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

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.

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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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18 Responses to Written Judgments are Optional

  1. Pingback: The 377B Decision We Waited For | LoyarBurok

  2. traveller

    Winston Churchill once gave advice to a new parliamentarian who was itching to speak. Better keep your mouth shut and be thought a fool then to open it and remove all doubt. This is the 'wisdom' of the judges. Just check their education level and you know why.

  3. Nat Weis

    If Malaysia is to be a developed country, it is imperative that its systems ensure that justice is not only done but is SEEN to be done. The rationale and reasons for all decisions, not only in the courts of law, but also at all levels of government administration, local councils, state and federal councils, committees and departments, must be clearly made known to the persons affected by the decisions.

    Even to a lay person, Rule 7(7) of the Judges Code of Ethics 2009 makes it compulsory for a judge to WRITE his judgment. To me it clearly and logically reads:

    “A judge shall endeavour to diligently and efficiently hear and complete the cases in his court and (SHALL) promptly write his judgments”,

    and not “A judge shall endeavour to diligently and efficiently hear and complete the cases in his court and (ENDEAVOUR TO) promptly write his judgments". Otherwise anybody can be a judge.

  4. sigil

    Thousands of years ago, Aesop gave us the story of The Lion's Share. In essence, the lion told the goat, "You are aware that you are tasty to me. You are aware that I have not had my breakfast. You are aware that with my not-too-powderful England, you are irritating me with your protestations. Therefore, I am going to eat you forthwith."

  5. Andrew Yong

    Surely there must be some reasons, even if they are delivered orally? In the English courts it is not unknown for lengthy judgments to be given orally. But if there are no reasons at all, that is truly scandalous – how often do judges criticise the executive for not providing reasons, and here we are with the Court of Appeal doing the same. I think it shows great discourtesy to counsel, who have put a lot of effort into their submissions only to have the Court dismiss them with such contempt.

  6. ramsey

    And then Rule 7(7) then provides:

    “A judge shall endeavour to diligently and efficiently hear and complete the cases in his court and promptly write his judgments.”

    I believe the words "shall endeavour" refers to hearing and completing the cases. When it comes to writing the judgements the emphasis is "promptly write his judgements." This would mean that the judge is required to write without delay.

  7. well…most of the so call judges in malaysia are not talented enough to be judges…they got there because of their ethnicity…almost all have not practiced either…it is beyond belief how stupid they are and almost all lack confidence…

  8. Americk Sidhu

    Yes, we can go on about how incompetent our Judges are in failing to back up their decisions with sound written reasons and even when they do, it takes time to decipher the goobledegook, but that's OK, we are used to it. And has anyone noticed how written judgements these days are almost entirely comprised of a regurgitation of the facts and the submissions of counsel and just as you skid to a sudden halt at the final paragraph, you may just about find something called a limp excuse.

    But the issue here is a little more fundamental.

    Don't these Judges think they owe the gentleman who has lost his liberty at the hands of our judicial system an explanation as to why he has?

    It is a basic question of being possessed of good manners, a good upbringing and an ordinary sense of decency and respect which appear lacking in this not too uncommon situation.

  9. ladymissazira

    The judges were probably lazy or not in the mood, with all the KPIs going around. Considering their backlogged cases to be cleared, I can pity them. Novel points of law or not, they probably didn't want to deal with it anyway.

    It does NOT make it right, but it does mean that they're human and all humans err.

  10. lizziewong

    May I add, the emergence of a certain ex-judge who happily 'critique' written judgments may have contributed to this very unhappy situation… hahaha

  11. lizziewong

    In my household, my words are laws. I tell my kids to sit, and they promptly obeyed. They want to read Harry Potter (heavens forbids!) but I ruled otherwise. I enrolled them for music lessons, kumon classes, and their weekends are quite tied up. They plead with me oh can we pls skip some so we cld play? Well, I just tell them, hey its good for you, so quit complaining and take my words for it. then the smart alec asked me, what do I gain from playing piano? Well, I don waste my time explaining, I just tell her with hands on my hips, just because….

    So u see, what is happening in the Malaysian courts also happen in homes all over the world… We don bother to explain to our kids and we expect blind allegiance, and we wonder why they grow up to be rebellious, or lost a thinking mind…. Of course you and i know that this kind of parents don win awards for good parenting nor do they win their kids' love, right?

    As a layman, I see the death of our judiciary… not writing judgements show a slack attitude, but worse, could also mean that the learned judge has no confidence in his own reasoning and does not want to be challenged, rightly or wrongly…

    I think judges need to go for boot camp to re-learn and be professional!!! Until then, don expect the laymen to respect them or trust their judgements..

