Written Judgments are Optional
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:
- 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.
- 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.
- 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.
- 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:
