The Sun
comment by G. Mahendran
The system, like in corporate and governmental entities, seeks to evaluate the productiveness, effectiveness and quality of employees and management by way of statistics derived from targets set by upper management. Normally the system would have been designed by human resource teams. The judicial KPI, however, is illusive, with its designers and targets a closely guarded secret.
One must note that the judiciary is not a branch of the government. It is a pivotal pillar of democracy and constitutionalism and thus remains a guardian and support structure of our way of life. Viewing it in a way as to make it part of a government structure or corporate entity is the first step towards the collapse of democracy and constitutionalism.
Herein lies the origin of the problems with the judicial KPI system. It intends to value judges, magistrates, registrars and court personnel’s performances with a corporate structure and system based on quantity rather than quality. It essentially converts the judiciary into a highly inefficient corporation, which shall be explained further.
The content and targets of the system are a "state" secret. While the Bar has been promised a publication of it in the light of transparency, as of Dec 12, the Bar has yet to see it and only rumours exist on the targets. Having qualified that the following is a rumour, legal practitioners understand the judicial KPI system to require judges in the High Court to finish and close a minimum of four cases a month. As for the other subordinate courts, the targets are unknown.
While many a lay person would be happy to hear that finally the courts are doing something about the backlog of cases, they should celebrate with caution. The quick disposal of cases is hardly synonymous with fair disposal of the same. This is a disturbing issue primarily because it affects both the criminal and civil divisions of the judiciary.
Given that it would be wrong and impossible for the judicial KPI system to base its calculations on the quality of judgments by a relevant judicial officer, the system must inevitably be basing its evaluations on the quantity of files closed. This remains the greatest argument to why the judicial KPI system can neither be used for the judiciary nor tolerated.
If the former is the way the system is geared, the judiciary has indeed failed miserably, I hope not. Essentially the use of the former would mean the judgment of a particular judge has been, upon its award, evaluated on quality long before any appeal is decided on. This simply means the team deciding on the quality of the judgment makes a decision, before hearing of an appeal, of whether the appeal can succeed or not. This is a miscarriage of justice.
If the latter is true, then the judicial KPI system works with the principle of better evaluations for judicial officers based on the number of files closed. This would explain the seeming trend of justice being subject to, after a long time freedom from, preliminary objections and non-substantive non-compliances leading to dismissals of cases and appeals. This means simply "the more files a judicial officer closes the better said person is rewarded".
If the system came into being to remove the backlog of cases, it has not done so. The quality of judgments that achieved the same is, to a greater number subject to appeal. That in itself should speak volumes, preferably not of the wealth of litigants or the burgeoning wealth of legal practitioners. The system has chosen to stay despite the backlog having been relieved greatly by transferring it to the appeal courts.
Sometimes the best way to clear an attic is to take the junk out and set fire to it. That analogy may fit the current dilemma.
Of course, like most else, the system also suffers from bad execution. While intending to ensure speedy resolution of disputes through trials, no court in Malaya has any stenographers to assist the court in logging evidence from witnesses. After trials, lawyers are required to make legal submissions, normally aided by the notes of evidence (obtained from court to ensure parties have the same transcript of what witnesses have said). To ensure speedy trials today, the courts now simply refuse requests for notes of evidence and require lawyers to return several hours after completing the trial to make legal submissions. Without proper notes of evidence, the accuracy of the submissions based on the testimony of the witnesses is doubtful. The fair outcome of the trial, in both civil and criminal cases is greatly affected.
Even in criminal cases, with particular focus on capital punishment cases, some High Courts have surprisingly managed to dispose of 60 cases this year, averaging a decision on the life of a person to five decisions a month a court in some courts. It would be preposterous to think that the life of a person can be summarily determined in four working days a month. If this is read in tandem with the above paragraph, can fair trials in criminal cases with death penalties or lesser be guaranteed.
To a larger extent, the CJ has blamed the backlog of cases on delays caused by postponement and adjournment requests by lawyers. This is hardly accurate. Justice cannot be hurried. The nature of justice, obtainment of evidence and witnesses cannot be hurried. The examination of witnesses cannot be hurried. The submissions after trial cannot be hurried or done without the benefit of the notes of evidence as recorded and understood by court. Justice must be allowed a reasonable time to be decided on.
Of course, like any other government body, which inevitably is how the judiciary behaves, many practitioners have had their cases postponed, numerous times, by the courts because judges were on leave, attending courses or simply too busy to hear you. This cannot be the fault of lawyers. The statistics of these adjournments are roughly equal to the amount of adjournments requested by practitioners.
There was nothing wrong with the old system of judicial management and hearings. It required fine tuning and more skilled manpower. Giving it that would have simply solved the problem. Taking it out, introducing the fear-causing element of the judicial KPI system to the judiciary and speeding trials to breakneck speeds have done absolutely nothing but to make terminal an ailing system.
G. Mahendran is a practitioner with the Malaysian Bar. Comments: letters@thesundaily.com
comment by G. Mahendran
THE initial joy the legal profession had experienced when the new chief justice took office was short-lived as we soon began to realise that he intended to re-introduce a failed system of track management into the judiciary.
The system had initially failed in 2001/2002 when Datuk James Foong had introduced it while serving as a High Court Judge in Kuala Lumpur. But our fears were allayed when the CJ promised a trial run and to give due credence to feedback from the Bar. That was in February.
When introduced, the system seemed to work. Cases started to move faster, more judicial appointments from the Bar were made ensuring the introduction of fresh ideals into the judiciary and a general sense of an increase of judicial fervour was seen. It did not last long.
