Civil Procedure - Summary Judgment

In the Rules of High Court 1980 and Subordinate Courts Rule 1980, one will find provisions which allow parties with claims to pursue a quick Judgment against the other side. This is referred to as Summary Judgment. You will find it in Order 14 and Order 26A, respectively.

A party with a claim would usually refer to the Plaintiff suing a Defendant, but a Defendant with a Counter Claim against the Plaintiff may also apply the same.

Basically the party seeking Summary Judgment would have to show the Judge that they have a claim so good that a Trial is not necessary. Usually Banks suing defaulting borrowers will use this procedure for a quick Judgment.

The party facing this application would need to show at least one of these in Court:-

1. that there are issues which can only be ventilated and decided in a Trial, or

2. some other reason which the Court deems fit to call for a Trial.

In DCB Bank v NS Bahtera [1999] 2 AMR 1790, the High Court held that a party seeking summary judgment has to show at least a prima facie case against the other party, before the other party is expected to show one of the 2 above rebuttals.

Lawyers in training (The Star)

Lawyers in training

KDU College’s Law Society organised a Law Day on campus recently with the aim to produce ‘Generation Y’ lawyers who are instilled with awareness of current legal and humanitarian issues.

Three esteemed speakers were invited to share their views with the students. Rev Prof Michael Tate, a lecturer in International Humanitarian Law from the University of Tasmania, Australia, former state senator and former ambassador to The Hague, spoke about various international humanitarian issues including genocide, the Darfur crisis in Sudan, as well as the proceedings of the International Criminal Court.

A mock trial in session at the college’s moot court. The Law Day organised recently saw an exhibition of wit and wisdom by accomplished lawyers, ably assisted by students as junior counsels. — File photo

He discussed the need for young lawyers to be the agents of change within the local and international framework and prescribed the means of achieving those ideals.

The next speaker, human rights lawyer and activist Roger Chan, pushed forward issues that were closer to home. Chan, who is also deputy chairman of the Environmental and Humanities Committee of the Kuala Lumpur Bar Council, gave a compelling speech which argued that human rights was the inherent right of every citizen.

The crowd listened intently as Chan contextualised his speech in light of a series of protests that took place in the Klang Valley.

Both Rev Prof Tate and Chan’s speeches were followed by lively question and answer sessions.

Evidently, the students were susceptible to this new idea of change, but being curious legal students, their questions raised various levels of arguments that were dealt with admirably by both speakers.

Chairman of the KL Bar Constitutional Law Committee Edmund Bon took a proactive approach to the question and answer sessions. He engaged with the audience on contentious issues such as the abolishment of the Internal Security Act (ISA) and the opening of Universiti Teknology MARA (UiTM) to non-Malay citizens.

That sparked a debate amongst the students who either defended the status quo or spoke up against it. And in his stinging words, “the worst place in hell is reserved for those who do not take a stand”.

Compelling arguments were made on both sides, which saw differing views and opinions vocalised. At the end of the session, Bon enlightened the audience with the current state of Malaysian law and a prospective look into the legal system.

The day came to a close with a moot exhibition (a mock trial set up to examine a hypothetical case).

Accomplished lawyers, Richard Wee and Sunil Lopez from the firm Richard Wee Lopez amazed the audience with their wit and wisdom as counsels.

Assisting them as junior counsels were University of London final year students Faraz Ali Rojid and Yip Xiaoheng.

The exhibition was riveting, as not only did the lawyers put on an excellent show in educating the lawyers-in-the-making, but they also made it fun to watch as it was given a generous dose of humour.

— By RANJANI DHANABALAKRISHNAN

(second year law student)

Armed to fight piracy (The Star)

Armed to fight piracy

By HARIATI AZIZAN

Come this time next year, the Government may be taking action against anyone who owns even one pirated DVD, VCD or CD.

WHILE her friends – and throngs of other young girls nationwide – swamped the local cinema over the past week to catch the vampire blockbuster hit they have been waiting for, The Twilight Saga: New Moon, media student Misha Ahmad, 19, was rushing to her neighbourhood VCD* shop to get the vampire film she’d been coveting for months –Thirst.

The South Korean thriller, which won the Jury Prize at the Cannes International Film Festival last May, is one film that will never hit the Malaysian cinema circuit, says Misha.