  12. Just Ice For All

    To become a civilized and developed society, the decision of every public institution must be based on good reasons. Having reasons is not enough. The reasons must be good.

    And then we have our judiciary. I don't understand the Court of Appeal's reasons for not giving reasons. They say no grounds will be given because the necessity does not arise. "Necessity" from whose perspective? The Court of Appeal doesn't need to write because their decision and reasons are not subject to scrutiny by a higher court. But for the appellant, it is very necessary for him to know why he lost. The courts are supposed to serve the public. So, where is the service in this instance?

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  14. the original judge w

    Reason? What reason? I don't have to give reason! I am the Judge. You are not. You have to trust my judgment lah.

    Reason pulak. What's that?

    You have problem with that? Go and kill yourself.

    Sour grapes! Had you won you would surely not be asking for reason, would you?

  15. Lynn

    Is that why all those famously controversial cases, especially the politically connected ones do not have written judgement most of the time?? How can this be? How can they judge and not give written reasoning? This should be compulsory! Can some lawyer please check the relevant statute and let us layman know. How do trust the judiciary if it is up to them to decide whether or not to write a written judgement? Chief Justice, what is happening???

    • Hi everybody,

      Thanks for the comments. It was brought to my attention soon after the piece was published that Rule 4 of the Judges Code of Ethics 2009 provides the following:

      (1) A judge shall comply with the provisions prescribed in this Code.

      (2) The breach of any provision prescribed in this Code shall render a judge liable to disciplinary proceedings in accordance with the provisions of this Code.

      And then Rule 7(7) then provides:

      "A judge shall endeavour to diligently and efficiently hear and complete the cases in his court and promptly write his judgments."

      While for myself, it is a given that a judge must give reasons for every application he decides, this is not obvious from the Code itself. The only reference to a duty to write judgments is as above. Even then it looks very watered down – 'shall endeavour' sounds more like a best effort basis.

  16. focussed08

    To write up a judgement means that a record of the judgement is created and such records could then be used as evidence in events of any party disputing the reasoning behind the judgements. Though there could be no further appeal, to write up a public record entails careful consideration of all aspects of the case to ensure a logical conclusion in arriving at such decisions before being formulated into a foolproof judgement which can withstand criticisms.

    If there were no public records of judgements, then, there could be no need for careful consideration of their decisions. On top of that, it would be easier to deliver a judgement where no public record of such decisions are available for analysis.

    If they cannot or will not provide a written judgement, it could only mean one thing. It's either their decisions were flimsy, tainted, flawed or biased or they were not qualified enough to arrive at a credible decision whereby a written judgement could be supported.

    Just ask any credible judges of any credible court systems – their written judgement is the viagara of their profession. It is this written judgement which displays their skills, knowledge, their ability, their potentials, their reputation, their status and everything that means anything to a proud and capable leader of the profession.

    Do you think that Lord Dennings would ever forego the opportunity to produce a well written judgement in any of the cases that he had been involved in??? This speaks volumes of Lord Dennings and his reputation and respects that he had been bestowed with.

    Likewise, the reluctance of our judges also speaks volumes of their quality, skills, ability, knowledge, status and reputations of these judges. Sadly, the reputations that precedes them seems to be down in the gutter!

    Judges that cannot or will not produce written judgements are always afraid that their decisions may not stand up to scrutiny because of their quality or ability to deliver well reasoned and logical decisions is never within their comfort zone or within their ability! Such are the qualities of our current crop of gutter justices!

    Just ask any layperson in the street and you will find that these ordinary people possesses judgements and reasoning which would put these judges to shame!!!!! Rest my case.

  17. sirusa

    Fahri

    Your questions are relevant where reasonable expectations are the order of the day. But that does not seeme to be the case in Malaysia. I have found that those in "power", whether they are the executive, the regulators, the enforcers of the law or the guardians of the law (as in the case of the Courts), might prevails. Reason is thrown out of the window!

    Isnt it obvious that our Court of Appeal judges dont relish answering difficult questions of law, especially when it applies to the constitution which has implications far beyond the case in point! It is obvious that the CA judges dont want to answer the questions because they dont know how or they dont want to! Becasue if the issue is put in print the flaws of reasoning may become obvious! By hiding behind bureacratic processes, they hope to avoid the issues or hide their ignorance and failure.

    So the obvious question that follows is, where can the people or the rakyat get justice in this environment?