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Articles of Law
By BHAG SINGH
It is commendable that the backlog of court cases has been cleared. However, the rush to dispose of cases should not bring about adverse effects.
ONCE again we are at the end of the year and about to embark on another new year. What it will bring is yet to be seen. However, at the individual level, everyone hopes that the new year will be better.
In an increasingly borderless world, what happens outside the country will inevitably affect some, if not everyone, who is within the country. Of course, the impact would differ from individual to individual, depending on their lifestyle.
Nevertheless, there are areas of activity within the country that are unlikely to be affected by what transpires outside the country. I am referring to the enactment of laws and the administration of justice.
It is therefore appropriate at this time of the year, to look into the administration of justice and developments that have taken place and their impact on the lives of the people.
Where the administration of justice is concerned, an outstanding aspect is the clearing of backlog cases in recent years. Cases which have been lingering for years were disposed of. As a result, there are now fewer cases which are pending.
In some instances, the desire to speed up the disposal of cases has resulted in unfairness or injustice to one or more parties concerned. This can happen when a judge is compelled or under pressure to clear a certain number of cases within a specific period. When this happens, it is inevitable that the judge would not be able to spend adequate time to consider all that has been placed before him.
On the other hand, where a large number of complex issues are involved, telling the lawyers that their written submissions must not exceed five or seven pages will not allow the judge to appraise the case adequately.
Injustice
Where a wrong decision has been made as a consequence, the aggrieved party has recourse to appeal. Following this, the injustice would no doubt have been put right but at a cost to the parties involved. Where an unsuccessful party does not have resources to appeal, the injustice would remain and have to be lived with.
Such instances of injustice may be few and far in between. They may perhaps be regarded as the cost of making the process of administration more efficient. It should be noted that justice does not exist in the abstract.
Whilst everyone needs to look at the present and the future, some readers may wonder when and how a situation developed whereby cases were not cleared, resulting in a massive backlog?
The past
Let’s go back some 30 or 40 years to the days when the courts used to function as they should and cases were disposed of as they came along. Hearings normally started on time and went on throughout the whole day. There was no backlog then.
At this point, I am reminded of a particular Sessions Court president who sat in the Subordinate Courts which were located at Court Hill in Kuala Lumpur. Proceedings in the court would commence on time and proceed to conclusion.
This was a Sessions Court judge who, in those days, used to type the notes of evidence on a typewriter as the hearing proceeded. Even though no one was present, he would come out and declare the court in session and record the fact that the court had convened and the parties were absent. The court would then adjourn.
Postponements were not freely granted or easy to get. A genuine reason had to be given and was duly considered. I remember an instance when the counsel requested for an adjournment in the afternoon because his wife had been admitted to hospital and was about to give birth.
He was curtly told by the Sessions Court president that it was not him who was giving birth, and the adjournment was refused.
The future
That the courts now function efficiently and cases are disposed of speedily is something to be proud of. In fact, this is in the interest of the litigants themselves. Undue delays can result in documents getting lost and witnesses becoming unavailable.
To whose detriment this will work out in the end will no doubt depend on the circumstances. It is also for the good of the country that litigation proceeds efficiently.
However, in doing so, parties to the litigation should also be given adequate time to prepare for their respective cases. Rushing a case through should not be the only or main criteria. The choice of counsel and their resources are also factors that should be considered.
Judges are appointed to the important position they hold on account of their competence, knowledge, integrity and standing. It would not be in the broader interest of justice to have time constraints within which decisions have to be handed down.
Sound decision
Some cases involve an examination of a vast array of documents, while others require a delicate and extensive examination of the law. Yet there are cases where there is a need to reflect on all that are made available for a judge to make a sound decision.
Judges should be given full discretion and allowed the time that is required to deal with and decide on a particular matter. If there are constraints in terms of time within which a case needs to be finished, there is a possibility that justice may not be done in some cases.
Another area is the administrative machinery of the courts at the clerical level. This has in the past contributed to delays in many parts of the country in relation to trials and appeals.
This has been overcome by the introduction of systems and procedures that have eliminated or reduced involvement at this level. It has, however, triggered an increase in costs to litigants. Eventually this will impact adversely on those who are not so well off.
It is hoped that whilst what has happened in the recent past is commendable, the powers that be will consider some instances of administrative procedures that have been overlooked in the rush to clear the backlog of cases.
In doing so, the good system may be made even better and justice is not beyond the reach of the average Malaysian.