“It is critically acclaimed but you don’t get to watch movies like this in the cinema here because it may be too risqué for our censorship board. You can’t even buy the original DVD here because of the censors,” she says.

And that is why she buys a lot of pirated discs, she shares, adding that she spends around RM100 a month on them.

Massive swoop: The Domestic Trade, Co-operatives and Consumerism Ministry’s enforcement division seized more than RM300mil worth of pirated discs from 2004 to 2008.

“I love foreign and art films and the only way I can get them is from overseas, Amazon.com or the (pirated DVD) store. And when you can spend RM15 down the road instead of RM150 plus travel or delivery expenses, which one will you choose?” she argues.

For bank clerk Amin Saad, 36, buying pirated discs is more of a necessity.

“I have three children, so one family outing to the cinema would cost me at least RM50, and that does not include meals or even snacks. If we buy a DVD, it will only cost RM10, no transport, and we can make the food ourselves. And we can still enjoy watching a movie together,” he says.

Whatever the reason, watching movies on pirated discs is one of the most popular Malaysian pastimes.

Similarly, pirated music discs are also a hit with many Malaysians.

It is no wonder that the recent news of the Government’s plan to prosecute anyone caught with even one pirated optical disc (DVD, VCD or music CD) – regardless of whether it is for personal use –has created a big stir.

As Domestic Trade, Co-operatives and Consumerism Minister Datuk Seri Ismail Sabri Yaakob who mooted the measure warned, owning pirated discs, even if only one, is an offence.

“If we are to protect the creativity of film producers, music composers and the like, we must not only educate people but also mete out stiff penalties,” he said.

The advent of technology, which has made it easier to pirate material, and the huge demand, has boosted the local pirated disc market, he said.

The ministry’s Enforcement Division seized more than RM300mil worth of pirated discs from 2004 to 2008. Last year alone, the ministry seized more than RM20mil worth of pirated discs. As of September this year, up to 618, 618 pirated discs have been confiscated.

According to director-general for enforcement Roslan Mahyuddin, however, the number of pirated optical disc operators has decreased or gone underground, making them difficult to trace.

As of Sept 2009, only 177 “pirates” were arrested compared to 532 for the whole of last year. Hence, cutting demand is an important enforcement measure.

The Police reportedly have long mulled over hauling up those who buy or are in possession of pirated discs to put an end to such syndicates in the country.

For instance, in Penang where piracy is rampant, the state police chief has revealed publicly that their operations against pirated disc retailers have not been effective, and it is seriously deliberating such a drastic action.

For this aim, the Government said that it will propose amendments to the Copyright Act next year.

Richard Wee, chair of the Kuala Lumpur Bar’s Information Technology Committee, lauds the Government’s proposed move, describing it as a positive step that will ensure less leakage to piracy.

Currently, he explains, there are provisions in the Copyright Act that allow the authorities to conduct search and other action but any amendment must take into account the Presumption of Innocence and the rights guaranteed in our Federal Constitution. “There must be safeguards in the amendments (which I presume will be in that Copyright Act).”

Wee adds that there are other measures that need to be taken for a tougher action against piracy and illegal downloading.

“The usual way is to impose an extremely high penalty. Also, the law may allow the authorities wider power of seizure and search, but with the public perception of not trusting the authorities, I would not recommend this at all.

“Instead, the authorities should embark on a ‘persuasion’ approach: not by producing sub-standard campaign via Filem Negara but by showing (for example) the ‘making’ of the movies’ – show people how difficult it is to produce a movie. The usual education thingy – go back to school; tell our kids to buy original. They must also persuade the DVD producers to lower the price of the original.

“I think my views here are not new but I will say something extra. I would prefer to stamp out illegal DVD but if all else fails, please consider legalising the illegal DVD producers. Collect tax from them and use that tax to pay the movie makers.

“I know this is a simplistic way and I know many will attack this plan. But think about it and see how we can make it work (if we do agree to do this). The mechanism and other details can be worked out,” says Wee, who believes that both the suppliers and consumers are to be blamed.

“If the consumer respects the concept of creativity and originality, then we will not be in this mess. But at the same time, original DVDs/CDs are outrageously priced. I cannot understand how a show which can be seen at a cinema for RM10 can be sold in DVD form for as high as RM100.

