Ducking at the Court of Appeal?

Amer Hamzah Arshad (with Fahri Azzat in support) continues LoyarBurok’s well-taken trademark tirade against the practice of Malaysian judges who duck writing judgments on important constitutional law issues.

On Jan 18, 2010, my learned friend, Fahri Azzat, and I had the honour of appearing in the Court of Appeal. We had a criminal appeal relating to an offence under Section 377A of the Penal Code that is punishable under Section 377B of the Code. In this appeal, we raised two constitutional arguments (aside from the usual ones that the sentence was excessive) as follows:

[i] whether the offence of carnal intercourse against the order of nature by consenting adults is discriminatory and violates the right to privacy and the principle of equality guaranteed under Articles 5 and 8 of the Federal Constitution (this argument was taken up by Fahri Azzat); and

[ii] whether whipping for males only in Section 289 of the Criminal Procedure Code violates the constitutional right of a person convicted of a crime (this argument was taken up by myself).

The case was reported in many local dailies, especially the ones in English. The best of the lot was the report in the New Straits Times (NST) which ran the story entitled, Court ducks constitutional points in sodomy case, and said:

… However, the court declined to answer two constitutional questions posed by lawyers for Abdul Rahim Rahaman, 39.

… Court of Appeal judge Datuk Suriyadi Halim Omar, who provided an oral judgment dismissing Rahim’s appeal against the excessive sentence, said certain interesting arguments were raised.

Rahim’s counsel, Fahri Azzat, asked if the court would provide a written judgment as to why the constitutional points were not answered.

Suriyadi, who heard the appeal with Datuk Hasan Lah and Datuk Ahmad Maa’rop, replied: “We will prepare the written grounds only if the Federal Court directs us to do so.”

Suriyadi said this was because the Court of Appeal was bogged down with many cases.

NST’s title is interesting because Courts are not supposed to be ducking things. Rather, judges are supposed to decide cases and to achieve justice. And judges are supposed to give reasons for their decisions in the form of written judgments. It’s as simple as that.

So what the duck happened?

The NST report states that the Court of Appeal in dismissing the appeal declined to answer the constitutional questions which were posed to them. Actually, this was not entirely accurate.

How it happened was that after the appeal was dismissed, my learned friend, Fahri Azzat, leapt to his feet and asked the Court to consider writing a judgment. There were two novel constitutional points canvassed which to our knowledge had not previously been advanced in Malaysia.

I think it is a matter of public interest to know why the Court felt that the carnal intercourse offence did not violate the right to privacy and the principle of equality before the law, and why it is alright to whip men under 50 not facing a death sentence only but exempt women when the Constitution clearly states that the law shall not discriminate on gender. (For the avoidance of doubt, I am not promoting whipping for all. On the contrary, I believe that corporal punishment should altogether be abolished.)

I must state that we were not upset or disappointed or angry that we lost the appeal. Losing, as is winning, is part and parcel of a litigator’s life. We are used to both – perhaps more used to losing particularly in difficult cases which challenge the establishment and the conservative mores of society – so we place little weight on either. But what we do look forward to are reasons for the decision.

In truth, we are long past demanding grounds of decisions as eloquent as they are erudite in the style of the late great Eusoffe Abdoolcader SCJ. And the best we can do is to launch into an impassioned submission if not plea to the Court to consider writing grounds so that we can explain what happened to our clients.

This is something that the Courts sometimes do not seem to understand – our clients want an explanation why the Court decided that way. The Courts will be surprised to learn that clients do want to read the grounds of judgment for themselves so that they know it directly instead of hearing it through their lawyers. Providing reasons also helps lawyers explain to their clients why the case went one way instead of another.

Perception of extraneous reasoning

Now what happens when they don’t get reasons? If the Courts do not know, let me oblige.