To ensure the new system worked and self-managed itself, the CJ and his team (which included Foong, Datuk Raus and the chief justice of Malaya) brought into play a KPI system for judges, magistrates, registrars and court personnel.
The system had initially failed in 2001/2002 when Datuk James Foong had introduced it while serving as a High Court Judge in Kuala Lumpur. But our fears were allayed when the CJ promised a trial run and to give due credence to feedback from the Bar. That was in February.
When introduced, the system seemed to work. Cases started to move faster, more judicial appointments from the Bar were made ensuring the introduction of fresh ideals into the judiciary and a general sense of an increase of judicial fervour was seen. It did not last long.
To ensure the new system worked and self-managed itself, the CJ and his team (which included Foong, Datuk Raus and the chief justice of Malaya) brought into play a KPI system for judges, magistrates, registrars and court personnel.
The system, like in corporate and governmental entities, seeks to evaluate the productiveness, effectiveness and quality of employees and management by way of statistics derived from targets set by upper management. Normally the system would have been designed by human resource teams. The judicial KPI, however, is illusive, with its designers and targets a closely guarded secret.
One must note that the judiciary is not a branch of the government. It is a pivotal pillar of democracy and constitutionalism and thus remains a guardian and support structure of our way of life. Viewing it in a way as to make it part of a government structure or corporate entity is the first step towards the collapse of democracy and constitutionalism.
Herein lies the origin of the problems with the judicial KPI system. It intends to value judges, magistrates, registrars and court personnel’s performances with a corporate structure and system based on quantity rather than quality. It essentially converts the judiciary into a highly inefficient corporation, which shall be explained further.
The content and targets of the system are a "state" secret. While the Bar has been promised a publication of it in the light of transparency, as of Dec 12, the Bar has yet to see it and only rumours exist on the targets. Having qualified that the following is a rumour, legal practitioners understand the judicial KPI system to require judges in the High Court to finish and close a minimum of four cases a month. As for the other subordinate courts, the targets are unknown.
While many a lay person would be happy to hear that finally the courts are doing something about the backlog of cases, they should celebrate with caution. The quick disposal of cases is hardly synonymous with fair disposal of the same. This is a disturbing issue primarily because it affects both the criminal and civil divisions of the judiciary.
Given that it would be wrong and impossible for the judicial KPI system to base its calculations on the quality of judgments by a relevant judicial officer, the system must inevitably be basing its evaluations on the quantity of files closed. This remains the greatest argument to why the judicial KPI system can neither be used for the judiciary nor tolerated.
If the former is the way the system is geared, the judiciary has indeed failed miserably, I hope not. Essentially the use of the former would mean the judgment of a particular judge has been, upon its award, evaluated on quality long before any appeal is decided on. This simply means the team deciding on the quality of the judgment makes a decision, before hearing of an appeal, of whether the appeal can succeed or not. This is a miscarriage of justice.
If the latter is true, then the judicial KPI system works with the principle of better evaluations for judicial officers based on the number of files closed. This would explain the seeming trend of justice being subject to, after a long time freedom from, preliminary objections and non-substantive non-compliances leading to dismissals of cases and appeals. This means simply "the more files a judicial officer closes the better said person is rewarded".
If the system came into being to remove the backlog of cases, it has not done so. The quality of judgments that achieved the same is, to a greater number subject to appeal. That in itself should speak volumes, preferably not of the wealth of litigants or the burgeoning wealth of legal practitioners. The system has chosen to stay despite the backlog having been relieved greatly by transferring it to the appeal courts.
Sometimes the best way to clear an attic is to take the junk out and set fire to it. That analogy may fit the current dilemma.
Of course, like most else, the system also suffers from bad execution. While intending to ensure speedy resolution of disputes through trials, no court in Malaya has any stenographers to assist the court in logging evidence from witnesses. After trials, lawyers are required to make legal submissions, normally aided by the notes of evidence (obtained from court to ensure parties have the same transcript of what witnesses have said). To ensure speedy trials today, the courts now simply refuse requests for notes of evidence and require lawyers to return several hours after completing the trial to make legal submissions. Without proper notes of evidence, the accuracy of the submissions based on the testimony of the witnesses is doubtful. The fair outcome of the trial, in both civil and criminal cases is greatly affected.
Even in criminal cases, with particular focus on capital punishment cases, some High Courts have surprisingly managed to dispose of 60 cases this year, averaging a decision on the life of a person to five decisions a month a court in some courts. It would be preposterous to think that the life of a person can be summarily determined in four working days a month. If this is read in tandem with the above paragraph, can fair trials in criminal cases with death penalties or lesser be guaranteed.
To a larger extent, the CJ has blamed the backlog of cases on delays caused by postponement and adjournment requests by lawyers. This is hardly accurate. Justice cannot be hurried. The nature of justice, obtainment of evidence and witnesses cannot be hurried. The examination of witnesses cannot be hurried. The submissions after trial cannot be hurried or done without the benefit of the notes of evidence as recorded and understood by court. Justice must be allowed a reasonable time to be decided on.
Of course, like any other government body, which inevitably is how the judiciary behaves, many practitioners have had their cases postponed, numerous times, by the courts because judges were on leave, attending courses or simply too busy to hear you. This cannot be the fault of lawyers. The statistics of these adjournments are roughly equal to the amount of adjournments requested by practitioners.
There was nothing wrong with the old system of judicial management and hearings. It required fine tuning and more skilled manpower. Giving it that would have simply solved the problem. Taking it out, introducing the fear-causing element of the judicial KPI system to the judiciary and speeding trials to breakneck speeds have done absolutely nothing but to make terminal an ailing system.
G. Mahendran is a practitioner with the Malaysian Bar. Comments: letters@thesundaily.com
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