Sunday, April 08, 2007

About the world's biggest court complex and The Judiciary under Ahmad Fairuz

About the world's biggest court complex and

The Judiciary under Ahmad Fairuz

Malaysia under the premiership of Abdullah Ahmad Badawi is, unfortunately, still pre-occupied with having the tallest and biggest structures and buildings in the world in Malaysia. Soon, we will have what is proclaimed to be the biggest court complex in the world.

This world's biggest court complex in Jalan Duta, Kuala Lumpur, will house 30 High Courts, 21 Sessions Courts and 26 Magistrate's Courts and will be operational in May 2007.

Amusingly, the 77-court complex will only have 500 parking bays for the public and lawyers. It is situated in a place not accessible by Light Rail Transport (LRT) or good public transport facilities. It is a catastrophe waiting to happen.

A parking nightmare – 6.5 parking bays per court

If one were to drop in today at any of the High Courts or Sessions Courts or Magistrate Courts and look at the number of cases listed for the day, one will be able to see that the 6.5 parking bays per court for lawyers and the public in the new "world largest" court complex is absurd.

On April 2, in just two of the Appellate and Special Powers High Courts in Kuala Lumpur, where both judges were on leave and had no matters listed before them for the day, there were still 36 matters fixed before the Senior Assistant Registrars and the Deputy Registrars. Conservatively, taking two lawyers per matter listed (which is not realistic for more often than not it is more than two lawyers that turn up in court), this means 72 lawyers, and if they all drove cars, the 13 parking bays allocated for two courts in new court complex will surely not be sufficient.

Taking another example, in the High Court (Commercial 1), there were 18 matters listed for the same day, and again that makes it about 36 lawyers. The numbers are even higher in the Sessions Courts and the Magistrate's Courts where even the list of fresh summons cases could be about 30 to 50 and this is when the lay defendants must be present to prevent judgment in default recorded against them.

There are insufficient parking bays, and with no LRT system in Jalan Duta, there will be utter chaos. Where will lawyers and the public park their vehicles?

Now, the courts in Kuala Lumpur are currently situated in Wisma Denmark and opposite Dataran Merdeka, Nearby, and there are LRT stations and many buses and taxis available. With the move to Jalan Duta, lawyers, their clients and the public will be in a situation akin to a hell on earth. Cases may be struck off and judgement entered while desperate lawyers and the public struggle to get their cars parked just to get to court in time.

Even court staff, who now use affordable public transport like the LRT and buses to get to the courts, will face higher cost of travel while their wages or allowances remain the same.

No real reason to move

With regard to the High Courts situated now in Wisma Denmark, where the government has to pay rental to the private owners of the building, a move to “our own” building would be a good idea – but for the courts being housed in the Federal Court Building, the JKR Building, the Jalan Raja government-owned buildings and the rather new Sessions and Criminal High

Court building, there really is no necessity for any move to ONE big court complex in Jalan Duta.

These buildings in front of the Dataran Merdeka have housed courts for almost 100 years, and there is no necessity to move them out to some new court complex unless the motive is just to get into the Guinness Book of Records.

The Shah Alam Court complex should have served as a very valuable lesson to our government, for here everyday lawyers and the public have to break the law and park their cars beside the road and walk sometimes about half a kilometer lugging their big bags of documents along the road and up the steep stairs just to get to court. When it rains, it is worse.

Our government did not learn from past mistakes and continues making the same mistakes over and over again causing greater loss of public funds and increased suffering for the masses.

Some serious studies of the number of people that come to court - and their mode of transport - would have not led the government into making this bad move of building a huge court complex with 77 courts at a place where there is clearly insufficient parking bays and definitely inadequate affordable public transport.

If anyone should have protested this “world's largest” court complex, it should have been our Chief Justice Ahmad Fairuz Sheikh Abdul Halim but he stayed silent and continued to point fingers of blame at the wrong targets for the failings of the Malaysian courts, especially on the issue of backlogs and delays.

He really should have set up a team to analyse matters thoroughly before he comes out and speaks to the press. He must not forget that he is the current face of the Malaysian judiciary and as such, he should protect and enhance the good name and reputation of the Malaysian judiciary and not do the opposite.

Too few judges and courts – 2.4 judges to a million people

Then, there is also the issue of a lack of judges and courts in the country. Federal Court chief registrar Datuk Tengku Maimun Tuan Mat (as reported in New Straits Times, 20/9/2006), disclosed that the number of judges in the country was low compared with other Commonwealth nations. He was quoted as saying that the Malaysian ratio is "2.4 judges to a million people - a far cry from the ratio in India (10.5), Australia (57.1), Britain (50.1) and Canada (75)."

