Motion regarding quality and the administration of justice
Proposed by Ragunath Kesavan (Chairman, Bar Council), on behalf of the Bar Council, dated 4 Mar 2011
(1) 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;
(2) The Judiciary has introduced, in the last two years, various measures to clear the backlog, in particular performance measures which emphasise the number and speed of disposal of cases, otherwise known as Key Performance Indicators (“KPI”);
(3) The Malaysian Bar understands that such KPI may include a minimum number of applications, trials and sitting hours to be performed within a prescribed period of time by Judges, Sessions Court Judges, Magistrates and Judicial Officers;
(4) Arising from the various problems and injustices caused by the strict observance of the KPI, the Malaysian Bar unanimously resolved at the EGM held on 12 December 2009 that, amongst others:
(b) Qualitative justice must be the overall objective in any judicial initiative or reform; and
(c) Members of the Judiciary be called upon to exercise their judicial discretion fairly, sensibly and courageously in all instances, to achieve both procedural and substantive justice.
(5) Since then, various meetings were held between the Bar Council and the Judiciary and consensus was achieved in certain substantive and procedural matters (most of which are set out in Appendix A herein), including but not limited to:
It is obvious that Judges must read the court file (including any written submissions filed), listen to oral arguments, deliberate by considering the facts and the law as presented, and then make a decision with grounds of judgment.
(b) Court sitting
Courts should only sit during official court times from 9:00 am to 5:00 pm. A matter may only be continued after 5:00 pm with the consent of the parties involved, and if it is really necessary and expedient to do so.
(c) Striking out
Cases would not be struck off until the close of sitting for the day.
(d) Fixing of hearing dates
(ii) In the exceptional circumstances where court intends to change a hearing date that has been fixed, lawyers must be informed in writing at least one month in advance and the change of date can only be done with the consent of all parties.
(b) Fixing of hearing dates without regard to availability of counsel;
(c) Refusing to grant adjournments when counsel has a valid reason for it, for example a medical certificate;
(d) Making a decision without reading the court papers and submissions, and without adequate deliberation; and
(e) Delivering decisions without grounds of judgment.
(7) The Malaysian Bar also notes the deterioration of trust and respect between some Judges, Sessions Court Judges, Magistrates and Judicial Officers, and Members of the Bar.
IT IS HEREBY RESOLVED THAT:
The Malaysian Bar has no confidence in the KPI measures introduced by Chief Justice YAA Tun Dato’ Seri Zaki b Tun Azmi, which do not serve the interest of justice and litigants, and calls upon him to immediately withdraw the same, failing which the Malaysian Bar directs the Bar Council to take appropriate steps to protest.
Circular No 041/2011
Dated 1 Mar 2011
To all Members of the Malaysian Bar
Bar Council has had several meetings with YAA Tun Dato’ Seri Zaki b Tun Azmi, the Chief Justice of Malaysia (“CJ”), and members of the Judiciary during the 2010/2011 term to discuss issues relating to court matters and the administration of justice.
On 3 June 2010, the Office Bearers and some Council Members, met with the CJ, YA Tan Sri Dato’ Zulkefli b Ahmad Makinudin (Judge of the Federal Court), YA Tan Sri James Foong Cheng Yuen (Judge of the Federal Court; Managing Judge of the High Court Civil and Family Divisions), YA Dato’ Seri Md Raus b Sharif (Judge of the Federal Court; Managing Judge of High Court Commercial and New Commercial Courts Divisions), YA Datuk Haji Suriyadi b Halim Omar (Judge of the Court of Appeal) and YA Datuk Ramly b Haji Ali (Judge of the Court of Appeal).
On 29 Sept 2010, Bar Council representatives had another meeting with the Judiciary, comprising the CJ, YAA Tan Sri Dato’ Seri Alauddin b Dato’ Mohd Sheriff (President of the Court of Appeal), YAA Tan Sri Arifin b Zakaria (Chief Judge of Malaya), YA Tan Sri Dato’ Zulkefli b Ahmad Makinudin (Judge of the Federal Court), YA Dato’ Seri Md Raus b Sharif (Judge of the Federal Court; Managing Judge of High Court Commercial and New Commercial Courts Division) and YA Dato’ Abdull Hamid b Embong (Judge of the Federal Court; Shah Alam Managing Judge).