“While I understand that a DVD can be watched anytime (hence the higher price), the cost of making a DVD is so low it does not make sense to charge so high. So, this high price obviously drives the demand (for pirated versions) up.”

While pirated DVDs/CDs is an urgent problem, the Internet is also a massive issue to combat, he adds.

“In my view, bodies like the Malaysian Communications and Multimedia Commission (MCMC) etc must take steps to ensure movies and songs are not illegally available to be downloaded on the net to ensure this proposed crackdown will work. There is no use imposing a stiff penalty when an ordinary Malaysian can go to a website and download a movie.”

Not surprisingly, most industry players laud the move.

Monteiro: 'The question is, how do we sustain the creative industry in the country.'

As Universal Music Group International senior vice-president for Asean Sandy Monteiro puts it, piracy has decimated the creative industry in Malaysia for the last 15 years.

The Malaysian music industry, for instance, has been recording an annual reduction in its revenue in the last decade – from the high average annual sales of RM200mil in the late 1990s to the current average of RM80mil a year.

“It is not the question of how we get rid of pirated discs. The question is how do we sustain the creative industry in the country. The industry needs to get the support of the public, and if they cannot do it out of the goodness of their heart, maybe the Government needs to be more aggressive,” Monteiro says.

“If the proposed move creates a disincentive or discourages people from buying pirated products which will help our creative industry survive, then I say why not?”

Calling the move a “bold step”, he adds that the message is more important than the action.

“The primary objective of the proposal is to instil fear in people that if they buy pirated products there is a chance they will be prosecuted. In most cases, the situation can be described as closing the stable door after the horse has bolted but if it creates the atmosphere where there is a flowback to legalised products then this is good.”

Norman Abdul Halim, chief executive officer and president of KRU Group concurs.

“I think taking action is a fair thing to do. Malaysian users are aware that the content is illegal in the first place but they still partake in it,” he says.

“It is a crime. For example, if you knowingly buy stolen goods, you are breaking the law. So, I believe that what the government is trying to do is good.”

Norman says that when the law is enforced or passed in parliament, it will only take action against those who break the law. “It will help stop people from buying pirated materials,” he stresses.

There are also many in the industry who feel that the Government needs to eliminate the supply first.

“But I think the supply is driven by the demand,” says Norman. “The big issue is the demand, so that is why it is equally important to take action against those who break the law by buying pirated stuff.”

Malaysian Film Producers Association president Ahmad Puad Onah stresses that pirated goods should not be in the market at all.

“The authorities should make sure that they are not available, not chase after the people who buy them. As long as people see them in the market they will not think that they are illegal and will buy it.”

* “VCD, DVD and CD” is used interchangeably to refer to optical discs with video or audio data.

Divorce Laws for Muslim in Malaysia

The laws on Divorce for Muslims are different from that of the non-Muslims in Malaysia. The latter is governed by the Law Reform Marriage Act. You may see our comments on Divorce Laws for non-Muslims in Malaysia in our earlier Posting.

For Divorce Laws amongst Muslims in Malaysia, we feel it is best if you visit this link:-

1. http://www.jawi.gov.my/melayu/index.php?option=com_content&view=section&layout=blog&id=6&Itemid=8

or

2. http://www.malaysia.gov.my/EN/Relevant%20Topics/Society%20and%20Life/NonCitizen/nFamily/nMarriage/nDivorce/Pages/Divorce.aspx

Thank you

IT Law : Godfather of Spam in prison

"Godfather of Spam" goes to prison for four year

Alan Ralsky, the so-called "Godfather of spam" was yesterday sentenced by a federal judge in Detroit to spend the next 51 months of his life in prison for wire fraud, mail fraud, and violations of the CAN-SPAM act.

Not content simply to move boxes of pills or to sign people up for new mortgages, Ralsky's operation instead pulled in millions of dollars through "pump and dump" schemes of thinly traded stocks in companies you've never heard of. Millions of e-mails would announce some hot new "Internet IPO!!!!!" just about to drop, and—amazingly—some people would want in on the action. Since the stocks in question were low-volume "pink sheets" stocks, even low levels of activity could boost the stock price, at which point the owners would sell and forward tens of thousands of dollars from Hong Kong to the Standard Federal Bank in Troy, Michigan.

