Making it right in the courts

IS the setting of key performance indicators (KPIs) for judges just trading in justice for efficiency? In The deal about judicial KPIs, lawyers wondered whether the backlog of cases being solved through KPIs is only creating a larger problem of injustice.

Chief Justice Tun Zaki Azmi, for one, believes the new system is working. At a 14 Oct 2009 swearing-in ceremony for judges, he praised the judiciary for their hard work. “This morning,” he said, “I received a handwritten letter from a senior lawyer … He congratulated the judiciary and said that in four months he [completed] eight trials, close[d] his files and collect[ed] his fees. Previously, he estimated it would take five years to complete just one trial.”

Zaki Azmi However, Zaki did not offer advice on how to balance speed with the paramount need for justice. Listening to his speech, it would appear that all was well on the ground. New systems are being implemented, everyone is working hard, and congratulations are due all round.

Still, there are legitimate concerns about the execution of justice since the KPIs were implemented. In an exclusive interview with Federal Court chief registrar Hasnah Mohammed Hashim on 14 Oct 2009, The Nut Graph tries to find out how the chief justice will address these issues. In the interview, which was cut short because she had to attend the judges’ swearing-in ceremony, Hasnah said judges have reached their KPIs. But, she said, “KPI is more of our internal assessment … it’s not meant to be at the expense of justice.”

TNG: May I recount some of the stories from the lawyers? We would like to hear the administration’s response.

Hasnah Mohammed Hashim: I know, about the magistrates telling people that they have KPIs to meet and things like that.  

There’s a case where after five days of trial [in the Sessions Court], the judge said parties must submit closing submissions the very next day.

Okay, why not?

And the notes of proceedings were not ready yet.

Yes, in fact the chief justice is of the view that, why not? Submissions should be done immediately after the closing of the case.

The lawyers say they need to extract the relevant evidence and include that in their submissions to show that it backs up their arguments. They need to study the evidence before they can submit.

We feel that the lawyers should come prepared. If the case is fixed for five days, there’s always a possibility that the case could finish [in five days], [so] they should be prepared [with submissions already]. But if they want a short adjournment, we should allow. That message has been sent out — but short adjournments meaning a week, two weeks.

I was also told that the judge had to check whether the KPIs had been met before deciding whether or not to grant more time for submissions.

In a way it’s good, it’s good because now there is a check, especially for the lower courts, that they are actually sitting and doing their cases. In the past, sometimes in the afternoon, no one is sitting. Now, morning, afternoon and even in certain cases, until 8pm, they are still sitting. We encourage that because if they can clear their cases and if both parties agree, then why not?

You have to remember it’s not just the courts and the lawyers. The clients, the parties involved, have been waiting for so long for their cases. In the past, there were postponements after postponements. No doubt we have some teething problems where our sessions judges and magistrates have been fixing too many cases.

Another anecdote concerned a case where hearing dates had been fixed in advance in the High Court. Shortly before the trial was going to start, the judge asked parties to start one day earlier because a free day had opened up. The judge called all the parties and said they must proceed.

If both parties agree, why not?

They told the judge, we already fixed the trial on these specific dates because the witness can only attend on those dates. But the judge insisted the case go on.

In that case, those are the things we have to iron out. Some are very, very old cases, you know. 

On fixing trial dates, everyone wants priority.

Yes, that’s true.

Lawyers have many cases, and all the courts want priority. If the lawyer is not free, they’ll just fix a date anyway. Some files have been handled by a lawyer for five years and now, the court says pass it to somebody else. Shouldn’t there be a window or transition period for such cases?

Yes. In fact, this was brought up by the Bar Council to the chief justice. He has given a so-called transition period until the end of the year. But he said, “If I give you six months, then you want another six months, and forever there will be a transitional period.”

As far as the chief justice is concerned, if the matter has been fixed earlier, it should be heard. We are working together with the Bar Council [on this].

So the court will take into account lawyers’ dates when fixing trial dates?

Yes, yes, but sometimes, it’s so difficult to get common free dates for both lawyers. Sometimes you have to be firm as to the dates but still have to be fair to both parties. It’s very difficult to get dates from some lawyers; they are occupied the whole year. On the other hand, there are some old cases that have to be started.

Is there such a thing as Hakim Cemerlang? We heard that some judges got an award?

No, no.

For judges who have cleared many cases, is there a special award?

In the sessions court? In government service, there’s Anugerah Perkhidmatan Cemerlang. That’s been going on for years.

So, no special award for meeting KPIs?

No, KPI is just one of the factors. There are many other factors that we have to take into consideration. As far as I am concerned, we have to look at other factors. If a judge clears a lot of cases, good for him or her, but then, there are other things — we don’t look at just KPI only.

So a balance is being struck between quality, competence and [speed]?

Quality is definitely the main factor. Quality, efficiency.

So if a judge falls behind but they can give reasons, will that be taken into account?

Of course.

The chief justice made a comment, if you’re fast, it’s like Michael Schumacher  — he won’t slow down for you to catch up. If you’re slow, you will be left behind.

Yes, that’s true. If you are good, you can clear your cases. If you are a good manager, you know how to manage your diary and your case, then you can go very fast. What he’s saying is more about efficiency rather than the time taken to clear a case.

Sometimes you can actually go straight to the point instead of going around the world. If a judge is sharp, he or she can just go straight to that point, then he [or she] can clear his [or her] cases faster. Quality is very important. Quantity is not a factor.

So if a judge needs more time to deliberate or feels that in his or her discretion, the parties need more time, that would be allowed?

Yes, judicial discretion, we don’t disturb. That is their [discretion].

Then how do you strike a balance [between using this discretion and meeting KPIs]?

The court has been in slumber for a long time. Now is the time to clear. Now, there is a clear plan as to what we are going to do. [W]e’re looking at all the cases, and not just looking at the numbers, but at how to effectively clear those cases.

As I was saying earlier, during this transition period, if the lawyer has a case in another court because another judge wanted priority and fixed it on the same day, is that a [valid] reason for postponement?

I used to be a sessions court judge; before I fixed trial dates, I always asked the lawyers for their free dates. So if you have agreed to that date, you should not go and fix another trial in another court. But if you have another case in another court, either you can give to your colleague, or you know…

Another [issue] is criminal double parking (where two criminal cases are fixed in different courts at the same time for the same lawyer).

In Penang?

Yes.

Because in Penang, only a small handful of lawyers are doing criminal cases.

So the death penalty could be involved and the case could proceed without the lawyer.

No, I don’t think so. I don’t know whether that actually happened in Penang, but now, there should be more lawyers doing criminal cases in Penang. All the while, it’s been very slow, slow, slow, now it’s time to go very, very fast.

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