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Tuesday, November 10, 2009

Of Judges, KPIs, Justice and Superficiality

"I want to ensure that justice is produced fast. Clear the backlog. If I can do this, then I would be very happy." – Tun Zaki, Chief Justice, Malaysia.

As far as mission statement goes, the above sounds good. It signals an aim, namely, justice must be produced fast. Then it spells out the mechanic by which that aim is to be achieved, namely, by clearing the backlog. Lastly but surely not the least, it states the overall impact of the mission, once achieved. The CJ will be happy.

With 900000 cases pending in the lower courts and 91000 cases in the High Courts (2008 figures), the concern about delays in the Courts is understandable. After all, justice delayed is justice denied. The CJ therefore has taken it upon himself to clear the backlog of the cases.

Throughout my years of practice, I have seen at least 7 Chief Justices (the position was called Lord Presidents before) come and go. Invariably, each new Chief Justice had the same resolution upon being elevated to his position. One even went to the Scandinavian countries to study on ways and means to reduce backlog. When we have a neighbour just about 300 kilometres away who have solved the backlog problem one wonders why we would want to travel to such far away land. But then again, we love study trips. Needless to say the backlog stayed. And in fact it got worse.

There was another one who said we would computerise the Courts. And soon we saw computer monitors, slim microphones and mini speakers springing up in Court rooms. I walked into one those days and I had to call my assistant to make sure that she had not sent me into a recording studio. Again, the backlog stayed.

Then there was the effort to increase the number of Judges. The idea was simple and basic. If there were many Judges, surely many more cases could be disposed off, no? Well, yes and no. A big NO, in fact. There were Judges those days who actually measured the margins on the court papers to ensure that it was one inch in width! Anything less would be struck out for non-compliance with the High Court Rules 1980. Then there was one who actually wanted all submissions before him be typed in fonts 13!

There was also one who scolded my opponent in front of me for referring to the Akta Syarikat as the “Companies Act.” That guy actually left practice soon after. There was another Court which had actually rejected my bundle of authorities because my separator was not white in colour. I was told that according to the rules, all papers filed must be white in colour. Now, if the separators are white, would they be called separators then? I am not kidding. These are true accounts. Needless to say, the backlog stayed. Until now.

Regardless of the ways and means employed by the Chief Justices, there are however a discernible pattern to the approach. Firstly, count the number of cases. Then blame the lawyers for delaying the cases by unnecessarily applying to postpone them. Then set a target – which was normally unachievable – of the number of cases to be disposed off within a specific period of time. Then sit down and see the paint drying. The result? Utter failure!

In almost all the various approaches, amidst all the media statements, the publicity, the study trips and what-nots, one method stood out. That is the circulation of the proverbial administrative circular. The circular would say, “no adjournment or postponement should be granted on the ground that lawyers have another case to do in another Court”.

Well, I have a problem with that. In fact many lawyers do. First of all, the granting of adjournment or postponement is a matter of judicial discretion. That means it is a power of the Judge in question which is to be exercised by him or her in his or her judicial capacity considering all the circumstances of the case. It is not for the CJ or anybody else to dictate the exercise of that judicial power. To do so would be an interference with the power of the Judge. If that is not contemptuous, I don’t know what is.

Secondly - and this is really irritating – it is not the lawyers’ fault that two or more of his cases are fixed on the same day. Do I have to explain this? Well I suppose I have to. Take me for example. I don’t just handle one case. I handle many cases at the same time. I may file an application in case A a month ago. Then I may also file an appeal to the Court of Appeal in case B 8 months ago. I also may have an appeal in the Federal Court in case C still pending. Now, let’s say I am in Court today trying to fix a trial date for case D in the High Court. The Judge says “how about 1st March 2010?” I look at my diary and I am free on that day. So, the Judge fixes case D for trial on 1.3.2010 to 5.3.2010.

Later, my application in case A is taken out from the registry and it is fixed on 1.3.2010. To add to that, the Court of Appeal suddenly write to me to notify that my appeal in case B is now fixed on 2.3.2010. Soon, the Federal Court notifies me that case C is now fixed for hearing on 3.3.2010. Is that my fault? Have I taken cases which I am not able to do? Have I bitten more than I could chew? Am I to blame? Well, according to current jurisprudence, I am. And the Court should not grant me a postponement of any of my cases.

