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Tuesday, March 26, 2013

A heartfelt choice

Going by the talk about town, this may be my last column before the next General Election. It may therefore be opportune to consider what this General Election means to some, if not all, of us.

I thin it is safe to say that many of us are tired of how politicking appears to have become the raison d’etre of government. It appears to me that somewhere along the way, the politicians lost sight of the truth that no matter what the politics of the situation were, the end objective had always intended to be the due governance of the nation, be it in accordance with one set of policies or the other. And once they lost sight of that truth, it seems that it was simply put of their minds; political brinksmanship became the cause in itself.

I believe that this was more evident in the period since the last General Election, and that this was partly due to the fact that for the first time in a very long while, there was a credible opposition that, to the extent that they were capable of, presented a different perspective on how things are and where things might be headed. The incumbent parties have had to increasingly address policies, issues and practices that have come to be questioned by voters. This was a radical shift from a political landscape defined exclusively by the incumbents.

Simply put, the world is no longer as the Barisan Nasional says it is; as the Prime Minister unfortunately found out during the Barisan Nasional Open House in Penang, a growing number of Malaysians now see a world beyond that construct.  Fundamentally, they want to live in a society grounded in social justice and one in which they believe that their interests are being looked out for. 

An objective consideration of the state of the country would give any reasonable voter basis for a belief that that is not currently the case. The standard of public services is questionable, be it in healthcare or education. The cost of living has increased in a way that is not commensurate with the earning potential of many Malaysians. Corruption appears to be unbridled. Public institutions do not enjoy the confidence of the people in a way they did two decades ago.  As scandal after scandal is left without response or reaction by the relevant authorities, the Rule of Law appears to be nothing more than a catchphrase employed to rally a flagging crowd. 

And worryingly, the incumbent government continues to be dismissive about these legitimate concerns, characterising them as misperceptions brought about by parties intent on undermining the government. So much so that the incumbents are growingly being described as having lost the plot.

This then is the context in which the voter sits as he or she grapples with the question of how it is they are to achieve the society they aspire to. Some are worried about change and its implications. This is understandable; change is never an easy thing, sometimes requiring us to embrace uncertainty. Others are more gung-ho, perhaps having less to lose or firmly believing that there is no other solution.

Whatever the case though, I believe that there are critical issues that confront this society in a way that requires an urgent response, issues that serve as indicators marking the way forward if we recognise that every single ballot cast is a means to our desired end. The primary issues, as I see them, can be summarised as follows.

Firstly, the Rule of Law.  This is not just about the courts and lawyers. It is a far wider concept that embraces the principle that the Government and its agencies are accountable to the people. It equally embraces the principle that no one is above the law. It calls for immediate action to restore the credibility of the Judiciary, the Attorney General’s Chambers, the Royal Malaysian Police and the Malaysian Anti-Corruption Commission, amongst others. It equally calls for a repeal of all laws that do not serve, or even impede, the cause of democracy.

Secondly, corruption. Unaddressed corruption is bleeding this country in a way that is harming it drastically. The fight against corruption must be focused on not only punishing perpetrators but also in sealing the fissures that allow for it. It calls for transparency and accountability that is premised on a freedom to, and of, information. The government of this country cannot be permitted to administer it by stealth.

Thirdly, social inclusiveness. Divisive policies, in particular the politics of race and religion, must be dismantled and replaced with policies that give the interests of every single Malaysian due regard.  Every one of us must be brought into the protective embrace of the State. 

The problems underlying these issues have festered for a while and are now threatening to overwhelm us. The incumbents have in the recent past attempted to assure us that they are being addressed, that more time is needed. The challengers tell us that they will address the same if given a chance. I appreciate that talk is cheap, and that it is nearly impossible to find a politician that is not willing to overstate or understate a point to gain an advantage. The situation however calls for an evaluation, to the extent that that is possible. 

More fundamentally, it calls for self-respect. It is indisputable that the state of affairs is highly unsatisfactory and requires action. Reforms are sorely needed, not just for us, but also for the generations that follow. The way forward lies in what our heart tells us is going to allow us to protect those generations.


(This comment was first published in The Edge on 16.0.2013)

The human dimension

I have said before that the push for efficiency within the courts is something to be lauded. I have at the same time argued that administrative changes introduced to reduce the backlog of cases in the superior courts should not come at the price of the quality of justice. Numerous comments by lawyers at the recent Annual General Meeting of the Malaysian Bar about the litigation experience, none of them complimentary, have prompted me to revisit the subject.

Before turning to what I consider to be the possible reasons for what we are facing in the courts, I wish to underscore a fundamental aspect of the subject that seemingly has been lost in the tumult of reform. The Judiciary is there to mete out justice to parties who turn to it in search of the same. Though it seems to be an obvious point, the need to do justice is pivotal to the resolution of disputes. It is not enough for courts to adjudicate if one party goes away feeling that justice has not been served, a state of mind that one cannot brush away as the feelings of a disgruntled client.

Litigants go to court expecting that due consideration be given to the facts of the case, the points of argument made by counsel for the parties, the relevant legal principle and the competing interests of the parties. 

