Judicial transformation

  • Business
  • Saturday, 28 Nov 2009

Chief Justice Tun Zaki Azmi has initiated reforms that include making the judiciary more efficient and cases to be heard faster.

A PLETHORA of issues have dogged the Malaysian judiciary over the years. Its independence has been questioned since the 1988 judicial crisis and until today, the judiciary’s critics continue to raise issues of how judges are selected and the lack of openness in the process of empanelment, that is the internal process of deciding which judge or judges sit in particular cases.

That isn’t all. Malaysia’s judicial system has also been seen as being inefficient. Long postponement and disposal of cases has been the norm. With files apt to go missing and allegations of corruption among court staff, it is no wonder that Malaysia ranked poorly with regard to the ease of doing business here.

In 2008, the World Bank ranked Malaysia in 59th place, out of 181 countries, when assessed in terms of the ease of enforcing contracts. Singapore was ranked 13th in that same report.

But a sea change is taking place and at the heart of it lies Tun Zaki Azmi, the Chief Justice of Malaysia (CJ) set on removing inefficiencies in courts, even if it means “dragging the judiciary and the Bar (Council), kicking and screaming.” (Those aren’t exactly Zaki’s words but he did use it in a speech last month at the appointment of new judges, quoting a past CJ of Singapore, who had embarked on similar changes with the Singaporean judiciary in the late 1990s.)

Zaki, a long-time practising lawyer who had quickly risen the ranks to become CJ last October, is changing the judiciary in a very McKinsey-type management style.

He has set key performance indicators for judges, giving them a target number of cases to hear every year; he has also “encouraged” some non-performing judges and court staff to leave and demoted others, drumming up the message to shape up or ship out; he has brought in new judges from private practice, many of whom are non-Malay and has personally ensured that the lackadaisical file management system in courts have been upgraded. Zaki is also known to personally visit courts to see that all is up to mark.

Unprecedented openess

Zaki has also established an open dialogue with the Bar Council that is unprecedented. “The relationship between the Bar and the CJ has never been this good. The CJ seems very ‘consultative’,” says Ragunath Kesavan, the Bar Council’s president.

Backlog of cases across all courts have been coming down as cases are being disposed of quicker with judges disinclined to give postponements without just reasons, as per Zaki’s instructions.

There has been a 100% increase in clearing of backlog cases in the Appellate and Special Powers Division of the High Court since January and between 50% and 60% increase in the Commercial High Courts. (see tables)

“Zaki’s efforts to revamp the judiciary are commendable. The delay in commercial dispute resolution is a problem that the private sector has complained about for years,” says Tan Sri Yong Poh Kon, who heads Pemudah, the task force set up to look into improving the public services delivery system.

Armed with statistics to prove that improvements have been made, Zaki has given at least three face-to-face interviews in the last week alone, first with the Bar Council, followed by a daily newspaper and then with StarBizWeek.

It would be unfair to say Zaki is out to “blow his own trumpet”.

Indeed, Zaki is not entirely comfortable with having too much attention on himself, preferring to include as many Federal Court judges as he can to join in the interviews. In all three interviews, Zaki was joined by the Chief Judge of Malaya (who ranks third in the judiciary and oversees the High Courts) Tan Sri Arifin Zakaria. (There were other Federal Court judges present in the two newspaper interviews.)

Zaki was asked to give the interviews after lawyers and the Bar Council protested about the fast pace the judges were taking, on the grounds that postponements were not being granted despite valid grounds. Zaki’s efforts, it seems, were a bit of a shock to the system. In legalese, Zaki was moving from an era of “justice delayed is justice denied,” to one where “justice hurried is justice buried,” as some lawyers are apt put it.

Zaki says the changes are not as drastic and draconian as some make it out to be. “It is left to the discretion of the judge. If unreasonable refusals (for postponements and adjournments) have been made, the party concerned can apply for a revision or appeal. But remember that we are coming from an era where the delays in our courts have been at unacceptable levels. I know of cases which have been postponed for up to 33 times.”

Zaki’s blueprint for change was drawn mainly from Singapore’s experience. Similar problems had dogged their judiciary, with regard to delays and the lack of case management and in true Singapore-style, a management-oriented approach was embarked on in the 1990s, which has eventually led to Singapore having “one of the most efficient and effective systems in Asia, perhaps in the world,” as stated in a World Bank report.

