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Urgent need to speed up appointment of new judges

Tuesday, 15 August 2006 08:43am

©New Straits Times (Used by permission)
By Anis Ibrahim

KUALA LUMPUR: In Ipoh, a courtroom has been vacant for the past two years since a judge was transferred.

In Kota Baru, a judge travels to another State regularly to complete old cases as his old court has yet to get a new judge.

In Penang, two courtrooms were vacant for at least a year when a judge left the Bench, and another was elevated to the Court of Appeal.

What does all this add up to? A shortage of candidates to replace judges who have been transferred or promoted, and a delay in the appointment of replacements.

Lawyers say cases partially heard by a transferred or promoted judge are adjourned "until further notice" until a new judge arrives, or is heard by the same judge.

Senior lawyer Nahendran Navaratnam said replacements should be appointed as soon as possible so that litigants, lawyers and judges were not inconvenienced.

"I’m not against promoting judges, but a better process must be introduced. Replacement judges should be identified earlier so that vacancies can be filled up quickly. Otherwise, the problem of the backlog of cases will never be solved," he said.

Nahendran proposed that the judicial appointment process be "made neater".

He pointed to recent elevations to the Court of Appeal to prove his point. "A backlog of cases may also be a consequence of the promotions."

In Kota Baru, there are three High Courts, but only one judge who was transferred to the State about four months ago.

Kelantan Bar chairman Datuk Sukri Mohamed said the court needed a resident judge to handle cases on a full-time basis. "He should not have to go back to his old court to hear part-heard cases."

"When he is away, cases in the Kota Baru High Court have to be postponed. This just adds to the backlog," he said.

In another example, a High Court in Ipoh has been vacant since January 2004 when its judge was transferred to another State.

This judge has since been elevated to the Court of Appeal, which means that his last High Court position is also vacant.

Bar Council Criminal Law committee chairman Datuk V. Sithambaram said replacement judges should be appointed quickly so that cases were not adjourned for want of a new judge.

"The appointment process has to be speeded up as trial dates are always affected by a shortage of judges. All countries have a backlog, but it is the management of the backlog that makes a difference.

"While we’ll never have enough judges, we should have a reasonable rate of disposing cases," he said.

Retired judge Datuk Karam Chand Vohrah said the procedure relating to the transfer of judges had to be improved.

"The needs of the judiciary must be assessed well before a judge retires or is elevated. This way you can ascertain the number of vacancies. If a potential replacement judge already holds a judicial post, his post will also be vacant, so there is a chain reaction."

Vohrah, a Human Rights Commission of Malaysia (Su- hakam) commissioner, said the assessment would include shortlisting candidates to fill vacancies.

"Identifying replacements in advance will enable vacancies to be filled almost immediately. It is not fair to leave a gap in between judges, where work doesn’t get done because files are piling up," he said.

In its report on the Forum on the Right to an Expeditious and Fair Trial, Suhakam recommended that the needs of the courts be forecast over a year or two. "The current practice must be reviewed to reduce the number of partially-heard cases. The current process involves a lot of paperwork and consultation.

"At present, the Yang di- Pertuan Agong, on the advice of the Prime Minister and after consultation with the Conference of Rulers, appoints a judge. Other than the Chief Justice, the President of the Court of Appeal, the Chief Judge of Malaya or the Chief Judge of Sabah and Sarawak may be consulted on appointments to the appropriate courts," he said.

An Independent Judicial Commission should be set up to assist in identifying candidates, he added.

"Suhakam wholly supports the formation of a commission on the selection, appointment and promotion of judges. It’s time that we had it. With a commission made up of a cross-section of the legal profession, judges, retired judges, maybe the Attorney-General or his representative, no issue of favouritism can be levelled at any one person."

Senior judges and lawyers used to be consulted in private for judicial appointments.

"This happened in the old days, during the time of (former Lord Presidents) the late Tun Mohamed Suffian Hashim and Raja Azlan Shah. It was a very good system because, by consulting senior judges and senior members of the Bar, they got the best people.

"There was very good camaraderie between members who practised law, whether in the courts or Attorney-General’s Chambers," said Vohrah.

Asked why the practice stopped, he said: "I don't know, I think it was the personality of Suffian and Raja Azlan Shah which made the system work, being on good terms with the Bar and the chambers.

"Former Lord President Tun Mohamad Salleh Abas and former Chief Justice Tun Mohd Dzaiddin Abdullah were also consulted."

Too much of a mess when cases adjourn

KUALA LUMPUR: What happens when cases are adjourned for months, and in some cases, years?

One of the following - the witnesses cannot be traced, have forgotten the facts, or have died. In some cases, documents go missing, leading to complications.

Ipoh-based lawyer, V. Vijaya Segaran, said long adjournments held immense legal implications, apart from an increase in legal costs.

"It is common for witnesses to go missing after a lapse of a few years. For example, he may have moved house or changed jobs. So, it may be difficult to track him down. If he has died, the situation changes."

He said the party intending to rely on the witness will be deprived of a stronger case and will be limited to "old" evidence.

Not only will the witness’ absence prejudice his own party, it will also be prejudicial to the other side.

"The opposing side cannot cross-examine the missing witness and, thus, cannot undermine him. The judge is confined to evidence in the court file," added Vijaya, who has been in practice for 20 years.

Penang Bar chairman Lalitha Menon said missing documents could be extremely detrimental to a party’s case.

"Documents can get misplaced, and when they are crucial to a party’s success, it just adds to the headache not only for the litigants, but for lawyers as well."

She said witnesses and clients could forget facts if their case was continuously adjourned over years.

In Penang, there is a real need for a fifth judge to complement the four there. Menon said there are five High Courts in Penang, with one vacancy.

"The four judges are not enough. Because of our free trade zone, we have many commercial cases. So, there is a need for a fifth judge."

The situation, however, represents a vast improvement over the time when two courts were vacant for a few years.

"When cases don’t move, litigants are greatly affected. For them, their case is very important and they can’t understand why a custody action, for example, takes so long to finish," she said.