The Micah Mandate
by Andrew Khoo
The Chief Justice identified the main problem as being that of the backlog of cases in the High Court. He highlighted a 52.8% reduction in pending civil cases in the High Courts between 31 December 2008 and the present; a 25.6% reduction over the same period for criminal cases. He said that this reduction had been achieved through a combination of 15 measures: stocktaking and rearranging of files; increasing the number of judges; a tracking system/case management; e-court, namely case management system (CMS), queue management system (QMS) and court recording and transcribing system (CRT); appointment of managing judges; strict granting of postponements; spot checks/surprise visits to courts; mediation; judicial training and seminars/workshops; better utilisation of judicial time; close monitoring from the top management; establishment of specialised courts; regular meetings with, and support of, the Bar and the Attorney General; electronic filing and disposal of cases; and amendments to relevant legislation.
Among other things, the Chief Justice proudly displayed his circular on “Last Minute Postponements” for all to see. He stated that it was unfair to have the blame for postponement imposed solely on the courts. In order to transform this inaccurate perception, he urged judges and judicial officers to be strict in granting last-minute postponements without reasonable notice. Granting postponements was a judicial discretion, and he advised them to exercise that judicial discretion wisely. As for close monitoring by top management, he spoke of receiving daily reports, of setting key performance indicators, and of publishing figures on the disposal of cases amongst judges and judicial officers. He also spoke about administrative improvements that had been made, especially with regard to extracting and executing orders, hearing of joint petitions for divorces and the quick attending to complaints.
Despite repeated dialogues with the CJ and the senior judiciary, there are still cases where postponements are denied even when there are good reasons. Indeed a directive from the CJ to judges and judicial officers to grant adjournments in view of the recently-held 15th Malaysian Law Conference was totally ignored by one judge and the lawyer in that case, who was moderating one of the sessions, had to complete his hearing before attending. Lawyers also face the fixing of hearing dates that do not correspond with their available dates, despite these being made known in advance to the judge. The CJ has been somewhat unsympathetic in these instances, saying that lawyers will just have to find another lawyer to attend. He has stated in the past his view that lawyers spread themselves too thinly and take up more cases than they can practically manage. These multiple cases then end up being fixed for hearing on the same days, hence the need for adjournments. Apparently having another case fixed for hearing in another court is not an acceptable reason for applying for an adjournment, and judges and judicial officers have been taken to task for exercising their discretion for this reason. His solution: sole proprietorships and small law firms should merge, so that a firm would have more lawyers at its disposal to attend to the various cases. With Malaysian legal fees being comparatively very low, the issue of lawyers needing to earn a decent wage is conveniently ignored.
The recently-approved amendments to the Subordinate Courts Act 1964, which the CJ also mentioned in his briefing, will see cases with a monetary value of RM1 million or less being transferred to the subordinate courts. This is a pre-emptive move not to clog the superior courts with relatively minor cases in the future, and reduce the chances of a backlog building up once again. The problem is that the threshold of RM1 million is fairly high, and will include a considerable number of complex cases. Allowing officers of the Judicial and Legal Service, to which Sessions Court judges and magistrates belong, to decide these cases rather than High Court judges may impose an undue burden on the former. They will now also have the power and responsibility of deciding on interim issues connected with such cases, for example on injunctions. There is some concern amongst members of the legal profession that non-High Court judges would not have sufficient experience and expertise to decide on such matters. So while on the one hand access to the courts may be improved, the question of access to a just outcome remains wide open.
