MALAYSIA Court Backlog and Delay Reduction Program A Progress Report August 2011 Poverty Reduction and Economic Management Sector Unit East Asia and Pacific Region Document of the World Bank Acronyms and Abbrevations AGC Attorney General’s Chambers B/F Balance Forward (pending cases transferred from one year to the next) C Civil (abbreviation for tables) CD Compact Disc CLE Continuing Legal Education CJ Chief Justice CMIS Court Management Information System CMS Case Management System CMU Case Management Unit COA Court of Appeal Cr Criminal (abbreviation for tables) CRT Court Recording and Transcription DfID Department for International Development DNAA Discharged not Amounting to Acquittal DPP Deputy Public Prosecutor GOM Government of Malaysia ICT Information and Communication Technology IEG Independent Evaluation Group IT Information Technology JL Service Judicial and Legal Service KL Kuala Lumpur L/A Leave to Appeal (abbreviation for tables) MJU Managing Judge Unit MIS Management Information System NCC New Commercial Court NCvC New Civil Court NEAC National Economic Advisory Council NKRA National Key Results Areas PEMANDU Performance Management and Delivery Unit RM Malaysian Ringgit ROL Rule of Law USAID United States Agency for International Development USD United States Dollar Acknowledgements This report was prepared by the World Bank in response to a request from the Malaysian Judiciary under the Fee-based Service arrangement. It is intended to be an objective assessment of the Federal Court’s recent reform program aimed at reducing case backlogs and improving efficiency in the judicial services. The report was written by Linn Hammergren consultant) under the direction of Yasuhiko Matsuda (Sr. Public Sector Specialist, EASPR, and Task Team Leader) and overall supervision of Mathew Verghis (Lead Economist for Malaysia, EASPR) and Rob- ert Taliercio (Lead Economist for Public Sector Management, EASPR). The peer reviewers were David Bernstein (Sr. Operations Officer, INTSC) and Barry Walsh (LEGJR). The team acknowledges the generous cooperation extended to the Bank missions by the Federal Court as well as the National Economic Advisory Council and the Economic Planning Unit. It is especially grateful to Chief Justice Zaki Azmi for facilitating the meetings within the Judiciary and with other organizations; to his assistant, Mohd Aizuddin bin Zolkeply for setting up appointments and accompanying the consultant to all meetings; to other Justices of the Federal Court and especially Chief Judge of Malaya, Arifin Zakaria, and Justices James Foong Yuen, Raus Sharif, Abdull Hamid Embong, and Suriyadi Halim Omar for taking part in interviews and ensuring that their staff was available; to members of the Court’s administrative offices and especially Hashim Hamzah, Chief Regis- trar; to the registrars and judges of the Kuala Lumpur and Shah Alam High Courts; and to members of the National Economic Advisory Council, the Legal Affairs Division and the Performance Management and Delivery Unit (PE- MANDU) of the Prime Minister’s Department, and the President of the Bar Council, Ragunath Kesavan. Table of Contents EXECUTIVE SUMMARY  ........................................................................................................................................ i INTRODUCTION  ................................................................................................................................................... 1 CHAPTER I: BACKGROUND ON MALAYSIA, ITS LEGAL SYSTEM AND JUDICIAL ORGANIZATION  . ........................ 2 ........................................................................................................................................ 2 Country Background. Judicial Organization, Staffing, and Resource Allocations  . ............................................................................ 3 CHAPTER II: THE REFORM PROGRAM: 2008 TO PRESENT  . ................................................................................. 15 Reform History and Overview of Objectives.................................................................................................... 15 Strategy  .......................................................................................................................................................... 17 Reform Components  ...................................................................................................................................... 19 Next Steps  ...................................................................................................................................................... 36 Additional Reform Elements outside the Court Program  .............................................................................. 37 Corruption  ...................................................................................................................................................... 42 CHAPTER III: ACHIEVEMENTS OF THE 2008-2011 REFORM  ................................................................................ 43 Key Indicators of Results as Used Internationally and as Adapted to the Malaysian Program  . .................... 44 Other Findings  ................................................................................................................................................ 56 Further Recommendations as Regards Further Data Collection and Statistical Reports................................. 59 CHAPTER IV: LOOKING AHEAD  ............................................................................................................................ 61 Areas Already Targeted to Complete the First Phase Reforms and for Work on the   Proposed Second Phase  ............................................................................................................................. 61 Areas Suggested for Immediate Attention or for Inclusion in Future Programs  ............................................ 64 Suggestions for Additional In-Depth Studies and Assessments  ..................................................................... 70 Administrative Tribunals (and Other Non-Judicial Dispute Resolution Forums)  . .......................................... 74 Conclusions on Next Steps  ............................................................................................................................. 75 CHAPTER V: IN CONCLUSION  .............................................................................................................................. 77 REFERENCES  ........................................................................................................................................................ 80 List of Figures Figure 1: Basic Structure of Federal Judiciary  ....................................................................................................... 5 Figure 2: Comparison of Disposal of A-Track Cases, High Court Civil Division, KL  . ............................................... 53 Figure 3: Comparison of Disposal of T-Track Cases, High Court, Civil Division, KL  ................................................ 53 Figure 4: Modes of Disposal for KL NCC Cases, September-December, 2009  . ..................................................... 57 Figure 5: Percentage of Postponements by Parties, Criminal Cases, Kuala Lumpur,   Sessions Court, July 2010  .................................................................................................................................. 58 Figure 6: Percentage of Postponements by Parties, Civil Cases, Kuala Lumpur, Sessions Court, July 201  . .......... 58 List of Tables Table 1: Judicial Positions, Authorized and Filled, as of 2011  ............................................................................... 6 Table 2: Comparison of Judges-to-Population Ratio, Selected Countries  ............................................................. 7 Table 3: Budgets for Judiciary, 2008-2011, in RM  ................................................................................................. 12 Table 4: Comparison of PEMANDU Backlog Reduction Targets for 2010 and Court Backlog Statistics   (Violent Crimes Only)  ........................................................................................................................................ 41 Table 5: Backlogged Pending Cases for All Courts, End of 2009 and 2010; Numbers of “Backlogged” Cases   (those filed before 2009) Still in Courtroom Files  ............................................................................................. 46 Table 6: Ageing Lists by Year – All Trial Courts, Civil Cases, 2009-April 2011  . ...................................................... 47 Table 7: End of Year Ageing Lists - All Trial Courts, Criminal Cases, 2009-April 2011  ........................................... 48 Table 8: Clearance Rates for Courts by Instance, for 2007-2010  .......................................................................... 49 Table 9: Comparison of Carryover, New Filings, and Dispositions – All Courts, 2009-April 2011  ......................... 50 Table 10: Monthly Pending Cases - New Commercial Court, Kuala Lumpur, September 2009-April 2011  .......... 55 Table 11: Monthly Pending Cases - New Civil Court Kuala Lumpur, October 2010-April 2011  . ........................... 56 MALAYSIA Court Backlog and Delay Reduction Program F  EXECUTIVE SUMMARY EXECUTIVE SUMMARY Introduction 1. This study reviews the initial results of efforts by the Federal Court of Malaysia to improve judicial performance, especially in the areas of backlog and delay reduction. It was written at the request of the Court and was intended to evaluate progress to date, suggest how the program might be improved, and provide recommendations on further actions in a proposed second phase reform. The work is based on documents and statistics made available by the Court, two weeks of fieldwork (January 2011) in Putrajaya (the Federal Government Administrative Center and seat of the Federal Court and Court of Appeal) and the High Courts in the two largest court complexes, Kuala Lumpur and Shah Alam, and a follow-up visit in May 2011 to discuss the preliminary conclusions with the Judiciary and also to update material on this rapidly moving program. While intended as an external review of the Malaysian Judiciary’s recent reform efforts, the study describes a model and lessons applicable to court systems elsewhere that are facing similar problems or wishing to improve other aspects of their performance. Background 2. Malaysia is a middle-income country of roughly 28 million inhabitants, located in Southeast Asia and comprising West Malaysia (on the Malay Peninsula) and East Malaysia (the northern portion of the island of Borneo). It is a federation of 13 states, of which only two (Sabah and Sarawak) are in East Malaysia. It is a constitutional monarchy and parliamentary democracy following the Westminster model and is federally organized. The Federal Constitution is the supreme law of the land, but each state has its own constitution. The Malaysian King (Yang di-Pertuan Agong) is the head of state, and is elected for a 5-year term from among the nine Malaysian states with Rulers by this same group. The King is technically responsible for appointing the highest level government officials (including superior court judges), but in doing so has traditionally followed the advice of the Prime Minister, pursuant to the latter’s consultations with other groups, as defined in the Federal Constitution. 