This might not sound like a good way to get rich, but the government's court documents showed just how lucrative the practice could be. Consider the list of following payments that arrived from Hong Kong in just one month, July 2005:

• July 5: $180,826.61
• July 11: $211,595.76
• July 14: $13,532
• July 22: $780,295.98
• July 26: $65,590.71
• July 27: $424,963.73
• July 27: $23,702

A scheme like this required a certain amount of sophistication, and Ralsky appears to have run it like a real business. He was the chief executive, and his son-in-law, Scott Bradley, was the chief financial officer. John Bown, CEO of network administration company GDC Layer One, was the "chief technology officer and network systems manager" for the spammers. William Neil served as the chief operating officer and registered many of the hundreds of bogus domain names used by the group.

The conspiracy was global. Although Ralsky and Bradley both lived in West Bloomfield, Michigan, members of their team operated from New York, Brazil, California, Hong Kong, and Dayton, Ohio, and included coders, a stockbroker, a Chinese CEO, and network admins.

Ralsky has been at his tricks for years, and eventually acquired a reputation as one of the world's top spammers. Court documents show that when the spammers recruited someone who claimed he could get 20 million e-mails a day into AOL and Hotmail, the man was awestruck to find out that he was joining Ralsky's operation. "King of spam wants to rent me," he wrote in an instant message. "Cool." (The man eventually made several hundred thousand dollars from his work for Ralsky.)

The Spamhaus description of Ralsky says that "he has grown from a small time operator, under the 'Additional Benefits' moniker, to one of the bigger spam houses on the Internet with a gang of fellow morally challenged types working with him to pump out every type of sleazy deal and scam offer into millions of internet users' mailboxes."

Ralsky wasn't always careful. He would recruit coders from sites like "special ham" (spam) using the "amr777" handle, and his team tried to cloak its e-mail discussions about proxies by using the fairly transparent replacement "p's," "peas," "proximate," and "p s."

Ralsky and company earned more than $2.6 million between May 1 and December 1, 2005 alone, but the feds were closing in. A three-year investigation by the FBI, the US Postal Inspection Service, and the Internal Revenue Service (with a little help from the SEC) untangled the conspiracy. In 2007, the government moved to indict the entire conspiracy.

Yesterday, the lead defendants were finally sentenced after pleading guilty in June 2009. Ralsky and his son-in-law got 51 months and 40 months in jail, respectively, and had to forfeit the cash associated with the spamming scheme. They will be on probation after their release. How Wai John Hui, the Chinese/Canadian CEO who helped arrange the stocks for use in the scheme, also got 51 months. John Bown got 32 months for setting up a botnet used to send the e-mails. A handful of others will be sentenced today.

(to see original article, please click the title above)

IT Law : Apple beats Psystar

Apple earns key legal victory against Psystar

By AppleInsider Staff

Published: 04:05 PM EST

In a crushing defeat for the clone Mac maker, Psystar was on the losing end of a crucial court decision in the company's ongoing legal battle with Apple.

Judge William Alsup ruled this week in a summary judgment that Psystar infringed on copyrights owned by Apple in order to place Mac OS X on unauthorized computers built and sold by the Florida corporation. In addition, Psystar was found to be in violation of the Digital Millennium Copyright Act by circumventing Apple's protection barrier that prevents installation of its operating system on third-party hardware.

"Psystar infringed Apple's exclusive right to create derivative works of Mac OS X," the ruling reads. "Specifically, it made three modifications: (1) replacing the Mac OS X bootloader with a different bootloader to enable an unauthorized copy of Mac OS X to run on Psystar's computers; (2) disabling and removing Apple kernel extension files; and (3) adding non-Apple kernel extensions."

Alsup also denied Psystar's own motion for summary judgment, in which the company attempted to prove that Apple engaged in copyright misuse. The judge ruled that Apple's End User License Agreement only attempts to control use of Apple's own software, which is within its rights.

The summary judgment does not mean that the trial is concluded, however. A number of issues remain to be resolved. Apple has alleged that Psystar has engaged in breach of contract, trademark infringement, trademark dilution, and unfair competition, among other activities.

The ruling was issued Nov. 13 in a San Francisco court. Another hearing has been scheduled for Dec. 14, and trial between the two companies is due to start in January 2010.

The decision came after both companies requested summary judgments, which turned into a positive for Apple and a significant defeat for Psystar.

