The deal about judicial KPIs

By Ding Jo-Ann
thenutgraph.com

Chief Justice Tun Zaki Azmi

THE setting of key performance indicators (KPIs) for judges is being touted as the mechanism that will turn Malaysia's beleaguered judiciary into an efficient, justice-dispensing system. Chief Justice Tun Zaki Azmi has made improving judicial efficiency his personal mission. "I want to ensure that justice is produced fast. Clear the backlog. If I can do this, then I would be very happy," he reportedly said shortly after taking office in October 2008.

Superficially, this seems to be cause for celebration. Judges having measurable monthly targets should theoretically result in greater efficiency. But do KPIs for judges make sense? Can the dispensation of justice be measured in this way? Is this a long-term solution that will restore the judiciary's reputation, or is it just a cosmetic fix that is wreaking havoc on lawyers, their clients and the administration of justice?

Rushing out justice

Although KPIs look good on paper, the stories on the ground suggest that some judges are so obsessed with meeting their KPIs that they are willing to sacrifice being fair and thorough, resulting in justice being compromised.

"A judge told me my case had to be finished because of the KPI," says one lawyer. "We had fixed specific trial dates months ago because my client, who was overseas, could only attend on those dates. [But] a few days before the trial, the judge [suddenly] insisted the witness attend one day earlier."

When told that the witness could not be present on the new date, the judge said: "I don't care. We have to proceed on this date. Get another witness. If not, too bad, we continue with the case."

This lawyer and several others The Nut Graph spoke to declined to be named so as not to jeopardise ongoing cases should the judges involved hear of their complaints.

Another lawyer says that some judges are no longer giving sufficient time for proper legal research to be done for submissions after a trial is concluded. "After several days of trial, the judge wanted us to make legal submissions the very next day," the Kuala Lumpur lawyer said. "When we protested, the judge checked whether the KPIs had been met for that month. Upon confirming that it had, then only were we given more time."

The lawyer says that in the past, lawyers were given at least two weeks to consider the evidence and conduct further research to back up their submissions. She argues that as a result of the pressure to complete closing submissions in record-breaking time, decisions may not always be correct because they would not be based on research to rebut fresh evidence.

Worse, there have even been reports that criminal cases proceeded without the presence of the appointed defence counsel. Considering that drug-related cases at the High Court involves the possibility of the death penalty, the current efficiency drive can seriously compromise the more important need of ensuring a fair trial for the accused.

"We agree that matters should go on, without a doubt," says Penang lawyer Jagdeep Singh Deo. "But this must be balanced with the fact that [appointed] counsels should be allowed to be present when the case goes on."

Richard Wee (pic courtesy of Richard Wee)

Jagdeep recounts that one particular drug-related case in Penang involving the death penalty went ahead even though the defence counsel could not be present. "It is quite ironic," he continues. "In a capital case, if the accused is not represented, ordinarily the court will assign counsel because to be fair, the accused must have counsel." But in the mad rush to meet KPIs in the particular case Jagdeep was recounting, justice could not have been done.

Lawyers also complain that each court is also now demanding priority when fixing trial dates. When lawyers cannot be present at two different courts at the same time, they are accused of taking on too many cases. Sometimes they are asked to hand over cases to their colleagues if trial dates clash.

Lawyer Richard Wee feels this could be unfair to clients. "If some lawyers take on too many cases that they cannot handle, I agree they must cut down but the judges cannot force us to drop cases that we have been handling for more than five years," he says in a phone interview.

"We must be given time, for example, if we are told, 'By 2010, no more adjournments will be granted on the basis that you have another case to handle', then we can inform our clients as well."

Speed vs quality

But not all lawyers think that chasing after KPIs has resulted in justice sometimes being aborted.

"Generally, I think the KPIs are quite good. They are moving the cases much faster and judges are accountable in situations where cases are being postponed unnecessarily," Khaizan Sharizad Abdul Razak says.

Wee, however, believes that there are problems with the implementation of the reforms.

"There is an unnecessary feeling of wanting to make everything fast at the expense of justice," he says. "The law should always cater for all. The courts should have the flexibility to slow down certain cases."

Seira Sacha (pic courtesy of Seira)

Lawyer Seira Sacha Abu Bakar argues that KPIs for judges don't work and other measures should be used to improve the judiciary. "Judges' competency must be looked at in terms of how they perform when hearing cases and in giving sound judgments... In their rush to commence and complete trials, there is a risk that judges may overlook some issues," she argues.

Cannot go back

Bar Council president Ragunath Kesavan reveals to The Nut Graph that the Bar Council has been in talks with Zaki who assures them he's looking into all these "teething problems". Whatever happens next, Ragunath says, the system cannot go back to how it was before.

"This is a work in progress. We had a system that never worked previously. No one wanted to deal with the system and overhaul the system... We have not reached an ideal system but we can't go back to the old system which doesn't work. Changes have to take place," he says.

Wee concurs that Zaki is trying. He says Zaki replies promptly to e-mails and constantly meets with the Bar Council and the state bar committees. "Before him and [previous Chief Justice] Tun [Abdul] Hamid [Mohamad], we were never consulted."

Ragunath Kesavan

But these efforts aside, Ragunath says that for the system to work, judges themselves must be able to speak out if the KPIs cannot be met for valid reasons. "We've been told that the [chief justice] will not interfere with the running of each court. Therefore, the judges should put their foot down if they feel they cannot comply with the KPIs. If they cannot finish a particularly complex case and need more time, they should be prepared to justify this and not just say, 'I have KPIs, I have to finish the case now'."

There's no doubt that everyone wants a more efficient judiciary. "We all want cases to be disposed off quickly, but this must be balanced with a proper hearing of the case," Seira argues. That, instead of just speed, is what lawyers are saying will ensure justice and fairness.

"It's a good thing to clear the backlog but there should be certain caveats to it...The discretion of the judges must be applied without having KPIs as a consideration," Jagdeep says. "The bigger consideration, the paramount consideration, is justice."