Worrying trend of lawyers filing leave applications that do not meet threshold, says Chief Justice


SEREMBAN: It is becoming a trend for some lawyers to file leave applications although these do not meet the threshold required under Section 96 of the Courts of Judicature Act 1964, says Chief Justice Tengku Maimun Tuan Mat.

"It is starting to become an unhealthy norm for some lawyers to file application upon application no matter how unmeritorious or how trivial it is.

"The result is the diversion of valuable but limited judicial time away from good work," she said.

Citing an example of applications for leave to appeal to the Federal Court, she said it was also obvious that the leave questions were becoming increasingly long and repetitive to the extent that they become rather perplexing.

Tengku Maimun said she had also experienced having to go through leave applications with at least 20 questions with each one worded substantially the same as the previous one.

"Why does this happen? I can only assume at the worst that it is an underhanded litigation tactic.

"Again, the art of advocacy includes the ability of the lawyer to tell his or her client what actually needs to be appealed and the actual questions of law that need the Federal Court’s pressing attention," she said.

She said if a lawyer files a complicated leave application with the intention of sneaking his or her way past Section 96 of the Courts of Judicature Act, it can only mean that he did so to impress his client without due regard to his overriding duty to the Court.

The Chief Justice said this would not only drown out the cases that actually deserve leave to appeal, but it would unnecessarily curtail valuable judicial time and resources.

"Of course, I am aware that it may not necessarily be an underhanded manoeuvre and that it might just be reminiscent of an overzealous or overly careful lawyer intending not to leave any stone unturned.

"But again, I would respectfully advise that a healthy balance ought to be achieved between cautiousness on the one side and the confidence of the lawyer in his own ability, on the other," she said in her keynote address at the Negri Sembilan Bar Law Conference held to mark its 60th anniversary.

Also present were Chief Judge of Malaya Hasnah Mohamed Hashim, Federal, Appeals and High court judges and Negri Sembilan Bar chairman Marisa Regina Aris Rizal Christopher Fernando.

Tengku Maimun said lawyers ought to keep their eye on the ball and focus foremost on what the law requires and not what his or her client craves beyond what justice demands.

Lawyers, she said, do not fuel disputes at the expense of the Courts but should serve as key catalysts of dispute resolution.

"It is enough for me to say that the most important of all is an advocate's duties to the Court.

"I take the position that if an advocate prioritises these duties as the foremost of their duties, their duties to their client and the public should, in an ordinary case, be met," she said.

This, she said, meant citing cases with a proper understanding of the law, not intentionally misleading the Court with overruled propositions and fully and frankly disclosing all the relevant facts.

"So arduous and dignified is this duty that an advocate must not only direct the Court to authorities or facts which favour his client but also to those that disfavor him and how the Court ought to factor those points to arrive at a just and fair decision," she said.

One aspect of integrity in a lawyer, she said, was to not abuse the process of the court.

"Without citing the plethora of cases, abuse of process is the unjustified and unreasonable use of the court proceedings or processes.

"The process of the court is abused when the proceedings are lacking in bona fides and is not only frivolous, it is also vexatious or oppressive," she said.

Tengku Maimun also said judges need to be competent and diligent and that their independence, impartiality and integrity were critically important in the administration of justice.

"By judicial independence, judges are answerable to no one, except their conscience and their learning, where decisions are made solely on the evidence presented in court by the parties and in accordance with the law.

"An independent judge decides cases on the merits, without regard to personalities involved, with no fear of any kind of threat or sanction,"she said, adding that an independent judge will not succumb to any kind of pressure nor be lured by any kind of reward or promise.

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