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Trials need fairness, not just haste, Bar tells ex-CJ

Former chief justice Tun Zaki Azmi reportedly urged judges to be more selective in allowing postponement of cases. — Picture by Yusof Mat Isa
Former chief justice Tun Zaki Azmi reportedly urged judges to be more selective in allowing postponement of cases. — Picture by Yusof Mat Isa

KUALA LUMPUR, June 19 ― The Malaysian Bar has expressed its disagreement against former chief justice (CJ) Tun Zaki Azmi, who reportedly urged judges to be more selective in allowing postponement of cases.

Its president Abdul Fareed Abdul Gafoor also noted that Zaki has suggested that the Federal Court issue a ruling where ongoing trials “should not be held back just because of interlocutory applications by lawyers”.

“An interlocutory application may well be merited, and should not be unfairly construed as merely an act intended to delay the main trial. Such applications are well within the rights of every litigant.

“Tun Zaki’s view is unacceptable, as a main action cannot run parallel with an interlocutory application, or any appeals therefrom,” Abdul Fareed said in a statement.

He also recalled a period of time when the Judiciary, then headed by Zaki, was focused extensively on clearing the backlog of cases.

“This resulted in what was perceived to have been an over-emphasis on the speed of disposal of cases. The zealousness of this approach led to instances of injustice, particularly in criminal proceedings in the lower courts,” he said.

He cited instances where the public might not be able to engage the counsel of their choice, as many lawyers had difficulty in coping with the speed of disposal of court matters.

“There were also instances where courts proceeded with criminal trials without the accused person being represented by counsel,” Abdul Fareed pointed out, adding that lawyers did not have sufficient time to adequately prepare for their cases.

He also explained that the criminal justice system requires a more detailed and tempered approach, as the problems faced are different from those of the civil courts.

Expediting hearings may not be entirely in the public interest if doing so results in more instances of flawed acquittals, or an accused is denied the right to a proper and full defence, Abdul Fareed added.

He also commented on the postponement and adjournment of cases, labelling it as a significant part of the independence of judicial officers.

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

“Any ruling that removes this crucial element of discretion would significantly restrict the effectiveness and value of the judicial process.  Litigation is not an exact science, and a certain degree of latitude must be permitted, to account for the vagaries of legal practice,” he explained.

Abdul Fareed said that the true reasons behind any case backlog must be correctly identified and understood.

He also called for administrative reforms to increase the efficiency and effectiveness of the judicial process, in tandem with reforms aimed at bolstering  judicial integrity and independence.

The Bar president also reiterated his call for the establishment of the Royal Commission of Inquiry in relation to the allegations of judicial interference and misconduct, and for its terms of reference to be expanded to include recommending holistic proposals for comprehensive reforms to strengthen the Judiciary.

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