This memorandum was prepared by Bar Council Malaysia, and adopted by Advocates' Association of Sarawak and Sabah Law Association.
INTRODUCTION
1. In discussions between the Judiciary and the Bar, we have been informed that the Subordinate Courts (Amendment) Act 2010 (“the Act”) will be brought into force this year.
2. The Malaysian Bar, the Advocates Association of Sarawak and the Sabah Law Association have expressed their concern and reservations about implementation of certain provisions of the Act.
3. The Malaysian Bar sets out below some of the measures and proposals that may address the concerns and reservations that we have with regards to the implementation of the Act.
A. Creation of a fast track appeal process for interlocutory applications for injunctive relief
4. There are concerns that Sessions Court Judges may not be familiar with the concepts and principles relating to and that ought to guide the exercise of their discretion in dealing with applications for injunctive relief, applications for declarations, or applications for specific performance or rescission of contracts or for the cancellation or rectification of instruments.
5. The effects and consequences of the incorrect exercise of their powers to grant or dismiss applications of this nature would cause severe and untold hardship and damage to the party the subject of such orders.
6. It is therefore imperative that there be created a fast track appeal process to the High Court for applications of this nature so that the aggrieved party can seek redress by way of appeal as soon as possible to minimize the hardship and damage it would suffer.
7. We propose that an administrative direction be put in place whereby appeals from decisions made in respect of applications of this nature be heard or fixed for hearing before a High Court Judge within two weeks. A practice direction could be issued specifying that the appellant is to affix a particular code in the intitulement of the appeal, e.g. “IJ” for injunction applications, “DC” for declarations, “SP” for specific performance, etc. This would make it clear to the High Court filing counter that these appeals are to be fixed for hearing before a High Court Judge within two weeks.
8. It is equally imperative that the High Court Judge hearing such fast track appeals must also be experienced and can handle these appeals on an urgent basis.
B. Selection and training of Sessions Court Judges
9. Sessions Court Judges who hear applications for injunctive relief must be only those who are senior and experienced as they would have developed the maturity of thinking and would be better able to handle the issues and principles involved.
10. In this regard, we welcome YAA Chief Justice’s assurance that only senior Sessions Court Judges be permitted to handle applications for injunctive relief and the other applications mentioned above.
11. It is important to take into account that in some of the smaller towns, there may be only one Sessions Court Judge and accordingly administrative measures need to be put in place to ensure that applications for injunctive relief and the other applications mentioned above are heard by the nearest senior Sessions Court Judge to that town.
12. Sessions Court Judges must also be given proper and adequate training on the principles of injunctive relief and the other applications mentioned above before the coming into force of the Act. In this regard, we welcome YAA Chief Justice’s comment in his speech at the Opening of the Legal Year 2012 that a Bench Book will be distributed to the Sessions Court Judges.
13. We hope YAA Chief Justice would make recommendations to the Legal Services Commission to consider appointments from the Bar for the purposes of enhancing the pool of resources of Sessions Court Judges and Magistrates.
14. We would also like to offer the services of senior and experienced practitioners of the Malaysian Bar to give dedicated talks and lectures on the principles of law relating to injunctive relief and the other applications mentioned above.
C. Quality of High Court Judges presiding over appeals
15. In respect of appeals from the Subordinate Courts to the High Court, we would also hope that Judiciary would designate High Court Judges who are senior and experienced and those who possess the necessary qualities to be able to competently handle and review the decisions made by the lower courts, rather than placing Judicial Commissioners or new High Court Judges to preside over these appeals.
16. This is especially important in courts in states that do not have many High Court Judges and in states where the High Court Judges are relatively junior.
17. These senior and experienced High Court Judges would be better positioned to handle and competently dispose of appeals involving the issues and principles in these “new” areas. We would hope that these High Court Judges would also deliver written judgments that would serve to guide the Subordinate Court Judges so that they are able to competently deliberate and determine the issues and principles mentioned.
D. Reciprocal Enforcement of Judgments
18. As it presently stands, only Judgments of the superior courts of Malaysia are recognized internationally under the reciprocal enforcement of judgments regime. This means that judgments emanating from the Subordinate Courts cannot be registered in a foreign jurisdiction in the same manner that a High Court judgment would.
19. With the implementation of the Act, more matters would fall within the jurisdiction of the Subordinate Courts and would lose the advantage of registration under the reciprocal enforcement of judgments regime.
20. We propose that two measures be considered:
(i) To include provisions in the Combined Rules of Court for the transfer of proceedings from the Subordinate Courts to the High Court in the event the Plaintiff wishes or anticipates that it would have to take enforcement proceedings in a foreign jurisdiction against the Defendant.This would be similar to the position in Singapore where the courts allow cases to be transferred to the High Court so long as the judgment needs to be enforced overseas through reciprocal arrangements.(ii) To include a provision for the registration of a Subordinate Court Judgment as a High Court Judgment in cases where the Plaintiff intends to take enforcement proceedings in a foreign jurisdiction against the Defendant. This would cover situations where it was not apparent at the outset of the proceedings that enforcement proceedings would have to be taken overseas.
E. Clear guidelines on what matters are not within the purview of the Sessions Court even though it is within the monetary limit.
Subordinate Courts Judges need to be made aware of the matters which they do not have jurisdiction to hear. For example, proceedings involving or arising out of matters related to the Companies Act and the National Land Code do specify “Court” to be the “High Court”. Accordingly, the lower courts do not have the jurisdiction to hear such matters.
We propose that a Practice Direction be issued to clarify the scope of the jurisdiction of the Subordinate Courts and the areas that remain solely within the jurisdiction of the High Court.
CONCLUSION
The Malaysian Bar hopes that the proposals and measures set out above would be considered favourably by the Judiciary and further discussions could be scheduled to enable the Judiciary and the Bar to discuss other possible measures and proposals that could be put in place to ensure the smooth transition during the implementation of the Subordinate Courts (Amendment) Act 2010.
Bar Council Malaysia
3 February 2012
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