Of judges, KPIs, justice and superficiality

NOV 10 — I want to ensure that justice is produced fast. Clear the backlog. If I can do this, then I would be very happy” – Tun Zaki, Chief Justice, Malaysia.

As far as mission statements go, the above sounds good. It signals an aim, namely, justice must be produced fast. Then it spells out the mechanics by which that aim is to be achieved, namely, by clearing the backlog. Lastly, but surely not the least, it states the overall impact of the mission, once achieved: The CJ will be happy.

With 900,000 cases pending in the Lower Courts and 91,000 cases in the High Courts (2008 figures), the concern about delays in the courts is understandable. After all, justice delayed is justice denied. The CJ, therefore, has taken it upon himself to clear the backlog of the cases.

Throughout my years of practice, I have seen at least seven Chief Justices (the position was called Lord President before) come and go. Invariably, each new Chief Justice had the same resolution upon being elevated to his position. One even went to the Scandinavia to study ways and means to reduce backlog. When we have a neighbour just about 300km away who has solved the backlog problem, one wonders why we would want to travel to such faraway lands. But then again, we love study trips. Needless to say the backlog stayed. In fact, it got worse.

There was another CJ who said we would computerise the courts. And soon we saw computer monitors, slim microphones and mini-speakers springing up in court rooms. I remember walking into one and calling my assistant to make sure that she had not sent me into a recording studio. Again, the backlog stayed.

Then there was the effort to increase the number of judges. The idea was simple and basic. If there were more judges, surely many more cases could be disposed of, no? Well, yes and no. A big NO, in fact. There were judges those days who actually measured the margins on the court papers to ensure that it was one inch in width! Anything less would be struck out for non-compliance with the High Court Rules 1980. Then there was one who actually wanted all submissions before him typed only in font size 13!

There was also one who scolded my opponent in front of me for referring to the Akta Syarikat as the “Companies Act.” That guy actually left practice soon after. There was another court which had actually rejected my bundle of authorities because my separator was not white in colour. I was told that according to the rules, all papers filed must be white in colour. Now, if the separators are white, would they be called separators then? I am not kidding. These are true accounts. Needless to say, the backlog stayed. Until now.

Regardless of the ways and means employed by the Chief Justices, there is however a discernible pattern to the approach. Firstly, count the number of cases. Then blame the lawyers for delaying the cases by unnecessarily applying to postpone them. Then set a target — which was normally unachievable — of the number of cases to be disposed off within a specific period of time. Then sit down and watch the paint dry. The result? Utter failure!

In almost all the various approaches, amidst all the media statements, the publicity, the study trips and what-not, one method stood out. That is the circulation of the proverbial administrative circular. The circular would say, “No adjournment or postponement should be granted on the grounds that lawyers have another case to do in another Court.”

Well, I have a problem with that. In fact, many lawyers do. First of all, the granting of an adjournment or postponement is a matter of judicial discretion. That means it is a power of the judges in question, to be exercised by them in their judicial capacity considering all the circumstances of the case. It is not for the CJ or anybody else to dictate the exercise of that judicial power. To do so would be an interference with the power of the judge. If that is not contemptuous, I don’t know what is.

Secondly — and this is really irritating — it is not the lawyer's fault that two or more of his cases are fixed on the same day. Do I have to explain this? Well, I suppose I have to. Take me, for example. I don’t just handle one case. I handle many cases at the same time. I may have filed an application in case A a month ago. Then I may have filed an appeal to the Court of Appeal in case B 8 months ago. I also may have an appeal in the Federal Court in case C still pending. Now, let’s say I am in court today trying to fix a trial date for case D in the High Court. The judge says “How about 1st March, 2010?” I look at my diary and I am free on that day. So, the judge fixes case D for trial on March 1 to March 5, 2010.

Later, my application in case A is taken out from the registry and it is fixed on March 1. To add to that, the Court of Appeal may suddenly write to me to notify that my appeal in case B is now fixed on March 2. Soon, the Federal Court notifies me that case C is now fixed for hearing on March 3. Is that my fault? Have I taken cases which I am not able to do? Have I bitten more than I could chew? Am I to blame? Well, according to current jurisprudence, I am. And the court should not grant me a postponement of any of my cases.

