The Malaysian Bar is concerned that the far–reaching amendments to the Subordinate Courts Act 1948 are being tabled for adoption in Parliament without a detailed and thorough impact assessment exercise, and exhaustive consideration of the ramifications.
The proposed amendments contemplate increasing the limits in monetary jurisdiction of, among others, the Sessions Court (from RM250,000 to RM1,000,000), and the Magistrates Court (from RM25,000 to RM100,000). Such a sudden and substantial expansion, representing a four–fold increase, is too large, and immediately calls into question the ability of the current capacity of the Subordinate Courts to handle the corresponding increase in workload. Allocation of resources is also a significant issue, as the upsurge in workload will similarly require an increase in the number of judges and court infrastructure. No details have been provided as to how these concerns will be addressed.
The proposed amendments contemplate increasing the limits in monetary jurisdiction of, among others, the Sessions Court (from RM250,000 to RM1,000,000), and the Magistrates Court (from RM25,000 to RM100,000). Such a sudden and substantial expansion, representing a four–fold increase, is too large, and immediately calls into question the ability of the current capacity of the Subordinate Courts to handle the corresponding increase in workload. Allocation of resources is also a significant issue, as the upsurge in workload will similarly require an increase in the number of judges and court infrastructure. No details have been provided as to how these concerns will be addressed.
Although there are inflationary–based arguments that justify a reasonable enlargement in the monetary jurisdiction of the Subordinate Courts after 16 years, an extensive study is crucial to ensure the amendments do not subject litigants in Malaysia to hardship and place undue stress and pressure on the present structure and resources of the Subordinate Courts. A gradual and incremental increase would be a more appropriate and realistic move, which would also be less likely to adversely impact on the capacity of the Subordinate Courts to handle and dispose of such claims in an effective and efficient manner.
The Malaysian Bar is also concerned about the competence and judicial experience of judicial officers of the Subordinate Courts to effectively deal with claims of such financial magnitude. An essential consideration is whether they possess the necessary experience to preside over such matters, and the adequacy of the training they must necessarily be given.
The proposed amendments also contemplate conferring additional jurisdiction on the Sessions Court, allowing it to grant equitable remedies such as injunctions and declaratory relief, provided the claim is within its (enlarged) monetary jurisdiction. The Malaysian Bar has reservations that the relatively short time spent as judicial officers in the Subordinate Courts and the resultant lack of experience do not adequately equip the judicial officers to deliberate upon and grant equitable remedies, which involve complex legal principles and can have harsh and serious consequences on a litigant. Conferring such power, especially the power to grant an injunction directing a party to do, or refrain from doing, a particular act, will potentially result in adverse consequences arising from imprudent or erroneous decisions.
The Malaysian Bar believes that a more appropriate and realistic boundary between the Subordinate Courts and the High Court should be based on the relative complexity of the subject matter of the claim rather than the claim amount alone, to ensure that more complex matters are heard by High Court Judges who possess greater experience and knowledge of legal principles.
We call on the Government to defer the Amendment Bill until a comprehensive study is undertaken to address the myriad issues posed by the proposed amendments, and the Bar Council is consulted and given a full opportunity to provide its views. The Bar Council is presently working closely with the Judiciary on the formulation of the Combined Rules of Court and considerations of enlarging the jurisdiction of the Subordinate Courts ought to be discussed and dealt with comprehensively in tandem with this.
Lim Chee Wee
Vice–President
Malaysian Bar
2 July 2010