Undertaking Comprehensive Judicial Reform
By Brendan Navin Siva
I have had the benefit and pleasure of reading the lead article by Raja Aziz Addruse and Logan Sabapathy. I do not disagree with any of the points put forward by them. I agree that the overriding objective must be the reinstatement of the Rule of Law in Malaysia and a revamp of the process of appointment of judges. Everything else flows from there.
Any efforts aimed at reforming the Judiciary and improving the administration of justice in Malaysia must first understand that the problem in Malaysia is a multi-layered and multi-dimensional one. In this article, I wish to deal only with reform of the civil justice system in Malaysia.
Any attempt at judicial reform of the civil justice system must first comprehensively identify the problems faced in the administration of justice and their root causes, before even considering what measures ought to be taken to address them. I say this because amongst the various stakeholders - the members of the Malaysian Bar, the Judiciary, the Attorney-General's Chambers and the Government - there is no consensus as to what the problems actually are and what or who are the cause of such problems. More importantly, it would appear that members of the public do not have a real understanding of the complexity of the process. The public believe that the courts should be able to decide cases quickly. There is clearly an expectation gap between what the public believe they are entitled to and what the system can actually deliver, even if operating at efficient levels.
The Malaysian legal system is built on the foundations of the common law tradition and is an adversarial system. In a traditional adversarial system, the judicial proceeding involves the competing parties submitting their case and presenting their arguments in the manner that they see fit. The judge does not play an inquisitive or investigative role and, to a large extent, cannot enter the fray but must decide the case based on the evidence and submissions presented by both sides. Even though an individual believes that he or she has a strong case, the Court cannot make that determination without first going through the careful and deliberate process of considering all the evidence and competing submissions on the law and the facts by the opposing parties. This, by its very nature, is a process that takes time. The amount of time required to make a determination would, of course, also depend largely on the complexity and number of issues that arise in each case. And cases today are clearly more complex than they were in the past.
The adversarial system also provides no real incentives for opposing parties to strive for a quick resolution of a case, if this is not in the best interests of both parties. This is most pronounced in civil and commercial cases. In most cases, one party would normally benefit from the case dragging on in the courts. Steps will be taken to avail themselves of all available procedural and substantive avenues to avoid a quick resolution of the dispute. A Judge cannot cut through these efforts without hearing them on their merits. This again takes time. Further, depending on the nature of the facts and the applicable law in any particular case, it will always be in the interests of one party or the other to present their case as being complex and complicated whereas the other side would be adamantly arguing that the case is clear and one that can be decided quickly. But again the Courts must hear and consider all the arguments put forward by both sides. In other words, unless the issues are clear-cut, there is no quick fix. Even if we discount the huge backlog of cases and the ever increasing new filings every year, there will still be a fair amount of time required to hear and decide any particular case. The public should not therefore expect or demand swift results from the courts. But certainly the time taken should not be unduly lengthy.
How should judicial reforms be approached in Malaysia? There is only one way. It requires a comprehensive review of the entire system.
All the common law jurisdictions have in the last 10 to 15 years undertaken a wholesale review of their system of administration of justice and implemented concrete measures to improve the efficiency, integrity and productivity of their respective legal systems and courts.
Lord Woolf spent close to 2 years reviewing the civil justice system in the United Kingdom. His report in July 1996 entitled 'Access to Justice' comprehensively outlined the problems afflicting the system and made 303 recommendations to improve the system. New measures were implemented. They have been in place since 1999.
In February 2000, the Chief Justice of the Supreme Court of Hong Kong appointed a working party to review the civil rules and procedures of the High Court and to recommend changes thereto with a view to ensuring and improving access to justice at reasonable cost and speed. The working party completed their report in March 2004. It made a total of 150 recommendations for improvement.
In Canada, the Systems of Civil Justice Task Force was formed in 1995. The Task Force Report was released in August 1996. It contained 53 recommendations for reform.
