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Motion regarding how courts deal with scheduling and adjournment of cases, proposed by Ragunath Kesavan (Chairman, Bar Council) on behalf of the Bar Council, dated 2 December 2009


WHEREAS

A.    Public confidence in the judicial system and in the moral authority and integrity of the Judiciary is of the utmost importance in a modern democratic society;

B.    It is universally recognised that the independence and dignity of the Judiciary and of each individual Judge or judicial officer in carrying out their duties, pursuant to their oath of office, are fundamental to the administration of justice and must never be compromised;

C.    It is a critical part of the individual independence of a judge/judicial commissioner that he has sole control and management of the cases before him, including the discretion how to dispose them, the time to be taken for each case and the conduct of counsel (whether from the Malaysian Bar, the Attorney-General’s Chambers, the State Governments or otherwise) before him.

D.    The administration of justice has for many years been inefficient, encumbered by the slow disposal of cases and over-burdened with an ever-increasing backlog resulting in injustice or in justice delayed, and hindered by poor quality of judgments and judicial decisions;

E.    An excellent justice system requires a combination of a fair conduct of cases, their speedy disposal and well- reasoned decisions so as to ensure that justice is done and seen to be done in all cases;

F.    Noting that the present judicial initiative is to increase the disposal rate of cases and to reduce and eventually eliminate the backlog of cases;

G.    In the implementation of the present judicial initiative, there has been an over-emphasis and over-reliance on measuring the numerical disposal rate of cases through the use of Key Performance Indicators (“KPI”), and this has in some instances been at the expense of fairness and the overall quality of justice. The recognition of Judges and judicial officers who dispose of the highest quantity of cases as exemplary is sending an erroneous message;

H.    All measures taken by the courts to streamline and enhance the dispatch of court business must take into account the pressures on the small available pool of litigation lawyers in Malaysia having to appear in the 5 courts that constitute the subordinate and superior courts; and

I.    In any judicial initiative and reform, the principle that every litigant’s right to appoint, and be represented by, a legal practitioner of his/her choice must be given the utmost regard.

IT IS HEREBY RESOLVED THAT:

1.    While welcoming the move for the early hearing and disposal of cases in court the Malaysian Bar opposes the over-emphasis on the KPI as the principal or predominant criterion in the disposal of cases.  Justice must never give way to speed.

2.    The Bar Council makes immediate representations to the Chief Justice to revoke any administrative directions that are inimical to the principle of individual judicial independence, and/or that have caused undue hardship to members of the litigation bar and litigants.

3.    Any judicial initiative and reform must have, at its core and as its principal criterion, the overall objective of  achieving qualitative justice in every instance without ever compromising the independence of the Judiciary and each individual Judge or judicial officer in the performance of their duties.

4.    The Malaysian Bar calls upon members of the Judiciary to exercise their judicial discretion fairly, sensibly and courageously in all instances, in the interest of procedural and substantive justice.

5.    The Malaysian Bar calls upon the Chief Justice to immediately review the implementation of the present initiative, and to work with the Bar so as to emphasise quality and integrity over quantity in the administration of justice and to ensure that justice is in no instance sacrificed in any obsession for speed or expediency.

6.    The Bar Council invites members of the litigation bar to serve in specialist court committees for the three superior courts, and such committees be tasked to liaise with the Bench on the efficacy of administrative measures to be taken by the Bench to enhance the quality of justice in our courts.

The motion, as amended, was unanimously carried.

“Parking Lot” motion proposed by Jason Kay, dated 1 December 2009


WHEREAS:

A.    Judges are officers of the Court;

B.    Judges in the context of this motion are taken to mean Judges of the Federal Court, the Court of Appeal, the High Courts, the Sessions Courts, the Magistrate Courts and the Registrars of the courts abovenamed;

C.    Deputy Public Prosecutors (and all other prosecutors in the Subordinate Courts) and other persons with rights of audience to appear on behalf of another in the Court  (hereinafter “the interested parties”) are officers of the court;

D.    Advocates and Solicitors (hereinafter "lawyers") are officers of the Court;

E.    Judges, lawyers and the interested parties usually go to Court in cars;

F.    The said cars need to be parked within a reasonable distance from the Court for practical reasons – lawyers and the interested parties have to carry files and/or bags for their cases in Court;

G.    There is a limited amount of parking lots in every Court complex in the country;

H.    Being officers of the Court, lawyers and the interested parties are partners in the administration of justice with the Judges;

I.    Judges are allocated assigned parking spaces within most of, if not all, the Court complexes in the country;

J.    Lawyers and interested parties are, in almost all cases, allocated some parking spaces within the various court complexes in the country – though without any set standard number of spaces, nor standard layout pattern for the allocation;

THEREFORE:

K.    It is in the interest of cordial relations between Bench, Bar and the interested parties that an overt gesture be shown to concretise the fact that all officers of the court are important in the administration of justice; and

L.    With due regard also being given to the safety of all officers of the court who are going to and from their cars to the respective Courts daily in the performance of their duties as officers of the court.


IT IS HEREBY RESOLVED THAT:

1.    Parking lots for lawyers in every Court complex be allocated for lawyers and the interested parties in the following ratio:  

1 Judge: 1 interested parties: 2 lawyers

2.    The said parking lots be allocated from the lots closest to the Court house in the following priority:    Judges, and then the interested parties and Lawyers equally.


The motion was put to the vote and carried by a majority (52 votes in favour, 7 against, and 0 abstentions).