It's just the latest of many setbacks for Psystar as it has attempted to defend itself from Apple's suit. In September, a member of the Psystar defense teamwithdrew himself from the case. And in July, the Florida-based corporation brought on a new legal team after it emerged from bankruptcy.

The company -- which sells machines with Snow Leopard, Apple's latest operating system, preinstalled -- in October began to license its virtualization technology to third-party hardware vendors. The Psystar OEM Licensing Program intends to allow Intel machines made by companies other than Apple to run Mac OS X 10.6.

Will Anwar be ambushed by trial? (The Nutgraph)

Will Anwar be ambushed by trial?

DATUK Seri Anwar Ibrahim has failed in his bid, at the Court of Appeal, to obtain evidence from the public prosecutor about his alleged act of sodomy with a young former aide. Layperson reactions have naturally been cynical, dismissing the judgment as political in nature.

Indeed, the Court of Appeal's interpretation of Section 51A of the Criminal Procedure Code (CPC), by which it made its judgment, is worrisome from a justice perspective. The judgment nullifies the efforts of the parliamentary select committee which proposed the CPC amendments in 2006 requiring pre-trial disclosure by the prosecution to the defence. The legislature's intention was to "prevent trial by ambush" but the Court of Appeal's judgment in Anwar's sodomy case seems to overturn that principle.

But is Section 51A as clear cut as it is meant to be? And is splitting hairs over its meaning scuppering Anwar's chances for a fair trial?

Meaning of words

Section 51A was introduced to widen the scope of evidence that the defence could obtain from the prosecution. At first reading, it comes across as a clear obligation for the prosecution to make available to the defence evidence that it intends to use during trial.

Section 51A . Delivery of certain documents The prosecution shall before the commencement of the trial deliver to the accused the following documents: A copy of the information made under section 107 relating to the commission of the offence to which the accused is charged, if any; A copy of any document which would be tendered as part of the evidence for the prosecution; and A written statement of facts favourable to the defence of the accused signed under the hand of the Public Prosecutor or any person conducting the prosecution.

The meaning of the words "shall" and "any document" is clear, says member of the Bar Council's criminal law committee, Datuk Baljit Singh Sidhu, who is also the author of Criminal Litigation Process.

"The intention of 51A is to put both parties in a trial on equal footing in the interest of justice. That was parliament's intent. The word 'shall' should be taken to mean 'must'.

Baljit Singh (pic courtesy of

Baljit Singh)

"If the court does not interpret 'shall' as being mandatory, then there is no point to the amendment," Baljit, who is also Gerakan Federal Territory legal adviser, tells The Nut Graph.

"Any document" should also be taken to mean any type of evidence, Baljit adds. It is all the more important when it involves evidence like DNA, for which scientific expertise and time are required if defence lawyers are to analyse it.

However, the Court of Appeal in Anwar's sodomy case decided there were "limits" as to the kind of evidence the prosecution could be asked to produce before a trial. Hence, it overturned the High Court's decision ordering the prosecution to hand over evidence, which included video footage, medical reports, doctors' notes, and witness statements of alleged victim Mohd Saiful Bukhari Azlan, and others. The bench, in rejecting Anwar's cross-appeal for DNA specimens held by the prosecution, also said that the evidence requested did not fall under the category of evidence in 51A.

"The amendment [to the CPC] is as good as non-existent," SN Nair, one of Anwar's lawyers, tells The Nut Graph.

Merely procedure?

The Court of Appeal's written judgment is not out yet, so Anwar's lawyers are still unclear about the basis of the ruling although they have filed two notices of appeal at the Federal Court Registry.

But it does appear that the court reverted to the law prior to the introduction of 51A on the basis of the prosecution's arguments. "The prosecution went back to pre-amendment law arguing that they had the discretion as to what evidence to give and to decide which facts were favourable to the accused," Nair says in a phone interview.

Clause (c) of 51A(1) requires the prosecution to provide a written statement of facts that are favourable to the defence. According to Nair, evidence that is favourable to the accused can only be found in witnesses' statements.

"In witnesses' statements, there could be evidence that potentially saves the accused. Sharing of these facts means the defence gets to decide what is favourable in the interest of fair trial," Nair says.

The High Court granted access to these statements to Anwar's defence team but it was revoked by the appellate court.