3. Malaysia’s courts have a unitary, not federal organization. There are also state courts that use Syariah and traditional law and are regulated by state law. Within the formal (Federal) court system, there is one Federal Court, one Court of Appeal, and two High Courts, one for West Malaysia and one for East Malaysia. Their members constitute the superior court judges, who after 2009 are nominated by a Judicial Appointments Commission, introduced in that year to address complaints about the insufficient transparency and politicization of the former process. A second, larger group of subordinate court judges comprises those assigned to magistrate and sessions courts. They are drawn from a government-wide Judicial and Legal Service, whose members may be assigned to legal positions in any of the three branches of government, and traditionally rotated among them. This inter-branch rotation is less common today, but within the courts, JL Service members are typically rotated between administrative and judicial positions, often beginning as a senior assistant registrar, then moving to a position as a magistrate, deputy registrar or a purely administrative job (e.g in the Statistics Unit) and then back to an assignment as a judge. Members of this group do not automatically rise to the superior courts and in fact must resign from the JL Service in order to be considered for a position there. This two-part career system does pose certain problems, including most recently, the Federal Court’s ability to negotiate substantially higher salaries only for the superior court judges. Staff belonging to the JL Service was not affected as their remunerations are regulated by government-wide policies.   i MALAYSIA Court Backlog and Delay Reduction Program 4. Court organization and procedures follow common judges’ productivity. Although the Chief Justice and the law practices, and cases in all but the Federal Court heads of the Appeal and High Courts can recommend that and Court of Appeal are usually heard by a single judge. a judge be removed, the approach taken was to up the Appeals from the subordinate courts are heard by the High pressure for productivity in the hopes that this would drive Courts, in additional to their normal workload of original out the less committed. While corruption does not appear to jurisdiction cases, while those from the High Court go to be the major complaint of court users, the reform program the Court of Appeal, which like the Federal Court does also worked to target and eliminate what does occur. operate in panels. The total number of judges is unusually low, even for a common law country, but Judicial and Legal 7. The program drew on some less successful experiences Services staff assigned to courtroom positions also does attempted earlier in the decade, and was further shaped some processing of cases. When this group is included, the by individual judges’ exposure to successful programs in judge-to-population level rises from 1.5 to 2.4 per 100,000 other common law countries. The reform team (the Chief inhabitants. Moreover the state courts (Syariah and Justice, the President of the Court of Appeal, Chief Judges traditional) as well as a system of administrative tribunals heading the two High Courts and other members of the take up some demand. In any event, judicial caseloads, Federal Court) focused their efforts on a few of the most while substantial, are not large enough to explain delays congested judicial centers, and especially on the Civil High and backlogs, and the reform described herein has thus Court Divisions in Kuala Lumpur and Shah Alam. Over worked on addressing other factors accounting for them. the period from late 2008 to the present, the program was gradually expanded to other High Courts in West 5. Aside from problems with the low starting salaries of Malaysia. East Malaysia had its own program, which was Judicial and Legal Staff, the Judiciary seems well funded, coordinated to a large extent with the West Malaysia effort. and until a government-wide budget tightening exercise in 2011, usually received its requested allocation of funds. 8. The program’s basic components were the following: Judicial administrative offices handle allocations for “emoluments” (salaries, benefits, and allowances) and (a) An inventory of cases held in courtroom files operating expenses, but not development (investment) throughout the country (not just limited to the expenditures. Since 2003, the courts’ development targeted courts) and the creation of improved physical budget is managed by the Legal Affairs Division of the filing systems so as not to lose this information or to Prime Minister’s Department, a situation the Judiciary allow courts to again lose track of their caseloads. finds inconvenient largely because it has little say (b) The purging of “closed cases” and the separation of in the design, placement, and construction of court inactive (“hibernating”) cases for rapid closure or infrastructure, the traditional use of these funds. Certain further processing (depending on the interest of the problems encountered in the recent IT contracts may parties). Targets were set for the elimination of older also be attributed to this practice, although it is hard to cases. The initial goal was the termination of all cases say whether the Judiciary would have done better. If the over a year old by end of 2011 (currently revised Judiciary obtains control of its development budget, it will to mid-2012) for High Courts in target districts, and have to staff up for this purpose. The courts also generate guidelines to this effect for other courts at all instances substantial income for the Treasury in the form of fines and districts. and fees, but the suggestion that they retain all or a part (c) Introduction of “case management” (pre-trial of this merits further study. processing of cases). This was accompanied by the reorganization of High Court judges and staff in the The Reform target centers and the designation of “Managing Judges” to oversee the exercise.1 The initial 6. Since the late 1980s, Malaysia’s Judiciary faced nearly reorganization took staff (deputy and senior assistant two difficult decades in which its reputation for probity and speedy delivery of decisions declined dramatically. In 1   Managing judges were selected from among the core reform late 2008, with the appointment of a new Chief Justice, it group, but as they still had to perform their normal duties (on the began a reform program aimed in particular at the second courts to which they were assigned) they delegated day-to-day problem, through a delay and backlog reduction exercise, oversight to other officials who in turn reported to them. and indirectly, at the first, by more careful monitoring of ii  EXECUTIVE SUMMARY registrars) out of the courtrooms to which they had Managing Judge Unit (JMU), but leaving judges with been assigned and put them into a Managing Judge targets for productivity and delay reduction. Once the Unit (MJU) for each High Court Division where they backlog is eliminated, all courts will follow the new handled preliminary matters and also closed cases organization and procedures. parties were no longer interested in pursuing. 9. There are many other elements in the program, some (d) Introduction of a “tracking system” to facilitate the of which have advanced more than others. They include closure of older cases. This involved separation of an effort to encourage mediation of civil cases (so far cases or issues that could be resolved on the basis only partly successful, but it usually takes a while for such of affidavits (the A Track) and those that required practices to gain traction with lawyers and their clients); full trials (the T Track). Judges were assigned to one the development of an automated queuing system under or the other track and were given weekly quotas of the IT contract in West Malaysia whose purpose is to cases by the MJU. improve scheduling of hearings and reduce time wasted (e) Introduction of Court Recording and Transcription by lawyers in awaiting hearings that never occur; an (CRT) equipment for most of the courts in West e-filing system (which came on line for Kuala Lumpur in Malaysia; this is still underway but began as soon as March and by May had been installed in Penang and Shah the IT contract was awarded (mid 2009). Alam) which should also save time for lawyers who will no (f) Development of an automated Case Management longer have to take documents to courts; and efforts (so System (CMS) which automated some manual far impeded by budgetary limitations) to develop a better processes, provided courts and court complexes with judicial training program. registries of case filings and events, and introduced modules to handle e-filing, programming of hearings, 10. Despite the emphasis on IT, and the two large and the like. This was done, along with other ICT contracts with vendors (totaling USD 43 million), most elements, under a contract with a single vendor for of the documented progress to date had depended on West Malaysia. East Malaysia which had started earlier manual methods. Except for monies expended on state- with automation, used another vendor to develop a of-the-art manual filing cabinets and the CRT program, similar software. the reform relied on inducing more and different efforts (g) Installation of the CMS (henceforth, CMIS2) in the from staff. Critical to the latter have been the setting target judicial centers (partially installed by end and resetting of productivity targets, the use of manually January, 2011, with full installation scheduled for end collected statistics to measure progress, and their constant June, 2011). vetting by the senior members of the reform team led by (h) Creation, most notably in Kuala Lumpur, of High Court the Chief Justice.3 Commercial Divisions to handle more specialized matters (Intellectual Property, Islamic Banking, and 11. If both of the IT contracts fully deliver on what Admiralty). The first two had been created prior to they have promised, the new procedures and reporting the reform, but they, like the new Admiralty Court, practices that the Judiciary introduced at the start of the were also given targets for speedier processing of reform will be completely automated, thereby reducing cases. the tedium and probable delays caused by manual (i) In target centers, creation of “new” courts (specialized processing of records. For example, programming of High Court divisions in Civil and Commercial Law, hearings which courtroom administrative staff often does called the NCvC and NCC, respectively) to handle using large paper calendars will now be nearly automatic. recent cases and their reorganization, eliminating the The CRT equipment should speed up hearings, and while two tracks (not needed any longer) and the external the queuing system and e-filing largely benefit lawyers, both also eliminate a certain amount of back office 2   The various uses of CMS are a little confusing. It is applied to pre- processing and its potential for generating delays and trial processing of cases as practiced by the MJUs, to the type of errors. At the courtroom and court complex level, the software developed by the two firms, and has been adopted by the installed CMIS includes a historical registry for each case, contractor Formis as the name for its own version. For this reason, the term CMIS (Court Management Information System) will be used below to refer to the type of system being developed by the 3   Other members involved include the two Chief Judges and two software firms, Formis and SAINS. —Managing Judges.   