Written Judgments are Optional

A follow up to Amer Hamzah’s “Ducking at the Court of Appeal?” The Court of Appeal has finally replied the request for its written judgment.

Thomas Couture, 1856 - A Judge Asleep

On January 19, 2010 a day after the Court of Appeal dismissed Encik Abd. Rahim bin Abd. Rahaman’s appeal, we wrote to the President of the Court of Appeal requesting that the Court of Appeal provide its written grounds.

We furnished 4 reasons which were as follows:

1. Encik Abd. Rahim had raised 2 novel constitutional arguments against the legality of section 377B of the Penal Code, namely that section 298 of the Criminal Procedure Code was in breach of Article 8 of the Federal Constitution, and that section 377A and 377B was in breach of Article 8 read together with Article 5 of the Federal Constitution. No court has written any judgment on these issues as yet.
2. The chairing judge, Datuk Suriyadi Halim Omar mentioned that a written grounds will only be prepared on instructions of the Federal Court. We pointed out that since Encik Abd. Rahim cannot appeal any further to the Federal Court, it was unlikely that the Federal Court will instruct the Court of Appeal to prepare its written decision.
3. We pointed out that Datuk Suriyadi Halim Omar had actually prepared a written judgment in respect of the reported case of Tuan Mat Tuan Lonik v PP [2009] 4 CLJ 638 after dismissing the appeal, which arose from the Sessions Court as well. In that decision there was no novel issue or any constitutional issues raised but the Court of Appeal still prepared its ground of judgment.
4. We emphasised the importance of preparing a written judgment so that the parties could ascertain why their constitutional arguments were rejected and serve a guide for future arguments on such issues.

Since the President of the Court of Appeal did not respond to our initial letter, we sent a reminder. While we were waiting for a response, I was contacted by at least 2 international organisations requesting for a copy of the written judgment. A scholar also wrote to me indirectly to inquire on the grounds of judgment and these were his own words: “I am, therefore, curious to see the judicial reasoning and to write a paper for publication.”

With the nation, lawyers, non-governmental organisations both local and international, scholars and the appellant waiting for a written judgment, what does the Court of Appeal do? It declines and its reasons for doing so are worth mentioning. I have taken the liberty of translating the substance of the letter here:

2. As you are aware, the accused (Abd. Rahim bin Abd. Rahman) was charged and sentenced by the Shah Alam Sessions Court for a few offences under section 377B of the Penal Code. He appealed to the High Court on his conviction and sentence. The High Court dismissed his appeal and he thereafter appealed to the Court of Appeal.

3. On 18 January 2010, the Court of Appeal dismissed the accused’s appeal and confirmed the High Court and Sessions Court decisions.

4. You are also aware that this case originated from the Sessions Court, the Court of Appeal is the final court of appeal and the Court of Appeal’s decision cannot be appealed to the Federal Court.

5. Therefore, I have been instructed to inform you that there is no written grounds of judgment will be prepared because the necessity to prepare a written judgment does not arise.

It would appear that many within our country and outside of it seem to appreciate the significance of the Court of Appeal decision and are curious to understand its reasoning. It is regrettable that the President of the Court of Appeal and the Court of Appeal do not appreciate the necessity for providing the grounds of written decision especially when the Court of Appeal in this case is the apex court.

This is a question that bugs me about written judgment: Why are our courts generally reluctant to prepare a written grounds for its decision?

Another one is: On what basis do the courts decide whether a written judgment should be prepared or not?

For example, Datuk Suriyadi Halim Omar felt it necessary to write a grounds of judgment for an appeal for what was essentially a run out of the mill case on sentencing principles but then declines to prepare one which involves novel constitutional issues.

Finally: Why is the preparation of grounds of judgment at all levels of courts from the Magistrates to the Federal Court not a standard operating procedure?

If you observe the letter from the Court of Appeal, you will notice at the very top of the letterhead the words “Buat Kerja“.

It appears obvious that providing a written judgment does not amount to “kerja” but is an optional act entirely at the discretion of the courts.

It can be surmised from this that in Malaysia though we are entitled to a decision it does not follow that we are similarly entitled to the grounds for that decision.

Ah well, just another day in paradise.

LB: One of the constant themes of LoyarBurok is to encourage the local courts of law to prepare written grounds of judgment for their decisions. Please see our other articles on the same, listed below.

See Also:

• “The Importance of Reasons” by Chen Mian Kuang

• “Tell us why, please?” by Edmund Bon Tai Soon.

Tags: Abd. Rahim bin Abd. Rahaman, Amer Hamzah Arshad, Article 5, Article 8, Federal Constitution, Penal Code, Preparation of Written Judgment, Section 298 Criminal Procedure Code, Section 377B

Posts by Fahri Azzat

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 1 June 2010. You can follow any responses to this entry through the RSS 2.0.

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