Some prosecutors also argue that 51A is a "procedural" amendment and not a matter of law, says criminal lawyer Richard Wee.

Richard Wee (pic courtesy of

Richard Wee)

"While by and large the courts mostly do tell off the prosecution, there are some who buy that argument. They take the view that if a prosecutor fails to adhere to 51A, it's merely a procedural error," Wee says in a phone interview.

Such an interpretation means the prosecution's case can avoid an inconclusive end. If the court were to view 51A as a law rather than procedure, cases could end up much like how blogger Raja Petra Kamarudin was discharged but not acquitted for sedition, simply because police could not find him.

"Similarly," says Wee, "if evidence is not provided by the prosecution under 51A, the defence should be accorded the right to seek for a discharge not amounting to acquittal."

Wiggle room

The repercussions of procedural rather than legalistic interpretation of the law are alarming. Besides placing prosecution and defence on unequal footing, does it also mean law enforcement need not keep to high standards to ensure thorough and fair investigative work?

Shoddy police work is unfortunately a reality, but that's where the law could have been drafted more precisely to plug the gaps. Wee feels that 51A was not drafted specifically enough to take into account the "practical realities of what happens in court".

Some realities include: The prosecution denies before trial to having found any facts favourable to the accused. Or they may produce other evidence in mid-trial instead of evidence disclosed pre-trial. They may argue that new evidence is required in response to the defence's arguments.

Wee feels the wording about making available documents "which would be tendered as part of evidence" limits the kind of evidence that can be requested for and gives room to the prosecution to wiggle out of it.

"It would have been better to say 'any documents related' to the trial, which would be specific but in a wider sense, covers all other evidence that could be raised during trial," he says.

The obvious conclusion?

Yet, the fact is, there are judges who uphold 51A and ensure it is adhered to, notes Baljit.

"Having case management before trial for evidence to be given to the defence is normal practice and courts will set a date for mention to ensure that all this is complied with," he says.

So if other courts are upholding the law, what else are people to make of how Anwar's appeal was handled other than to think that the judiciary is not free from political interference?

Cyber Law : Powers of MCMC

The primary body governing the internet in Malaysia is the Malaysian Communication & Multimedia Commission (MCMC), governed by the Communication & Multimedia Act 1998 (CMA 98).

The MCMC has many powers under the CMA 98. Today we will focus on one such power.

In Section 51 of the CMA, the Director of MCMC may issue directions in writing to any person regarding the compliance or non-compliance of any licence conditions. Of course the licence holder shall be given time to reply and explain for non-compliance.

This powers would relevant to licence holders to provide network facilities in Malaysia. Granting of licences are referred to in Section 27 to 31 CMA 98.

Failure to comply with the Direction(s) may lead to a conviction with punishment of a fine of maximum RM300,000 or imprisonment fo 3 years, or both. This can be found at Section 53 CMA 98.

Teoh Beng Hock - To exhume a Corpse

At the Teoh Beng Hock Inquest, the family of the late Mr Teoh has requested to exhume his body for a 2nd autopsy. This is in reaction after Dr Pornthip's testimony at the Inquest last Wednesday.

We append below the relevant provision related to this exercise to exhume a corpse. You may find the relevant provision at the LOCAL GOVERNMENT ACT 1976.

BURIAL PLACE, CREMATORIA AND EXHUMATION

97. Exhumation of corpses.

(1) No person shall within the local authority area exhume any corpse or the remains of any corpse otherwise than -

(a) by order by a Magistrate's Court for the purpose of a judicial enquiry; or

(b) under a licence granted by the local authority authorising such exhumation and after payment to the local authority of such fee as may be determined by the local authority with the approval of the State Authority:

Provided that no licence shall be granted under the provisions of parag raph (b) -

(i) where the cause of death was an infectious disease as defined in any written law relating to quarantine and the prevention of diseases; or

(ii) in the case of a corpse that has been buried for less than five years, unless the local authority is satisfied that there are special reasons requiring the exhumation.

(2) Any person who exhumes or causes to be exhumed or permits to be exhumed any corpse or the remains of any corpse contrary to the provisions of this section or who shall neglect or fail to observe any precaution prescribed as a condition of the licence to exhume or who fails to comply with any reasonable directions issued to him by a local authority for the purpose of preventing danger to the public health shall be guilty of an offence and shall on conviction be liable to a fine not exceeding five thousand ringgit or to a term of imprisonment not exceeding one year or to both such fine and imprisonment.