iii MALAYSIA Court Backlog and Delay Reduction Program which is used to generate the basic reports sent to the carryover is inevitable even in the most efficient courts) center, as well as the daily reports supplied by each judge would only be recently filed cases. on case movement.4 By the end of the current IT contracts, the courtroom level registries should pick up nearly 75 14. In combination, the two measures provide ample percent of all cases filed because of the focus on the most evidence that the efforts have been successful in advancing congested districts, and if not under the vendors’ current their goals. The initial inventories (based on statistics already scopes of work, then in a future contact, they could be kept by the Court) indicated a carryover from 2008 to 2009 used to create a global integrated database (to accompany the global centralized library – accessible to all authorized of 422,645 cases in the High, Sessions, and Magistrates court staff – of all electronic case files). When the database courts; by May 2011, the carryover (to the next month) was is developed, the current registries should be modified to only 162,615 or roughly 38 percent of the initial figure. Since eliminate their surfeit of text entries (as opposed to coded the initial carryover was probably underestimated and was ones). This will facilitate analysis of its contents. unaudited unlike the more recent figures, the percentage of the actual reduction may be still greater. In some sense, 12. Whatever the next steps, the Court’s Statistics Unit the Court undercut its own measure of success by counting will have to be strengthened and less reliance placed on the older cases discovered in subsequent inventories as “new Judicial and Legal Service staff temporarily assigned there. entries” rather than as backlog. However, this only affects It is also likely, given the short timeframe in which the the percentage of backlog reduction, not the total of cases overall contracts are to be completed, that the contractors disposed or carried over to later years. and the courts will have to spend at least a year (and probably more) working out the inevitable problems in 15. Ageing lists also show a substantial reduction (varying the system. Better configuration management5 might have by court) in the older pending cases, thus indicating that avoided some problems, but even under ideal conditions the carryover is largely new cases (as would be expected new software systems always require considerable post- if the program is working). The ageing lists are important installation readjustment in demonstrating that the courts have been eliminating older cases (the backlog) at a significant rate, rather than Results simply, as probably happened before, only processing the easy new filings. The data shows that the total number of 13. The aims of the first stage program were to reduce cases filed in 2009 or earlier still being processed in the backlog and delay in processing cases. Owing to the High, Sessions and Magistrates Courts (country-wide) had lack of an automated database and, in the beginning, of dropped from 192,569 in December 2009 to 15,497 in much automation beyond word processing, the Court May 2011. As of the latter date, among the country’s 429 monitored progress with its own variations on the usual sessions and magistrates’ courts, 120 were completely court efficiency indicators. For backlog reduction the current – processing only cases filed in 2010 and 2011. Court used two measures: 16. Delay reduction is more difficult to measure without (a) End-of-year comparisons of cases carried over to the an automated database (and sometimes even with one). next year, starting with a baseline for the end of 2008; Lacking this tool, the Court’s strategy has been to set a decline in the number of cases carried over indicates targets for courts – the processing of all new cases within a a decline in “backlog.” given time (usually 9 to 12 months depending on the court (b) An ageing list, tracking the years of filing for cases and material) – and monitor compliance. Results indicate remaining in the inventory of each court. The goal is the program is working, especially in the new courts (NCC to eliminate older cases so that any carryover (and and NCvC) where monitoring is facilitated by the process used to distribute cases. Once a new court is set up in either 4   This could be the basis for the creation of a global registry and an the commercial or the civil area, it receives all new cases automated database derived from it. filed during the next four months. After this, another court 5   Configuration control or management is the process whereby the is created (with judges transferred from the old commercial client and the contractor develop a basic agreement on the con- or civil courts, as they run out of work) to receive the next tents of a system and thereby avoid adding subsequent details or even functionalities that conflict with the initial specifications. Such round of cases, while the first court processes what entered additions, unless minor, are best left for a later version. iv  EXECUTIVE SUMMARY earlier.6 The Judiciary now tracks and produces reports and for actual defense and the creation and operation of 14 tables to check whether each court is meeting its target of legal aid clinics (whose administrative costs are subsidized processing all its allotment within nine months of the cut- through bar members’ fees). However, the head of the off date. Data presented in Chapter III demonstrate both the Bar Commission (the executive board of the Association) progress and the monitoring mechanism. Since neither the estimates that 80 percent of those on remand and 95 manual nor computerized system tracks the duration of each percent of those actually tried still lack representation. disposition, the target is a sort of average. Some cases may The Prime Minister recently agreed to finance a program take a year and others six months, but so long as 90 percent whereby the Association would set up an independent of them are closed in 9 months, the performance is deemed fund to expand the services. This funding would still satisfactory. Since their creation the NCCs and NCvCs have not cover the entire demand, and the plan is to focus been reducing their caseloads at a fully adequate pace and on persons in police and prison remand as those most in fact are ahead of the schedule. The growing number of likely to suffer unnecessary abuse.7 The Foundation, the courts that are fully current (i.e., no longer handling cases National Legal Aid Foundation, was launched by the Prime entered before 2010) also indicates (logically) that their Minister in March and has begun its work. disposition times have improved as well. 19. A second program, operating out of the Prime 17. The program has also been successful in discouraging Minister’s Department as part of the Performance some of the usual causes of delays – and especially the Management and Delivery Unit (PEMANDU), focuses on a frequent adjournments of hearings. Adjournments multi-institutional approach to crime prevention. Most of are not systematically monitored, although they are its activities and successes (especially in reducing reported included in the daily reports. However, the pressure petty street crime) involve the police, but the courts are on judges to meet their quotas appears to be sufficient also included in its planning group, and committed to incentive for them to be firm on hearing and trial dates. reducing backlog in criminal cases over 2010. The courts met the PEMANDU target of processing 2,000 violent Additional Reforms crimes cases during 2010, and made headway in meeting an “internal target” of reducing backlogged violent crimes 18. Three of these, not undertaken by the Judiciary, cases by 90 percent.8 As the PEMANDU background study deserve consideration by either the Court or by the makes clear, reducing crime levels in Malaysia (not very government. The first involves greater attention to legal high to start, but nonetheless a popular concern) will assistance, which until now has been entirely inadequate require actions by a series of institutions, and is probably in its coverage. For capital cases, the government contracts less a problem of the courts than of certain deficiencies in lawyers to represent defendants. Its Public Defense the organization, deployment and operations of the police program offers assistance to indigent clients in civil (largely and prosecution. Some of these have been resolved; family) cases. While it is not legally necessary to have a others will require far more work. lawyer represent one in court either as a complainant or a defendant, Malaysia’s legal system is too complex 20. A third additional reform that merits consideration for a lay person to navigate easily. The major concern at coincides with PEMANDU’s other undertaking which the moment is the large number of criminal defendants involves a multi-institutional program to reduce corruption who go unrepresented, even in cases carrying long prison of various types at all levels of government. In support of the terms if they are convicted. The Malaysia Bar Association PEMANDU efforts, the Judiciary created 14 sessions courts (which covers lawyers on the Peninsula) has provided to specialize in this area. The Chief Justice also set targets for additional services with a combination of pro bono work these judges – all cases resolved in under a year. Results in this program have not been reported as the first year (2010) was 6   The process can be stopped after the creation of four courts, with devoted to setting up various new mechanism and practices. the reception period being cut back to 3 months. This would allow a rotation whereby a court spends three months receiving cases, and spends 9 months processing them. This is a pretty unusual ap- 7   No information was available on the Sarawak and Sabah bar as- proach and it probably would not work well in other jurisdictions. sociations and any similar plan they might have forwarded or be It is not clear whether it was invented with the monitoring issue funding. already in mind, or whether monitoring has simply been adapted to 8   The “internal target” was suggested by PEMANDU, but dropped this format. In any event for the NCC and NCvC it has worked well. in favor of the 2,000 violent crimes processed.   