The third meeting was a dialogue that was held on 8 Jan 2011 between Members of the Bar and approximately 50 members of the Judiciary consisting of the CJ, the Managing Judges of both Kuala Lumpur and Selangor Courts, and Judges from the Federal Court, Court of Appeal, High Court and Subordinate Courts.
The following are the issues agreed upon between the CJ and the Bar at the above meetings:
In view of court sittings beginning at 8:30 am, the CJ has agreed to move towards staggered hearing times to assist lawyers. However, lawyers are reminded by the CJ to attend court punctually for the hearing of their matters to avoid delaying the courts’ proceedings as this would affect the rest of the cases on the courts’ staggered hearing list.
Members are requested to provide feedback to Bar Council on the effectiveness and implementation of the above.
The CJ agreed that Judges must use their discretion appropriately when fixing hearing dates and the Courts must ensure that the dates fixed are suitable for all parties. Should any Member face problems with this, please notify Bar Council immediately.
The CJ agreed that:
(b) in the exceptional circumstances where the court intends to change a hearing date that has been fixed, lawyers must be informed in writing at least one month in advance and the change of date can only be done with the consent of all parties; and
(c) Judges should give due and appropriate consideration to reasons of a customary and/or religious nature provided by lawyers in requesting for postponements where the hearing date was fixed by the court without the benefit of counsel’s free dates.
Failure of a subpoenaed witness to attend court should not be a ground for court to instruct a party to close its case and Judges must exercise their discretion properly. With regard to expert witnesses, in particular medical doctors, for running down matters, parties may request to fix in advance the date and time when the said witness is to be called during case management or mention date.
The CJ further advised that lawyers serve the necessary documents on the specialist/expert witness as soon as possible and preferably within a week. The onus would be on the lawyer to ensure that the specialist/expert witness submits their report on time.
Interlocutory matters should be disposed of by way of oral submissions unless written submissions are requested, and agreed to, by the parties. Oral clarification should be allowed even when parties have filed written submissions.
Members are advised to immediately inform Bar Council if any Judge or Judicial Officer fails to adhere to the aforesaid points of agreement.
Further meetings will be held between Bar Council and the Judiciary. As such, we welcome comments from our Members.
Please submit your input by email to firstname.lastname@example.org or by fax to 03–2032 2043. Please do not hesitate to contact Nik Waheeda Nik Kamarulzaman by telephone at 03–2031 3003 ext 142 or 03–2032 4498, should you require any clarification.
Motion on inquiries into deaths
Proposed by Andrew Khoo Chin Hock (Chairperson, Bar Council Human Rights Committee), on behalf of the Committee, and seconded by Brendan Navin Siva (Co–Deputy Chairperson, Bar Council Human Rights Committee), dated 4 Mar 2011
WHEREAS the law relating to inquiries into deaths is set out in Part VIII Chapter XXXII Sections 328 to 341A of the Criminal Procedure Code;
WHEREAS recent inquiries into deaths of persons that occur whilst in the custody of, or in or around the premises of, law enforcement agencies, have resulted in “open” verdicts;
WHEREAS such “open” verdicts fail to adequately identify the cause of death or identify those responsible for causing such deaths, to the disappointment and dissatisfaction not only of family members but also society at large, and at the cost of undermining public confidence in the system of justice in this country; and
WHEREAS a Parliamentary Select Committee on the Penal Code and Criminal Procedure Code had in 2006 called for the introduction of a Coroner’s Act and the establishment of a Coroner’s Court;
NOW IT IS HEREBY RESOLVED THAT:
The Malaysian Bar calls on the Government to:
(2) conduct a comprehensive review of the manner in which inquiries into deaths are undertaken;
(3) hold nationwide public inquiries and invite both oral and written submissions and feedback from individual members of the public, and from law enforcement agencies, non–governmental and other organisations, with regard to drawbacks and shortcomings in the present system of inquiries into deaths;
(4) demand explanations from the relevant authorities as to why deaths of persons that occur whilst in the custody of, or in or around the premises of, law enforcement agencies, are not always made the subject of an immediate and automatic public inquiry;
(5) consider the dire need to amend existing laws and procedures in order to improve the actual conduct of inquiries into deaths, the scope of such inquiries, the verdicts available to a magistrate upon the conclusion of an inquiry, and matters ancillary to these issues;
(7) make further changes and amendments to laws and procedures to ensure that full inquiries are carried out in respect of all deaths of persons which occur whilst in the custody of, or in or around the premises of, law enforcement agencies, and to strengthen and improve the system of inquiries into deaths in this country.
