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I am honoured to be invited by YAA Tun Dato’ Seri Zaki Tun Azmi, the Chief Justice to deliver a speech on this auspicious occasion of the opening of the 2011 Legal Year. This tradition is one of those we have inherited from the English legal system. This is a good practice and worthy of being retained, for apart from its tradition it affords the Judiciary an opportunity to take stock and review the events of the past year and for the Chief Justice to share with us the New Year wish for the Judiciary.

The judiciary is an important arm of the government providing access to justice to Malaysians and any other persons with a grievance requiring adjudication and remedy. As such, deciding between competing claims is its prime function.
 
This being the case, it is perhaps inevitable that the very exercise of this function is one that is itself subject to the need to balance various imperatives, which, if not competing, are nevertheless not always entirely compatible.
 
For example, the decisions of the judiciary in individual cases are taken as indicative of how similar cases will be decided in future. It could not be otherwise in a common-law jurisdiction, but it should not be lost sight of that any judgment of the superior courts will almost inevitably affect people other than the immediate parties. Increasingly, in this information-saturated age, the pronouncements of the judiciary are read by those others than lawyers. Of course, no court can be said to fulfil its function if it does not dispense justice to the individuals before it, but judges must also be mindful that the manner in which justice is dispensed may affect other cases yet to be decided.

This is especially so when one considers how often the courts have been called on to decide the questions that the legislative and executive arms of government shy away from. All too often there is no easy answer, and the judges are left to privately console themselves with the oft-repeated mantra that “hard cases make bad law.” I would suggest that they are being too hard on themselves. It is never easy, it could never be easy, for a judge, or a panel of judges, to decide what a society wants, much less what it needs. Nevertheless, it is a task that must be undertaken – the alternative, which is to turn away those who come before the court seeking to know where they stand on some issue, is unthinkable. And, one ventures to speculate, if the task is not undertaken by the judiciary, no-one else will do it.
 
Nevertheless, I urge all judges to take comfort from the thought that you do not tread this territory entirely without guidance and aid. The law, in all its various forms, is a strong staff and guide. It is also to be hoped that the Bar, in the person of its members appearing before the bench, is also a source of assistance. Finally, there is the comfort and inspiration of history, of the memory of those judges who have faced the trials and tribulation of their own times, and who have, in very large measure, done so well.

Ladies and gentlemen,

The Malaysian Judiciary has been through the best of times and the worst of times since Independence. Prior to 1988, the Malaysian Judiciary was well respected throughout the common law world with its judges admired for their independence and respected for their judgments, which were regularly quoted with approval in the courtrooms of other jurisdictions. This period of time was described as the Golden Era of the Malaysian Judiciary. In reviewing the development of the Malaysian Judiciary during the first 20 years of Independence, the late Tun Mohamed Suffian bin Hashim (a former Lord President) proudly observed in his book, The Constitution of Malaysia: Its Development: 1957-1977 that,

 
The tragic turning point however was the dismissal of the Lord President, Tun Salleh Abas and two Supreme Court judges in 1988. The Judiciary experienced further controversy as revealed in a Commission of Enquiry on the Video Clip Recording of Images of a Person Purported to be an Advocate & Solicitor Speaking on the Telephone on Matters Regarding the Appointment of Judges which sat in 2008 investigating the wrongful influence by a lawyer and businessmen on the appointment and promotion of judges and allegations of corruption in the Judiciary.
 
I mention these dark times not out of any morbid desire to dwell on the ills of the past, but as an illustration of the inherent strength of the judiciary as an institution. No-one can pretend that no harm was done, nor that we do not, even today, have to deal with that harm on a daily basis. I refer to the erosion of confidence in the judiciary which inevitably flowed from these and other events. Nevertheless, I say with confidence that a corner has been turned. I feel justified in so pronouncing, not least because of the setting up of the Judicial Appointments Commission, but given the spectacular progress that has been made in the administration of justice in eradicating the delays which were once an integral part of litigation in Malaysia.
 
The chief credit for this achievement must go to all the judges, led by the Chief Justice, Tun Zaki. It has been his stated aim to eliminate delays and backlogs, and, as we have seen, what the Chief Justice wants, the Chief Justice gets. As one who has stood in his shoes, I can say that the problem has been recognised for many years, and steps have been taken to address it. What is clear is that the completion of the job begun so long ago by others has only been made possible by the drive and focus of the Chief Justice, who has galvanised all concerned to exertions which I may without exaggeration describe as heroic.
 
