Friday, August 17, 2007

Unwritten judgments delay justice unduly, says Sri Ram

Unwritten judgments delay justice unduly, says Sri Ram
By : V. Anbalagan

PUTRAJAYA: First, it was the absence of judgments in criminal cases. Now, it is civil court judges not putting their judgments down on paper which unduly delays justice.

Court of Appeal judge Datuk Gopal Sri Ram, the most senior judicial officer of the appellate court, made the observation in two separate civil cases, which the appellate court dismissed with costs.

In the first case, Sri Ram said the High Court had made an order for sale on a property on Feb 22, 1999. The notice of appeal was lodged on Nov 2 that year, but no grounds were written by the judge.

Sri Ram said it took the appellate court time to go through the notes of evidence. "This court was put to the trouble of trawling through the appeal record to appreciate the respective parties’ cases in the court below."

(Unlike criminal cases, civil appeals can be heard by an appellate court by relying on the trial judge’s notes of evidence, pleadings of parties and affidavits).
Sri Ram said the court could do no better than to quote from a judgment of former Lord President of the Supreme Court, Tun Salleh Abas.

"We hope that judges should endeavour to write their grounds of decision and take delight in this aspect of judicial work as a matter of personal pride and satisfaction and not as a burdensome task.

"Failure on the part of judges to write their grounds of decision will certainly undermine their authority to insist upon magistrates and president of Sessions Court (now Sessions Court judges) to write theirs.

"If the practice of not writing written grounds of judgment is widespread, the system of administration of justice will tumble down."

In this case, the Court of Appeal gave its decision on May 28, 2004 but the written grounds were only delivered on Wednesday.

Both judges who sat with Sri Ram to hear the appeal had also retired, leaving him the task of writing the grounds as the appellant, Hongkew Holdings (M) Sdn Bhd, had filed an appeal to the Federal Court.

The other case, one of medical negligence, took 23 years for it to reach the appellate court.

"If the law is to be castigated for its delays, then this case surely proves the rule," said Sri Ram.

On April 3, 1984, lawyer K. Thayalan died at the neurology department in the Kuala Lumpur Hospital.

His personal representative filed a medical negligence suit against Dr Goon Siew Fong, the physician who attended to him. The government was also included as a party to the action, which was filed sometime in 1986.

After a lengthy trial, the High Court delivered its oral decision, dismissing the claim of Thayalan’s personal representative in 1992.

An appeal was filed. However, the trial judge, who subsequently retired, did not provide the grounds of decision.

Once again, the Court of Appeal had to rely on the notes of evidence in deciding the outcome of the appeal.

Earlier this year, Sri Ram together with judges Datuk Suriyadi Halim Omar and Datuk Hasan Lah heard submissions from the parties.

The written grounds were also made available on Wednesday.

In an immediate response, lawyer Amer Hamzah Arshad said the hallmark of a judge was his ability to justify a decision with legal arguments.

"A written decision is a summarised version of the grounds of judgment. It greatly facilitates the appeal court to know how the trial judge arrived at a particular decision by applying the law to the facts of the case," he said.

Lawyer M. Manoharan said judges should make it a point to provide the grounds of decision, irrespective of whether parties appealed.

"The facts of a case will be fresh in their mind if they begin to write immediately. Moreover, the credibility and demeanour of witnesses will only be known if there is a written judgment."

He said the judiciary must recognise these shortcomings and should promote those who had the ability to deliver written decisions speedily.

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