v MALAYSIA Court Backlog and Delay Reduction Program Looking Ahead: Recommendations to Improve the First consider only the information they always received Phase of the Judicial Program, Advance the Second Stage, manually; recognizing that an automated, web-based and Provide Better Information for Improved Planning system can do much more, can take considerable time, and sometimes never happens. 22.  Areas Targeted by the Courts to Complete the First (d) Creation of a centralized database in the Court’s Phase Program: These include several pending tasks the Statistics Unit and incorporation of inputs from both Judiciary already has on its radar. CMIS and non-CMIS courts: One surprising finding was that the Statistics Unit was still receiving and (a) Expansion of measures already undertaken to the processing statistics manually, even as late as the end rest of the courts: The reform’s initial focus was on of May 2011. However, the vendor insisted it would the busiest court centers and on their High Courts provide software by the time the contract ends, which in particular. High Courts in other districts and would allow the Unit to receive and process statistical subordinate courts throughout the country have reports from the CMIS courts automatically. This is received some attention, but not as systematically. still not the type of database needed (with raw data as A plan is now needed to make them full-fledged contents), but it would be a step in that direction. Until participants in the program and, not incidentally, to all courts have the CMIS, some manual processing will expand the various IT elements to them. still be required, and the Unit will have to work out (b) Integration of the mainland program with those in its own methodologies for inputting and harmonizing Sabah and Sarawak: There are two separate issues the statistics provided by the non-CMIS courts. here. The most obvious is ensuring an adequate (e) Standardization of the Statistical Indicators Used interface between the two CMIS so that the data to Monitor Performance: One of the problems from both can be used to create comparable reports encountered in preparing overview tables for this and analysis. The second is further coordinating the report was a tendency for individual reporting two reform strategies, which seem to have somewhat units (courts and court divisions) to organize data different contents, although the mainland reform differently. This is not unusual when performance (that originating with the Federal Court) appears to monitoring begins, and seems to be on its way to have been adopted in large part in Eastern Malaysia. resolution. However, greater uniformity among the (c) Further development of the CMIS as a fully functioning indicators allowing more precise comparisons across MIS: The CMIS as it will be developed by the end of the system and over time would be a decided plus for the existing Formis contract still lacks a centralized the Judiciary’s self management and for its ability to registry of all case movements and an accompanying report its results to others. Except for the initial short global data base (incorporating the kinds of raw count in the first inventory, the problem has never data now managed by individual courts).9 Even at been inaccuracy, but rather lack of comparability of the courtroom or court complex level, the Formis reports. registry still has too many text entries and also does (f) Further procedural change: As a common law not capture some information (gender and other system, Malaysia has been able to rely extensively characteristics of parties, amount claimed, and so on) on the Judiciary’s ability to alter practices through that will be relevant to future analysis. This is normal, modifications to its own rules and additional and in fact recommended as a first step, and as the directives. However, some proposed changes Judiciary begins to use the system, it may itself request will require modifications to existing laws, in additions. However, to accelerate the process, it is addition to those already under consideration by the recommended that additional international advice Government. be sought, from countries that have created global (g) Training: This is a high priority item for the Judiciary’s databases and actively use them to analyze court second stage program and the discussion in its report performance. In constructing a database, courts (or on the initial reforms (Federal Court of Malaysia, other government agencies for that matter) often 2011) mentions several variations, including a program for judges and an Institute for all legal professionals (the Malayan Academy of Law). Training 9   The system constructed in Eastern Malaysia by another firm (SAINS) could not be observed and thus the comments here may or is important, but often involves investing large may not apply to it. amounts of funds on activities with little or no impact vi  EXECUTIVE SUMMARY on performance because of inadequate design and consideration of these issues. Moreover, a shift to delivery (and not because training is not needed). It e-filing and electronic case files will require modifying is thus recommended that before seeking funds, the back office procedures to facilitate handling. Judiciary and other proponents do a thorough study (c) Develop a judicial planning capacity and review of training needs (see below) and also investigate the current administrative arrangements: Whether or not funding implications of any specific proposal. it is successful in regaining control of its investment budget, and certainly if it does, Malaysia’s Judiciary is 22.  Areas Suggested for Immediate Attention or for ready to move beyond the old administration as house- Inclusion in Future Programs keeping model to more proactive forms of judicial management. The reform already represents steps in (a) Build up IT capacity to attend hardware and develop this direction, but the further need is to reorient its software: The Judiciary currently has roughly 30 IT administrative offices accordingly, and especially to personnel, all located in Putrajaya and at least half ensure a much tighter coordination among planning, of whom are qualified to repair hardware but not to budgeting, personnel and statistics. do software development. Whatever happens from (d) Consider alternatives to the Judicial and Legal Service now on, it needs more people simply to do basic that would give the Judiciary (and prosecution) its equipment maintenance, and should think about own specialized personnel: This is already under a decentralization plan. Further changes will hinge discussion internally, but it would help to analyze and on how the courts intend to do additional software raise the issues more explicitly. This would be a first development. At present the vendors own the source move toward a single judicial career, incorporating all codes, which give them the upper hand in any future judges from the magistrate level to at least the High negotiations. The Judiciary has three basic options Courts and possibly beyond. It could also help resolve here, each with their own implications for personnel the salary problem of the lower-level judges and needs: maintain the current situation (and thus administrators and allow a more strategic approach only add personnel to repair hardware); negotiate to designing career paths. a transfer of the source codes and build up its IT (e) Consider development of court administration as a personnel to manage further development; or build separate judicial career: This is a follow-on suggestion up its IT personnel so they can, in the next few years, to the prior point and stresses the importance of “retro-engineer” the program and develop software ending reliance on generalist staff to carry out what the Judiciary owns and can continue to develop on its should be increasingly specialized work. Judicial and own. Although cost seems to be a lesser consideration Legal Service staff serving in administrative positions in Malaysia, it would be well to cost out the options (within courts and in the general administration) over time and option two in particular would be best appeared to be hard workers but especially as the advanced on this basis. Judiciary moves into more modern and proactive (b) Move toward a central database comprising raw data management modes, it will need personnel who on case filings and movements, increase and codify hone their expertise over decades (and not just a few the data captured, develop polices on access to the years). CMIS databases, improve the virtual archives, and update internal procedures accordingly: If, as was 23.  