Transmenu powered by JoomlArt.com - Mambo Joomla Professional Templates Club

We set out below the above-captioned summary of discussion for members’ information and we welcome any comments or suggestions from members in order for us to raise at the next meeting with the Judiciary.  Please direct your comments or suggestion to Datin Daljit Kaur, Executive Officer (tel: 03-2032 4498; fax: 03-2026 1313 or 2034 2825; email: daljit@malaysianbar.org.my).

1. The Use of Key Performance Indicators (“KPIs”)

1.1    The Bar Council raised the issue of the problems arising from the use of KPIs to measure the performance of judges, namely that justice was being sacrificed for the sake of speedy quantitative disposal of cases.  It was suggested that judges are being hurried and pressured by the system to dispose of cases as quickly as possible, without being able to devote sufficient time to ensure that all relevant aspects of each and every case are carefully considered so that justice is done.  The Bar recognises the problems caused by backlogs and the need to gradually solve them.  However, prioritising the opposite to the extreme will cause other problems and, while no doubt improving the statistics, will not raise the quality of the justice system nor the public perception of it.

1.2 The Chief Justice explained that KPIs were introduced as an indicator to measure efficiency of case and court administration.  It is not meant to be the sole yardstick. The other factors include the quality of written judgments, demeanour and temperament.  Judicial officers and judges should not refuse to postpone a case because of KPIs, as postponement is a judicial decision.

1.3 KPIs are also used to measure efficiency in the filing and processing of court papers, extraction of court orders and retrieval of files.

2. Postponements

2.1 The previous circulars set out below, which are attached, are still applicable:

(i) Practice Direction No. 1/2008 (effective from 1 August 2008) - Adjournment of Cases;

(ii) Chief Registrar’s Letter dated 17 November 2008 regarding postponement on ground of attendance in seminar; and

(iii) Bar Council Circular No: 4/2009.

2.2 The Bar received the Chief Justice’s Circular dated 20 July 2009 to all Judges, Judicial Commissioners and Judicial Officers on Last Minute Adjournments, which has been posted in all courts and is also attached. 

2.3 The Chief Justice emphasised that no adjournments should be granted unless there are good reasons, but the discretion to do so still lies with the presiding judge.  However, a court would be requested to explain if it has been too lax in granting adjournments.  The Chief Justice referred to a list of about 100 reasons given by parties requesting for postponements that was compiled from a daily report from several Sessions Court Judges over a one-month period.  Examples of unacceptable reasons highlighted by the CJ were:

(i) Lawyer/DPP requires time to review file because lawyer/DPP was engaged/instructed recently,

(ii) Investigating Officer on leave, and

(iii) Litigant unable to attend court because of work commitments.

2.4 The guidelines on postponements apply equally to members of the Attorney General’s Chambers.

2.5 Judges and Judicial Officers will issue warrants of arrest if witnesses who have been served with subpoenas (including investigating officers) refuse to attend court.  The presiding judge should not then force the litigants to close their respective case immediately after the issuance of the warrant of arrest but to fix another date in order for the witness to be present.

2.6 The Courts will exercise flexibility if parties write in for postponement at least one month in advance, and present good reasons.  Judicial time will not be wasted as the Court can slot in other cases if they receive adequate notification. Last minute postponements will, as a matter of principle, continue not to be entertained save in the exceptional circumstances set out in the circulars referred to above.

2.7 The CJ further agrees to impress upon the Judiciary that decisions as to postponements should be based on the justice of the case and not based on the desire to achieve the KPIs.

3. Fixing of Hearings

The following guidelines are applicable in the fixing of cases:

(i) The Courts will not fix for hearing more than 2 part-heard and 2 new cases each day save in some exceptional circumstances.

(ii) No hearing dates will be brought forward and fixed unless agreed to by the parties.

(iii) Case management system by registrar will be introduced to ensure cases are ready for hearing before hearing dates are fixed.

(iv) Each court should not have more than 10 part-heard cases and priority is to be given to part-heard cases.

(v) To ensure that the fixing of a hearing date for interlocutory matters will not fall on a date in which any counsel for the parties is unavailable, the first date fixed for a new interlocutory matter will be a management date.

4. Transfer of Judges

Judges will be given at least 3 months’ notice for transfer in order to clear part-heard cases.

5. Guidelines on Party to Party Costs

The Bar will prepare a memorandum on this for discussion with the Judiciary.

6. State Level Working Committees

The Chief Justice has instructed that at state level, committees comprising members of the Bar and the Judiciary be set up to deal with all issues and matters relating to the implementation of the new system.  The Bar believes that mutual consultation and input will help to improve the system.

7. Complaints to Chief Justice

The Chief Justice welcomes all complaints and comments by email to his email address, cj@kehakiman.gov.my.

8. Miscellaneous Complaints

The Bar Council forwarded a list of complaints received from members on issues of extraction, delays in hearings and problems in the registries, which the Chief Justice will look into and revert.

9. Appellate Court Issues

These will be raised in a separate meeting with the President of the Court of Appeal.

10. Next Meeting

A date will be fixed in due course to discuss other matters that could not be raised due to time constraints.

Lim Chee Wee
Vice-President
Malaysian Bar

You may  click here to access this circular and the attachment.