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Should the subordinate courts have more power?

WHY has there been such a furore over the government’s amendment of the Subordinate Courts Act? And why should the public care that the Act has been amended?

As a result of Parliament passing the amendment, the Sessions Court can now hear civil cases worth up to RM1 million while the Magistrates Court cases worth up to RM100,000. This represents a four-fold increase from their previous jurisdictions.

Lim Chee Wee

Lim Chee Wee (source: malaysianbar.org.my)

Bar Council vice-president Lim Chee Wee called for the amendments to be delayed pending a proper study on its impact. Lim also pointed out that the increase in amounts meant that lower court judges would be hearing more complex cases, previously reserved for High Court judges. Minister in the Prime Minister’s Department Datuk Seri Nazri Aziz, however, said the amendments merely took into account inflation and did not change very much.

Both sides have valid points. A sudden jump in jurisdiction would surely shunt many cases from the High Court to the Sessions Court and from the Sessions Court to the Magistrates Court. The lower courts may well have trouble coping with the increased workload. Having said that, increases in jurisdiction, in 1987 and again in 1994, did not have any serious ill-effects.

But there are other underlying issues with the lower courts that the recent amendments do not address. If these issues are not looked into, whatever doubts that existed about the lower courts before the amendments would only be compounded by the increase in their power. Hence, the question that needs to be answered is, should the sessions and magistrates courts have been granted additional powers to hear cases of higher amounts?

Quality of judgments

Unlike High Court judges who must have at least 10 years experience before being appointed, there is no such minimum requirement under the Federal Constitution or Subordinate Courts Act for lower court judges. Sessions court judges and magistrates are appointed from the Judicial and Legal Service (JLS), which is effectively part of the executive. Fresh law graduates can technically be appointed magistrates, although internal guidelines require Sessions Court judges to have served for about eight years before being appointed. JLS officers are not required to complete their pupillage or have any practical experience in a law firm before joining.

Cartoon image of a gavel wearing a judge's wig

It is not uncommon to find judges confused about court procedures and legal arguments (© Cory Thoman | Dreamstime)

This system differs from the practice of other countries where the majority of judges are appointed from amongst lawyers. In the UK, for example, district judges, who perform a similar function to Malaysian session court judges, must have practised in court for at least seven years. Having practised as a lawyer helps ensure judges are familiar with court procedure and legal arguments.

It is of course possible for a hardworking and bright JLS officer to “learn on the job” and become experienced with time. Having said that, many lower court judges, even senior ones, unfortunately display their lack of practical experience on the bench.

Decisions are often delivered simply by them saying “case dismissed” or “claim allowed”, without any analysis of how the decision was arrived at. It is also not uncommon to see judges confused about the rules of evidence, correct procedure, and legal concepts. At times, time-consuming written submissions have to be filed to clarify a simple matter for the judge.

It is therefore all well and good for Nazri to say that the amendments were merely on account of inflation. But what will be done to improve the quality of these judges who now have additional powers? Especially since Sessions Court judges can now decide on injunctions and make declarations which can have wide-ranging effects on businesses and individuals?

Independence

Gani

Abdul Gani (© agc.gov.my)

Another major area of concern is the independence of JLS officers. JLS officers answer to the Judicial and Legal Service Commission. The commission consists of, amongst others, the Public Services Commission chairperson and the Attorney-General (AG), who advises the government on legal matters and represents it in legal disputes. JLS officers often get transferred between departments in the AG’s Chambers and could also serve, for instance, as public prosecutors or in the drafting division.

Although the AG’s Chambers is supposed to be independent of the government, its’ officers salary scale, ranking and promotion are identical to that of civil servants. It would therefore not be surprising if lower court judges develop a civil servant mentality. This opens them up to the possibility of bias when hearing evidence from “fellow” civil servants or cases involving the government.

Edmund Bon

It is also a cause of concern that the AG is effectively the boss of Sessions Court judges and magistrates. This issue is compounded when the AG himself appears in the lower courts. This occurred for example, when lawyer and then Bar Council human rights committee chairperson Edmund Bon was arrested in December 2007. Bon had allegedly tried to prevent a police officer from removing a banner hung in conjunction with the 9 December Human Rights Day celebrations.

AG Tan Sri Abdul Gani Patail himself appeared before Sessions Court judge Komathy Suppiah to argue that Bon should be denied bail. Judge Komathy disagreed with her superior’s arguments in that instance and freed Bon on bail. Nevertheless, the possibility of influence from the AG was real, and still remains.

Fixed costs

There are other issues that need to be dealt with in the lower courts, such as the fixed scale for costs, which has not been similarly adjusted for inflation. A successful plaintiff in a RM100,000 claim for example, would only receive about RM7,000 in costs under the scale, plus disbursements.

A defendant with deep pockets could well afford to drag out a case for years to wear down the plaintiff. Even if the defendant loses, the costs awarded to the plaintiff would hardly be prohibitive. Similarly, a plaintiff with a frivolous suit can still afford to sue as even if the suit was unsuccessful, costs would still be relatively low.

This is unlike in the High Court where costs are not awarded by a fixed scale and tend to be much higher. The low-costs award is likely to result in cases which should have been settled or never been brought at all languishing in court, contributing to the backlog.

Govt’s intention

Improving the court system will not happen overnight. Indeed, measures need to be taken step by step. The government, however, could have chosen to deal with other aspects of the lower courts that really need improvement. For example, the quality and independence of judges.

However, these aspects, although crucial, require harder work and political will on our government’s part to restore complete independence to the judiciary. The fact that the government has focused instead on a monetary increase of jurisdiction, without adequate consultation and study, draws a question mark on whether our leaders are serious about reforming the courts.

Ding Jo-Ann feels justice shouldn’t have to depend on whether you’re lucky enough to get a judge capable of understanding the arguments involved.

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