This is also true of the case of night courts. While this has been available for some time, the uptake has not been good. The initial driving idea behind these was that parties could opt to have their cases heard after hours, thus reducing the burden on litigants to make their days available. However we seem to have misunderstood the rationale for night courts. Night courts are more suited to the hearing of preliminary issues in a criminal matter especially those which arise immediately upon arrest, such as remand hearings and bail applications. This is especially true of those arrested after regular court hours, the intent being that accused persons are brought before a magistrate soon after they are arrested and their cases dealt with quickly. The Government Transformation Programme (GTP) has now stated that the night courts will be used to address the problem of street crime. That will be good. Yet the predisposition of our police force is to have alleged offenders kept in detention for as long as legally permissible, “pending investigations”. Night courts would only serve to frustrate such predispositions and hinder the way in which police investigations are carried out in this country. Further, night courts would work best when there is a public defender system or legal aid available at all night courts, to protect the rights of accused persons.
The latest pro-efficiency scheme by the GTP is to attempt to reduce street crime by marking street crime cases with a “J” prefix and fast-tracking them through the court process; speedy justice for snatch thieves and “Mat Rempit” and their ilk. But will this be achieved at the cost of compromising the civil liberties of an accused person? And what message does this approach send to the public at large, that some crimes are more deserving of a quick hearing than others? Will it be right to delay trials for some in order to expedite trials for others?
While the government’s aim of reducing street crime is laudable, the use of the courts to achieve the government’s policy goal of reducing crime and thus looking successful on law and order issues in time for the next election risks blurring the constitutionally separate roles of the judiciary and the executive.
In conclusion, no one is against efficiencies in the system of administration of justice. To do so would be like taking exception to motherhood and apple pie (or its suitable Malaysian equivalent). But when the courts are turned into an extension of the executive and become like any other government department forced to adhere to the drive towards achieving pre-determined performance targets, then there is great risk that justice and fairness are being compromised.
(Andrew Khoo is a lawyer in private practice. The views expressed are entirely his own. A version of this article, under the title “Delivering justice speedily”, first appeared in The Sun on 18 August 2010.)
by Andrew Khoo
On 27 July 2010 the Chief Justice of Malaysia, Tun Dato’ Seri Zaki Tun Azmi, received a standing ovation from participants of the 21st Conference of the Presidents of Law Associations in Asia (POLA) at the end of his talk entitled “The Malaysian Judiciary, Performance, Achievement & Future Planning”. In a presentation lasting some 90 minutes including a question and answer session, the Chief Justice showed approximately 70 slides detailing statistics of the practical results of changes that he had introduced vis-à-vis the administration of justice in Malaysia.
The Chief Justice identified the main problem as being that of the backlog of cases in the High Court. He highlighted a 52.8% reduction in pending civil cases in the High Courts between 31 December 2008 and the present; a 25.6% reduction over the same period for criminal cases. He said that this reduction had been achieved through a combination of 15 measures: stocktaking and rearranging of files; increasing the number of judges; a tracking system/case management; e-court, namely case management system (CMS), queue management system (QMS) and court recording and transcribing system (CRT); appointment of managing judges; strict granting of postponements; spot checks/surprise visits to courts; mediation; judicial training and seminars/workshops; better utilisation of judicial time; close monitoring from the top management; establishment of specialised courts; regular meetings with, and support of, the Bar and the Attorney General; electronic filing and disposal of cases; and amendments to relevant legislation.
Among other things, the Chief Justice proudly displayed his circular on “Last Minute Postponements” for all to see. He stated that it was unfair to have the blame for postponement imposed solely on the courts. In order to transform this inaccurate perception, he urged judges and judicial officers to be strict in granting last-minute postponements without reasonable notice. Granting postponements was a judicial discretion, and he advised them to exercise that judicial discretion wisely. As for close monitoring by top management, he spoke of receiving daily reports, of setting key performance indicators, and of publishing figures on the disposal of cases amongst judges and judicial officers. He also spoke about administrative improvements that had been made, especially with regard to extracting and executing orders, hearing of joint petitions for divorces and the quick attending to complaints.
