A Patron, Witness and Practitioner in the Malaysian Courts
In my lifetime thus far, I have been all three. The only roles I have not been in are that of a prosecutor and judge. Who knows. The future is a strange place. As a patron of the courts I resorted to it to assert my rights under the Consumer Protection Act 1999 (‘CP99’). I wrote about my experience some time ago in The Day I Was a Litigant | Unfair Contract Terms. In summary, the contract term that forced me to pay the unused, unexpired portion of my contract when terminating my mobile phone line early, i.e., before its contractual period ends, was unfair. I asked the court to invalidate the relevant provisions under CP99. Even though I filed it, I had my colleagues and cronies run the case for me. Rafeeza Hamdan and Asim Ng in the Sessions Court. They were joined by my friend Aston Paiva for the High Court and Court of Appeal leave application. I lost all the way from the Sessions Court to the Court of Appeal. I have no issues with losing. Somebody has to win and lose. That’s the nature of litigation, zero-sum. However, as a litigant, I expect to be persuaded by the court’s ground of judgment when it announces its decision. I am entitled to expect a clear, cogent and rational explanation of why my case was dismissed. To make a decision and explain the reasons for it is accountability, respect and consistent with the idea of justice. Providing a rational and reasonable basis for the decision is inherent and intrinsic to decision-making. That’s why we go to court: for an independent third party of integrity to resolve or decide our disputes and then explain why they decided in such a fashion. To decide without disclosing meaningful reasons or by parroting some general phrase is what tyranny looks like. It turns the court in a building into one no different from a court under a palm tree. Decisions without meaningful reasons are palm tree justice. If I judged the Sessions Court, High Court and Court of Appeal based on only producing written reasoned grounds for my case, the Sessions Court came out tops. The High Court was dismissive of my case when it dismissed it, according to my colleagues. No grounds of judgment were prepared to explain why the arguments we carefully thought and crafted found no favour. The Court of Appeal didn’t grant leave despite being a novel issue and a scarcity of cases about the relevant provisions in CPA99 I relied on. No reasons were preferred other than the standardized ‘the threshold for leave to appeal was not met’, which is utterly worthless except for the most plain and obvious cases. But if I had to judge the quality of the written reasoned grounds, with respect, I found it completely and utterly disappointing. It missed the arguments raised. Considered the facts and law simplistically. Took into account irrelevant considerations, for example, my status as a lawyer vis-a-vis signing a contract I later claim breaches provisions in CPA99. Reading the grounds left me unpersuaded and unimpressed. That was why I appealed. The only good thing that can be said of the judgment was that it existed. The Sessions Court had enough respect for a litigant to issue written grounds. My hopes for wisdom to prevail at the superior levels of court when the matter was reheard were severely dashed. Looking at it purely as an enlightened user (not a legal practitioner) of the legal system, I found the experience disappointing and discouraging. If the court’s treatment of its patrons is callous, it goes doubly so at times for its lawyers. Generally, the court has little to no regard for either aside from its conveniences and priorities. Any benefit the public derives from it is secondary and consequential. That’s how it feels. Yes, my case and its appeals were disposed of quickly. Congratulations. But what about my case? Aren’t I owed an explanation? As a patron, user, consumer, or whatever you want to call it, of the legal system, if the court does not explain to me why I lost, it is unfair to me. Unfair because not only did I lose, I don’t know why! That is worse. How can justice be said to be done or seen to be done without the court explaining its decision? Caesar may get away with a thumbs up or thumbs down, but not judges or judicial officers. They must give sound, cogent, reasoned, legally and factually justified explanations for their decisions. It is essential because those written explanations are the only proof the court considered the facts, evidence, arguments and law. Without such an explanation, there is no proof the court gave the required due consideration. I digress for a moment to declare my respect and profound thanks to judges who accompany their decisions with written grounds (broad, brief, full, etc.) or oral grounds. Those judges and judicial officers have my deep gratitude because an explanation for their decisions makes our lives as legal practitioners less stressful. Thank you. Keep up the excellent work. God bless you. Allahuakhbar. May you be blessed with promotions and honorary titles. Muah muah. With the court’s explanation, we can tell our clients why we won or lost instead of futilely sitting around speculating. We can show the client how the court dealt with our and their arguments, hopefully. Some clients insist that we take up a particular argument they are partial to even though we advise against it. I think, more often than not, a well-written explanation averts an intended appeal, or if it doesn’t, it makes appealing against it difficult. I am not saying if the courts do that, then all is fine and dandy. What I am saying is if it does do that, it will go some way to assuage the losing party to litigation and earn its respect as a transparent, accountable and rational institution of integrity. As a witness in