They start speculating, start finding any reason why the Court decided one way; they start asking who was on the panel, they start speculating what the lawyer did on the other side (did the other side “pay” is a very popular question when a case involves a lot of money), and they start wondering whether the judges had a personal vendetta against them (or their lawyers) because of something they said or did in Court (never mind that the judges had never met or don’t even know them) etc.

In short, there is no end to speculation. Instead of lawyers being able to explain to their clients why a judge decided that way, we have to spend a great deal of time disabusing our clients of their fanciful notions. We have to reassure them that the judge decided the case on the merits and there was no extraneous influence involved in the case.

But the problem is that we have no explanation or reason for the clients why the Court decided the case that way. The best we can do is say perhaps the judge decided like this, perhaps the judge liked that argument better, perhaps we just don’t know how the judge decided. But clients don’t like to hear perhaps or maybes. They want to know why their case was decided that certain way.

So we are left with the two most popular answers to a request for written grounds and they are both reported in this particular case. First, we are informed that the Court of Appeal would only prepare grounds if the Federal Court directs them to do so. Second, the Court of Appeal is bogged down with many cases.

This begs the question as to which is more important: simply hearing and deciding cases, or hearing, deciding and then giving an explanation for the decision? If it’s the former it suggests that the priority lies in expediency. If it’s the latter the priority lies in accountability, transparency and to see that justice is seen to be done.

Recently, in the NST‘s Letters on Jan 21, 2010 entitled JUSTICE: Court should not shirk duty, a former judge (writing under a pseudonym, “Essdee” [sounds like ‘S.D.’?]) expressed similar concerns:

AS a former judge, I was indeed disheartened to read the report, Court ducks constitutional points in sodomy case (NST, Jan 19). Firstly, it is the duty of the court to hear and consider every issue brought to it by either party unless it is so frivolous that it needs no consideration. In this case, it cannot be said that a constitutional issue is frivolous. The Court of Appeal should have given consideration and given a verdict either way.

Secondly, when counsel for the appellant requested a written judgment on why the constitutional points were not answered, the reply by judge Datuk Suriyadi Halim Omar was, to say the least, shocking.

He said, after delivering an oral judgment: “We will prepare the written grounds only if the Federal Court directs us to do so.”

He added that “this is because the Court of Appeal was bogged down with many cases”. How sad.

It is the duty of every judge to provide written grounds of judgment after hearing a case whether at first instance or on appeal so that all parties involved will know how the verdict was reached.

To say that “we are bogged down with many cases” is certainly not acceptable. Every court nowadays is bogged down with cases and it does not mean that the judge need not give his or her grounds of judgment. The accused or the appellant is entitled to know the reason for the verdict given.

There have been cases where, after perusing the grounds, the appellant may accept the reasoning given both on facts and the law and may not proceed with the appeal, and the judgment of the court will become a precedent for future cases.

Constitutional issues raised cannot be said to be frivolous in that no reasoning need be given. I wonder what would happen if most judges, if not all, give the same reasons for not wanting to write grounds of judgment?

In this particular case, the points raised were important one way or another, and the judge should not shirk his duty.

Now coming back to our case, the lack of reasons prompts these questions:

Did the Court dismiss the appeal because the constitutional arguments were without merit?

If so, which part of the arguments were lacking, was it the whole argument or just certain segments of it?

Was the appeal dismissed on the constitutional arguments or on the usual grounds of appeal that the sentence was excessive?

We don’t know. We cannot know if there are no reasons.

He will continue to ask as his buttocks are whipped

The Appellant, facing 60 years’ imprisonment and 22 strokes of the rotan, is surely entitled at the very least to a little more than the standard: “the appeal is dismissed.”

As a person at the last ladder of appeal, he wants to know why the Court did not agree with his appeal for a lower and reduced sentence.

He will go on asking why, when he is on the rack as the whip bites into his flesh and the warm blood drips from his seared back.

He will continue to ask why when they dress his wounds and ready him for more.

He will ask and ask even as he coughs his lungs out and succumbs to his illness.

