Thursday, January 20, 2011

Justice Is Not A Production Line

When Zaki Tun Azman was appointed the Chief Justice in 2008, he set about trying to do something to clear the notorious backlog of cases that has been plaguing the courts here for many years.

He did not have a happy start to his his tenure, as a result of what he allegedly said to the effect that he had to bribe court officials to get things done when he was practising lawyer.

As a result of that, there were calls for him to resign from his post and for him to be investigated for allegedly admitting to bribing court officials.

But nothing came out of the complaints.

All this finally led to Malaysia's prominent lawyer and Member of Parliament, Karpal Singh, to file a suit in the court recently, for an order of mandamus to compel the CJ to respond to a letter Karpal had sent to the CJ on the matter.

Karpal Singh is allegedly also seeking to bring the CJ to the Judges Code of Ethics Tribunal.

But I digress.

Among the measures taken to reduce the backlog of cases include the appointment of judges to hear only particular matters and strict instructions as to the granting of adjournment of cases.

But it is the latter that has caused disquiet to the legal fraternity affected.

Anecdotal horror stories have emerged such as parties being forced to close their case without being given a chance to call material and crucial witnesses, cases proceeding in the absence of litigant's counsel, adjournment not being allowed even though litigant, witness or counsel is sick or their familiy member has just died, parties being allowed only a week to obtain important documents which normally take a longer time to obtain, counsels being directed to make a few lines only submission. There was even the anecdotal story of a lawyer who was told to proceed with her case even though she was due to deliver her baby.

If the stories are true, then there must be something wrong in the way that the courts are going about it to reduce the backlog of cases.

Juctice is not a production line, where it is possible to plan x units of A per y hours or k units of B per z hours.

Parties, witnesses, counsels can fall sick or their family members die or any one of other reasons.

Judges should exercise their discretion judiciously in deciding whether or not to grant adjournment and not blindly refuse to do merely because there is a directive from the CJ to clear the backlog of cases. Otherwise they will be failing in thier duty and oath of office.

If what we have been given to understand from press reports is true, then it seems that the courts have been able to dispose many cases as a result of the measures taken and there is now no backlog of cases and that other countries are even trying to learn a thing or two from us on how to clear backlog of cases in the courts.

But what is meant by disposal of cases?

To me, a case is only genuinely disposed if it is litigated to a conclusion, parties settle or withdraw their case without liberty to refile.

In any other case, whether it is struck off by the court because the parties are not ready or the court refuses to adjourn or a party is forced to withdraw his case for one reason or another, that is not disposal of case.

It will only lead to a future backlog or, for the lack of a term, may I call it "forelog"? This is because a party can always refile his claim, and invariably often does, if the claim is not time-barred.

If an honest audit is done, I am sure many cases which have been said to have been disposed have not been disposed in the genuine sense.

So, have we or have we not genuinely cleared the backlog of cases or have we just postponed the problem to the future?

It has often been said that justice delayed is justice denied and it is equally true that justice hurried is justice buried.



        

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