In Australia, the Australian Law Reform Commission review of the federal civil justice system commenced in November 1995. It released its report in August 1999. Most of the Australian states have conducted their own extensive review of their respective state civil justice system. The latest is the work of the Victoria Law Reform Commission - the "Civil Justice Review Report" (see http://www.lawreform.vic.gov.au). Released on 28 May 2008, the Report is the product of 18 months work and contains a comprehensive review of the Victorian civil justice system. It contains proposals designed to "reduce the time taken to resolve disputes, reduce costs and simplify the process of civil litigation". The Report is 758 pages long.
It is time that Malaysia did the same. A commitment to the improvement of the administration of the civil justice system in this country would dictate that the government of Malaysia must do so immediately. The Malaysian government must undertake a comprehensive and wide-ranging review of the entire civil justice system. Bits and pieces of reform here and there will not be good enough. It will not remedy the many problems that presently befall the system.
And Malaysia is actually in a comparatively better position to undertake such a review, given the immense amount of material and data available from the reviews undertaken in all the other common law jurisdictions and the measures adopted by them to improve the effectiveness of the administration of justice. The evidence of the level of success of such reforms is also available. We can easily identify and learn from what has been done in these other countries.
A common and important feature of all reform initiatives in the jurisdictions mentioned above is a commitment to wide and extensive consultation with all the various stakeholders so as to obtain the views of the broadest possible spectrum of society. This includes the views of judicial officers at every level of the court structure, the Bar, the academic community, the consumer bodies and so forth. The consultation process is crucial to developing a package of judicial reforms that are workable.
The Malaysian government must therefore consult all the actual stakeholders involved. Sadly, an extensive consultation process has never been a common feature of the Malaysian government. But it is time for change. If the Malaysian government is really serious about its promise to effect wide ranging judicial reforms, it must first comprehensively ascertain and consider the views of all the parties involved and then work together with them to come up with a package of reforms that can practically lead to clear and tangible improvements in the civil justice system.
This month's main article on Project Malaysia picks up on some of the areas in need of reform. There are many other areas and aspects that need to be looked into.
One of the fundamental areas that warrant serious consideration is the level of judicial resources in Malaysia. There are simply not enough judges and judicial officers to handle the backlog of cases yet to be disposed off 1 and the increasing number of cases being filed every day. It was reported in the New Straits Times on 1 September 2006 that Malaysia has 2.4 judges per million people, compared with the United Kingdom's 50.09 and the USA's 107. India was reported as having 4 times the number of judges per capita 2.
Although there are serious concerns about the productivity of Judges in Malaysia and their ability to deliver reasoned decisions efficiently and timeously, even Judges who are disciplined and hard working and who want to deliver detailed and considered judgments would find it difficult to do so because of the heavy workload. We cannot have a situation where Judges want to carefully consider matters before them but are forced to cut corners because of the heavy scheduling and the pressure to dispose off pending cases.
The Malaysian government must recognise that the failure to address this fundamental problem of shortage of judges could potentially render any other attempts or measures at judicial reform meaningless. The Government of Malaysia must allocate the funds necessary to increase the number of judges and judicial officers in this country. If it is required, there is also empirical evidence to suggest that there is actually a positive correlation between the number of judges per capita and economic growth, i.e. that an increase in the number of judges actually has a positive impact upon economic growth 3.
Another area requiring reform relates to courtroom infrastructure. Members of the public, fed on a weekly dose of courtroom drama on TV, normally receive somewhat of a shock when they appear for the first time in Malaysian courts and find Judges at all levels physically recording by hand the evidence of witnesses and submissions of counsel in every case. The process of taking evidence is painstaking and time consuming as judges and judicial officers themselves have to write down what the witnesses say during trials and what lawyers submit during hearings. Court recording and transcription services could instantly expedite the hearing of cases. It would also allow judges the time to evaluate the demeanour of witnesses and also to more carefully consider the legal arguments of the lawyers before them.
To its credit, the Judiciary did undertake a 3 month trial period this year whereby 3 different court recording and transcription services were tested in selected courtrooms in Kuala Lumpur. However, there has to date been no word as to the selection and implementation of any particular system of court recording and transcription services and most of the selected courts have now reverted back to the traditional mode of taking evidence.