He will die in ignorance as the Court blithely, though triumphantly, carries on disposing cases as quickly as possible.

Of late, we have been told ad nauseam by the Chief Justice how the Judiciary is doing its level best to clear pending cases speedily in order to do justice to the public. To this end statistics (of the number of cases disposed) are often cited in support. But what is the point of having cases disposed quickly if they are also not supported by well-reasoned judgments? As Chief Justice, His Lordship should know that expediency is only but one element of Justice. There are others that are more important such as fairness, honesty, diligence, mercy, temperateness, to name a few. If all these are not present but only expediency is, then it is not Justice.

The importance of having well-reasoned judgments cannot be overstated despite the great deal of emphasis made already. As human beings we are bound to have opinions on various issues. Some may find root in emotion. Some in logical arguments. Some may be reasonable. Some irrational.

Judges as human beings are no different. The likelihood to opine based on emotion or cultural and religious background for instance, is always present. That is why judges are often reminded of their duty to uphold the Constitution and the rule of law. It is against this background that the incredible importance of having well-reasoned judgments stands out.

When a judge articulates reasons in a written judgment, the public will be able to consider for themselves whether the decision was based on emotion or logical arguments, or decided in a certain manner which smacked of political interference or personal prejudice. The absence of reasoned judgments on the other hand will almost certainly invite speculation as I have taken pains to point out above.

Worse, it will likely lend credence to the perception that the Judiciary is inept and is open to “subversive” elements and influence by the political masters of the day. We have Tun Zaki now, but we have also heard what happened under Tun Eusoff Chin and Tun Ahmad Fairuz, but no action has been taken against them to-date to bring some closure to their sorry reigns. (Don’t forget further the sitting judges implicated in the Lingam Video Royal Commission which the present Chief Justice has yet to deal with.)

Well-reasoned judgments not only serve as good judicial precedent for lower courts, they contribute to the development of the law, and serve as safeguards for the public against corrupt and incompetent judges.

Well-reasoned judgments reduce, if not eliminate, arbitrariness and compel judges to be accountable for their decisions, and so to the public.

By writing judgments, judges will be more cautious and circumspect in their decision-making process. In the same vein, judges who are corrupt, lazy, or incapable of writing judgments, will eventually be exposed by their written judgments or lack thereof.

This is how society gauges whether the Judiciary that we have now is one with quality or without. Not by seemingly sincere press statements. Not by prioritising speed as the benchmark of justice. And certainly not by looking at a piece of paper with numbers on it. I mean, does Justice have a mathematical equation?

LoyarBurok has taken these points on writing grounds time and again, and the Bar Council has on numerous occasions raised, with the Chief Justice, this issue. Yet, little has changed. It is time for the Chief Justice to issue a new Practice Direction that judges must write grounds in all cases (with limited exceptions to be considered) within a certain time-frame.

Now with respect to the appeal under discussion, we have made a formal request to the President of the Court of Appeal for a written judgment. We very much hope that the request will be considered favourably by the Court that decided the appeal. We are keeping our fingers crossed; though if they told us we had to cross our legs before they did so, we’d be quite happy to do that too.

Explanatory Notes:

1. Section 377A of the Penal Code reads:

Any person who has sexual connection with another person by the introduction of the penis into the anus or mouth of the other person is said to commit carnal intercourse against the order of nature.

Explanation – Penetration is sufficient to constitute the sexual connection necessary to the offence described in this section.

2. Section 377B of the Penal Code reads:

Whoever voluntarily commits carnal intercourse against the order of nature shall be punished with imprisonment for a term which may extend to twenty years, and shall also be liable to whipping.

3. Section 289 of the Criminal Procedure Code reads:

No sentence of whipping shall be executed by instalments, and none of the following persons shall be punishable with whipping:

(a) females;

(b) males sentenced to death;

(c) males whom the Court considers to be more than fifty years of age, except males sentenced to whipping under section 376, 377C, 377CA or 377E of the Penal Code.