Assalamualaikum Warahmatullahi Wabarakatuh and good evening.
1. The Rt. Hon.Tan Sri Dato' Seri Md Raus Bin Sharif, President of The Court of Appeal Malaysia
2. The Rt. Hon. Tan Sri Dato' Seri Zulkefli bin Ahmad Makinudin, Chief Judge of the High of Malaya
3. Mr. Lim Chee Wee, President of the Malaysian Bar
4. Mr. Raphael Tay, Chairperson of the IMLC 2012 Organising Committee
5. Mr. Khairil Azmi bin Mohd Hasbie, President of the Advocates' Association of Sarawak
6. Judges and Judicial Officers
7. Members of the Bar and Distinguished Guests.
(Introduction)
Ladies and Gentlemen,
1. First and foremost, on behalf of the Malaysian Judiciary, may I take this opportunity to thank the Malaysian Bar Council for inviting the Malaysian Judiciary to participate in this conference and for giving me this honour and privilege to deliver the closing address. May I also congratulate the Malaysian Bar Council for organizing this conference, which I believe has been a singular success.
2. If it is not too late, may I also welcome all delegates and participants from both near and far to this conference. Welcome to Malaysia and Selamat Datang. I hope, in the 3 days of this conference, you have been enriched, not just by the law but also by the diversity of our culture and our fusion of food, which you could still sample, if you have not, by just taking a short walk to the Pavilion or Suria KLCC, which are both just down the road.
3. I am delighted that you have picked “Asian Perspective, Global Viewpoints” as the theme for this conference. Globalization is a fact of life in almost every facet of commerce, trade and industry. As businesses go global, so must the legal fraternity. I find the theme is not only apt but also realistic about the challenges ahead for the legal fraternity. In fact, globalisation is nothing new. The exchange of culture, knowledge and goods is age old. In more ways than one, all societies today are products of past exchanges between states and people. Exchange is unavoidable. But exchange is mutually beneficial, for a closed society will be left behind. I agree that globalisation brings new challenges to the legal profession. But change is also the engine of progress and opportunity. I am confident that you, the pillars of society, will surmount all and achieve every success, no matter what the global environment is.
(JUDICIAL TRANSFORMATION)
Ladies and gentlemen,
4. May I take this opportunity to share with you the Malaysian experience on how we transformed the judiciary with particular focus on clearing up the case backlog.
(Case Backlog)
Ladies and gentlemen,
5. Backlog of cases is not peculiar to Malaysian courts. Not too long ago, cases took years to be resolved. However, that changed in 2007, when the Malaysian Judiciary plunged headlong to transform and reinvent itself, from top to bottom, with the keen participation of all, from Chief Justice to court orderlies. Problems were identified and solutions were put into action, with the assistance and cooperation of the Malaysian Bar, the Attorney– General’s Chambers and other governmental agencies, to whom I take this opportunity to record my grateful thanks. New measures were introduced. As a result, almost all our pending cases throughout the country, with the exception of Selangor, are now current. There are hardly old cases to speak of, except those transmitted back by the appellate courts or those awaiting the decisions of higher courts. This is entirely due to the changes brought about by our transformation programmes.
(Case Management)
6. Among the first changes, was to our system of case management. Where it was once the task of practitioners to move the court, to hear their cases, we now assume that task. At regular intervals, we tally all files. Other than the odd instance here and there, missing files are practically a thing of the past. File rooms have been reorganized. Every file is bar coded and closely monitored to ensure that all inactive files are either weeded out or nudged towards early hearing or disposal.
(Tracking System)
7. We also changed the manner in which cases are set down for hearing. Where cases were registered and assigned directly to the respective courts regardless of whether it was ready for hearing or trial, we now divide cases into two tracks namely –(i) A Track – for trials by affidavits; and(ii) T Track – for trials with witnesses.