It is also clear that significant resources need to be channelled into judicial training and development, not just for fresh judicial officers, but also to ensure existing judges and judicial officers are kept abreast of developments in the law and in the real world. Just as lawyers require continuing education and development, Judges also need to be in tune not only with the changing norms and attitudes of the public and also the many different legal and commercial concepts and issues that have developed and are being developed.
Judges are tasked to bridge the gap between legal principles and their application to modern day situations. Judges are required to adapt and apply the law to cater for and regulate modern day activities, thereby making the law relevant and efficient in handling current disputes. In certain circumstances, it may be that the law and legal principles must change to adapt to the present day environment and it is the Judges who must make this determination. Failure to understand modern, developing concepts and realities would mean that a Judge cannot competently apply the relevant legal principles to the facts at hand.
The remuneration of judges and judicial officers must also be looked into. In his speech on 17 April 2008, the Prime Minister of Malaysia, Datuk Seri Abdullah Ahmad Badawi, promised a review of the Judiciary's terms of service and remuneration. He acknowledged that there was a pressing need to set salaries and compensation to the right levels to ensure that the Bench can attract and retain the very best of the nation's talent.
The point is simple. Judges and Judicial Officers do not get paid salaries that are competitive or comparable with that earned in private legal practice. A Magistrates' basic salary would be RM1,989-00 a month. A High Court Judge takes home a basic monthly salary of RM13,054-97. A Judge of the Court of Appeal draws a basic salary of RM13,581-50 while a Federal Court Judge's basic salary would be RM14,108-02 4.
A first year lawyer in private practice could be on a basic monthly salary somewhere between RM2,200-00 to RM3,000-00. This figure normally increases annually and a 5th year lawyer could potentially earn somewhere between RM4,500-00 to RM7,500-00 a month (excluding bonuses and other fringe benefits). A lawyer in a large or medium sized law firm could become a partner as early as in his or her 5th or 6th year in practice. A junior partner could be earning anywhere between RM7,000-00 to RM25,000-00 a month (excluding drawings and profit sharing, which could be a substantial amount). A senior partner could potentially earn significantly much more. And they usually do.
Given the glaring disparity in remuneration, the Judiciary would find it increasingly difficult to retain its present workforce, let alone attract and retain fresh legal talent of high quality. The promised review of their remuneration packages has yet to materialise.
Like the lead authors of the main article, I too must say that what I have set out above is neither comprehensive nor is it exhaustive. I am certain many other lawyers and judges have other points similarly valid drawn from their own experiences and which they believe with conviction could assist in improving the state of the Judiciary and the administration of justice in Malaysia.
I would hope this article has illustrated my point that the administration of justice in Malaysia is not a one dimensional problem easily resolved. I hope that this article clearly makes the point that all the stakeholders and participants in the system must be consulted so that a wide-ranging, bold, innovative and comprehensive package of judicial reforms - fair and equitable to all Malaysians - can be put together to ensure that we can proudly say that we managed to turn the tide and started, what the Regent of Perak His Royal Highness Raja Nazrin Shah so aptly called, a Judicial Renaissance 5.
1 In a written reply to Segambut MP Lim Lip Eng in Parliament on 8 May 2008, de facto Law Minister Datuk Zaid Ibrahim stated that the backlog of cases in the High Court was 91,702 cases, with 125,944 in the Sessions Court and 777,703 in the Magistrate's courts (The Sunday Star, 11 May 2008).
2 'Injudicious Numbers', New Straits Times, 1 September 2006.
3 'Judges and Development' by Raphael De Cornick, Global Law Working Paper 10/05, New York University School of Law.
4 Judges' Remuneration (Amendment of First and Fifth Schedules) Regulations 2008. Information obtained from an article entitled 'Are We Paying Our Judges Enough ?' by Roger Tan appearing in the New Sunday Times on 18 May 2008.
5 Address by DYMM Raja Nazrin Shah at the Conference of Malaysian Judges on 9 April 2008.
Brendan Navin Siva is an Advocate & Solicitor of the High Court of Malaya. Brendan is also the Honorary Secretary of the Kuala Lumpur Bar and a member of the Human Rights Committee, Bar Council. The views expressed herein are those of the author and are not necessarily that of either the Kuala Lumpur Bar Committee or the Human Rights Committee, Bar Council.