Suggestions for Additional In-Depth Studies and reported in the second visit, the CMIS will not include Assessments: Not all of these would be done by the a centralized database, the Judiciary may need to courts, but those that would not are suggested because let a second contract for its development, and in of the broader range of problems already being attacked the process, spend more time reviewing the types in the overall sector. of data that should be included (and codified). It is assumed that the contactors have provided adequate (a) Study on training needs and alternatives for meeting backup and anti-virus protection, but there will be them: The Judiciary desires to do more training and still more need for decisions regarding access to the even to develop its own institute to this end. However, database and the protection of information not only based on lessons learned from decades of donor from manipulation but from those who might use support for courses that seem to do little good, it is it to undesirable ends. It appears there is still little recommended that a first step be a thorough study of   vii MALAYSIA Court Backlog and Delay Reduction Program current training needs – not in terms of what people this is an imminent threat in Malaysia, but it might would like to learn, but rather in terms of areas where be in more restricted areas, and in any case, if not it appears that significant problems are created by urgent, this kind of study (for which there are well insufficient knowledge and skills. Moreover, in terms developed protocols) might thus be considered. of problem solution, no training should be done (e) Study on administrative tribunals (and other non- until a list of additional mechanisms to ensure its judicial dispute resolution mechanisms): Here the application is developed. The results may indicate that question is what kinds of conflicts these alternative at present time, a major training effort is not needed, mechanisms attract, how well they deal with them, or perhaps that if it is, it should be coordinated with and whether they have their own issues of delay, other on-going programs (for example with what the congestion, or inadequate responses. A justice system Judicial and Legal Service currently provides in its own involves more than the courts, and these alternative Institute). services can either reduce the burden on the latter (b) Study on the situation of the legal profession and by providing satisfactory resolution of conflicts or its possible liberalization: Liberalization has been increase it, by aggravating disputes, sending those suggested as a solution to at least two problems (poor that can go there to the courts for resolution, and quality of local lawyers and low salaries paid) neither otherwise performing inadequately. There is nothing of which is adequately documented. Moreover the to indicate that these are urgent issues, but if the term “liberalization” has at least two meanings in this government is interested in finding out how citizens’ context – allowing non-lawyers to perform legal work disputes are handled, if at all, it should put this on its and facilitating the performance of legal work by non- list of items to investigate. Malaysian lawyers. Both proposals could be beneficial, but before any solution is advanced, it is always a good Lessons Learned from the Malaysian Experience idea to define the problem. It is thus recommended that research be conducted (probably by some other 24. The Malaysian Judiciary’s recent program offers institution than the Court itself as this is not really a an interesting model for other countries attempting a court responsibility) to explore the hypothesized backlog and delay reduction program, and in fact for issues as well as several others. Once the problems are those pursuing other goals in their reforms. The Malaysian defined, then liberalization or some other solution can model is not radical in its content so much as in its ability be applied. to follow best practices, something which few countries in (c) Analysis of the organization, distribution, and working its position manage to do. Some of the key lessons include methods of the public prosecution (DPPs): The the following: PEMANDU background study and observations by other interviewees recognize weaknesses in the public (a) A reform’s success is largely conditioned by the ability prosecution. Not all crime reduction will be a result of its leaders to identify problems and define concrete, of improved prosecutorial methods or even better measurable goals for resolving them. A reform that prosecutorial coordination with police (another problem simply aims at “improving performance” without mentioned), but it certainly would be helped, and as defining specific targets is less likely to accomplish with other topics, any solution would require a more anything. Quantification is important, no matter how systematic analysis of the problems and their causes. objectives are further defined. (d) Study on unmet dispute resolution needs: This could be (b) Increasing efficiency is a good start, representing a done by the Judiciary (in line with its proposed second sort of “low-hanging fruit” in the goal hierarchy. phase emphasis on improving quality of performance) (c) The reform implementation followed logical steps. or by some other entity. Courts and other dispute One preliminary step usually recommended, a resolution forums do not seem overtaxed with thorough assessment or diagnostic of the judiciary’s demand, but this may only be because they do not situation, was skipped in Malaysia. However, the respond to people’s real dispute resolution needs. Court’s working hypothesis, that there was delay The concern is that unmet needs could result in and backlog that could be eliminated rather quickly, escalating conflicts and people using less desirable was based on prior, if less systematic, observation mechanisms to deal with them (e.g. taking the law by the reform leaders (and especially the Chief into their own hands). There was no indication that Justice). Besides, the way the reform was organized viii  EXECUTIVE SUMMARY (the sequence) meant that the early steps served to (f) Once the low-hanging fruits have been harvested, verify the hypothesis. Had the inventories discovered, the next challenge is to define the further directions contrary to expectations, that all pending cases of reform. Although Malaysia can still spend several were recent ones and moreover active, the program years perfecting the first stage, it is well-advised to would have needed modification. Furthermore, consider where it will go next and how it will get there was constant monitoring of progress which there. inter alia allowed the identification and resolution (g) Courts are only one part of a justice system, and as of additional problems along the way. Thus, for the the PEMANDU study clarifies in the case of crime reform’s immediate purposes a further diagnostic reduction, many other actors are involved. Much the was probably not needed (it would only have added same is true of more ordinary dispute resolution as delays and possibly weakened the initial consensus), discussed in the prior section on additional studies. but others contemplating similar programs should When attention is not paid to these other agencies, not assume this applies equally to them. and comparable reform programs established, the (d) A first, essential step in any reform is to put order to impact of even the best court reform will be limited. what is there and establish a system for monitoring (h) It is easier to carry this all out with substantial funding, performance. Neither one requires automation, but the Malaysian experience shows massive funding is although the monitoring system can certainly be not always necessary to make significant improvements. improved once ICT is introduced. Without order and Many of the measures introduced by the Court were without information, it will be very difficult to plan, accomplished with few additional funds. implement and measure the effects of any further reform efforts. While seemingly simple minded, an 25. Committed leadership is essential, and it is also inventory of cases and an improved filing system are important to ensure such leadership persists over the essential parts of the “putting in order” phase. On the longer run. Broadening the reform team (to include the basis of both these steps, courts, or for that matter President of the Court of Appeal and the two Chief Judges any agency, can most probably substantially reduce as well as other members of the Federal Court) as was done existing workloads and so facilitate further reform. in Malaysia is thus a recommended strategy. Elsewhere (e) A tracking system is a recommended means for further reforms have progressed with only one high level leader, reducing backlog, although this does not necessarily but they are easier to reverse when one person is the only have to be identical to what Malaysia has introduced. major source of their momentum. The logic behind any such system is to separate cases by the level of effort required for their resolution – in the future a similar logic can be applied to more sophisticated forms of differential case management.   ix MALAYSIA Court Backlog and Delay Reduction Program x  INTRODUCTION INTRODUCTION 1. This study, commissioned by the Government of Malaysia (GOM) and its Judiciary, comes at a propitious moment in the evolution of judicial reform programs worldwide. Following over two decades of concerted donor and country financed judicial reforms in low- and middle-income countries, there is a disturbing tendency to conclude that such efforts are rarely worth the funds and labor invested in them. 10 This reaction is most pronounced within the donor community, many of whose members seem to be turning to other, related activities (e.g. “citizen security projects” of one type or another). But there is also evidence of citizens and their governments’ increasing doubts as to what the much vaunted reforms have accomplished. More systematic studies financed by donors to review their own projects and worldwide trends give slight reason for contradicting these perceptions. A recent World Bank review of advances made by middle income countries over the past decade finds them least notable in the area of “governance” including judicial reforms (World Bank, IEG, 2007). A USAID sponsored review of its own projects’ advances in “Democracy and Governance” found Rule of Law to be the area where impacts were nearly invisible (Finkel et al, 2008).11 2. The present study reviews a reform designed and implemented by the Malaysian Judiciary during the period from late 2008 to early 2011. Although conducted over a very short period, this reform has been able to produce results rarely reached even in programs lasting two or three times as long. It thus provides a counter-example to contemporary pessimism about the possibility of the judiciary improving its own performance. Moreover it did so in a country which faces many of the usual contextual obstacles said to have inhibited reform elsewhere. There are other examples of reform “successes” but they either involve very targeted, and often territorially limited experiments (see Walsh, 2010) or if accomplished on a broader scale were aided by circumstances not likely to be replicated elsewhere.12 3. The report is divided into five sections. A first chapter gives introductory background on Malaysia, its legal tradition and its court system. It is intended for readers not familiar with these topics. A second chapter discusses the reform, its development, objectives, components, and likely future directions as well as some additional related activities undertaken by other government agencies. A third chapter reviews the achievements of the First Phase Reform, and a fourth discusses some gaps still to be covered, examines a series of broader policy alternatives the courts and the government as a whole might consider, and identifies areas where further analytic work might be done. A final very short chapter reviews the lessons learned that may be useful to other countries contemplating a similar type of reform. 10   High Income Countries face their own crises here, but it has less to do with the potential for making improvements to ordinary perfor- mance than with questions dealing with the role of national judiciaries in the “new normal” post global societies. 