Proposed by Richard Wee Thiam Seng and seconded by Sarah bt Kambali, dated 3 Mar 2011
Recognising the fact that writing a Will is a crucial and significant, financial and personal decision that someone may make;
Recognising the need to protect consumers keen in engaging Will Writers in Malaysia;
Recognising the current practice where Will Writers may not be necessarily legally trained.
The Malaysian Bar calls for the abolishment of section 38(2) of the Legal Profession Act 1976, effectively disallowing unauthorised persons, as defined in the Legal Profession Act 1976, to draft wills for remuneration.
Proposed by M Rajkumar and seconded by Gladys Liew Kim Leng, dated 4 Mar 2011
1. Having noted that the United Nations Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, wherein, amongst others states in Article 1 that “Everyone has the right to individually and in association with others, to promote and to strive for the protection and realization of human rights and fundamental freedoms at the national and international level”.
2. Article 6 of the said UN Declaration do also specifically state that, “Everyone has the right, individually and in association with others … [to] freely to publish, impart or disseminate to others views, information and knowledge on all human rights and fundamental freedoms…”
3. Having noted also that lawyers have a statutory obligation reflected in the Legal Profession Act to uphold the cause of justice without fear or favour.
4. Charles Hector Fernandez, a human rights defender and activist of more than 20 years, and also a lawyer, being also a former member of the Bar Council, is alleged to have caused to publish, impart and disseminate to others information which he received from 31 migrant workers of Burmese nationality, who allegedly were at the material time working in a factory in Selangor.
5. The information he received was with regards to alleged violations of human rights and worker rights and alleged unfair treatment of the said workers.
6. Noting also that Charles Hector did firstly send an email on 8/2/2011 to the said company about the information received, giving a reasonable opportunity for the company to clarify matters, and after waiting for a reasonable time for a response, he did cause the information received to be posted on the Charles Hector Blog at www.charleshector.blogspot.com.
7. A Media Statement concerning the human rights violation of the said workers was also issued on 11/2/2011, whereby the number of organizations and civil society groups that jointly issued the said statement now stands at more than 80.
8. In response, the Company threatened legal proceedings and thereafter commenced a suit on 14/2/2011 against Charles Hector, a person who had merely highlighted the alleged human rights violations. Such action is deplorable, and may put fear/deter and/or have a negative impact on other human rights defenders, organizations, ‘whistle blowers’ and other individuals who come into information and/or allegations of such violations and cause them to refrain from acting on such information. This will certainly also cause greater injustice especially when these human rights violations affect the most marginalized in our society, including workers and migrant workers, who do largely depend on others to come to their defence and assistance.
9. Noting also that public interest also places an obligation on any person that knows of any human rights violations to not just stand by but to take the necessary steps to see that such violations end, and to ensure that the victims do get justice. This principle is also recognized, and is also evident in many laws in Malaysia, including the Whistle Blowers Protection Act 2010, Human Rights Commission of Malaysia Act 1999, and Criminal Procedure Code.
10. The Company has proceeded to file a suit against the person who highlighted the issue to them and to the public.
11. Noting also that a legal suit has been filed, the Company being the Plaintiff can at any time cause to withdraw the said legal action against Charles Hector.
12. Without touching on the validity and/or sustainability of the cause of action and/or the right of the company to commence the legal suit, in the interest of justice, recognizing also the right to freedom of expression and/or opinion, respecting also the inherent principle that encourages persons having any information about alleged violations of rights to disclose it, it is felt that it is best that the company does not continue to go after the ‘whistle blower’ but rather to commence the necessary investigations and do the needful to ensure that all rights of workers that work in the company are not violated, and justice is upheld.
THEREFORE, it is hereby resolved that:–
A. The Malaysian Bar shall render all necessary and reasonable assistance and support to Charles Hector Fernandez, as deemed fit by Bar Council.
B. That the Malaysian Bar do the needful research and submit proposals for the enactment of new laws and/or the amendment of existing law that will protect all ‘whistle blowers’ and human rights defenders that highlight human rights violations allegedly propagated by State and non–State actors against persons in Malaysia, both from the perspective of civil and/or criminal liability having regard, amongst others, to the United Nations Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms.