Tell us why, please?

We hope that Judges should endeavour to write their grounds of decision and take delight in this aspect of judicial work as a matter of personal pride and satisfaction and not as a burden. Failure on the part of Judges to write their grounds of decision will certainly undermine their authority to insist upon Magistrates and Presidents of Sessions Court to write theirs. If the practice of not writing grounds of judgment is widespread the system of administration of justice will tumble down.

per Salleh Abas LP in Wong Chee Hong v Cathay Organisation (M) Sdn Bhd [1988] 1 CLJ (Rep) 298 at 300

As a matter of course, Judges should write and give reasons/grounds for their decisions (usually known as “Alasan-Alasan Penghakiman”).

The courts have an obligation to explain how the decisions made have been made or arrived at.

Litigants are entitled to understand why they lost or won. After analysing the reasons/grounds, they may wish to file an appeal or to review the decision(s).

Lawyers and academics are interested in how the facts of the case were interpreted, and how the submission of counsel and the finer legal points were dealt with.

Importantly, and particularly in cases of public interest, the public must be able to read and examine for themselves the reasons/grounds to educate themselves and be mindful as to how the laws are applied in the country.

The Perak crisis has seen the Federal Court make several landmark rulings on constitutional points which have not previously been decided in the country; see a summary of the cases here. Despite requests made to the Federal Court, no reasons/grounds of its decisions have been forthcoming (but instead has been refused in the Nizar section 84 instance). Lawyers for either side do not know on what grounds, and why the matters were decided the way they have been decided. No further appeals or reviews may be advised because the reasons/grounds have not been supplied.

Contrast.

In the Nizar v Zambry matter, the learned High Court Judge, His Lordship Justice Abdul Aziz Bin Abdul Rahim has already written two “Alasan-Alasan Penghakiman” – first, on granting leave to commence judicial review proceedings on 3.4.2009 (16 pages) and second, on granting the orders sought by Nizar on 11.5.2009 (finalised written grounds are due to be supplied next week).

Judicial precedent plays an important role in the development and application of the law in Malaysia as it provides future guidance for the courts, legislature and government(s). Decisions of the highest court especially in matters of public interest and constitutional importance must be sufficiently explained and supported by cogent reasons/grounds. Decisions which are not properly reasoned may be critiqued, and those of sound grounds may be applauded.

Writing reasons/grounds would also assist all to better appreciate the decisions. It may serve as a useful buffer and repellent against unwarranted criticism or cynicism regarding the decisions, and thereby go some way towards shoring confidence in the Judiciary.

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Life's a sufferance. Lawyering a bore. As Edmund continues various escape techniques to be rid of Lord Bobo’s influence, he crusades with UndiMsia! movers to build strange youth love movements around the country. And so he tweets @edmundbon and practises the black magic art of advocacy at www.BONadvocates.com

Posted on 14 May 2009. You can follow any responses to this entry through the RSS 2.0.

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10 Responses to Tell us why, please?

  1. Pingback: Ducking at the Court of Appeal? | LoyarBurok

  2. Anonymous

    Of course the Federal Court will not furnish the written judgment. How to show "Because U-Must-Not-Object told me so".

  3. Mei Wan

    Good question from Edmund from the legal point of view. A layperson's concern would be this: Could someone tell us why there's still no fresh elections in Perak? Why is that the national emblem of Australia "sneaks" in so frequently to our court nowadays? Why is that U Must Not Object only good at showing rakyat the Kiasi & Kiasu attitude? The coup? The mockery? The Black Malaysia? Why oh why & please TELL ME WHY???

  4. I am no lawyer, but what Edmund has written not only makes sense, it is what I have known all along how the law should work. Now, if even the Federal Court is 'afraid' to write (justify) their judgements, I see this worse than A.Paul, and our time now is worse than 1998/1999.

    I am very concerned for Malaysia indeed!

  5. Anak Java

    Very Simple:-

    1. We rule follow "Instruction" from the very TOP (who know no law, who do not wish to follow law.) So how to write judgement!

    2. We thought we are God. When we say NO it means no. What Written Judgement you want. We are the Apex Court Judge…

    3. How to write the Judgement. Later retire Judge NH Chan will scold us again for our stupid twist and turn of the law. We dont want to get scold.. Takut….