11   The authors did note however that the methodology used and the emphasis on human rights as a proxy for ROL may have been inad- equate to capture change in this area in particular. 12   Walsh’s work commissioned by the World Bank and DfID identified examples of successful “activities” in several African countries, but none of these could be considered a full reform, and most present conditions of fairly precarious sustainability. Other country examples (Chile, Singapore; see Prillaman, 2002 and Duce, 2010 on the former and Malik, 2008 on the latter) must be regarded as fairly sui generis, took more time, and, despite the characterization offered by Malik, are difficult to consider “judicially led.”   1 MALAYSIA Court Backlog and Delay Reduction Program CHAPTER I Background on Malaysia, Its Legal System and Judicial Organization Country Background 4. Malaysia is a country of roughly 28 million inhabitants, located in Southeast Asia, and comprising West Malaysia (on the Malay peninsula between Thailand to the North and Singapore to the South) and East Malaysia (the northern portion of the island of Borneo with parts of Indonesia to the south and Brunei to the East) Although East Malaysia is larger in territory (200,000 as opposed to 120,000 square kilometers), roughly 79 percent of the population resides in West Malaysia. Malaysia is a federation of 13 states: 11 states and 2 territories (the cities of Kuala Lumpur and Putrajaya, the old and new capitals, respectively) in West Malaysia and 2 states (Sabah and Sarawak) and one territory in East Malaysia. It is a former British colony. As a prelude to independence, the Federation of Malaya (in effect present day Western Malaysia) was formed in the aftermath of World War II. The Federation achieved independence in 1957, and with the 1963 addition of Sarawak, Sabah, and Singapore, was renamed Malaysia. Singapore subsequently withdrew in 1965. 5. Present-day Malaysia is a solidly middle income country, with an estimated per capita income of roughly US$7,000. It is a multi-ethnic, multi-cultural, multi-linguistic nation. Malays constitute about 58 percent of the population, Chinese 28 percent, Indians 7 percent, and aboriginal groups, about 2 percent. Malaysia is a constitutional monarchy and parliamentary democracy, following the Westminster model. Unlike Great Britain (but like India whose constitution influenced Malaysia) it has a written federal constitution which is the supreme law of the land. The constitution establishes Islam as the official religion but also guarantees freedom of religion, as well as stipulating such other rights as liberty of the person, to be informed of the reasons for arrest, access to legal counsel, release from detention without unreasonable delay, protection against retrospective criminal laws and double jeopardy, equality before and equal protection of the law, freedom of movement, speech, assembly, and association, and the right not to be deprived of property without adequate compensation. The death penalty is applicable for such offenses as murder, drug trafficking, possession of unlicensed firearms in a security area; and the discharge of a firearm in the commission of an offense with intent to cause death or personal injury. Individual states have their own constitutions which must contain certain provisions as required by the federal document. 6. The Malaysian King or Yang di-Pertuan Agong is the Head of State. He is elected by the Rulers of the nine Malay states with Rulers from among their own members; these elections are held every five years, meaning that the office rotates among the nine Rulers. The nine Rulers and the Governors (Yang di-Pertua Negeri) of the other four states form a Conference of Rulers which serves as a high-level link between the states and the federal government. While the Yang di-Pertuan Agong “rules but does not govern,” he officially appoints the highest level government officials, including the heads and members of the Federal and Appeals Court. However, in these cases he is to follow the advice of the Prime Minister, pursuant to the latter’s consultation with the Chief Justice, and since its foundation in 2009 (see below), the Judicial Appointments Commission. Constitutionally that advice is mandatory. Similar conditions apply to the King’s naming of all other judges. 2  CHAPTER I: Background on Malaysia, Its Legal System and Judicial Organization Judicial Organization, Staffing, and Resource Allocations General Organization Legal Tradition and Multiple Sources of Law 9. Although Malaysia is a federation, its federal courts are organized as a single unitary system. The Federal 7. The courts to be reviewed here follow common law Court (originally Supreme Court) and the Court of Appeal procedures. The four main sources of law are written law, are seated in the Federal Government Administrative common law, Islamic or Syariah law, and customary law. Center, Putrajaya, but operate nationally – with panels of While practiced during the colonial period (and thus for Court of Appeal judges traveling to Sabah and Sarawak to over 200 years), English common law and rules of equity hear cases. There are two High Courts –one for Western were formally adopted under the Civil Law Act of 1956. Malaysia and the other for Sabah and Sarawak – each with Both have been further developed by the Malaysian its own Chief Judge. Collectively this group is referred to courts in accord with local circumstances. While ahead of as the superior courts, and its judges are appointed by the English in already abandoning some of their quainter mechanisms different from those for the subordinate traditions (both wigs and some honorific titles such as his courts. Both processes are discussed below. High Court lordship or her ladyship to refer to judges), the Malaysians judges hear cases individually; other superior courts sit in have held on to the writ system much of which the English panels. eliminated with the Woolf reforms of 1999.13 While legal representation is not required for a court appearance, 10. The subordinate courts (staffed by “magistrates” this makes it advisable to use an attorney as only those but for the purposes of this report also called judges), trained in the law can easily make their way through the are organized into sessions courts and the lower level existing rules and terminology. Higher court judges are magistrates courts. Their judges are drawn from a pool apparently well read in English and other common law of legal officers, the Judicial and Legal Service, whose country case law, and often reference it in their decisions members staff legal positions throughout the three (Chan, 2007). branches of government. In the Judiciary these individuals also hold administrative and quasi-administrative positions 8. Although the majority of the population is Muslim and (registrars14 of various kinds and other related jobs) and in Syariah is recognized as a source of law, it is applied only theory are subject to periodic rotations to legal positions in “personal matters” to followers of the faith who choose elsewhere in the government. More details are given in to use the Syariah courts. In Western Malaysia customary the section below on staffing, but it deserves mention here law has multiple origins – Malay customary law, Hindu that the Judicial and Legal Service career does not extend law, and Syariah law. In Eastern Malaysia customary law to superior court judgeships and that to be considered for includes Malay customary law, native customary law, and one of these positions, the candidate must resign from Chinese and Hindu customary law. the Judicial and Legal Service. 11. Following conventional practices, the jurisdictions of 13   Within common law, a writ is a judicial order to perform a speci- each set of courts are set by the Constitution and secondary fied action or allow it to be done. Under a writ system, plaintiffs law. They hinge both on subject matter and severity of the have to begin most court actions by petitioning for the appropriate offense or size of civil claim. High Courts were traditionally form of “original writ,” of which there is an ever expanding vari- divided into Criminal and Civil Divisions, but recently ety. With the 1999 Woolf Reforms, the English system was greatly there has been a trend to greater specialization, especially simplified and most civil actions now begin with a “Claim Form,” thereby reducing the danger of having a claim rejected because of through the creation of civil “Sub-Divisions.” Individual petitioning for the wrong form of writ. This is also far easier for the sessions and magistrates courts may also specialize at lay person to understand. The U.S. abandoned writ pleading as the least by criminal and civil jurisdictions, although in outlying norm far earlier, and reserves writs for extraordinary actions (e.g. regions they tend to hear both kinds of cases. All instances a writ of certiorari, whereby, at the request of the party, an appel- late court agrees to hear an appeal, and thus orders the lower level court to “ certify the record” and send it to the higher court which 14   The term “registrar” is used for a variety of positions, ranging will review it). Although in Malaysian courts, most civil cases begin from that of the Chief Registrar (Chief Administrative Officer for the with only one of four types of writs (and usually with a “writ of courts) through the registrars who serve a court administrator-like summons”), “it is important to use the appropriate mode because function for court centers and divisions to deputy and senior as- the court has discretion to set aside, in part, the proceedings com- sistant registrars who handle pre-trial matters and also adjudicate menced by the wrong mode” (Wan Arfah Hamzah, 2009; 307). simple cases.   