Understanding legal terminology

A Federal Court ruling helps explain the difference between a judgment and the grounds of judgment.

LEGAL terminology, while it appears clear and straightforward to lawyers and some legally trained people, can be a source of disagreement and even appeals to the Courts.

A reader asks what is meant by grounds of judgment. With an apology to those already familiar with grounds of judgment, I also deal with another question where the reader asks what is the difference between an order and judgment on the one hand, and grounds of judgment on the other hand.

A judgment or order is the specific decision which can be enforced by the various procedures available within the litigation framework. On the other hand, the grounds of judgment contain the reasons explaining and justifying the decision that has been made. What is enforced is the judgment or order.

There are cases where a judge may deliver a judgment and hand down the grounds of judgement at the same time. On the other hand, the grounds of judgment may be handed down on a later date. These are sometimes also referred to as grounds of decision.

An issue arose in the case of Datuk Seri Anwar Ibrahim v Tun Dr Mahathir Mohamad in the Federal Court. A point raised, as a preliminary objection, was whether the grounds of judgment provided by the High Court and the Court of Appeal could be in the English language? An application was made to this end.

It was contended by the appellant that as the grounds of judgment were not in Bahasa Melayu but English, the grounds were null and void. This was with regard to the provision of Section 152 of the Federal Constitution which stipulates that all proceedings should be in the Malay language.

Counsel for the applicant contended that Section 8 of the National Language Act 1967, which came into effect on July 1, 1971, stated that all proceedings – other than the giving of evidence by a witness in the Federal Court, the Court of Appeal or the High Court or any other court – shall be in the national language.

The situation that arose in this case was whether the grounds of judgment were part of the proceedings of the court.

The appellant contended that it followed that if these were a part of the proceedings, then there had been no compliance with the law.

After analysing, considering and deliberating on the definition of the word “proceedings” in the various dictionaries and lexicons, the court came to the conclusion that the word did not include the grounds of judgment.

The Federal Court said: “From these definitions, we may conclude that proceedings include amongst others the institution or commencement of action, judgment, execu tion and the taking of an appeal or writ of error. Therefore, by definition ‘judgment’ forms part of the proceedings. That we think is not in dispute. What is in issue is whether ‘judgment’ includes ‘grounds of judgment’.”

In so deciding, the court also relied on P. Ramanatha Aiyar’s Law Lexicon and Black’s Law Dictionary, which define proceedings as the regular and ordinary progression of a lawsuit including all acts and events between the time of commencement and entry of judgment.

After reviewing various other authorities, the court drew a distinction and went on to say that the judgment is a formal order and therefore different from grounds of judgment which merely contains the reasoning.

“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. 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.”

In dismissing the application, the court also referred to the proviso in the National Language Act which gives the court the discretion, either on its own motion or on the application of any party, to order the proceedings to be conducted partly in the national language and partly in English as the justice of the case demanded.

There was another factor adverse to the appellant.

The court noted that the records showed 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 court to conduct the proceedings 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 judgment in the English language.

In fact, the Federal Court could have disposed of the application by the appellant on these latter grounds. However, it chose to go into the language issue.

Actually, it was not even necessary for the Federal Court to dwell on the issue of language as to the grounds of judgment, but it did. This could, however, open the way to other arguments in time to come.

Be that as it may, as an authority for the fact that the grounds of judgment is not part of the proceedings, the decision of the Federal Court stands as good law.

Any comments or suggestions for points of discussion can be sent to mavico7@yahoo. com. The views expressed here are entirely the writer’s own.