Despite repeated dialogues with the CJ and the senior judiciary, there are still cases where postponements are denied even when there are good reasons. Indeed a directive from the CJ to judges and judicial officers to grant adjournments in view of the recently-held 15th Malaysian Law Conference was totally ignored by one judge and the lawyer in that case, who was moderating one of the sessions, had to complete his hearing before attending. Lawyers also face the fixing of hearing dates that do not correspond with their available dates, despite these being made known in advance to the judge. The CJ has been somewhat unsympathetic in these instances, saying that lawyers will just have to find another lawyer to attend. He has stated in the past his view that lawyers spread themselves too thinly and take up more cases than they can practically manage. These multiple cases then end up being fixed for hearing on the same days, hence the need for adjournments. Apparently having another case fixed for hearing in another court is not an acceptable reason for applying for an adjournment, and judges and judicial officers have been taken to task for exercising their discretion for this reason. His solution: sole proprietorships and small law firms should merge, so that a firm would have more lawyers at its disposal to attend to the various cases. With Malaysian legal fees being comparatively very low, the issue of lawyers needing to earn a decent wage is conveniently ignored.
The recently-approved amendments to the Subordinate Courts Act 1964, which the CJ also mentioned in his briefing, will see cases with a monetary value of RM1 million or less being transferred to the subordinate courts. This is a pre-emptive move not to clog the superior courts with relatively minor cases in the future, and reduce the chances of a backlog building up once again. The problem is that the threshold of RM1 million is fairly high, and will include a considerable number of complex cases. Allowing officers of the Judicial and Legal Service, to which Sessions Court judges and magistrates belong, to decide these cases rather than High Court judges may impose an undue burden on the former. They will now also have the power and responsibility of deciding on interim issues connected with such cases, for example on injunctions. There is some concern amongst members of the legal profession that non-High Court judges would not have sufficient experience and expertise to decide on such matters. So while on the one hand access to the courts may be improved, the question of access to a just outcome remains wide open.
This is also true of the case of night courts. While this has been available for some time, the uptake has not been good. The initial driving idea behind these was that parties could opt to have their cases heard after hours, thus reducing the burden on litigants to make their days available. However we seem to have misunderstood the rationale for night courts. Night courts are more suited to the hearing of preliminary issues in a criminal matter especially those which arise immediately upon arrest, such as remand hearings and bail applications. This is especially true of those arrested after regular court hours, the intent being that accused persons are brought before a magistrate soon after they are arrested and their cases dealt with quickly. The Government Transformation Programme (GTP) has now stated that the night courts will be used to address the problem of street crime. That will be good. Yet the predisposition of our police force is to have alleged offenders kept in detention for as long as legally permissible, “pending investigations”. Night courts would only serve to frustrate such predispositions and hinder the way in which police investigations are carried out in this country. Further, night courts would work best when there is a public defender system or legal aid available at all night courts, to protect the rights of accused persons.
The latest pro-efficiency scheme by the GTP is to attempt to reduce street crime by marking street crime cases with a “J” prefix and fast-tracking them through the court process; speedy justice for snatch thieves and “Mat Rempit” and their ilk. But will this be achieved at the cost of compromising the civil liberties of an accused person? And what message does this approach send to the public at large, that some crimes are more deserving of a quick hearing than others? Will it be right to delay trials for some in order to expedite trials for others?
While the government’s aim of reducing street crime is laudable, the use of the courts to achieve the government’s policy goal of reducing crime and thus looking successful on law and order issues in time for the next election risks blurring the constitutionally separate roles of the judiciary and the executive.
In conclusion, no one is against efficiencies in the system of administration of justice. To do so would be like taking exception to motherhood and apple pie (or its suitable Malaysian equivalent). But when the courts are turned into an extension of the executive and become like any other government department forced to adhere to the drive towards achieving pre-determined performance targets, then there is great risk that justice and fairness are being compromised.
(Andrew Khoo is a lawyer in private practice. The views expressed are entirely his own. A version of this article, under the title “Delivering justice speedily”, first appeared in The Sun on 18 August 2010.)
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