3 MALAYSIA Court Backlog and Delay Reduction Program have some original jurisdiction, but most of the work of Staffing the Court of Appeal regards appeals from the High Court decisions. The High Court work involves both original 13. For its geographic size and population, Malaysia has jurisdiction cases (e.g., criminal cases involving the death a relatively modest number of judges. There are currently penalty) and appeals of session as well as magistrate court 120 superior court positions, of which 91 are occupied decisions, rulings of administrative tribunals and other by tenured judges. Their number is supplemented by 42 non-judicial bodies. The figure 1 below illustrates the temporarily appointed judicial commissioners who may general organization of the federal system. eventually be appointed to permanent positions once the latter become available. Maximum numbers of superior 12. There are also state courts outside this system – Syariah court judges are set by the Constitution (Articles 122, and traditional courts – and a series of administrative 122A, and 122AA), but the use of judicial commissioners tribunals. Decisions of administrative tribunals may be to fill additional slots is not. The numbers of “subordinate appealed (as special powers cases) to the ordinary courts court” judges are not constitutionally limited. They are only on the bases of due process and other procedural set by secondary law and they currently include 132 irregularities. The Judiciary normally does not review the sessions court judges (157 authorized positions) and 152 substantive content of their decisions. Ordinary court magistrates (193 positions). These numbers are augmented involvement in Syariah and traditional court decisions is by some 260 Judicial and Legal Officers who work in courts still more limited, largely related to issues of jurisdiction. at all levels as deputy or senior assistant registrars, usually Neither the administrative nor the state courts are covered after having first served as a magistrate. in this report as they were not affected by the judicial reform program. The details of state court operations and Table 1:  Judicial Positions, Authorized and Filled, as of 2011 composition are for the most part dictated by state, not federal law. Judges Authorized Filled Positions Positions Figure 1:  Basic Structure of Federal Judiciary Federal Court (includes CJ,   15   11 President of COA and 2 Chief Judges) Fedaral Court of Appeal   32   25 Court High Court   73   55 Judicial Commissioners NA   42 Court of Sessions Courts 157 117 Appeal Magistrates Courts 193 165 Other Judicial and Legal 343 266 Services Total 813 681 High Court of High Court of Sabah Source: Figures provided by Chief Registrar’s Office. Malaya Sarawak 14. Measured against its population of roughly 28 million, this gives a ratio of judges to population of between 1.48 Sessions Sessions and 2.42 “judges” per 100,000 inhabitants, depending Courts Courts on whether members of the Judicial and Legal Service assigned to the courts, but not to the bench, are included. Since most, but not all of them perform judicial duties (pre- trial case management, administrative closures of cases, Magistrates Magistrates some decisions on affidavit cases) they probably should be Courts Courts counted, but even then the ratio is very low as compared to countries at a comparable level of development within 4  CHAPTER I: Background on Malaysia, Its Legal System and Judicial Organization and outside the region.15 Malaysia’s “state courts” take up where most cases are heard by a single judge.17 Moreover, some of the slack as do the administrative tribunals, but although up-to-date figures could not be located, two only for disputes that naturally fall into their jurisdictions, Asian countries commonly counted as in the civil law as nearly all crimes and a majority of civil disputes do not. tradition, South Korea and Japan, also have relatively For comparison’s sake the following table shows the judge low ratios – 2.7 and 2.3 per 100,000 in 1995 and 1999, per population ratio for a number of civil and common respectively (Galanter and Krishnan, 2003; 99). However, law countries.16 The ratio solely aims at tapping into a third Asian country, with a civil law tradition, Thailand, one dimension of the efficiency of human resource use. currently (2009) has a ratio of 6.8.18 IIn short, the judge-to- Moreover, the ratio alone gives no indication of whether population ratios do not appear to be closely correlated there are “enough” judges for the workload they handle. with either legal tradition or region.19 Table 2:   Comparison of Judges-to-Population Ratio 16. The table demonstrates the range of variations in Selected Countries the judge-to-population ratios in several countries, but it bears emphasizing that there is no magic formula as to the Country Judge per 100,000 inhabitants right number of judges – if judges can handle the cases Argentina 11.2 assigned in a reasonably efficient fashion (as they now appear to be doing in Malaysia), the number would seem Australia 4.4 to be adequate. Many countries with much higher ratios Colombia 9.2 and much lower individual caseloads than in Malaysia England and Wales *3.5 cannot keep up with their work, suggesting that much depends on internal organization, procedures, willingness Ethiopia 3.1 to counter lawyers’ dilatory practices, and how caseloads France 9.1 are filtered.20 Also as Galanter and Krishnan (2003; 97) Germany 23 note, litigation rates (which should be linked to the number of judges needed) tend to be lower in countries Malaysia 1.5 – 2.4 with younger populations (e.g. India). In the table, the Russian Federation 24.2 two court systems, both with common law proceedings, Spain 10.7 with ratios nearly as low as that of Malaysia (England and Wales, and Ethiopia) seem to have an adequate number Thailand 6.8 of judges to keep abreast of demand. However, for Sources: for Argentina, Unidos por la Justicia, 2006 (data from 2005); England and Wales the explanation lies in the additional for Australia, Walsh (2008; 2006); for Colombia, CEJA, (2010) (data 30,000 justices of the peace who currently decide nearly from 2009); for Ethiopia, World Bank, (2010) (data from 2009); for Europe, CEPEJ (2010) (data from 2008)  except for Germany (CEPEJ 95 percent of criminal cases as well as handling some 2008); for Thailand, www.lawcouncil.asn.au/shadomx/apps/fms/ family and juvenile matters and processing more serious fmsdownload.cfm)/ criminal cases before transfer to the professional judges *Not counting roughly 30,000 lay justices of the peace (Grove, 2002; also CEPEJ, 2010; 122). In Ethiopia, because of the country’s low level of development (and probably 15. Although it has been argued (Walsh, 2008) that civil law countries tend to have more judges because more of 17   This is also true of many Western European countries, where them sit in panels, the panel mode is less common for the paneled judges are reserved for more serious criminal and higher Latin American countries shown (Argentina and Colombia) value civil cases – the equivalent of those heard by single judges in Malaysia’s High Court. 18   www.lawcouncil.asn.au/shadomx/apps/fms/fmsdownload.cfm)/ 19   Galanter and Krishnan (2003) also show a 10.4 ratio for the U.S in 1998, roughly the average for Western European civil law countries. 20   This is true, for example, of Colombia, where current average 15 Singapore appears to have only a slightly higher ratio, but its pop- caseloads are 500-600 new entries per judge and where accumulat- ulation is compressed into a very small area, roughly 3.5 times the ing backlog remains a problem (Interviews and CEJA, 2010). Data size of Washington D.C; Malik, 2007; 5 available from CEJA’s biennial reports also indicates that in much of 16   This is the most important distinction among legal traditions, Central America (except Costa Rica) and the Andean region of South separating much of Europe (and its former colonies) from the “less America (except Chile) new filings per judge are at that level or low- common” common law tradition with its roots in English law. er, with accumulating backlogs because judges cannot keep up.   5 MALAYSIA Court Backlog and Delay Reduction Program its young population), court use is limited and a majority remains in flux. The creation of a Judicial Appointments of the population relies on traditional mechanisms. Commission in 2009 following years of complaints about But the Ethiopian federal and regional courts have also a lack of transparency in the appointment process should conducted a recent reform to ensure what does reach change the appointment process substantially. Although them is processed rapidly (World Bank, 2010). the Yang Dii-Pertuan Agong made the official appointment, and the Constitution and secondary law laid out a complex 17. A further interesting detail on staffing is the reason process of consultations, it was generally believed that given for the gap between “allocated” positions and most of the decision lay with the Prime Minister and those actually filled. According to the heads of the judicial that in times past, political considerations had weighed Financial and Personnel Departments, the difference is not in too heavily, leading to a series of complaints about a result of the explanations often encountered elsewhere the quality of the bench and a rapid turnover in Chief – funding shortages or lack of qualified candidates – but Justices since 1996. rather a reflection of the Judiciary’s own personnel policies. New subordinate courts (and thus judgeships) may be 20. The Judicial Appointments Commission’s members created by the legislature (in response to the Judiciary’s include the Chief Justice as chairman, the President of requests) prior to actual need, as a sort of cushion, but the Court of Appeal, the Chief Judges of the High Courts the Judiciary only staffs them as required by real demand. of Malaya and Sabah Sarawak, a Federal Court judge Between 2009 and April 2011, the Federal Court in fact (appointed by the Prime Minister) and “four eminent closed 9 High, 4 Sessions, and 23 Magistrates courtrooms, persons, who are not members of the executive or other transferring judges to other jurisdictions (where the public service, appointed by the Prime Minister after “courtroom” was the court) or positions. Where demand consulting the Bar Council of Malaysia, the Sabah Law is very low, it may also have one judge cover two or more Association, the Advocates Association of Sarawak, the courts in different locations.21 Attorney General of the Federation, the Attorney General of a State legal service or any other relevant bodies” 18.  Superior Court Judges: Officially “judges” are only (Judicial Appointments Act, II:5:1, a. ). As the Commission those on the bench of the superior courts and thus holding is very new, it is too early to determine whether it has met one of the following positions: the expectations. However all those interviewed for this study agreed that it represented a decisive improvement • Chief Justice of the Federal Court in the system for nominating judges. • President of the Court of Appeal • Chief Judge of the High Court in Malaya 21. Once appointed, judges hold office until the age of • Chief Judge of the High Court in Sabah and retirement – currently sixty-six years – with a possibility Sarawak of a six-month extension upon approval by the Yang di- • Judges of the Federal Court Pertuan Agong. Judges may resign voluntarily at any time • Judges of the Court of Appeal or may be dismissed for breach of the code of ethics • Judges of the High Court (including Judicial (following its passage in 1994 and subsequent amendment Commissioners) in 2009) or for “inability… to discharge the functions of his office” (Article 125 (3).22 This decision is based on the 19. Under Article 123 of the Federal Constitution, the findings of a special tribunal convened for this purpose, basic qualifications for appointment to any of the three and composed of “not less than five persons who hold or superior courts are being a citizen of Malaysia and for have held office as a judge of the superior courts” (Article the ten years preceding the appointment having been an 125 of the Constitution). Procedurally, dismissals are by advocate before any (or all) of those courts or a member the Yang Dii-Pertuan Agong pursuant to the request of of the Judicial and Legal Service of the Federation or of the the Prime Minister or Chief Justice (in consultation with Legal Service of one of the states, or some combination of the above. The process by which judges are appointed 22  The provision cited applies to members of the Federal Court (which includes the President of the Court of Appeal and the Chief Judges of the two High Courts). It is also applicable to other supe- 21   Both the heads of the personnel and finance departments con- rior court judges, except that consultations with the relevant head curred that the government would make available funds as autho- of their court (President of Court of Appeal or Chief Judge) are also rized positions were filled. required. 