This really is the problem for the backlog and the delays in our courts, and the only solution is to increase the number of judges and courts in the country. Our population has increased, and grown in consciousness about legal rights and human rights. The number of lawyers has also increased to more than 12,000 in Peninsular Malaysia, and so too has the number of new law graduates coming out every year. Alas, the number of courts and judges have not increased at the same rate, and that is where the real problem lies.

What we need is to have more courts and more judges. Maybe we should only move the courts from Wisma Denmark to the new court complex, as we appoint new judges and court staff for the remaining court rooms so that our ratio at least hits 10 judges to a million.

Pressure on judges to clear backlogs likely to cause undesirable results

The pressure exerted by the Chief Justice on judges and magistrates to clear the backlog of cases is certainly also not the solution and may lead to great injustices.

When the heads of the judiciary are only concerned with statistics, some judges pressured will just start disposing cases summarily and with haste just to meet the quotas, the right to a fair and proper hearing and trials will suffer and more dissatisfied litigants and users of the justice system would just end up appealing to higher courts if they can afford it. Or they will just walk away disgusted with the courts and judges and the feeling that they have been deprived of the right to a fair trial.

The Chief Justice recently placed the blame on lawyers who had “up to three cases a day” who could not turn up for their cases. But it is a fact that the problem lies with the court, not lawyers, as it is the court that usually fixes hearings without first obtaining the free dates of the lawyers involved.

Case Management Sessions for Trials Years away is Impractical

Several years ago, a “case management” system was introduced by the courts, and it is absurd to see today lawyers wasting so much time attending these case management sessions before a judge.

This system is not workable if the judges are doing case management for cases which, based on the judges diary, can only be fixed for trials several years down the road. If you are doing case managements for cases where trial will begin in 2 to 3 months, then it may be acceptable

By the time the trial date comes, the judge in that court that did the “case managements” may be no more there, and the new judge would have his own style and may require things done very differently before a trial starts.

In a few months or a year, a judge may have been transferred or elevated, and another judge comes in with a different style and a whole set of different directions for case management, and the whole time consuming case management process begins all over again.

This case management system must be abolished as it not only wastes a lot of time and resources, but has been shown to be rather inefficient. If there were not so many case management matters, maybe our judges could be spending their precious time hearing substantial applications or even conducting full trials.

Now, it seems that whole mornings get wasted by the numerous “case management” sessions that result in judges only being able to proceed with their trials in the afternoon.

Declining standards of judges and judicial officers

The other impediment is the declining standards in judges, session court judges, magistrates and registrars, and the right and pleasure of having had a good hearing is slowly fading away in the Malaysian courts.

For even a minor application, decisions are not handed down on the same day of the hearing but are adjourned to some later date. What is disturbing sometimes for lawyers is the fact that many a judge or registrar do not really take down full notes when submissions are made by lawyers, and as such when it comes to giving a decision several weeks down the road, one wonders what he looked at when he made that decision.

When asked for reasons for a decision, one registrar was even quick to say that she does not have to give reasons, and that she had discussed the matter with her judge. Not giving reasons is not right but discussing with the judge is a bigger wrong as the right of appeal from a registrar’s decision is before the judge, who hears the application afresh and should never had been involved in any discussions with the registrar before a decision is made.

If registrars have to discuss with their judges before handing down a decision, then maybe that appeal to the judge should just be removed. Not giving reasons for a decision also makes one wonder whether the deliverer of the order really knows why she allowed an application or dismissed it.

Inexperienced and rather “young” registrars

Talking about senior assistant registrars and deputy registrars of the High Court hearing applications in million-dollar suits and making an order that the suit be dismissed or that judgment be given makes a mockery of the financial jurisdiction of the courts.

Now if the amount of dispute or value of the subject matter does not exceed RM25,000, our law says that the magistrate’s court has jurisdiction, and if it exceeds RM25,000 and is less than RM250,000, then it a matter for the sessions judge. If it exceeds RM250,000 then it is matter for the High Court judge.

Fresh law graduates and those with less than even 2 years in the Judicial and Legal Services are sitting as senior assistant registrars and deputy registrars and making judgments or dismissing suits in the High Court, and this is just not right for, I believe, that they must, at the very least, have five years experience in the Judicial and Legal Services before they are appointed as senior assistant registrars and at least seven years before they become deputy registrars.

Even then, these registrars should not be hearing applications in the High Court that may end in judgment for one party or a dismissal of the suit.

If registrars spend more time assisting their judges in preparing briefs and doing research, maybe High Court judges could hear more matters and dispose cases more efficiently and justly.

The “probation judge” system

During the reign of Dr Mahathir Mohamad, the “probation” judge system was introduced, whereby a person was first appointed as a judicial commissioner and only after about two years he/she may be elevated to a judge.

