[UPDATED] Lawyers to waste more time waiting in Court – WWBCD?

[UPDATED with Bar Council’s response]

What is the Bar Council going to do to ensure that lawyers are not made to waste their time in Courts waiting for their cases to be called, especially as Courts will now start sitting from 8.30a.m. and not 9.00a.m. as before.


Courts to start at 8.30 a.m.

From July 1, 2010 all Magistrates, Sessions, and High Courts in Malaysia will commence proceedings from 8.30 a.m. and not 9.00 a.m. any longer. In theory, this sounds good – longer working hours, so perhaps more work will be done. In reality, this is a recipe for more inconvenience to litigants and lawyers alike, and also puts undue pressure on Judges.

This is because the Courts do not schedule their matters but fix everything to start at 9 (and soon 8.30). The government builds courthouses with inadequate parking and public transport facilities, so everyone is in a mad rush to get to Court at least half an hour to an hour before Court starts just so we can find a decent place to park. Our matter, fixed for 9.ooa.m., is then only called up for hearing about 2.00p.m. or 3.00p.m. – sometimes 4 to 5 hours later.

Take these two examples:

A morning in the Kuala Lumpur Courts

On Thursday, 24 June 2010 I was privileged to be at the “fishmarket” (as it was described by another lawyer) that is the case management centres on the 4th and 5th Floors of the Kuala Lumpur Court Complex, Jalan Duta. I had the job of delivering to the Registrar the written submissions and bundles of authorities we had prepared for our hearing, and to fix a suitable hearing date to appear before the Judge.

(Yes, mum and dad – that’s why you spent that fortune putting me through 4 years of law school!)

Anyway, again, the Registrar fixed the matter before a Judge at 8.30 a.m. on a date in July. I asked for a later time – the Registrar said she could not, all matters were fixed at 8.30a.m. and we could liaise with the Court concerned directly to “stand down” the matter to a later time if we had other cases on that day.

So, every lawyer is going to be turning up at that Court (at 8.30 a.m.) in order to wait till their cases are called. Hardly anyone will call the interpreter the day before, and in any event such adjournments are usually done on the morning itself and because we have another Court to be at – not because we have to do work in the office.

Valuable hours will thus be wasted whiling away our time waiting rather than working.

A morning in Shah Alam

On Monday, 21 June 2010, I was in the Shah Alam High Court for “case management.” I received a notice from Court dated 10 June 2010 informing me that my case was fixed at 9.00 a.m. on that day, and stated amongst other things that the actual counsel in charge of the file must attend and that no “MOB” would be allowed. I construed that to mean that I could not ask the Plaintiff’s solicitors to “mention on [my] behalf” at the case management.

I therefore attended Court that morning. I found 3 lists for case management that day. There were a total of 22 cases (with one fixed for 2.30 that afternoon). All the other cases were all shown as fixed at 9.00 a.m. There were thus about 25 lawyers waiting in the corridor of the Menara MRCB, Shah Alam where the Court was located. I presume that in the case of the other 20 or so lawyers who must have been required to attend, they were at that time away attending to other matters.

There were chairs all along the corridor, but no space to do any work. The lawyers were sitting down chatting to each other or reading a book. In one case, a lawyer was reading through a submission and making some notes, albeit with great difficulty and juggling her files on her lap to read through the documents. Her posture was such that I have no doubt she will soon be complaining about lower back problems.

My case was no. 5 on the first of the three lists. However counsel for the other side and myself were eventually called in for case management only at about 11.15 a.m. We informed the Court that we were in the process of settlement and requested another date (which the learned Judge allowed since we indicated that the prospects of a settlement were promising).

I make no complaint about the case being called up with only about 11 days notice, without asking whether the counsel attending the matter was free (since it so happened I was free). I am also grateful that the learned Judge listened to our arguments quite judiciously and gave us time to settle, informing us that if no settlement was reached, strict timetables would be given for submissions and so on (it was an affidavit based hearing).

Why no scheduling?

However, my complaints are as follows:

  • Why were all 21 cases fixed at 9.00 a.m.? Why was there no staggered scheduling for the case managements?
  • Why was there no mechanism for parties who wished to take another mention date to obtain the same from a Registrar?
  • Why isn’t a suitable waiting area provided for lawyers to do some work whilst waiting for their matter to be called up?

I was only able to get back to my office in KL from Shah Alam at about noon on that day. There were thus at least 2.5 valuable hours of my morning from 8.30 a.m. totally wasted (excluding the time for hearing and travelling time) where I was not able to do any work.

With some limited scheduling, and providing suitable workspace for lawyers in Courts, lawyers would be in a better position to comply with directions on documentation issued by the Courts as well as to maintain some quality of life.

Those lost working hours result in lawyers staying very late at the office. This means they do not have time to exercise, spend time with their families or have activities outside their work. This is unhealthy, both for the lawyers physical health and for the administration of justice generally as a healthy body makes for a healthy mind.

I understand that it is in the nature of a litigation lawyer’s job to wait. There is no way to ensure pinpoint scheduling, and I do not expect that. But surely the following would help immeasurably in promoting the quality of life for litigation lawyers:

a) An attempt to schedule cases at reasonable intervals (I would suggest a mix of 1.2 hour and 1 hour intervals depending on the type of cases being heard);

b) Publish the schedule beforehand;

c) Put in place a mechanism for parties to quickly sort out administrative matters with the Registrar, where necessary, without troubling the Judge;

d) Have a proper area for lawyers to do some work whilst they wait for their cases to be called.