I say all concerned because the effort has been made not merely by the judges, but also their officers and support staff. Without a like exertion on the part of the Bar all these efforts would have come to naught. But we cannot rest on our laurels – there remains much to be done, and any slackness will only create a new backlog. We can, however, draw strength and confidence from the knowledge that it has been possible for all stakeholders in the administration of justice to work together, that, having done so once, we may do so again. Most of all, we now know that, united we stand, we can move mountains.

So at this point we may all award ourselves a (small) pat on the back, before turning with renewed confidence and vigour to the task before us, which is to make the Malaysian judiciary not merely the best in the world, but the best full stop. I say so advisedly, for our business is justice, and justice is an absolute, not a relative. If we seek to judge our ultimate aim (as opposed to our progress) against some foreign yardstick, we assure only our own ultimate failure. We must set our sights high, because to countenance achieving something less than justice will be to fail before we ever begin.

At this juncture, permit me to make my observation on some topical issues. Having retired from the Bench for almost eight years, I am extremely pleased to know that the relationship and cooperation between the Bench and the Bar has grown from strength to strength. If my memory serves me right this cordial relationship was revived in December 2000. I believe the success that has been achieved by the Judiciary in implementing the changes today have been contributed with the cooperation and support of the Bar. As one coming from the Bar, I am a firm believer that the Malaysian Bar being an indispensible partner of the Judiciary in the business of the administration of justice will always concern that “the stream of justice is kept clear and unpolluted”.

Another important issue is that the most obvious and visible symbol of a vibrant and thriving judiciary is the quality of the written judgements that it produces. I am made to understand that as of late, except for the Federal Court, this has of necessity been subordinated to the clearing of the backlog. Nevertheless, it is this step which will be the true test of the judiciary’s ability to balance the various and competing imperatives which it must face. In my view, the delivery of speedy yet reasoned justice is not always easy, but it is always necessary. I recall the truism that the most important function of the grounds of judgment is to let the losing party know why he lost – it is seldom the winner who complains that he has not had his day in court. Further, and more importantly it is the function of the superior courts to set precedents and to deal with new issues of law as they arise. Judicial precedents play an important role in the development of our laws.

A feedback that I received indicates that the Courts are viewed as being more efficient today than they were before. The pace and speed has picked up in some instances but there is a lingering perception that some Judges have indicated that litigants should settle their dispute out-of-court which in itself is not necessarily a bad thing, but the reason appears to be a need to comply with certain Key Performance Indicators or KPIs and to meet performance targets. KPIs should function as benchmark or a measure which indicates achievement or the lack of it. It cannot and must never result in justice being compromised or hurried for any of the stakeholders. The administration of justice is a qualitative measure and must not succumb to a quantitative measure which is developed for statistical purposes. With respect, I am sure the Chief Justice is fully aware of this.

I am pleased to note about the increase in the number of judges and Judicial Commissioners and support staff, the improvement in the terms of their remuneration and the investment in physical infrastructure and the implementation of the long-awaited ICT project in the courts. It is patently clear that the judiciary has been given the tools to enable the litigants to have ready access to justice and there can be no excuse for all involved not doing the job.

I must also commend the Chief Justice for his good foresight in appointing senior lawyers, experienced and knowledgeable in civil and commercial litigations to the Bench. I am sure their services will be of immense benefit to the Bench especially in dealing with difficult commercial cases. I am of the view that one of the challenges facing the court today is its capability in dealing with financial and regulatory cases. More and more of these cases, some are sophisticated are coming to the courts. There is a need of judges experienced in financial and capital market matters to deal with them. It is recognised that public confidence in our financial sector is important to our economy. Hence, I am confident that with more judges who are experienced in commercial laws, the disposal of these cases can be speedily disposed of.

I would like once again to thank YAA Tun Zaki for giving me the opportunity to share my thought on the events and developments that I have seen and taken place since my retirement. I can only be optimistic that you will take on board the feedback that I have just shared solely for the betterment of the Judiciary.

Finally, to YAA Chief Justice, let me warmly extend my best wishes for the year ahead. I am sure you and your judges are looking forward to the challenges that the year 2011 will bring to the Judiciary in the administration of justice. To all the judges, members of the Bar and of the AG’s chambers, I wish you best wishes and success in your task to administer justice and uphold the rule of law.

Thank you for your indulgence.