By Shaila Koshy
Is the Malaysian Bar extraordinary general meeting today on new initiatives in the courts akin to using a tank to crush a fly or is it the only way to stress its concerns because while the general is listening the foot soldiers may not be?
DAMNED if you do and damned if you don’t; that about sums up how the judiciary is feeling this month.
Almost all of his predecessors in the last two decades have made passionate speeches about clearing the backlog of cases, but only Chief Justice Tun Zaki Azmi has managed to get something off the ground.
It must be said here Tun Dzaiddin Abdullah, when he was CJ, tried to bring in the practice of case management. However, before they could work the kinks out of the system, which was not quite embraced by the Bar or, a new CJ stepped in and stopped it.
But this time, it’s different: the Bar has welcomed the reform introduced by the judiciary and the Government has finally allocated tax ringgit to it.
So, do we want a broom to get the job done faster or better or both?
The question often forgotten is who wields the broom. Hence the importance of the Key Performance Indicators (KPIs) that Zaki has brought in. And that is the crux of the Malaysian Bar’s EGM today.
Two resolutions touch on the courts scheduling and adjournment of cases and the fact judges may be over-emphasising numerical KPIs to dispensing justice.
While one is by Bar Council chairman Ragunath Kesavan, the fact that the second is by three very senior lawyers – Tommy Thomas, Raja Aziz Addruse and Karpal Singh – has not gone unnoticed.
The council and various state bar committees have met with Zaki, Chief Judge of Malaya (CJM) Tan Sri Arifin Zakaria, and managing judges Federal Court Justices Datuk James Foong and Datuk Raus Sharif many times this year and have found them approachable. So, why call an EGM?
Ragunath takes great pains to stress the Bar supports the initiatives that the CJ has brought in:
| ● | TRACKING system; | ||
| ● | UNIFORMITY of procedure; | ||
| ● | TRIALS start on schedule; | ||
| ● | BETTER administration structure – easier filing of documents and faster extraction of orders; and | ||
| ● | COURT recording and transcription system – reduced trial time. |
But, the big BUT here, says Ragunath, is some judges appear overzealous in disposing cases.
“The message they seem to have gotten is that the number of cases disposed of is more important than the dispensing of justice.
“We have spoken to the CJ, the CJM and the two managing judges of the decisions that clearly show that.
“We know disposing of cases and the dispensing of justice is not an exact science. But how can judges fix trial dates without checking with counsel; or refuse to postpone even though the lawyer has a medical certificate and does not have a history of malingering, or a surgeon cannot appear because he has an emergency operation to perform, or carry on a death penalty case without a defence counsel?”
Ragunath says the instances had increased in the last three months from one to five to more than 10: “We need to stop to this trend.”
He adds some judges could be retaliating because they can’t cope.
“The new system has more control over the management of cases.
“Today, non-performers will be identified immediately and judges fear the number of cases disposed of will determine their performance.”
Zaki has said in several interviews that judges maintain their discretion and independence in making their decisions. What more can he do?
“The CJ has clarified but it is still happening, so clearly the judges are getting mixed messages.
“Some judges have said, even in genuine applications for a postponement, they would have granted one before but would not now because of the KPIs,” says Ragunath, adding the CJ should make public the KPIs.
Until the mid 1990s it was unheard of not to have hearings in the afternoon but that changed. Could lawyers also be chafing at the bit now?
“Lawyers also have to change their mindset. We have told members, if they file a case, they must be prepared to proceed and be flexible about dates as well,” says Ragunath.
Pemudah co-chairman Tan Sri Yong Poh Kon is one who feels an EGM is too strong a response for a problem that could be resolved through dialogue.
He says the private sector members of Pemudah have had several meetings with the CJ and his team over Malaysia’s low ranking in the World Bank Index for enforcing contracts and had been assured there would be better management of cases and monitoring of output.
“In the first 10 months of 2008, the courts only disposed of 73 full trial cases. In the same period this year, it was 481,” says Yong, adding they looked forward to a time when cases are resolved in just months.
But what’s wrong in the Bar saying quality and integrity should override quantity?
“There’s no argument against quality but you can’t disregard the total time elapsed before a case is resolved either.
“If the judiciary is taking steps to improve the management of cases, all of us should help achieve this.
“If there are specific instances as have been highlighted, then deal with them,” he says.
And if some judges are indeed retaliating?
Yong still prefers a dialogue: “This (EGM) looks like another judiciary bashing though, this time, to my mind, it is undeserved.”
On the matter of postponements arising out of litigants wanting a particular lawyer, Yong says lawyers should only take cases according to the capacity of their law firm.
“If they are very good and get many cases, they can take in more partners or legal assistants.
“You can’t expect the rest of the legal system to be dictated by the output of a few lawyers who are overbooked.”
On the question of choosing one’s counsel, he suggests, if there is a shortage as in intellectual property law, the Government should speed up liberalisation of the legal services so the private sector can appoint foreign counsel if they so want.
The public is certainly waiting to see what the EGM decides.
Saturday December 12, 2009
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