The Malaysian Bar disagrees strongly with the purported statement by a former Chief Justice of the Federal Court, Tun Dato’ Seri Zaki bin Tun Azmi (“Tun Zaki”), who reportedly urged Judges to be more selective in allowing postponement of cases, and suggested that the Federal Court issue a ruling to the effect that ongoing trials “should not be held back just because of interlocutory applications by lawyers”.
An interlocutory application may well be merited, and should not be unfairly construed as merely an act intended to delay the main trial. Such applications are well within the rights of every litigant. Tun Zaki’s view is unacceptable, as a main action cannot run parallel with an interlocutory application, or any appeals therefrom.
Over the past decade, the Malaysian Bar has often reiterated that an excellent justice system requires a combination of a fair conduct of cases, their efficient disposal, and well–reasoned and well–written decisions, so as to ensure that justice is done — and is seen to be done — in all cases. In the administration of justice, the emphasis must be on quality and integrity over quantity, and to ensure that justice is in no instance sacrificed for speed or expediency.
We recall a period of time during which the Judiciary, then helmed by Tun Zaki, was focused extensively on clearing the backlog of cases. This resulted in what was perceived to have been an over–emphasis on the speed of disposal of cases. The zealousness of this approach led to instances of injustice, particularly in criminal proceedings in the lower courts. For instance, the public might not have had the benefit of engaging counsel of their choice, given the difficulty that many lawyers had in coping with the speed of disposal of court matters. There were also instances where courts proceeded with criminal trials without the accused person being represented by counsel. Furthermore, lawyers did not have sufficient time to adequately prepare for their cases.
These situations are objectionable. The criminal justice system, in particular, requires a far more detailed and tempered approach. The problems faced are considerably different from those of the civil courts, and expediting hearings may not be entirely in the public interest if doing so results in more instances of flawed acquittals, or an accused is denied the right to a proper and full defence.
In the matter of the postponement and adjournment of cases, it is a critical part of the individual independence of judicial officers that they have sole control of the cases before them — including the discretion whether or not to grant an adjournment or a stay — as they must be guided by the need to do “substantial justice” between the parties. Any ruling that removes this crucial element of discretion would significantly restrict the effectiveness and value of the judicial process. Litigation is not an exact science, and a certain degree of latitude must be permitted, to account for the vagaries of legal practice.
The true reasons behind any backlog that persists must be correctly identified and understood. Administrative reforms to increase the efficiency and effectiveness of the judicial process should therefore continue to be addressed, in tandem with reforms aimed at bolstering judicial integrity and independence.
We reiterate our call for the prompt establishment of the Royal Commission of Inquiry in relation to the allegations of judicial interference and judicial misconduct — which the Government had announced in February 2019 — and for its terms of reference to be expanded to include recommending holistic proposals for thorough and comprehensive reforms to improve and strengthen the institution of the Judiciary.
The Malaysian Bar will do our utmost to protect the interests of the public and the Members of the Bar at all times, in matters relating to the administration of justice. Towards this end, we will continue to lend our full support to the Judiciary as we work towards realising our collective aspiration of an outstanding justice system.
Abdul Fareed Abdul Gafoor
18 June 2019