An earlier post on this blog wrote about GERAK’s application to the High Court for a judicial review of the appointment of the VC of Terengganu. Gerak’s application challenged the appointment on the ground that it had not complied with the statutory requirements of the Universities and University Colleges Act 1971. After hearing the arguments of lawyers appearing for the different parties on 25 March 2021, the High Court rejected Gerak’s application on 9 April 2021. The court’s reasons for rejecting the application were not given. High Court judges are only required to provide written reasons for their decisions if a party to the action decides to appeal the decision. Our information is that the executive committee of Gerak is considering appealing the decision.
The absence of any obligation on a judge to give written reasons for their decision may come as a surprise to many. It is, however, the position that judges owe no duty to write the reasons for their decisions; none is imposed by law nor by the extensive rules of court. The origins of the present position can be traced through how English common law was introduced into this country to the decisions of the courts in England in the 17th century on that point. The justification for not requiring judges to write their opinion is that the imposition will cause delays and ultimately the cost of litigation that will fall on the litigant.
Notwithstanding the absence of any obligation to do so, judges, even those sitting in lower courts do provide written reasons for their decisions and they are generally encouraged to do so by those administering the judicial system. Recently, Chief Justice Tengku Maimun Tuan Mat, speaking at an induction programme for new judges, highlighted the importance of judges writing the grounds of their judgment in court cases. The Chief Justice explained that written judgments would lead to more care in arriving at decisions and enable parties to know why they had won or lost a case and to also enable other lawyers to predict how future cases on a similar point may be decided by other courts.
Written judgments add clarity to laws whether they are found in statutes or the decisions of other judges. Written judgments also contribute to the development of the laws and make them better accord with social realities and needs. The judge deciding the application of the laws to a particular dispute at a given moment in history can mediate the laws to the needs of that moment. By writing reasons for a decision, the judge will provide a record for other courts to apply his reasoning or depart from it or modify it to the dispute before the court. Written judgments are important to define the legal rights and obligations of individuals. In the present case, a written judgment would have given the parties involved a better understanding of how s. 4A of the Universities and University Colleges Act 1971, the law at the centre of the challenge applies, its scope and its limitations.
An application for a judicial review ensures that those vested with legal powers to do something that affects the public interest, such as the appointment of a Vice-Chancellor, exercise those powers in compliance with the empowering law. The decisions of judges who review administrative procedures will also add greater clarity to the laws. Such legal actions do not come cheap to those initiating them and at the end of the day the very least they deserve, even if they fail in their application, is that they have a better understanding of the law.
A public statement of the reasons for a judgment is therefore owed to those involved in the action and to the community at large. If decisions are made without giving written reasons, as in the dismissal of the Gerak application, it will lead to a feeling of injustice among the members of the association and a reduced appreciation or understanding of legal rights and obligations. It also leaves Gerak in a quandary about appealing the decision.