Saturday, 5 March 2011

[Malaysian Bar:3127] Circular No 049/2011: Mediation Skills Training Course (30 Mar to 3 Apr 2011)

---------- Forwarded message ----------
From: Bar Council <council@malaysianbar.org.my>
Date: 4 March 2011 15:10
Subject: [Malaysian Bar:3127] Circular No 049/2011: Mediation Skills Training Course (30 Mar to 3 Apr 2011)
To: malaysianbar@googlegroups.com


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This circular may also be accessed here.

                
                                               
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[Malaysian Bar:3128] Press Release: Judicial initiatives must be tempered by capacity of stakeholders

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From: Bar Council <council@malaysianbar.org.my>
Date: 4 March 2011 15:48
Subject: [Malaysian Bar:3128] Press Release: Judicial initiatives must be tempered by capacity of stakeholders
To: malaysianbar@googlegroups.com


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Press Release
 
Judicial initiatives must be tempered by capacity of stakeholders
 
The Malaysian Bar reiterates that it welcomes the Judiciary's endeavour to increase the efficiency of the administration of justice by highlighting the numerical disposal rate of cases. However, in order for any initiative to be beneficial rather than burdensome, the needs and capacity of all stakeholders, especially the end-users (including litigants and accused persons), must be factored into consideration.

Bar Council has raised the shortcomings of the implementation of the initiative in regular dialogues with the Chief Justice and the senior members of the Judiciary. However, the Malaysian Bar is disappointed that, notwithstanding the consensus that has been reached on various issues, there are Judges, Sessions Court Judges, Magistrates and Judicial Officers who refuse to abide by the agreement reached between the Bar and the Judiciary.

For example:

(1) Cases are still being struck out before the close of the court sitting;
(2) Hearing dates continue to be fixed without regard to availability of counsel;
(3) Requests for adjournments are being unreasonably refused, even when counsel presents a valid reason, corroborated by documentation;
(4) Decisions are being made without consideration of court papers and submissions, and without adequate deliberation; and
(5) Decisions are being delivered without grounds of judgment.

Furthermore, the criminal justice system requires a much more detailed and tempered approach. The problems faced there are considerably different from those of the civil courts, and expediting hearings may not be entirely in the public interest if this results in more instances of acquittals, or an accused is denied the right to a proper and full defence.

While the numerical disposal rate of cases is meaningful as a mechanism to monitor the efforts to reduce and eventually eliminate the backlog of cases that has long plagued the system, the Malaysian Bar emphasises that there must be no miscarriage of justice in the pursuit of the prompt completion of cases. The paramount objective of the administration of justice must be to achieve qualitative justice in every instance.

In the matter of postponements and adjournment of cases, it is a critical part of the individual independence of judicial officers that they have sole control of cases before them, including the discretion whether or not to grant an adjournment, because they must be guided by the need to do "substantial justice" between the parties.

The Malaysian Bar commends the other mechanisms that have also been implemented, including the introduction of New Civil Courts and New Commercial Courts, court-mandated mediation, a court recording and transcription system, a case management system, audio conferencing and e-filing.

At all stages of the implementation of these systems, options must be available to parties who may currently lack the ability to cope with the changes. Teething problems in the introduction of these new procedures must be addressed promptly. Changes affect smaller law practices much more drastically than large firms, and it must be noted that the legal profession consists predominantly of small firms. 46% of legal firms are sole proprietorships; 38% are single lawyer-practices, and 25% have two lawyers. A further 24% have between three to five lawyers. 88% of firms thus have five or fewer lawyers.

Any reform, therefore, including the pace of such reform, must always take into account the capacity of the legal profession as a whole to absorb and accept the changes. The call by some quarters for firms to merge would not be in the public interest, as it would cause further increases in legal fees.

The courts launched the e-filing system earlier this week, on 1 Mar 2011. In the long run this system will benefit practitioners, but there is currently concern over the lack of information, training, and court infrastructure to cope with the imposition of this system within a short timeframe. Another positive development has been the court recording and transcription system, but transcription must be included in order to provide a holistic service. Measures that push added responsibility back onto lawyers result in an excessive burden, particularly for smaller practices.

The idealism of any judicial initiative must always be tempered with realism, and take into consideration the capacity of the Judges, lawyers and court system. Litigation is not an exact science, and a certain degree of latitude must be permitted, to account for the vagaries of legal practice.

The Malaysian Bar calls upon the Chief Justice to immediately review the implementation of the ongoing initiatives, and to work with the Bar so as to emphasise substantive justice, quality and integrity over quantity and speed in the administration of justice.



Ragunath Kesavan
President
Malaysian Bar

4 Mar 2011

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