An appreciation of the development of the case management system and the problems with using a Key Performance Index (KPI) based evaluation for the performance of judicial quality and integrity by Mahendran Gnasamoothy.
Whilst I had great joy in reading your article on the interview with the Honourable Chief Justice of Malaysia, as a practising lawyer I pray a chance to let the lay man know of the problems that effect lawyers and the man-on-the street alike.
The initial joy the legal profession had experienced when the new CJ took office was short lived as we soon began to realise that he intended to re-introduce a failed system of Track Management into the Judiciary. The system had initially failed in 2001/2002 when The Honourable Dato’ James Foong had introduced it whilst serving as a High Court Judge in Kuala Lumpur. But our fears were allayed when the CJ promised a trial run of the system and to give due credence to feedback from the Bar. That was in February of 2009.
When introduced, the system seemed to work. Cases started to move faster, more judicial appointments from the Bar were made ensuring the introduction of fresh ideals into the Judiciary and a general sense of an increase of judicial fervour was seen. It did not last long.
To ensure the new system worked and self-managed itself, the CJ and his Honourable Team (which included Yang Arif-Arif Dato’ James Foong, Dato’ Raus and the Chief Justice of Malaya) brought into play a KPI system for judges, magistrates, registrars and court personnel to be subject to.
The system, like in corporate and governmental entities, seek to evaluate the productiveness, effectiveness and quality of employees and management by way of statistics derived from targets and goals set by upper management. Normally the system would have been designed by Human Resources teams. The Judicial KPI however is extremely illusive, with the designers and targets of the same a closely guarded secret.
Digressing here, one must note that the Judiciary is not a branch of the Government or any other form of corporate entity. It is a pivotal pillar of democracy and constitutionalism and thus remains a guardian and support structure of our way of life. Viewing it in a way as to make it part of a government structure or corporate entity is the first step towards the collapse of democracy and constitutionalism.
Herein lies the origin of the problems with the Judicial KPI System. It intends to value judges, magistrates, registrars and court personnel’s performances with a corporate structure and system based on quantity rather than quality. It essentially converts the Judiciary into a highly inefficient Corporation, which shall be explained further.
The content and targets of the Judicial KPI System is very much a ‘state’ secret. Whilst the Bar has been promised a publication of it in the light of transparency, as of the 12th of December 2009, the Bar has yet to see it and only rumours exist on the targets of the same. Having qualified that the following is a rumour, legal practitioners understand the Judicial KPI System to require judges in the High Court to finish and close a minimum of 4 cases a month. As for the other subordinate courts, the targets are unknown.
Whilst many a lay person would be joyous to hear that finally the Malaysian courts are doing something about the appalling backlog of cases, said persons should celebrate with caution. The quick disposal of cases is hardly synonymous with fair disposal of the same. This is an extremely disturbing issue primarily because it effects bought the criminal and civil divisions of the Judiciary.
Given that it would wrong and impossible for the Judicial KPI System to base its calculations on the quality of judgments by a relevant judicial officer, the system must inevitably be basing its evaluations on the quantity of files closed. This remains the greatest argument to why the Judicial KPI System can neither be used for the Judiciary of Malaya nor tolerated, explanation follows.
If the former is the way the system is geared, the judiciary has indeed failed miserably, therefore, I hope not. Essentially the use of the former would mean the judgment of a particular judge has been, upon its award, evaluated on quality long before any appeal is decided on (perhaps long before it has been filed). This simply means the team deciding on the quality of the said judgment makes a decision, before hearing of an appeal, of whether the appeal can succeed or not. This is a great miscarriage of justice.
If the latter is true, then the Judicial KPI System works with the principle of better evaluations for judicial officers based on the number of files closed. This would explain the seeming trend of Justice being subject to, after a long time freedom from, preliminary objections and non-substantive non-compliances leading to dismissals of cases and appeals. This means simply “the more files a judicial officer closes the better said person is rewarded”.
The system came into being to remove the backlog of cases, it has not done so. The quality of judgments that achieved the same is, to a greater number subject to appeal. That in itself should speak volumes, preferably not of the wealth of litigants or the burgeoning wealth of legal practitioners. The system has chosen to stay despite the backlog having been relieved greatly by transferring it to the Appeal courts.
Sometimes the best way to clear an attic is to take the junk out and set fire to it. That analogy may fit the current dilemma.
Of course, like most else, the system also suffers from bad execution. Whilst intending to ensure speedy resolution of disputes through trials, no court in Malaya has any stenographers to assist the court in logging evidence from witnesses. After trials, lawyers are required to make legal submissions, normally aided by the Notes of Evidence (obtained from court to ensure parties have the same transcript of what witnesses have said). To ensure speedy trials today, the courts now simply refuse requests notes of evidence and require lawyers to return several hours after completing the trial to make legal submissions. Without proper Notes of Evidence, the accuracy of the submissions based on the testimony of the witnesses is doubtful. The fair outcome of the trial, in both civil and criminal cases is greatly affected.
Even in criminal cases, with particular focus on capital punishment cases, some Malayan High Courts have surprisingly managed to dispose of 60 cases in 2009, averaging a decision on the life of a person to 5 decisions a month per court in some courts. It would preposterous to think that life of one person can be summarily determined in 4 working days a month. If this is read in tandem with the above paragraph, can fair trials in criminal cases with death penalties or lesser be guaranteed.
To a larger extent, the CJ has blamed the backlog of cases on delays caused by postponement and adjournment requests by lawyers. This is hardly accurate. Justice cannot be hurried. The nature of justice, obtainment of evidence and witnesses cannot be hurried. The examination of witnesses cannot be hurried. The submissions after trial cannot be hurried or done without the benefit of the Notes of Evidence as recorded and understood by court. Justice must be allowed a reasonable time to de decided on.
Of course, like any other Malaysian government body, which inevitably is how the Judiciary behaves, many practitioners have had their cases postponed, numerous times, by the courts because judges were on leave, attending courses or simply too busy to hear you. This cannot be the fault of lawyers. The statistics of these adjournments are roughly equal to the amount of adjournments requested by practitioners.
There was nothing wrong the old system of judicial management and hearings. It required fine tuning and more skilled manpower. Giving it that would have simply solved the problem. Taking it out, introducing the fear-causing element of the Judicial KPI System to the Judiciary and speeding trials to break-neck speeds have done absolutely nothing but to make terminal an ailing system.
In discussing all of this, I have said nothing of the non-trial files being rammed through the judicial process and disposed on the flimsiest of grounds. But hear, this hardly affects justice, you still have the trial process in front of you, perhaps that would give a person his fair day in court, only be dismayed. Justice Hurried Will Always Be Justice Denied.