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Litigants have a right to know how a judge finds for or against them, and this can only be established with certainty if the judge puts his grounds on paper.

SUPPOSE you got involved in a dispute and decided to resolve it in a court of law. After a long battle stretching for months and maybe even years, the judge finally delivers his decision; you lost and you are ordered to pay costs to the other side.

Would you not want to know why the judge found against you?

Needless to say, the answer is obvious.

But is it mandatory for judges in our judicial process (save in certain exceptions) to write or furnish grounds of judgment?

You may be surprised to find that the answer is “no”. The judgment/decision can be delivered in a simple “allowed” or “dismissed with costs or no costs” decision.

It is only when the party who loses intends to appeal that they can request the grounds of judgment.

Even in such cases, it does not mean that it will be furnished in good time (it sometimes takes up to a year before a party is furnished with the grounds of judgment).

To me, this is akin to putting the cart before the horse, as how can one determine the grounds for appeal when one does not even know the underlying reason which gave rise to the judgment in the first place.

To me, it also defeats the purpose of litigating in court. Should it not be the other way round?

In any event, without the grounds of judgment, there will always be the question lingering in the mind of the litigant: how did the judge arrive at the judgment?

To make matters worse, without the written grounds of judgment, how can the appellate court detect what was wrong at the trial stage?

As earlier highlighted, the delay in furnishing the grounds of judgment in some cases can be up to a year (several years is not unheard of, too).

This aggravates injustice, as the appeals of the litigants are not only delayed but could not be properly heard as well.

Written grounds of judgments are selectively reproduced in law journals. These case laws (as they are commonly referred to) form the development of the law, which in turn form precedents/guidance to be followed in future cases.

Through these precedents, litigants would be more aware of their legal standing (through the advice of their lawyers).

Parties being aware of their legal standing would be more cautious in proceeding with litigation in court. This in turn minimises the number of frivolous cases.

Also, with the benefit of grounds of judgment, litigants can make an informed decision on whether to appeal or not to, which would in turn minimise the number of unnecessary appeals. Consequently, judicial time and costs will be saved.

Just as in mathematics, in the court’s disposal/conclusion of a case, there are established formulae and the relevant legal principles to apply.

If the outcome of a case is dependent on just a simple “Dismissed” or “Allowed”, without the need to furnish the grounds, it would appear that any child with the ability of exercising mere choice based on “yes” or “no” can do the job.

Moreover, when the law affords discretion, a judge must record his grounds for such exercise of discretion, which must ultimately be based on established legal principles and logic.

Dispensing justice by applying the correct law is a duty owed by the judge to the litigants and taxpayers.

A judge must discharge this duty by giving litigants due and proper accountability by penning the grounds of judgment.

In our country, we do not have a jury system where one is judged by one’s own peers; the judge is the only person deciding the conclusion of a dispute — “the perceived truth”.

It is pertinent that this perceived truth be derived from established legal principles and its application to the facts.

Only from the grounds of judgment can the litigants be informed of the judge’s appreciation of facts and application of law.

Grounds of judgment reduces, if not eliminates, perceptions and speculation of bias, and assists in establishing public confidence in the judiciary.

Written grounds of judgment also create a platform which one can use to determine the performance of judges.

To my mind there are several criteria to evaluate a judge’s ability/suitability for elevation, and it should not be decided by the mere number of cases a judge can dispose of.

There should also be an assessment on the judge’s knowledge of the law and his ability to apply the law to the facts in a sound manner – which would only be shown in the grounds of judgment.

On this note, it should be borne in mind that these judges could be elevated to the Court of Appeal and Federal Court, judgments of which have a binding effect on the lower courts and which form the law in the country.

To amplify the advice of former Lord President Tun Salleh Abas, in the case of Wong Chee Hong v. Cathay Organisation, the practice of not writing grounds, when rampantly condoned, will erode and ultimately diminish the people’s trust in the courts as a pillar of dispute resolution, and inevitably to chaos.

The requirement for written grounds of judgment is an integral part of the judicial process in a civilised society, and should be made mandatory in our own.

> The writer is a young lawyer. Putik Lada, or pepper buds in Malay, captures the spirit and intention of this column – a platform for young lawyers to articulate their views and aspirations about the law, justice and a civil society. For more information about the young lawyers, visit www.malaysianbar.org.my/nylc.