8. With case management and tracking system in place, cases are now ready for trial or hearing before it is assigned to a judge. Freed of other duties, judges are now fully focused on trials, with more judicial time to boot. Cases are now disposed with expedition, though not at the expense of justice, which I will do all in my power to prevent.9. We subscribe to the commonly held view by many jurisdictions throughout the world as aptly stated in Jameel v. Dow Jones and Co [2005] EWCA Civ 75 where the court said:“It is no longer the role of the court simply to provide a level playing field and to referee whatever game the parties choose to play upon it. The court is concerned to ensure that judicial and court resources are appropriately and proportionately used in accordance with the requirements of justice.”10. Thus, judicial resources ought not to be unnecessarily wasted on trivial issues that have little or no bearing on the justice of the case. The court process should not be allowed to be exploited or abused so as to frustrate the course of justice. In the final analysis, justice must prevail.11. Evan Bell, Master of the Queen’s Bench and Matrimonial Divisions, Court of Judicature of Northern Ireland, in his article entitled “Reflecting on the judicial role: how valid is the analogy that ‘judges are like umpires?” observed that:
“In civil proceedings a judge is not simply ‘a silent umpire’. Fairness of proceedings required the judge to be actively involved in the management of the trial, to control the proceedings, to ensure that public and private resources are not wasted, to point out when evidence is irrelevant, and to refuse to listen to irrelevant evidence. A supine approach towards litigation by judges was not justifiable either in terms of the fair trial requirement or in the context of resources.”
Thus, judges must play the role of an active referee but not, I must emphasize, a partisan referee or mere silent referee.
(New Specialised Court)
12. Another measure was the introduction of new specialised courts namely –
(i) New Commercial Court (NCC);(ii) Intellectual Property Court (IPC);(iii) New Civil Court (NCVC);(iv) Admiralty Court;(v) Muamalat (Islamic Banking) Court;(vi) Corruption Court;(vii) Environmental Court or Green Court.
13. Judges are deployed to these dedicated courts according to their experience and expertise.
(NCC)
14. Let me say a few words on NCC. The NCC was set up in September 2009, as a dedicated court to handle commercial cases that were ever increasing and ever demanding speedier disposal. At the start of NCC, there were 6,656 old commercial cases pending in the Original Commercial Courts of Kuala Lumpur or OCC. The OCC was tasked to clear all 6,656 old cases, while all new cases, or cases filed after September 2009, were all assigned to the NCC with a strict timeline of 9 months for disposal.15. Given that timeline, active case management by courts is imperative. I note, however, that lawyers and litigants have shown their full support to the present system, by filing cases only when they have witnesses and documents in hand, which is a welcomed departure from the old practice. More often than not, cases are now ready for trial in no time at all. So far, the results have been encouraging. Most cases were disposed within 9 months with only the odd exception.16. To say the least, the NCC has been an unqualified success. This dedicated court has even been able to assist the OCC to clear the old commercial cases, which were 6,656 in 2009 to only 70 today. Due to this success, I have, with the agreement of the Chief Judge of Malaya, closed the OCC and distributed those 70 OCC cases to the NCC Judges, which will be disposed within this year.17. The same success was also recorded in other courts. The success in our backlog reduction programme has led us to close 54 courts throughout the country i.e. 18 High Courts1, 8 Sessions Courts2 and 28 Magistrates’ Courts3 . Judges of those courts are now assigned to other courts.
(Timeline)
18. A timeline for case disposal has also been set for all courts, as a guideline and not as a rule. The timeline set for all courts is based on our finding of our pilot project at the Kuala Lumpur Courts which showed that a normal civil case could be resolved within 9 months at the High Court and Sessions Court, and within 6 months at the Magistrates’ Court. That timeline has been set across the board. I should add, however, that the timeline is not inflexible. There will be modifications to it or exceptions, on a case to case basis.
(Postponement)
Ladies and gentlemen,
19. But a timeline is of no use, if cases are still repeatedly postponed. Postponement of cases is the culprit for delay. In every postponement, valuable time and resources of all concerned are squandered. The memory of witnesses is also likely to fade. Meantime, legal costs and other expenses escalate. Postponement of cases serves no justice at all. Requests for postponements are therefore not taken lightly and are only granted to the most deserving, to the point that where once it was endemic, it is now rare for cases to be adjourned except on clearly deserving grounds. Expeditious disposal of cases, be it criminal or civil, is now commonly acknowledged as being part of the human right.
