Tuesday, April 5, 2011

It’s time to walk

This post was first published at The Malaysian Insider on 4 February 2011 under the title “Time to walk….for change in the judiciary.”

It was a highly-anticipated gathering of 30 or more. Some would call it an illegal gathering; I called it a group discussion. No, it wasn’t a keris-waving meeting-under-a-tree nor was it an abolish-the-ISA kind of gathering.

It was a gathering which saw highly-specialised professionals (criminal law practitioners to be precise) sharing their grievances and wishing for things to change.

What do you call a group of criminal defence lawyers who are losing their cases just because the Chief Justice is on a personal crusade against backlog cases? Very frustrated lawyers who are contemplating to trade in criminal for civil litigation and very angry ones who are prepared to stage a demonstration in protest of the judiciary’s fast-track system.

Like most gatherings in Malaysia, it didn’t start on time. Instead, it started off with the few who did arrive on time exchanging polite greetings that were quickly followed by perfunctory chats about the legal practice, by-election results and predictions of the next general election date. June 2011 and beginning of 2012 were overheard.

The clock was ticking and those who had taken their seats were beginning to look anxious. Some had even begun to discuss the issues which were on the agenda. Right about 20 minutes past the time when the gathering was supposed to commence, the discussion took off in full force; without any warning, welcome remarks or introduction from the chairperson.

It was clear that most who were present needed to get their frustrations off their chests and as quickly as possible. If I had never placed a bet on anything before due to my pathetic sense of prediction, I am willing to bet now that these lawyers were all on the edge of breaking down and needed intervention desperately.

One very senior and reputable lawyer from out of state said: “We’re not here as sore losers, we’re here because we’re fed up with what our judiciary system has become. We’ve all lost cases before and learned to live with it but what’s happening now is unbearable and completely unacceptable!”

What he was referring to is none other than the already greatly talked about Key Performance Indicator (KPI) imposed on judges by the judiciary more than two years ago, as an attempt to clear up backlog cases. There’s no need for me to go into details about the KPI as this has been written extensively by lawyers like Mureli Navaratnam and Art Harun on The Malaysian Insider.

However, it is worth noting that the KPI was best described by the same senior lawyer as: “Don’t worry. Just decide.” According to him, that seems to be the motto of our judiciary system these days and it is frightening that most judges seem to have adopted the motto with such ease that they can send someone to the gallows without any worry of whether that person has been given a fair trial or not and, in this case, the time of day.

According to another lawyer who is younger, a person is being sentenced to death every week.

Rushing to clear a civil law suit is one thing but rushing the hearing of someone charged with a capital crime is another. What more, when according to those present, most judges enter their courts with the intention to convict, regardless of whether the defence counsel could have successfully proven his or her client’s innocence or not.

Chief Justice Tun Zaki Azmi, the man behind the KPI system, was known to have said this: “Those who complain that we are moving too fast are those who are not ready to proceed with their cases.” According to him, it is necessary for lawyers to be prepared when they come to court and therefore, it is unnecessary to grant more time for defence lawyers to prepare their cases.

Perhaps, lawyers should bring their potties, lunch boxes and doctors along with them to court in the spirit of preparedness. Several lawyers who were present reported that some judges went to the extent of prohibiting them from going to the restroom or lunch break in between long trials.

Case adjournment was also denied most of the time even when it was completely called for such as in the case of a critically-ill counsel or defendant. A judge purportedly said this: “As long as you’re not dead, we’ll go on with the hearing.”

When the Chief Justice decides to impose discipline and expects efficiency from lawyers, one should also expect him to do the same for his judges. Two years in the going and surely this means our judges should be on their way to becoming a top-notch Bench but instead, they seem to have slipped further and further below their benches, quite literally so, as one of the lawyers described.

“Now that the sessions are being recorded, judges are told not to take notes. You can see some of their heads getting lower and lower and lower as time goes by. By afternoon, some of them have fallen asleep during the hearing!”

Everyone burst into laughter as they watched the lawyer mimicked the judges’ heads descending into oblivion.

“You all think this is funny? I’ve got one judge who interrupted me half-way and told me that she couldn’t remember what was said during cross-examination because she was not taking notes.”

The laughter came to a complete halt as it dawned on everyone that it wasn’t funny after all. This signalled those who had not previously spoken to come forth with their own examples of judges contributing to the slow and painful death of our criminal justice system, all in the name of fast-track.

As the cacophony of unhappy lawyers continued to penetrate all four walls of the room, one respectable lawyer from another state finally spoke up and commanded the immediate attention of everyone else.

The grave expression he wore on his face summed up the discussion for that day.

“It is clear. Our judges are no longer interested in the law. Neither are they interested in justice. Their interest lies in disposing of cases.”

As I watched his face and listened to his voice, I knew that this was spoken by someone who is tired, dejected but above all, disappointed and angry. Disappointed with how our justice system has become and angry for the wrongful convictions of innocent people.

The chairperson finally took the floor and asked a pertinent question. “What do we do?”

The lawyer sitting next to me raised his hand and shouted: “I say we march!”

His suggestion was greeted by approval and nods of encouragement by some, but not all. Most who were present looked around uncertainly; unsure whether to support such a drastic measure or to contemplate other options.

They could easily be swayed into supporting the former. I could tell.

“Hang on. Hang on a second. I know you’re all very upset at the moment but I think we should try to engage the CJ first. Let’s come up with a memo with all the grievances you have mentioned earlier on and let me and a few other senior lawyers speak to the CJ first. Let’s wait first before we do anything drastic.” A second option was quickly provided by the chairperson.

“It’s not like we’ve not met with the CJ and told him all the problems lawyers are facing. He knows! But what was his answer? He said all judges are given discretion to run their trials and he can’t interfere,” someone retorted.

“Yes, yes. I know but surely you can’t expect things to change overnight, right?” The chairperson said in an attempt to calm those who were beginning to display their passion more eagerly.

“Yes, we can because people are being executed as we speak. We can’t wait any longer. Change must happen now.”

Datuk Ambiga Sreenevasan, former president of the Malaysian Bar, once said during a historical march: “When lawyers walk, something is wrong.”

I think it’s time to walk again.

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