 45 of
the Rules of the High Court 1980 and O.29 and 30 of the
Subordinate Courts Rules 1980). In view of the foregoing we are
of the view that the word “proceeding” could not be interpreted to
include “grounds of judgment” as contended by the Applicant. This
disposes the issue of law raised herein, but even if “proceedings”
were to include “grounds of judgment”, we need to consider further
the proviso to section 8 of the NLA 1963/67.

[18] The Proviso reads as follows:
“Provided that the Court may either of its own motion or on the
application of any party to any proceedings and after considering the
interests of justice in those proceedings, order that the proceedings
(other than the giving of evidence by a witness) shall be partly in the
national language and partly in the English language”.

[19] It would appear that the proviso gives a wide discretion to the court
as regard the use of the national language and the English
language in any proceeding having regard to the interest of justice.
The Applicant’s counsel, however, submitted that the proviso
does not apply to the Court, but only to parties to the proceeding.
He, however, conceded that based on the proviso a party may be
allowed by the court to conduct the proceeding partly in the
national language and partly in the English language.

[20] Quite to the contrary, we are of the view that the proviso gives the
court the discretion, either on its own motion or on the application
of any party, to order the proceeding to be conducted partly in the
national language and partly in English language as the justice of
the case demands. From the record it appears that at both levels
in the High Court and the Court of Appeal, learned counsel for the
Applicant and Respondent had asked for leave of courts to
conduct the proceeding in the English language. Leave was
granted by the courts. Therefore, quite understandably the learned
Judges of the High Court and the Court of Appeal delivered their
grounds of judgments in the English language.

[21] What transpired is clearly within the proviso to s.8 of the NLA
1963/67, alluded to earlier. Therefore, it is not open to the party at
this stage to complain, concerning the use of the English
language. However, it should be noted that in compliance with the
NLA 1963/1967, all the cause papers filed in this case, were in the
national language.

[22] Finally, we wish to emphasize that the courts have always
recognized the importance of the national language. (See Zainun
bte Hj Dahlan v. Rakyat Merchant Bankers Bhd & Anor [1997]
4 CLJ Supp 279).

[23] And as early as 1990, the Chief Judge of Malaya, Hashim Yeop A.
Sani in the Chief Judge of Malaya’s Circular No. 3 of 1990
dated 25.6.1990, directs that all Judges and Judicial
Commissioners of the High Court of Malaya and Sessions Court
Judges and Magistrates to submit to him at least one grounds of
judgment in the national language in each month in order to
identify the problem arising out of the implementation of the use of
the national language in courts. This circular further reinforces our
view that, Judges indeed have a discretion to deliver his grounds
of judgment either in the national language or the English
language.

Conclusion

[24] For the above reasons, we hold that it is not contrary to Art. 152 of
the Constitution and s. 8 of the NLA 1963/67 for the grounds of
judgment to be in the English language, as in the present case.

sumber: http://202.75.7.131/portal/index.php?option=com_docman&task=doc_view&gid=1060&tmpl=component&format=raw&Itemid=177&lang=en

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