The deal about Judicial KPIs (The Nut Graph)

(From the Nut Graph)

22 Oct 09 : 8.00AM

By Ding Jo-Ann
dingjoann@thenutgraph.com

Chief Justice Tun Zaki Azmi

THE setting of key performance indicators(KPIs) for judges is being touted as the mechanism that will turn Malaysia's beleaguered judiciary into an efficient, justice-dispensing system. Chief Justice TunZaki Azmi has made improving judicial efficiency his personal mission. "I want to ensure that justice is produced fast. Clear the backlog. If I can do this, then I would be very happy," he reportedly said shortly after taking office in October 2008.

Superficially, this seems to be cause for celebration. Judges having measurable monthly targets should theoretically result in greater efficiency. But do KPIs for judges make sense? Can the dispensation of justice be measured in this way? Is this a long-term solution that will restore the judiciary's reputation, or is it just a cosmetic fix that is wreaking havoc on lawyers, their clients and the administration of justice?

Rushing out justice

Although KPIs look good on paper, the stories on the ground suggest that some judges are so obsessed with meeting their KPIs that they are willing to sacrifice being fair and thorough, resulting in justice being compromised.

"A judge told me my case had to be finished because of the KPI," says one lawyer. "We had fixed specific trial dates months ago because my client, who was overseas, could only attend on those dates. [But] a few days before the trial, the judge [suddenly] insisted the witness attend one day earlier."

When told that the witness could not be present on the new date, the judge said: "I don't care. We have to proceed on this date. Get another witness. If not, too bad, we continue with the case."

This lawyer and several others The Nut Graph spoke to declined to be named so as not to jeopardise ongoing cases should the judges involved hear of their complaints.

Another lawyer says that some judges are no longer giving sufficient time for proper legal research to be done for submissions after a trial is concluded. "After several days of trial, the judge wanted us to make legal submissions the very next day," the Kuala Lumpur lawyer said. "When we protested, the judge checked whether the KPIs had been met for that month. Upon confirming that it had, then only were we given more time."

The lawyer says that in the past, lawyers were given at least two weeks to consider the evidence and conduct further research to back up their submissions. She argues that as a result of the pressure to complete closing submissions in record-breaking time, decisions may not always be correct because they would not be based on research to rebut fresh evidence.

Worse, there have even been reports that criminal cases proceeded without the presence of the appointed defence counsel. Considering that drug-related cases at the High Court involves the possibility of the death penalty, the current efficiency drive can seriously compromise the more important need of ensuring a fair trial for the accused.

"We agree that matters should go on, without a doubt," says Penang lawyer Jagdeep Singh Deo. "But this must be balanced with the fact that [appointed] counsels should be allowed to be present when the case goes on."

Richard Wee

Jagdeep recounts that one particular drug-related case in Penang involving the death penalty went ahead even though the defence counsel could not be present. "It is quite ironic," he continues. "In a capital case, if the accused is not represented, ordinarily the court will assign counsel because to be fair, the accused must have counsel." But in the mad rush to meet KPIs in the particular case Jagdeep was recounting, justice could not have been done.

Lawyers also complain that each court is also now demanding priority when fixing trial dates. When lawyers cannot be present at two different courts at the same time, they are accused of taking on too many cases. Sometimes they are asked to hand over cases to their colleagues if trial dates clash.

Lawyer Richard Wee feels this could be unfair to clients. "If some lawyers take on too many cases that they cannot handle, I agree they must cut down but the judges cannot force us to drop cases that we have been handling for more than five years," he says in a phone interview.

"We must be given time, for example, if we are told, 'By 2010, no more adjournments will be granted on the basis that you have another case to handle', then we can inform our clients as well."

Speed vs quality

But not all lawyers think that chasing after KPIs has resulted in justice sometimes being aborted.

"Generally, I think the KPIs are quite good. They are moving the cases much faster and judges are accountable in situations where cases are being postponed unnecessarily," Khaizan Sharizad Abdul Razak says.

Wee, however, believes that there are problems with the implementation of the reforms.

"There is an unnecessary feeling of wanting to make everything fast at the expense of justice," he says. "The law should always cater for all. The courts should have the flexibility to slow down certain cases."

