Friday, August 17, 2007

JUDGES FAIL WRITTEN TEST: Just write it, judges
Ragunath Kesavan (left) says the problem could have been arrested if judges were vetted properly. Karpal Singh says judges who accumulated judgments gave up as they could not recollect the facts of the cases
Ragunath Kesavan (left) says the problem could have been arrested if judges were vetted properly. Karpal Singh says judges who accumulated judgments gave up as they could not recollect the facts of the cases

KUALA LUMPUR: Justice is sometimes not done in Malaysian courts even after judgment has been passed.

There are numerous horror stories of how the accused languished in prison just because judges did not provide written judgments.

In one case, a man withdrew an appeal against 12 years’ imprisonment and 10 strokes of the rotan on a dadah trafficking charge as his jail term had come to an end while waiting for the appeal to be heard.

The delay in hearing the appeal had been due to the judge not submitting a written judgment.

The worst cut of all was that the accused took all the strokes of the rotan at once before leaving jail — knowing that his sentence may have been reduced or overturned on appeal.
In another case in 1984, an accused charged with trafficking dadah was found guilty in 1988.

When his case went on appeal to the Supreme Court in December 1993 — a good five years later — the bench substituted the death sentence with 20 years’ imprisonment.

The judges had felt that the long delay in handing down the written judgment had prejudiced the accused.

If one thought that these were the worst case scenarios, there’s more.

A Federal Court judge has at least 30 outstanding judgments accumulated from his High Court days that include dadah trafficking and murder cases.

How he is going to come up with the written judgments is anyone’s guess, especially as he will also have to provide judgments on cases before the Federal Court.

This glaring weakness in the judicial system has irked the legal fraternity to the extent that calls are being made to only appoint judicial officers who can deliver written grounds on time.

One lawyer even suggested that judges who had been issued warnings not to delay written judgments should be hauled up before a tribunal to answer for their recalcitrance.

The Bar Council says the only solution to this vexing problem is the setting up of an independent judicial commission to appoint and promote judges.

Its vice-president, Ragunath Kesavan, said the problem could have been arrested early if candidates had been properly vetted before being appointed judicial commissioners.

"This is why we have been canvassing hard for the need to set up an independent judicial commission to appoint and promote judges," he said.

Ragunath said written judgments were critical in the dispensing of justice.

The council will be sending out a circular soon to get feedback from members on cases where judgments had not been provided.

This will be forwarded to the chief justice for action to be taken so that judges will put their judgments in writing.

"We hope that he will also reveal the number of outstanding judgments," he added.

Lawyer Karpal Singh said existing procedures on delivering decisions and judgments were indefinite with many judges reserving decisions after a trial.

"At the next date, they are still unable to deliver (decisions)," he said, adding that he had at least five cases that could not be appealed as judgments were not ready.

He said some gave decisions without stating reasons.

Karpal said judges who accumulated judgments simply gave up after some time as they could not recollect the facts of the case.

"One has to look into the demeanour of the witnesses to better appreciate the facts of the case.

"This would have been fresh in their mind if judgments were written soon after the trial."

Lawyer Gurbachan Singh said prisoners facing capital punishment would be under even greater pressure if their appeals could not be heard because of delayed written judgments.

He said family members were also left emotionally drained due to the uncertainty.

Relatives of the accused were sometimes not convinced when told that the appeal process had stalled because the trial judge had not provided grounds for his judgment.

Gurbachan has two cases where judges passed the death penalty without written judgments.

"And yet, the two judges who heard the cases, have been promoted to the Court of Appeal," he said.

Kuala Lumpur Bar Criminal Practice Committee chairman N. Sivananthan said some judges were causing grave injustice to convicts and to the Attorney-General’s Chambers.

"One must remember justice is not only for the convicted person but also for the state," he said.

He said failure to write or delay judgments for appeal purposes was tantamount to a denial of justice.

"Whether a judge is brilliant is a secondary point. The primary consideration is that he must provide a judgment for the aggrieved party to enable them to appeal or else the administration of justice is jammed."

He said the accused has the right to finality in his or her case and a chance to exhaust all channels of appeal.

"A person charged with a criminal offence wants his name cleared soon while a party in a civil proceeding wants to enjoy the fruits of the litigation."

He said every judge had an important role in taking legal disputes to their natural conclusion.

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