(Managing Judge)
20. Our Managing Judges, appointed from Judges of the Federal Court and the Court of Appeal, to supervise courts and court performance at the High Courts and Subordinate Courts, have also helped to monitor and reduce whatever residual delay in the disposal of cases.
(Court of Appeal)
21. Our measures have not been confined to trial courts. At the Court of Appeal, several new initiatives have been implemented to expedite the disposal of cases namely –
(i) Increase in the number of panels and sittings;(ii) The setting up of special panels for interlocutory appeals and appeals from the subordinate courts;(iii) The giving of priority to appeals against capital punishment and appeals involving government servants;(iv) Fast tracking of appeals from the NCC and NCVC.
(Federal Court)
22. Even our apex court has undergone a transformation. To further enhance the quality of our judgments and decisions, all matters in the Federal Court are now heard and deliberated by a quorum of five judges instead of three as it was before. Panels and sittings have also been increased to expedite appeals. In the near future, an executive summary of written judgments of the court will be made available to the parties and the press. This will be of benefit not only to the parties but also to the public.
(Using Technology: E–Court)
23. Since 2009, we have put in place an Electronic Court System comprising of three components namely –
(i) Case Management System (CMS);(ii) Queue Management System (QMS); and(iii) Court Recording Transcription (CRT).
(Cooperation From the Bar and Others)24. With the e–court system, we are able to track files electronically, set down cases for trial systematically, and monitor the progress of cases and our statistics efficiently.25. I am pleased to say that this morning, the first e–appellate criminal appeal was conducted before the Federal Court and I have received very positive feedback from the Judges. We may soon extend the e–appellate system to the Court of Appeal and High Courts.
26. I do admit that at the beginning, all these changes were not easy to implement, as Judges and lawyers were not ready for it. But with the cooperation of the Bar, who is undeniably our close partner, and the other agencies, we were able to overcome all initial problems. Our common goal is to serve the legal profession and public better.
(Joint Committee)
27. In the administration of justice, the Bar is always our partner. Indeed, we now consult the Bar more than ever. On a formal basis, there is now a Joint Committee consisting of members from the Judiciary, the Attorney General’s Chambers, the Bar and other agencies, to solve common issues and problems. This committee meets on an ad hoc basis, as and when the need arises. One common issue is the standardisation and simplication of the Rules. And to that end, the joint committee has come up with several amendments to the procedure in both civil and criminal cases.
(Transformation in the civil procedures: Increase in Monetary Jurisdiction of the subordinate courts)
28. The Subordinate Courts Act 1948 has been amended to increase the civil jurisdiction of the subordinate courts, from RM250,000 to RM1 million in the case of the Sessions Courts, and from RM25,000 to RM100,000 in the case of the Magistrate’s Courts. When the amendments come into force, the Sessions Courts will be conferred power to grant injunctions, declarations, specific performance, rescission of contracts, cancellation or rectification of instruments in respect of any matter within its monetary jurisdiction. This increase in the jurisdiction of the subordinate courts is in tandem with the present value of money, where a car could cost more than half a million.29. With this increase in jurisdiction, a large number of cases will filter down, from the High Courts to the Sessions Courts and more so from the Sessions Courts to the Magistrate’s Courts. To cater for that, the number of Magistrate’s Courts will be increased.30. The amendment also provides for the creation of the post of Registrar, Deputy Registrar, Senior Assistant Registrar and Assistant Registrar of the subordinate courts, who will be appointed from members of the Judicial and Legal Service. With this, I believe that there will be a marked improvement in the dispensation of justice at the subordinate courts. This amendment, as I have indicated, has yet to come into force, as additional posts have not been approved by the relevant Government agency. I am sorry to say, until today they have not given me a positive reply.