This is a mockery that forgets that security of tenure is one of the elements required to ensure independence of a judge. It is wrong for persons to be even be appointed as judicial commissioners – they should just be made judges of the High Court.

Abdullah Ahmad Badawi has been premier for some years now, and he should be removing those things his predecessors introduced to limit the power of the judiciary and to “control” judges – but alas he has not done so.

It is not right for one to be today a magistrate, then a federal counsel or deputy public procedure and then a sessions court judge, as it does not portray a picture of an independent magistrate or a sessions court judge especially if the dispute involves a party and some body/person linked or associated with the government or the state.

In the criminal justice system, will a magistrate be able to be independent when the deputy public prosecutor, a senior to a magistrate in the Judicial and Legal Services, appears for the prosecution? I think not.

The call for the separation of the judicial services from the legal services was made by the Malaysian Bar vide a resolution passed in 2000, has still not been acted upon by the government or the judiciary.

Post-retirement conduct of judges

In 2003, Tun Mohamed Dzaiddin, the former Chief Justice, being the head of the Malaysian Judiciary, retired from office, and soon after joined a law firm as a consultant.

Bar Council then said that “...when a judge retires and soon after joins a law firm, an area of serious concern that immediately presents itself is the perception that an offer to do so might have been made to the judge before his retirement, and discussions or negotiations on the same might have started or taken place while the judge was still serving on the bench; particularly if there is a short time lapse between the judge’s retirement and his joining the firm."

“This in turn gives rise to the question whether the independence of the judge could have in any way been influenced or compromised by the making of such an offer or the holding of such a discussion...”

In the said statement, the Bar Council went on to state that “in protection of that principle [Independence of the Judiciary], and after examining the experience of other jurisdictions, the Bar Council is of the view that there ought to be a lapse of a suitable period of time (which is often called a “cooling off” period) after a judge’s retirement before he may be permitted to practise law at the Bar..”.

The then Minister in the Prime Minister’s Department Dr Rais Yatim (the de facto law minister) said that the government would be including post retirement conduct into the Code of Conduct of Judges.

In January 2005, the government change their mind and said that they would not do so.

Maybe not a Code of Conduct but Guidelines set by the Judiciary

Maybe the present Chief Justice Ahmad Fairuz Sheikh Abdul Halim can come up with some guidelines about this matter, something that would state clearly that a retiring judge should not join a law firm or a private company as a director/consultant/chairman (more so if the said judge presided in a matter involving the said company or related companies whilst he was on the bench).

The judiciary, on its own, can set up standards and guidelines for judges, and maybe our current CJ can do something about this. After all, he is concerned about judicial corruption.

Will Ahmad Fairuz deliver?

The same question was asked of previous CJs, and now we all have to wait and see whether our present Chief Justice Ahmad Fairuz can bring back the Malaysian judiciary to the stature we had during the pre-1988 period.

The elevation of High Court judges to the Court of Appeal, leaving many High Courts with no judges for some time was a sad display of our current CJ’s efficiency.

He should have made sure that new judges of the High Court was appointed at the same time, and this delay in the appointment of judges surely also contributed to the backlog and delays in court.

The sudden transferring of the Altantuya Shaariibuu murder trial from Justice KN Segara to Judicial Commissioner Mohd Zaki Md Yassin also raised some concerns.

Was the creation of new courts in Shah Alam resulting in the two Shah Alam sessions courts to be relocated outside the state of Selangor to Wisma Denmark in Kuala Lumpur linked in any way to that Altantuya Shaariibuu murder trial?

If there was going to be a lack of space in the Shah Alam court complex, should not some building in Shah Alam have been rented and renovated for the two sessions court? Was it poor planning or was it too rushed a decision to increase the number of criminal High Courts in Shah Alam?

Can judges or judicial commissioners be appointed without consulting Chief Judge of the High Court of Malaya?

The slowness in the appointment of the new Chief Judge of the High Court of Malaya is also making people wonder about the reasons for this delay.

It was after the former Chief Judge of the High Court of Malaya, Siti Norma Yaakob, had retired on Jan 5 this year that there was a sudden appointment of new judicial commissioners, when for an appointment of a judge or a judicial commissioner, the Prime Minister before advising the King should consult with the Chief Judge of the High Court of Malaya. This is what our Federal Constitution says.

One wonders whether this consultation took place with Siti Norma before she retired.

There is still time for us to keep an eye on the actions and omissions of Ahmad Fairuz before we have to make any conclusions.

To date, he has been found wanting in many aspects. And if the fears concerning the “world’s largest” court complex turns out to be true, it will not reflect well on this head of the Malaysian judiciary.

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