These are fair expectation on their part. Unlike those of us who are directly involved in the legal profession, either as lawyers or judges, and as such are exposed on a daily basis to the process as we move from one case to the next, the litigant is someone who has been forced into the process by circumstance. He is not there by choice, there are those who have not in their lifetimes needed to go to a court for a judicial determination, and his involvement engenders an experience that is altogether different from that experienced by lawyers and judges. The litigant is personally, and is therefore emotionally, invested in his case. 

Having said that, in my experience a losing litigant does not necessarily walk away feeling resentful if he feels he has been given a fair hearing. It is his experience of the process that defines this outcome. It is for this reason that one of the legal maxims that has come to most characterise the judicial process is “justice must not only be done, it must be seen to be done.”

Judging by the comments at the Bar meeting, a number of judges seem to have forgotten this in their rush to complete their caseloads. The complaints ranged from judicial temperament, with lawyers lamenting the fact that judges were acting injudiciously, to judges not having spent enough time with their files to fully appreciate the nature of the matters before them or the issues in contention, to judges not affording counsel the opportunity to present their cases to the fullest. Underscoring this were comments that pertained to the competency, or lack thereof, of some of the judges.

The question of competency is a critical one. There is no point of litigants resolving their disputes before adjudicators who are not truly qualified to do what that task requires. Incompetent judges will not only commit injustice, they will undermine public confidence in the Judiciary as a whole even as they create dangerous precedents that will impact across society. As I have said before, it is incumbent upon the Chief Justice to determine the means by which he can audit his judges.

That aside, and more pertinent to the point I wish to make, the question of how judges treat litigants, and their counsel, is one that directly relates to their respective litigation experiences. And it has struck me that somewhere along the way the process appears to have veered off course. In the rush to decide cases, it sometimes feels that the expectations of the litigant no longer matter.

This is where the matter of caseloads and efficiency comes up. Judges are under tremendous pressure to dispose of cases. The statistics are impressive and basis for pride. They however raise the question of how it is that judges, in particular those in the Court of Appeal, can dispose as many appeals as they do. The number of disposals is high and sitting in court waiting for my cases to be called up has given me an insight into how hard our judges have to work. It however has given reason to ponder how it is they manage to dispose of as many cases as they do.

Appeals arise from either interlocutory decisions of the High Court, that is decisions made on applications to the court prior to the final determination of the case, or from final determinations. The former category of decisions is easier to deal with as they do not finally determine the case and are fairly standard. Decisions in the latter category are an entirely different thing. They are made after a full trial during which the judge would have heard and seen witnesses after which the judge would have been addressed on the law and the facts as they appeared to either side.  In most cases, the trial judge would have prepared written grounds of judgment in which an explanation of how it is that judge arrived at the ultimately conclusion is laid out. Appeal courts, guided by counsel as they are, have to scrutinise the record of proceedings to determine whether there is an error that warrants intervention on the part of the appellate court. 

This is not an easy course of action. The appeal court is not entitled to substitute its own views of the trial judge as the trial judge had the advantage of hearing testimony and, through that, getting a direct feel of the case. The appeal judges on the other hand view the proceedings remotely, through what it is that is in the record of the case, including the trial transcript. 

For this reason, over hundreds of years, the appellate process has been refined to a framework of carefully thought out principles of appellate practice. These principles ensure that the system is not up-ended and that the appeals court only interfere where there is just cause to do so and in a manner consistent with the interests of justice. The application of these principles in any given appeal is a matter that takes time. It is not for purely academic reason that another legal maxim, “justice rushed is justice denied”, came into being.

I have been in the Court of Appeal on days where a particular panel is determining a sizeable number of appeals after full trial in addition to the other appeals or applications before the court. And this is to be done within the limited period spanning from 9 am to 4.30 pm. And while the lawyers and litigants may go home to celebrate or commiserate, the judges go back to the case list they have to deal with the following day.

It is thus not surprising that, going by the comments noted above, judges are not able to read their files as thoroughly as they would wish to or lose their patience with counsel or rush counsel during their arguments. Equally, it is not surprising that some judges appear to have adopted a template approach to the cases before them, applying principles mechanically without regard to the human dimension of the cases or justice in the wider sense.

This has in my view led to a great deal of dissatisfaction, a point which the Chief Justice and the President of the Court of Appeal must take note of. It is not a state of affairs that is going to fade away. With perceptions of the competence of the judiciary as they are, litigants will appeal decisions of the High Court to the Court of Appeal almost as a matter of course. 

Similarly, more litigants are seeking leave to appeal to the Federal Court. Many of these involve decisions of the Court of Appeal which are erroneous but which do not necessarily fulfill the legal requirements for leave to appeal to the court. This in turn has led to complaints about the uneven application of law and the undermining of the right to a fair hearing. So much so that the Federal Court is now more often being called upon to reconsider its narrow scope of leave. The Bar Council is in fact looking to propose an amendment to the law to allow for the Federal Court to deal with matters where the justice of the case requires.

It is as such imperative for the Chief Justice to remind his judges of the human dimension of what it is that occurs in the courts of this country. Ensuring that justice “is seen to be done” must be made a priority, even if it means a slowing down of the disposal rate in the short term. Only the can justice be said to have been done.


(A version of this comment was first published in The Edge on 23.03.2013)