(Transformation in the civil procedures: Rules of Court 2012)
31. Another bold step taken in transforming our civil procedure is to replace the old Rules of the High Court 1980 and the Subordinate Courts Rules 1980 that were modelled on the former Rules of the Supreme Court of England, with a new set of rules called the Rules of Court 2012. The Rules for both the superior and subordinate courts are now housed under a single code. Among the simplified features of the new Rules are:–
(i) The modes of commencement of an action are simplified from 4 different modes, to two modes, that is, the writs of summons or originating summons.(ii) All interlocutory applications at the High Court and subordinate courts are standardized,(iii) The language used in the Rules and Forms have also been simplified.(Transformation in the criminal procedures: Amendment to CPC)
32. Criminal Procedure has also been given a makeover. Case management, which has proved to be a success in civil procedure, has also been introduced to criminal procedure, by amendments to the Criminal Procedure Code (“CPC”), which have paved the way for Pre–Trial Processes consisting of –
(i) Pre–Trial Conference (in s.172A);(ii) Case Management (in s.172B); and(iii) Plea Bargain (in s.172C).
33. With these amendments, criminal trials have been expedited. Under s.172A of the CPC, there shall be a discussion between accused and prosecution within 30 days after an accused has been charged, where both sides will identify and narrow down the issues, exchange documents and do all the things necessary that may lead to an expeditious disposal of the trial.34. Under s.172B of the CPC, the court shall convene a case management within 60 days after the accused has been charged. During case management, the court shall determine the possible duration of the trial according to the number of witnesses and complexity of the case and fix the date for commencement of trial. In other words, court, prosecutor and counsel can now plan ahead for the trial. With this, I believe criminal trials could proceed expeditiously, without any hiatus in between, until conclusion.35. Another important feature is “Plea Bargain” under s.172C, where courts can now openly engaged in the “plea bargain” exercise.36. In addition, the CPC has been amended to admit witness statements in criminal trials. This will see a reduction in the time taken to record the evidence in chief of witnesses.
(Court Annexed Mediation)
37. Another innovation is the introduction of Court Annexed Mediation, where cases before a judge are referred, with the consent of the parties, to other judges or registrars for mediation. And so far, Court Annexed Mediation has been a success, whenever litigants have consented to mediation, which is a faster and more inexpensive mode of resolution than full fledged litigation. Most satisfying of all, we find that litigants who mediated, generally emerged with less animosity towards the other, and with a greater propensity to resume their erstwhile association with the other. Following up on that success, we have set up mediation centres in Kuala Lumpur, Kota Kinabalu, Kuching, Johor Baharu, Muar, Kuantan and Ipoh, and soon in other parts of the country.38. Special training courses have been conducted for Judges and officers, to ensure they are equipped to mediate.
(Judicial Academy)
39. In his paper delivered at the 5th Worldwide Common Law Judiciary Conference, Sydney, Australia, Lord Woolf noted that:
“... just as the common law has evolved to meet the changing requirements of society, so should the role of the common law judge. It is of critical importance to society that the judicial role evolves in this way. Unless it does so, the judiciary will be unable to fulfil the expectations of the public whom we serve. Whether it does so, will depend on the calibre and commitment and organisation and training of the judiciary. It will also depend upon the executive and legislature providing the judiciary with the support the judiciary require.”To meet these challenges, a judicial academy has been set up under the auspices of the Judicial Appointment Commission (JAC). The Academy is to cater for trainings of Judges of the Superior Courts. The teachings include the following:
(i) The teaching of substantive and procedural law;(ii) The teaching of judge craft;(iii) The teaching of legal ethics; and(iv) The teachings of management and integration skills.