    4. Hey five Judges decided here. Why I should be the old who write. Go ask the other 4. They also take salary mah…

    5. Wah you Perak has so many case for us… Whre we got time to writ judgement. We have thousands and one case waiting for our judgemnt. You wait first ok.

    6. What judgement? We were not there, they were just our "Imposter"!!

    ha….. ha…..

  6. Eric

    @MyBlog

    "How to review a judgment if a written version is not available. I go to the extend that if judges do not write judgments then they should be suspended and should not hear new cases and the rationale here is that they are incompetent administratively and hence do not deserve to sit on the bench."

    Well, sounds sensible to me, but I am no lawyer.

  7. MyBlog

    I think the only way to achieve this is if it is mandatory and if not done within a certain period of time, then the judgments are reversed to status quo. You know if they are not compelled to provide the rationale for their judgments especially the highest court, there can be a lot of abuse by the judges and where is the check and balance?

    As we have seen in correct correct correct case, judges are also susceptible to inducements, after all they are human.

    How to review a judgment if a written version is not available. I go to the extend that if judges do not write judgments then they should be suspended and should not hear new cases and the rationale here is that they are incompetent administratively and hence do not deserve to sit on the bench.

    Do I make sense here??? Anyone???

  8. DESPERADO DOES DESPERATE THINGS

    Desperate people do desperate things

    They will do their stuff faster than they think

    For fear they'll lose everything in a blink

    Forgetting to bother how badly they stink

    (C) Samuel Goh Kim Eng – 150509
    http://MotivationInMotion.blogspot.com
    Fri. 15th May 2009.

  9. Edmund, excellent piece. This was just the very issue I was thinking about and you expressed it so eloquently and so timely.

    Isn't it ironic that those in the elite of the judiciary whom have successfully driven the Court of Appeal and High Courts to a sudden zeal for efficiency are now failing to abide by their very own policies? Further, I think that reasons, no matter how brief, should be given all the way down to the Registrars (of all levels, Senior Assistant, Deputies, etc.) for whatever application before them, unless of course for those rare instances when it is so plainly obvious. That lately many more of them are doing so these days is an encouraging sign.

    I also don't know why there is this practise rearing its head every now and again in the higher courts of only writing judgments if the matter is appealed. Those judges that say this forget that the judgment is not for their inconvenience or merely for the eminent consideration of their superiors in the superior courts or a showy display of raw intellectual powers over a legal problem. These judges forget that their written judgment are for the litigants who submit their jurisdiction and their wisdom, and seek a dispassionate, equitable and lawful reasoned decision. And surely to demonstrate this is to put it in writing. If not, how would they know that the decision was not merely a result of 'might as well flip a coin' as was so retorted to me from the bench once midway through my submission of the judicial exercise of a judge's discretion or as the Lingam videoclip (has everybody forgotten about that case already?) demonstrated, a well placed phone call. I sometimes wonder myself, whether this whole efficiency overdrive going on in the courts is also to make us forget about what happened before to which not one person has been held accountable for and has seen no meaningful resolution. And now the difference in treatment in the courts of the stay in the applications filed by the different parties in the Nizam v Zambry tussle, has raised this Lingam-notion again – of a complicity of certain members of the judiciary obtaining favours from powerful businessmen and those in the UMNO elite. I still cannot believe after all that evidence, all the media coverage, all those testimonies that I thought would never see the light of day has come to nothing.

    One cannot deny some measure of efficiency taking place in the judiciary. Things move faster. Timetables are stricter. Adjournments are scarcer. But the moral and ethical (and in some cases intellectual) deterioration that has taken place after Tun Suffian has not been addressed. Are those Lingam ties still there? Some of the judges implicated are still on the bench. No one knows. But he still appears in the appellate courts. Does he still have that level of influence? We don't know.

    Will they ever understand that all we want to do is an honest day's work, feel good about doing it and then go get a life? And that we sincerely wished the same for them too?

    I don't know.

  10. "Despite requests made to the Federal Court, no reasons/grounds of its decisions have been forthcoming (but instead has been refused in the Nizar section 84 instance)."

    You mean they actually tell the lawyers that they are not going to provide grounds? Probably there is no ground to ground their decisions, that's the ground of their refusal. No? Am I on good ground to ground my opinion on this?

    Owh…if not, does it mean I am grounded?