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.
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:
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.