Ex-judge cites 3 reasons why Court of Appeal judgments delayed, suggests solutions

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PETALING JAYA: It is time the four top judicial administrators looked for solutions to judges refusing to write judgments or being late in delivering their grounds for parties making appeals, a retired judge said.

Gopal Sri Ram said the number of appeals, especially in the Court of Appeal (COA), was increasing, and this could not be helped.

“The challenge is to find competent and fiercely independent judges with a good command of English,” he told FMT.

Sri Ram said this in response to a COA bench which has yet to provide its written judgment to Penang Chief Minister Lim Guan Eng in a defamation case against five litigants, including two publishers.

The COA only provided its oral grounds on Dec 21, 2016, but Lim needed the judgment as he had filed an appeal in the Federal Court.

Judges are given eight weeks to complete their judgments once aggrieved parties have filed a notice of appeal.

At the opening of the Judicial Year last week, Chief Justice Raus Sharif said there were 3,998 appeals pending in the COA as at Dec 31 last year.

Sri Ram, who is back in legal practice, said the COA was the engine of the judicature as it was the apex court for cases originating from the lower courts and the intermediate court for matters coming from the high courts.

He said a delay in the writing of judgments in the COA was caused by three factors, the first due to a limited number of judges who took pleasure in writing judgments.

“The fun of being an appellate judge is in hearing cases and raising points of law with counsel who argue the appeals.The greater fun lies in the writing of judgments,” said Sri Ram who served in the COA for almost 15 years before he was elevated to the Federal Court.

He said if a judge found his or her passion in the law, then the work at hand was a pleasure and writing judgments was not a problem at all.

On the other hand, he said, if a judge found his work a task then writing judgments was a painful chore and the problem would remain no matter how many more judges, with such an attitude, were appointed.

Secondly, he said there was a problem of a lack of interest or knowledge in the subject.

“When we were at the Inns of Court, we were repeatedly told that the law was a demanding mistress to whom we must attend all the time. When we returned to Malaysia, we found that all the judges, save one, were interested in the law.

“So, we learned a lot by appearing before them. A majority of them came from the Judicial and Legal Service. But that did not matter at all.”

He said judges such as the late Chief Judge of Malaya Hashim Yeop Sani used to hear an appeal and produce a most learned judgment within a matter of days, not months.

So too, he said, was the then lord president Suffian Mohamed Hashim who used to hear complex constitutional cases yet was able to produce simple judgments quickly.

“You can look in vain, but it is unlikely that you will find their likes in the appellate judiciary these days,” said Sri Ram who had written about 800 judgments from 1994 to 2000.

He identified a few good COA judges including Mohd Zawawi Salleh, Rohana Yusof, Abang Iskandar Abang Hashim, Abdul Rahman Sebli, Yaacob Sam, David Wong, Mary Lim, P Nalini, Tengku Maimun Tuan Mat and Harminder Singh Dhaliwal.

“But because they work hard and write, they are overburdened,” he added.

Sri Ram lamented that nowadays one hardly saw any judgment from the criminal side of the COA arising from appeals from the subordinate courts.

He said he had heard complaints from lawyers about those sitting on the criminal side of the COA. One comment he had heard from someone in the Bar’s Criminal Law Committee was that it was now mostly “manned by judges who failed as prosecutors but were now successfully prosecuting from the Bench”.

“One cannot blame such comments being made because comfort is taken from the fact that as the apex court for appeals from the subordinate courts, there is no compulsion to produce judgments,” he added.

Sri Ram said the third problem was the lack of confidence in some judges to write.

“At one time the judgments of our courts were treated with great respect by the Singapore courts.Now they are looked upon with very polite contempt,” he added.

He said increasing the number of judges from the Bar who could “deliver the goods” was a possible solution but it was unlikely that many would be prepared to make the sacrifice for national service.

He said Edgar Joseph, Mahadev Shankar, Peh Swee Chin, James Foong, Mohamad Ariff Md Yusof, and Mah Weng Kwai were a few that come to mind.

The other solution, he said, was to encourage the COA judges to deliver ex tempore judgments.

“Give them the facilities like computer literate stenographers who can take down the judgment in open court. We used to do it as it helped in clearing the backlog,” he added.

He said some very capable and hard working judges from the High Court such as S Nantha Balan, Lau Bee Lan, Wazir Alam Mydin Meera, Azizul Azmi Adnan, Mohamed Zaini Mazlan, Mohd Nazlan Mohd Ghazali, Wong Kien Keong and Yew Jen Kie deserved elevation to the COA.