Business-styled change

Zaki’s business-like approach has won him the support of the Government. By his calculations, it costs the Government at least RM1mil a year to pay a High Court judge. He justified a RM70mil investment in an e-courts system (see page 21) on the basis that it will eventually bring about savings as fewer judges will be needed. The e-courts system is expected to speed up the hearing of cases by three to four times, says Zaki.

For now though, Zaki is hiring more judges to help clear the current backlog of cases, and getting some of the new recruits from the pool of practising lawyers. The Malaysian judiciary has been said to lack experienced lawyers on the bench, which had been the norm in its early days, drawn from the practice in Britain.

That is changing as Zaki has appointed a handful of senior practising lawyers as Judicial Commissioners (JC), who are typically on a two-year contract.

The JCs stand the chance of being elevated to a full fledged High Court judge after their two-year term.

A problem remains with regard to keeping the best and letting the bad ones go. Like in all government-type organisations, Zaki faces the challenges of how to rid the system of the non-performing judges.

The Umno-lawyer legacy

It wasn’t a smooth beginning though for Zaki’s CJ role as his appointment drew a lot of criticism. When he was made a Federal Court judge in September 2007, he bypassed the convention of first serving in the High Court and the Court of Appeal. But that was less of an issue compared with the fact that the seasoned corporate lawyer was also seen as having close ties to Umno, having been the party’s legal adviser.

“After all that hoopla, I didn’t want to speak to the press anymore,” recalls Zaki, whose father the late Tun Azmi Mohamed was Lord President from 1966 to 1974.

Zaki, the country’s 12th CJ, seems to have overcome that shyness and was prepared to take all questions, even the difficult ones, in his stride in this interview with StarBizWeek.

While the judiciary’s revamp from an efficiency and administrative standpoint cannot be faulted, it is still moot if it is wholly independent. For example, even though the way judges who are appointed today goes through a Judicial Appointments Commission (JAC) that includes eminent past members of the judiciary and current judges, the influence of the Prime Minister is very much present. The UK’s JAC has done away with the involvement of the executive in the judge selection process, while in the United States, the President still appoints senior judges.

Adds lawyer Edmund Bon, chairman of the Bar Council’s Constitutional Law Committee, “The process of empanelling still leaves much room for improvement. It should be more transparent.”

A recent Federal Court decision not to grant a request for a full 11-member bench to hear a high profile political case had drawn criticism, as the case, an appeal, will be heard by five judges, all of whom had at some point presided over hearings related to the same case.

Zaki says such criticism is unjustified. “In cases involving the Government and private parties, in many times, the Government has lost. So we judges have decided against the Government.”

When pressed to comment on empanelling, Zaki says that when cases involve the Government, “I do not interfere. My appointment and position has been associated with Umno and other allegations.”

Apparently, the empanelling in the hot political cases is left to the president of the Court of Appeal, in effect the second highest honcho in the judiciary, Tan Sri Alauddin Mohd Sheriff.

White collar crime

Yet another grouse was that white-collar criminals were not receiving punishment commensurate with the offences committed, with many perpetrators merely receiving fines that were small when seen in the light of the profiteering they possibly enjoyed or financial losses they caused to others.

Zaki conceded that the Securities Commission (SC) chairman, Tan Sri Zarinah Anwar, had raised the issue that such cases were proceeding rather slow in the courts. He says action was swiftly taken to create a separate commercial court in the Sessions Courts to hear such cases.

He also says that part of the reason why harsher punishment (for white collar crimes) was not meted out is because the prosecution has not pressed for a heavy sentence.

“In any event, there is always the avenue for appeal (against the light sentence),” adds Arifin.

Positive implications of revamp

No one though can argue with the zest with which Zaki is reforming the Malaysian judiciary and all the good that can come out of it. From a foreign direct investment standpoint, Zaki’s moves are just what the doctor ordered.

“Studies by several international development institutions including the Organisation for Economic Cooperation and Development, has shown that how commercial disputes are handled through the judiciary has a huge impact on where investors will go. In the past, quite a significant number of commercial contracts inked in Malaysia had specified a third country for the settlement of disputes because of the delays in our legal system,” points out Pemudah’s Yong.

A big worry though remains whether Zaki’s efforts will continue. He will retire in October 2011, when his term ends.

“I promised my wife I will retire then. But don’t worry, the momentum will be carried out by the others on the bench,” Zaki says.

■ Correction: We wish to clarify here that the RM1mil figure takes into account not only the judges’ salary but also his support staff costs, office costs, and other benefits including providing the judge with a car and driver and housing-related benefits.

Related Stories: Speeding up the court system ‘Water will find its own level’

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