When I complain, the answer is almost curt and disrespectful. Not to mention dismissive. “Farm your cases to other lawyers.” Problem solved. Well, excuse me. Article 5 (3) of the Federal Constitution guarantees every person (citizen or otherwise) the right to be represented by a counsel of his or her choice. Isn’t that important? Or is it convenience over right?

Then there is the fact that clients come to me because of some special knowledge that I possess in the specific area of the law which is the subject of the case. Isn’t that important too? Or how about the fact that I have taken a retainer fee for that particular case and I have done all the work required in preparation for the trial of that case. Must clients engage another lawyer and pay another fee now? Can we have a little bit of understanding here, please?

The current CJ is quick to add that the grant of adjournment is a judicial discretion. In a meeting with Bar Council representatives he stressed that point. But later, it transpired that he had actually personally called up some of the judges who granted adjournments which he thought were unnecessary and asked them to explain their actions. Which begs the question, what judicial discretion is there when judges have to explain their exercise of that judicial discretion to the CJ personally? Isn’t that interference?

The law is every exercise of judicial discretion by the judge is a judicial act. Judges are not required to explain to anybody, not even to the parties to the action. He or she can write a judgement. The party who is unhappy with the exercise of that judicial discretion may appeal to a higher court. With the greatest of respect to the CJ, it does not befit anybody, including the CJ, to question a judge on the exercise of a judicial discretion.

What would the public think? If judges can be hauled up to face the CJ and questioned on their judicial act, what is there left for litigants? Fight their cases on the street?

And now we have KPIs for Judges. Sometime ago, judges were made to clock in and clock out, like “production executives” in a Seberang Perai factory. Every judge is supposed to dispose of at least 35 cases annually. I presume “cases” here means trial cases and not merely applications in court.

Let’s do the Maths. There are 52 weeks in a year and the judges work 5 days a week. That amounts to 260 days a year. Assuming the judge takes 15 days of personal leave and another 15 days leave on public holidays, that would leave 230 days. That means 6.6 days per case. Let’s say he or she spends half of that, that is, 3 days to hear applications. That means an average of 3.6 days per trial.

Is that realistic? What kind of justice are we talking about? A quick one, obviously. And quite a short one, too, if I may add.

It is easy to treat the courts like some manufacturing plants. Like Proton, for example. Increase production. Increase sales. Increase profits. Set targets. Meet them. And yes, we are successful. But what is justice? What is fairness? Let’s face it. Nowadays, lawyers and their clients talk about appealing against a court order even before the case is heard. Why? Because there is absolutely no respect for the judgment of the court. That is the hard truth. To put it bluntly.

Dr Deming in his book, “Out of the crisis”, stresses that in a non-performing entity, the people are not to blame. It is the system which is at fault if the people don’t perform. He said that a manager needs to understand that the performance of anyone is governed by the system and management. He emphasises quality, and not cost cutting and the likes. Among others, he lists the following as the integral elements to transform effectiveness:

•         There must be constancy towards improvement of product and services.

•         Dependency on inspection to achieve quality must cease. The work must be good and of quality the first time around.

•         The system must improve constantly and forever.

•         Institute leadership, not for supervision, but to help people be better in their job.

•         Eliminate slogans, exhortations and targets for the work force.

•         Eliminate management by objectives, numbers or numerical objectives.

•         Institute programmes for education and self improvement.

•         And most importantly, drive out fear, so that people may work effectively.

The above are for corporations. But how true it is for the judiciary to take note of. It would be good if we can super-impose these elements on the judiciary and see whether what Deming is asking to be avoided is being done and what he is asking to be done is not being done.

Have we undertaken a proper and in-depth study of the whole situation? If so, what is the root cause of the problem? Hell, do we know what the problems are in the first place? Can’t the system be improved, or changed altogether? Have we looked at some international arbitration rules for example? Can we learn from those rules?

If we do not have a holistic approach, we can of course continue appointing new judges till kingdom come. We can continue blaming the lawyers till their robes and bands rot. We can stop giving postponements. We can even impose a limit to the number of words a witness may utter.

At the end of the day, the backlog might be cleared. And everybody should be happy, right?