(The Success)
Ladies and gentlemen,
40. Our transformation programme thus far, has no doubt brought the Malaysian Judiciary to a greater height. The World Bank Report released in August 2011 accorded us high ratings for our efforts and reforms all carried out in just within 2 years. Permit me to read a portion of the report:–“The present study reviews a reform designed and implemented by the Malaysian Judiciary during the period from late 2008 to early 2011. Although conducted over a very short period, this reform has been able to produce results rarely reached even in programs lasting two or three times as long. It thus provides a counter–example to contemporary pessimism about the possibility of the judicial improving its own performance....The Malaysian Judiciary’s recent program offers an interesting model for other countries attempting backlog and delay reduction program, and in fact for those pursuing other goals in their reforms.”41. Following the World Bank Report, we have received a number of enquiries from other jurisdictions around the world concerning our transformation programmes and, for your information, one jurisdiction has decided to send their judges for attachment with us. We are happy to share our experience with others.42. Success in our transformation has contributed towards improving the Malaysian ranking in the “World Bank Doing Business Report 2012”, from 60th position in 2009, to 31th position in 2012, from a total of a 180 nations.43. Success was not achieved overnight. It was a journey of both ups and downs. But with the commitment and determination of all, namely my predecessor The Rt. Hon. Tun Zaki Tun Azmi, the Malaysian Bar, the Sabah and the Sarawak Bars, the Attorney–General’s Chambers, and other agencies, we have seen it through. With the support of all, the Malaysian Judiciary has been successfully transformed and in the process has attained a greater height. That is something that we can all take pride.44. But judicial transformation is a continuing journey that must always reflect the changing needs of the business community and society. Transformation must not stop, as those that we serve will not stop to evolve. For the only thing that will not change is change itself.
(Future Plan: Setting Up of Court’s Users Committee)
Ladies and gentlemen,
45. Before I conclude, I wish to announce that, towards enhancement of the efficiency of court service, the Malaysian Judiciary is now considering the setting up of a special committee, to be called the “Court’s Users Committee” consisting of the Attorney–General’s Chambers, the Bar, the business community, professionals, NGOs and lay persons. This committee will be charged with the task to assist the court to refine and to reshape itself towards the giving of a better service to all court users and to the community.46. Of course, we will involve the Bar in all our projects. For the Malaysian Bar is no less an equal partner in the administration of justice. This is affirmed by the Prime Minister in the opening address of this conference. May I quote the observations made on the role of the Bar and the Judiciary in a functioning democracy:
(i) “An independent Bar works in tandem with an independent judiciary in the implementation of the rule of law” (Toronto: Irwin Law 2007, 1 at 1).(ii) “Under a government of laws, the lives, the fortunes, and the freedom of the people are wholly dependent upon the enforcement of their constitutional rights by an independent judiciary and an independent Bar” (per Reginald Heber Smith in Albert P. Blaustein Et Al, the American Lawyer, at vi 1954).(iii) “An informed, independent judiciary presumes an informed, independent Bar” (per Kennedy J in Legal Services Corporation v Carmen Velaquez 531 US 533).
And if I may add,
(iv) An independent judiciary must get the support of an equally independent bar which is free from other influences than the consideration of justice.
47. I take comfort in the fact that the Malaysian Bar will always work in close cooperation and rapport with the Judiciary for the betterment of our society.
(CONCLUSION)
Ladies and gentlemen,
48. In conclusion, may I revert to the theme of this conference “Asian Perspective, Global Viewpoints”. I encourage all to take the first step towards success, by a change in our mind set and in our thinking. The world is too vast for anyone to fully explore. But success can be found everywhere. In order to explore everywhere, we must globalize our viewpoints. Again, I hope I have inspired you to embrace globalisation and to achieve success in all your endeavours.49. With that, I end this speech with wabillahi taufik wal hidayah wassalamualaikum warahbatullahi wabarakatuh and thank you very much.
DATED : 28 September 2012
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1 High Courts: Miri (1), NCCKL (2), OCCKL (6), RKKKL( 2), Ipoh (1), Pulau Pinang (2), Alor Setar (1), Kota Kinabalu (1), Bintulu (1), and Sandakan (1).
2 Sessions Courts: Kota Kinabalu (2), Miri (1), Georgetown (2), Johor Bahru (1), Kuala Lumpur (1) and Sarikei (1).
3 Magistrates Courts: Kangar (1), Georgetown (2), Butterworth (1), Limbang (1), Mukah (1), Keningau (1), Kuching (1), Melaka (1), Bangi (1), Kuala Lumpur (5), Kuala Penyu (1) and Kota Marudu (1), Kota Belud (1), Sarikei (1), Lawas (1), Marudi (1), Sri Aman (1), Bachok (1), Pasir Puteh (1), Kulim (1), Baling (1), Pasir Mas (1) and Johor Bahru (1).