Naturally, the 1/2 hour schedules would be considered indicative only and subject to the actual time required to complete hearings and would not preclude urgent cases being slotted in on a case by case basis.

I would ask the Bar Council to make representations for systemic changes to be made so the above is achieved, and to lodge a strong protest at the Court’s move to list cases at 8.30 a.m. from 1st July 2010 unless a Practice Direction encapsulating the above scheduling requirements is also introduced.

[UPDATED on 1 July 2010] WWBCD? Believe it or not, the BC had already done something! They told the CJ it’s a bad thing. To his face. Such courage! But unfortunately, the CJ told them too bad, its already decided but try it out for 3 months and see how lah. So the BC said OK, but got CJ to agree to implement staggered hearings times. Anyway, lets see.

Here’s what the Bar Council’s Circular No. 145/2010 says:

At the meeting with the Chief Justice on 3 June 2010 the Bar Council expressed its concern to the Chief Justice that the Practice Direction would cause hardship to both lawyers and litigants and conveyed the fear of some lawyers that judges would strike out cases if parties were not present at the required time.

The Chief Justice said that he had already issued the direction and that all parties should give this a try for the next three months to see how the system works. He said that the Practice Direction would not be applied strictly and assured the Bar Council that cases would not be struck off until the close of sitting for the day.

The Chief Justice also agreed to the suggestion from the Bar Council that courts could implement a system of staggered hearing times. The Bar Council will revisit this issue with the Chief Justice at the end of September 2010.

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Shanmuga K sometimes sees a purple banana emerging in his sub-conscious. An article seems to then be magically written. He is @shanmuga_k on Twitter. When he does not see those purple bananas, he practices as a lawyer at www.kanesalingam.com

Posted on 30 June 2010. You can follow any responses to this entry through the RSS 2.0.

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8 Responses to [UPDATED] Lawyers to waste more time waiting in Court – WWBCD?

  1. Jonathan

    Why the parties are made to pay if due to professional negligence ?In my case,the trial judge sustained a PO on Or.78(3)(3)and yet still considered the issue.Then the losing party appealed but got struck off due to leave was not first sought.

    Isn't that justice should be based on the merits of the case rather than defeated by technicality or professional negligence?

  2. Eunice Ong

    I reached court at 830 this morning, only to have my case called up at 930!!!

  3. Oyster, because that is the sensible, practical and reasonable thing to do. And this type of suggestion is contrary to Malaysian Public Policy which is to fleece its citizens and make life as unnecessarily difficult, corrupt and mediocre for them. That was my first thought when I was a pupil in chambers and that was about 11 years ago.

  4. Oyster

    I am not from the law faculty but am working as a profesionnal… Why is it that the courts do not schedule any of the cases and rather being inefficient and get everyone to come at the same time …. it sound more like a fish market (first come first serve) rather than a court

  5. In fact, Tun Hamid's judgment in Kok Wah Kuan v PP (2007) was concurred to by the current CJ and PCA, and Fairuz CJ at that time. Only CJ(S&S) dissented on this point, though concurring in the result. The majority upheld the argument that "judicial power" had effectively been excised from the Federal Constitution by the 1988 amendments, and the courts were thus dependent on federal law to limit their jurisdiction and power. This effectively makes the High Court an administrative tribunal subservient to Parliamentary will.

  6. art harun

    And do you all know at whose behest this 8.30am start work order come from?

    No. Not the CJ mind you. It is from Idris Jala the Minister! Yes. The EXECUTIVE now decides everything INCLUDING ON WHEN OUR JUDGE SHOULD START HEARING CASES!

    And to think that our brilliant and supremely powerful SEE JAY would agree to KOW TOW to the Executive on this.

    Simply brilliant.

    ps no wonder Tun Hamid held that separation of powers is not part of our Constitution. Perhaps the CJ and Idris Jala are just following that Federal Court judgment!

    I just want to kill myself.

  7. Azman Thaiyub Khan

    i was in Shah Alam High Court today to obtain 2 decisions from the judge. This matter was initially fixed before a different (1st) judge but on the last date which was supposed to be the decision date, i was told that the (1st) judge is transferring the file to the (2nd) judge i was appearing before today. I was given today's date since the (2nd) judge only received the file at the last (decision) date.

    Today my matter was not listed and upon query, i found out from the interpreter that my decisions files have been re-distributed and the decision will be delivered by another (3rd) judge. Apparently court had sent out (or is currently in the process of sending out, or maybe even just drafting, or even just thinking of drafting) letters to inform me of this change and that my presence in court today is unnecessary.

    I am now to wait for the letters from court informing me of the fact (that i already know now) and wait for a new date for my decisions before judge no.3.

  8. The long and short of it Shan is that the Bench does not view the Bar as a partner in the administration of Justice. The general attitude emanating from the Bench is that we are a nuisance and should be at their beck and call whensoever it is suitable to them. Why? Because they are the fountains of justice and so we must all dance on the edges of our toes for them. There is no consultation, there is no discussion, there is no seeking of ideas from the Bar. This whole KPI is just a huge self-publicity effort on the part of the current Chief Justice to demonstrate that he is doing something with the judiciary failing to understand that all he is doing is making the merry go round faster and faster.

    Is it any wonder that no matter what the case management system they throw at the litigation process, it just results in an overall reduction in quality. Like now, cases are being set for trial and pushed through as quickly as the flip of a coin without any care or thought on the volume and pace on the judge and litigants – are there any qualitative evaluations being made on the decisions being decided under this KPI Expedite? I seriously doubt it especially if some of the recent decisions of the Federal Court are anything to go by.