When I complain, the answer is almost curt and disrespectful. Not to mention dismissive. “Farm your cases to other lawyers.” Problem solved. Well excuse me. Article 5 (3) of the Federal Constitution guarantees every person (citizen or otherwise) the right to be represented by a Counsel of his or her choice. Isn’t that important? Or is it convenience over right? Then there is the fact that clients come to me because of some special knowledge that I possess in the specific area of the law which is the subject of the case. Isn’t that important too? Or how about the fact that I have taken a retainer fee for that particular case and I had done all the works required in preparation for the trial of that case. Must clients engage another lawyer and pay another fee now? Can we have a little bit of understanding here please?

The current CJ is quick to add that the grant of adjournment is a judicial discretion. In a meeting between the Bar Council representatives he stressed that point. But later, it transpired that he had actually personally called up some of the Judges who granted adjournments which he thought was unnecessary and asked them to explain their action. Which begs the question, what judicial discretion is there when Judges have to explain their exercise of that judicial discretion to the CJ personally? Isn’t that interference?

The law is every exercise of judicial discretion by the Judge is a judicial act. Judges are not required to explain to anybody, not even to the parties to the action. He or she can write a judgement. The party who is unhappy with the exercise of that judicial discretion may appeal to a higher Court. With the greatest of respect to the CJ, it does not befit anybody, including the CJ, to question a Judge on the exercise of a judicial discretion.

What would the public think? If Judges could be hauled up to face the CJ and questioned on their judicial act, what is there left for litigants? Fight their cases on the street?

And now we have KPIs for Judges. Sometime ago, Judges were made to clock in and clock out, like some “production executives” in a Seberang Perai factory. Every Judge is supposed to dispose of at least 35 cases annually. I presume “cases” here means trial cases and not merely applications in Court. Let’s do the Maths. There are 53 weeks in a year and the Judges work 5 days a week. That amounts to 265 days a year. Assuming the Judge takes 15 days of personal leave and another 15 days leave on public holidays. That would leave 235 days. That means 6.7 days per case. Let’s say he or she spends half of that, ie, 3 days to hear applications. That means an average of 3.7 days per trial.

Is that realistic? What kind of justice are we talking about? A quick one, obviously. And quite a short one too, if I may add.

It is easy to treat the Courts like some manufacturing plants. Like Proton for example. Increase production. Increase sale. Increase profits. Set targets. Meet them. And yes, we are successful. But what is justice? What is fairness? Let’s face it. Nowadays, lawyers and their clients talk about appealing against a Court order even before the case was heard. Why? Because there is absolutely no respect for the judgment of the Court. That is the hard truth. To put it bluntly.

Dr Deming in his book, “Out of the crisis” stresses that in a non-performing entity, the people are not to blame. It is the system which is at fault if the people don’t perform. He said that a manager needs to understand that the performance of anyone is governed by the system and management. He emphasises quality and not cost cutting and the likes. Among others, he lists the followings as the integral elements to transforms effectiveness;

· There must be constancy towards improvement of product and services.

· Dependency on inspection to achieve quality must cease. The work must be good and of quality the first time around.

· The system must improve constantly and forever.

· Institute leadership, not for supervision, but to help people be better in their job.

· Eliminate slogans, exhortations and targets for the work force.

· Eliminate management by objectives, numbers or numerical objectives.

· Institute programmes for education and self improvement.

· And most importantly, drive out fear, so that people may work effectively.

The above are for corporations. But how true it is for the judiciary to take note of. It would be good if we could super-impose these elements on the Judiciary and see whether what Deming is asking to be avoided is being done and what he is asking to be done is not being done.

Have we undertaken a proper and in-depth study of the whole situation? If so, what is the root cause of the problems? Hell, do we know what the problems are in the first place? Can’t the system be improved, or changed altogether? Have we looked at some international arbitration rules for example? Can we learn from those rules?

