A question arose whether the FC had “predetermined Najib’s Appeal even before parties had completed their submissions.”

The question arose because Raja Petra Kamarudin (‘RPK’) had, a few hours before the Federal Court delivered its formal decision, published in his website, a ‘Draft’ unsigned copy of an alleged ‘Broad Grounds’. 

This practice of preparing a Draft Judgement even before delivering Judgement is not something new

The answer to court going lawyers is obvious.

It is a common practice all over the world.

For example, the UK courts do this regularly, and this is well documented.¹‘The Use, Abuse and Implications of the Draft Judgment Procedure’, Hughes, Kirsty, [August 2012] See https://www.researchgate.net/publication/256030103_The_Use_Abuse_and_Implications_of_the_Draft_Judgment_Procedure

The Case Management

Long before the actual hearings, the Appellant would have filed his record of appeal. It will contain all the documents or evidence that arose in the case.

In a criminal appeal, the Appellant files a Petition of Appeal. It explains his legal points.

The Court Registrar will then call for a Case Management (called a ‘CM’). It is a preliminary meeting of the Court and the counsel.

Counsel on both sides will attend it.

Sometimes, the presiding judge might attend it.

For less important cases, the Registrar might attend. 

Free dates of the Court, Counsel and parties are discussed. The court then appoints a hearing date. 

Then administrative directions are given: how papers, case references and counsel’s arguments are to be filed and replied.

Counsel’s written arguments are  filed, usually between two weeks to a month before the hearing.

Without this first step, an appeal will not be set down for hearing.

Reading Stage

The assigned judges will then plough through the entire record. They will scrutinise the judgements appealed from.

In this way, they will understand the context of the appeal.

They will also read counsel’s written arguments.

Pre-Hearing Conferences

Before an appeal hearing involving multiple judges, they always meet before the hearing.

It is usually in the morning of the hearing.

What happens at Pre-Hearing Conferences?

At these Pre-Hearing Conferences, judges ask themselves crucial questions, e.g: –  

“What is it about this appeal that is important?”

“Is there material which shows that the appeal must be allowed?”

“Or are the arguments just a repetition of the old arguments?”

“Do we need to intervene?”

Sometimes, during these meetings, one or two panel members may have some doubts or questions.

It may be about some unexplained evidence, or a difficult point of law.

The Draft: the Initial Non-Binding View

From these discussions emerge, a glimmer of the panel’s ‘overall sense’ of the decision to be made.

This view is not final. It is a preliminary, ‘non-binding’ view’. 

Judges can – and often do – depart from it.

These broad grounds are recorded in some fashion.

But it is not signed.

It is called Draft Broad Grounds.

The Judicial Embargo

But there is an important point to this.

It is forbidden to publish these documents to anyone other than the judges. ²See, ‘Draft judgments: navigating the embargo‘; http://disputeresolutionblog.practicallaw.com/draft-judgments-navigating-the-embargo/[/mfn]

In the UK, a Draft is sometimes published, in confidence, to counsel, so that they can correct errors. 

The Courts ‘embargo’ the Drafts from publication.

Any premature publication, or a leak, is a contempt of court.²Ibid

How RPK procured the embargoed Draft Judgement from within the forbidden corridors of the Federal Court is a mystery we shall deal with later.

Judges can – and often do – depart from these Preliminary Drafts

Sometimes counsel do persuade the court out of its ‘Initial view’.

Or sometimes judges might say, “At first blush…”  they thought the argument was attractive, but on reflection, they changed their minds.³Lim Phin Khian v Kho Su Ming [1996] 1 MLJ 1; United Overseas Bank (Malaysia) Sdn Bhd v. UJA Sdn Bhd & Another Appeal [2010] 6 CLJ 204 ; Jayaraman Arumugam v. Minister For Home Affairs, Malaysia & Anor [1989] 1 CLJ 629, High Court Penang, per Edgar Joseph Jr J

Sometimes, they will change their minds because the legal arguments do not convince them; or because the evidence is weak.

Signing of Broad Grounds

After the appeal concludes, the judges will retire to consider their decision.

They will re-look at, and finalise the Draft. They all sign it. At that point, it becomes ‘Broad Grounds’.

They will then deliver their decision. 

Broad Grounds are useful because the courts use it to explain why they reached their decision the way they did.

Delivery of Detailed Grounds much later

After their decision, the courts will come up with Detailed Grounds.

Depending on the complexity of the case, the court may take from weeks to months to analyse the vast amount of material and the law.

Federal Court’s Media statement on 23 August 2022

This is why the Federal Court made a statement that leaked ‘Broad Grounds’ was merely a ‘draft’ (meaning an ‘unofficial’) version of a Preliminary View.

The Leak in a famous US Case in 2022

Shortly after I wrote this piece, Ms. Tan Siok Choo, a participant in one of our groups, sent a message. This is what she said:

“In the US, the draft judgement of the majority decision of the Supreme Court in Dobbs v Jackson Women’s Health Organisation⁴No. 19-1392; 2022 U.S. LEXIS 3057 was leaked one month before the actual verdict. The decision was historic.

It overturned the long held landmark decision in Roe v Wade⁵410 US 113 (1973) – that case granted US women the right to an abortion.

“While there were questions about who and how the draft was leaked, no one questioned the integrity of the judges who had subscribed to the draft judgement”.

Who betrayed the Federal Court?

What is sinister is how did the Draft Grounds leak out?

And how did RPK get his hands on it before everyone else, when he is 10,539 kilometres away?

No doubt the police will discover, in short order, the culprits behind it.