Seira Sacha (pic courtesy of Seira)

Lawyer Seira Sacha Abu Bakar argues that KPIs for judges don't work and other measures should be used to improve the judiciary. "Judges' competency must be looked at in terms of how they perform when hearing cases and in giving sound judgments... In their rush to commence and complete trials, there is a risk that judges may overlook some issues," she argues.

Cannot go back

Bar Council president Ragunath Kesavan reveals to The Nut Graph that the Bar Council has been in talks with Zaki who assures them he's looking into all these "teething problems". Whatever happens next, Ragunath says, the system cannot go back to how it was before.

"This is a work in progress. We had a system that never worked previously. No one wanted to deal with the system and overhaul the system... We have not reached an ideal system but we can't go back to the old system which doesn't work. Changes have to take place," he says.

Wee concurs that Zaki is trying. He says Zaki replies promptly to e-mails and constantly meets with the Bar Council and the state bar committees. "Before him and [previous Chief Justice] Tun [Abdul] Hamid [Mohamad], we were never consulted."

Ragunath Kesavan

But these efforts aside, Ragunath says that for the system to work, judges themselves must be able to speak out if the KPIs cannot be met for valid reasons. "We've been told that the [chief justice] will not interfere with the running of each court. Therefore, the judges should put their foot down if they feel they cannot comply with the KPIs. If they cannot finish a particularly complex case and need more time, they should be prepared to justify this and not just say, 'I have KPIs, I have to finish the case now'."

There's no doubt that everyone wants a more efficient judiciary. "We all want cases to be disposed off quickly, but this must be balanced with a proper hearing of the case," Seira argues. That, instead of just speed, is what lawyers are saying will ensure justice and fairness.

"It's a good thing to clear the backlog but there should be certain caveats to it...The discretion of the judges must be applied without having KPIs as a consideration," Jagdeep says. "The bigger consideration, the paramountconsideration, is justice."

Injunction

Usually an Injunction is described as an Order to stop an act. There are many types of Injunction, but generally, the interim/interlocutory injunction is the usual Injunction sought in Court.

The Rules of High Court 1980 has a specific provision to guide Judges & Lawyers on the procedure to apply for an Injunction, specifically Rule 29. The most famous case quoted would be the American Cynamid case where the English Court gave a guide on when to grant an Injunction. In Malaysia, the case of Keet Gerald adopted and adapted the English legal principles from that American Cynamid case.

The most significant requirement would be the need to retain the position of the Plaintiff. The Court would have to be persuaded that failure to grant the Injunction may cause irreparable damage to the Plaintiff.

Judges in Malaysia do not grant Injunctions freely. Ask any Civil Litigation lawyer, and they will tell you that it is difficult to persuade a Judge to grant the order. Usually it would need strong evidence in support of the Plaintiff to bring the Judge to the Plaintiff's side.

A lawyer would usually file a Writ or an Originating Summon to initiate a suit against the other party. The Suit would have the usual prayers of a mandatory Injunction against the Defendant though in practise, once an interim/interlocutory Injunction is granted, that may see the conclusion of the matter.

The lawyer would also file a Summon in Chamber (SIC) to seek an ex-parte, interim/interlocutory Injunction; and that SIC would be backed up by an Affidavit explaining the reasons for the need to have an Injunction against the Defendant. A Certificate of Urgency is filed together with that SIC to seek leave from the Registrar that the Plaintiff's case be heard as soon as possible, usually on the very day the SIC is filed.

When this SIC is heard before the Judge and if an Injunction is granted; this is an ex-parte interim/interlocutory Injunctions - which is an order granted without the presence of the Defendant, and is usually granted if the circumstances warrant the Court to intervene quickly. The law demands an undertaking from the Plaintiff that should the Injunction be deemed incorrect later, the Plaintiff must compensate the Defendant.

About 21 days later, the Court will fix a new date where the Defendant now may appear in Court to contest the Injunction. Amongst lawyers, this is called the Inter-parte Injunction.

Injunction applications amongst the Civil Litigation lawyers is usually seen as tough, particularly since these kind of applications usually must be filed quickly (sometimes within hours of receiving instructions from the client) and challenging to the lawyer.

In future postings, RWL will comment on popular Injunctions like the Mareva Injunctions, the Anton Pillar Injunction & the Erinford Injunction.