If we do not have a holistic approach, we can of course continue appointing new Judges till kingdom come. We can continue blaming the lawyers till their robes and bands rot. We can stop giving postponement. We can even impose a limit to the number of words a witness may utter.

At the end of the day, the backlog might be cleared. And everybody should be happy, right?

19 comments:

telur dua said...

In Bolehland, paying lip service is fashionable and a disease at the same time.

HIRO said...

I absolutely love this article.

I think the problem is simple. Lack of judges of quality and integrity.

If people respect the system, and they respect the judge, then most cases won't go on appeal, either from the subordinate courts to the High Court, or from the High Court to the Court of Appeal and onwards to the Federal Court. In fact, some might even stop litigating because they know that the law is applied consistently and they can't get away with murder just by choosing certain courts.

Quality judges, we don't have, simply because there is cynism that since 1988, justice can be auctioned to the highest bidder, where friendly judges can turn light into darkness, wrong into right and stain into clean-slate.

There is only one way to clear the backlogs. Remove those judges who are tainted and replace them with those with competence and integrity. And how would you do that, if not removing the very political coalition which formed the federal government that in effect appointed them in the first place? If you really want to clear the backlog, commit now as to whom you need to vote in the next general elections.

masakini said...

Art:

The problem of backlogs can definitely be solved and I agree that the judiciary (the administration) is barking at the wrong tree. Every CJ/LP has had talked about bringing down the backlog but without knowing or understanding the REAL problem. Even my small mind tells me that the problem can be solved but I am not telling them how (cheeky though) as they are supposed to do it but I reiterate that this can be done and emphasise not by the methods suggested by the current or the previous CJs.

masakini said...

HIRO:

Yes, I agree with you - I love this article and the way ART "articulates" his articles.

What I don't agree is the part where you claim on the quality and integrity. Yes, that is a required quality of any judge sitting on the bench but how that alone can resolve the issue I wonder. Does this also mean that before 1988 there were no backlogs?

HIRO said...

Masakini, you have an interesting question. 2 points come to mind:

1) Ridding backlog is like trying rid of corruption, or crime. They will never go away completely. So the real goal is to bring them down to a level so that we can count (again) as one of the countries which could dispense justice, as well as dispensing justice with speed. If there's an international index on this, we could benchmark ourselves like Transparency International's Corruption Index. I'm sure there are backlogs before 1988. The real question is was it as serious back then compared to now, and what has gone wrong along the way?

2) Appointing the right judges by itself is naturally not a be all end all solution - but we're building on what has already happened, that is increase in judicial appointments, better facilities, etc. Therefore, I do feel strongly that judges of quality and integrity will be the key to solving the problems of backlog.

Quality does not only lie with in indepth knowledge and honest and fair application of the law, but also management and organisational skills. Proper leadership will ensure that all these changes will be properly implemented without hidden agenda, and without sacrificing our civil rights.

Respected judges will gain support of most lawyers to assist in implementing the changes. And as I have already mentioned, a well respected judiciary will ensure finality to most litigated cases instead of appeals on procedures and then substantive law, or perhaps even stop cases from being litigated in the first place.

Anonymous said...

Fast track is not even about speedy justice.

I filed for stay with Cert of Urgency, got a 3 weeks return date. On the the return date, affidavits had been exhausted and senior counsel for all parties appeared, stay not listed on Judge's list dan dgn selambanya TP kata first return date is only for management, not hearing. We asked for the file to be sent to the Judge. Refused coz tt is the arahan. Given another 3 weeks date. On the next date I bet even if the counsel had a heart attcack, postponemnet will not be granted, otherwise answerable to CJ.

Fast track is about judges and judicial officers answering to the CJ.

Anonymous said...

Another excellent article !
Thank you so much.

teo siew chin said...

A great write as always from Art!

Now, can you be so kind as to get behind the counter and write from the point of view of the court staff: the overworked underpaid unappreciated underlings who get the file moving...the ***holes so to speak. LOL.

Anonymous said...

Dear Art,

Good analysis on the problem I would say.

Feel free to read one blog http://adamalhabshi.blogspot.com/ that often bashes ( i use the word "bashes" based on the author's choice of words, the lack of objectivity, the arrogance in the style of writing) lawyers on similar issues...btw, he is the official officer to the CJ.

Hana

Anonymous said...

Sorry for the spelling mistake *special officer to CJ*

Hana

Anonymous said...

Harun,
What we have is a pariah judiciary made up of UMNO faithful judges. They can do what they like and get away with their histrionics.
All they are required to do is protect UMNO's interests at whatever costs.
Just see the decisions made in connection with Perak cases. Can our judges go any lower?
Our judiciary is in a pathetic state. It is beyond redemption... unless the BN is replaced and the servile judges sacked or even sent to prison.

Anonymous said...

Judges start their hearings at about 9.30am, then they have short breaks in between and they close shop at 1.00pm.
Afternoon no hearings. They go to sleep.
Now how to clear cases???

ruyom said...

Remember Raja Petra said: More than 90% of malays were actually non-Muslims, because they don't follow the teaching of Islam.

I firmly believe, when I die and go to hell, I will meet many "Malaysian Muslims" there, all the munafik who used Islam not for them to be closer to God, but for their idiotic, selfish and vicious self-interest.

More classic examples of half-past-six mentalities displayed by the present so-called leaders, ministers, and worst of all politicians (monkey brain), bad for the nation but good for those who knows how to take advantage of their stupidity.

Religion alone can never help us to become more clever and smart, especially with the present attitude and style of the malays, who are going backwards more and more, and heading for the caves and jungles in time to come.

In Malaysia the constitution is not the supreme document in law. It has been so trampled by the Umno gangsters; it has come to a point where these gangsters are a law unto themselves. To them the constitution is respected when it suits their intents and toilet paper when it does not.

Mob rule is tolerated by the police when it is an Umno orchestrated mob. Non-Umno gatherings are an inconvenience and clobbered to pulp.

Malaysia is dead as a nation. They are dying to call this land Tanah Melayu so we might as well let them destroyed it. It is no loss to the non-malays since they are treated as pendatang anyway.

Let these gangsters plunder and rob their own kind. They are notorious for inbreeding in any case. They would probably enjoy devouring their own kind too. Crooks and hypocrites at the helm will never grow a nation. Only chaos and disaster beckon.

I wish it were different, but I have long since decided they deserve what they get. No point in banging my head against the wall.

coolooc said...

You have to forgive Nazri. He knows not what he says. You see, his brain is in between his legs. Unfortunately, he also ejects his waste form there. His brain got mixed up with his waste.

Boleh said...

But in Malaysia, MACC, police, Umno and judiciary are one team – united against law, order, rule and justice - to intimidate the people, to jail the innocent, to oppress the opposition and to defend the criminal.

kok said...

Khairy is the worst of the lot. I can understand that most of the Umno Youth members are dropouts/morons who cannot think, but this Oxford chap behaves like a scumbag and talks like a slime ball, totally at variance with what he was taught at that institution.

romsam said...

UMNO is only good at spinning and deceiving the people, in particular the malays. The younger generation of malays now are smarter than their forefathers. The smart malays are shying away from UMNO because UMNO has deceived them for far the last 30 years. UMNO has brought harm onto themselves.

Holy Brother said...

We need a new government so that fresh ideas could be generated to revamp the current system.If we can convince the rakyat to elect a new government we at least stand a chance to see some improvements, otherwise we are stuck with a vicious circle and keep getting the same thing,again and again.What is the point we keep complaining, writing and bloging about all the misfortunes and shortcomings without really getting to the root of the matter.Ask any school teachers and they will tell you how terrible is the current system and ask any government doctors and they will tell you how the current system is sucking their blood.
Dear Art ,
I therefore suggest you gear all you effort towards educating the rakyat on the importance of electing a new government(I mean a new brand) rather than keep on lamenting about endless flaws in every areas.I believe this would be more meaningful and action oriented and take us away from cul de sac .
What say you ?

PM said...

If you vote for the donkey, you get donkeys all the way. So when donkeys rule all below them are donkeys. So the saying in the donkeys kandang, do as the donkeys do. Even the horses will behave like donksys.