6  CHAPTER I: Background on Malaysia, Its Legal System and Judicial Organization the former. However, dismissal of judges on the basis of 24. The concept of rotation among judicial positions is ethics violations appears rare to non-existent – no cases favored by members of the Service and apparently by the were mentioned in the interviews and it appears that the Judiciary as a whole. However, there have been numerous major criticism of some judges appointed during the crisis suggestions that the Judiciary’s Service be exclusive to that period has more to do with their insufficient dedication to entity (i.e. no rotation to other government agencies) and their work. possibly be linked to a single judicial career. This might also facilitate the solution of another problem – the extremely 22.  Judicial and Legal Service:23 Subordinate Court low salaries for those at the bottom of the scale. Currently, judges and many administrative and quasi administrative when benefits and allowances, which add another RM officials are drawn from the Judicial and Legal Service, a 800, are not considered the RM 1,984 (roughly US $661) government-wide pool of qualified lawyers who may serve earned monthly would make them eligible for legal aid! not only in the judiciary but also in the Attorney General’s After three years the emoluments (salaries plus benefits Chambers (and thus most commonly as Deputy Public and allowances) rise to RM 4,400 (US$1,467), and at the Prosecutors, DPPs), as legal advisors in the executive upper levels reach RM 25,000 (US $8,333), but some of and as legislative draftsmen. Entrance is managed by the those interviewed believed that the initial amounts may Judicial and Legal Service Commission.24 Once admitted, an discourage good candidates and moreover could increase officer may in theory be placed in any of these positions, vulnerability to bribe taking.25 In any event, because this and will be subject to frequent rotations. In recent years, is a nation-wide service, when the current Chief Justice there has been a tendency for members to stay in one obtained a 40 percent increase for the superior court agency, but to be rotated among positions there. bench, he could do nothing about the rest of the judicial and administrative employees. As a result initial monthly 23. Within the Judiciary there seems to be an informal emoluments for superior court judge are now RM 29,700 but predictable “career path” for Service members (US $ 10,000), or ten times the initial JL Service level, and which involves alternating positions on the bench with rise to RM 55,000 (US $18,300). administrative or quasi-administrative duties. Most first time entrants are typically named as a senior assistant 25. Initial appointments of JL Service members to positions registrar, then moving to a position as a magistrate, within the Judiciary and their subsequent transfers to deputy registrar or a purely administrative role (e.g. other judicial positions follow their own process, which in the Statistics Unit) and then back to assignment as a is not entirely transparent. Formally, session court judges session court judge. It bears noting that many of the high are appointed by the Yang Dii-Pertuan Agong on the level administrators of the Judiciary (for example the recommendations of the Chief Judge of the relevant High Chief Registrar, in effect the Chief Administrative Officer) Court. Magistrates in territories are appointed by the are members of the Judicial and Legal Service. While Yang Dii-Pertuan Agong, and in states by the respective membership in the Judicial and Legal Service constitutes Rulers or Governors on the recommendation of the Chief one means of fulfilling the requirements for appointment Judge. In practice, a series of interviews (both with the as a superior court judge, this is hardly automatic and Commission for initial entry and with the affected agency, many Judicial and Legal Service officers end their careers and in the case of the Judiciary, the Chief Registrar, for without joining the superior court bench. placement) play a major role. It was also reported that several agencies, most commonly the AGC, first contract individuals, who subsequently may seek entry to the Service and from there pass back to the contracting agency. In theory any subordinate court judge could be 23   While the law refers to state JL Services, representatives of the dismissed by the Yang Dii-Pertuan Agong for any or no Federal JL Service said they did not exist. 24   The commission was briefly eliminated in 1960 but since 1963 reason, but these decisions, like those on appointments has functioned to control entry to the Service. The Service is an- and transfers doubtless depend largely or entirely on the other English inheritance and comparable bodies are found in other relevant judicial authority’s discretion. commonwealth nations. However, the creation of a single pool of qualified lawyers for all branches of government seems to be less common now, and this, plus the implications for judicial indepen- dence given the inclusion of Executive Branch members, has in- 25   Nonetheless, it was reported that applications for admission to spired calls for change in Malaysia. the Service are on the rise.   7 MALAYSIA Court Backlog and Delay Reduction Program 26. Whoever participates (and conceivably this varies Financial and Other Administration across the system) the larger question regards the criteria on which these decisions are made. There were 28. The Judicial Budget is divided into three parts, two of indications that neither the affected individual nor their them managed by the Judiciary itself. The development immediate superior weighed in that much; there were, budget (largely for construction, but also IT contracts) for example, some complaints from office heads about is handled by the Legal Affairs Division within the Prime losing valued employees because of transfers. The Minister’s Office. employees themselves did not indicate that they had any part in the decisions. Clearly a bit more transparency, 29. Expenditures for emoluments (salaries and allowances) and possibly a different set of criteria might be used, but for superior court judges are charged directly to the that might be difficult to introduce so long as the Judicial Federal Consolidated Fund. The requested allocation (part and Legal Services is a government-wide organization. of the Charge Vote) is not subject to debate by Parliament. Should the Judiciary be able to carve out its own career However, actual disbursements and expenditures may be service, it would be better able to establish a consistent less than what is authorized as the latter is based on the and transparent set of rules for movement up the career number of seated judges as well as those whose hiring ladder, one consistent both with the interests of the is anticipated. An apparently overly ambitious estimate employees and with the needs of the organization. Still, of new appointments caused real expenditures in 2008 with the exception of the office heads who suddenly lost a to be only 68 percent of allocations. Similarly in 2010, valued employee, no one among the potentially affected expenditures were 74 percent of the amount authorized. interviewees had any complaints. Again, the reason is that the anticipated appointments were delayed and for this reason the expenditures were 27.  Other Staff: According to the Court’s Office of less than what was requested. Personnel, apart from the superior court judges, total staffing is 5,123 persons (with 5,561 positions authorized). 30. All other recurrent costs including emoluments Of this number, roughly 4,446 hold administrative and for subordinate court judges are issued through the support positions outside the Judicial and Legal Services. annual Supply Bill, and are reviewed by the legislature. They include largely clerks, interpreters, and IT personnel. Emoluments are always authorized and paid (even when The staff-to-judge ratio remains fairly modest – 1 to 6.6.26 as in 2008, expenditures are slightly more than the Typical courtroom staffing is relatively limited – ranging allocation), but other parts of the request may be cut, from two to five professional or semi-professional assistants as they were for 2011, as part of an across-the-board (deputy and senior assistant registrars, interpreters, and a belt tightening measure. Over the four years of budgets clerk) plus one nonprofessional employee to do routine reviewed (2008-2011, the latter only for allocations), the tasks. The reform measures temporarily transferred some percentage accounted for by salaries and allowances in the courtroom staff to the central case management area, but Supply Vote portion has risen from 47 to 57 percent. When it appears that future plans will return them to the judges. the Charge Vote (superior court judges’ emoluments) is Given the generally high quality and good preparation of added, the percentage going to personnel ranges from the staff, the current ratios do not seem to be a problem. 55 (2008) to 68 percent (2011). Given that expenditures Regions (e.g. Latin America) with far higher ratios rarely on infrastructure and IT contracts are not included, this seem to get as much out of their relatively less prepared is a relatively modest percentage as compared to CEPEJ but far more numerous staff.27 (2010; 25) figures from Europe which include both and showed salaries as accounting for 25 percent (Ireland) to over 90 percent (Greece) of total expenditures, with most countries in the 60-80 percent range. As noted, Malaysia’s Judiciary currently has more allocated positions than it has managed to fill, and the 10 percent cut in its 2011 Supply Vote budget may strengthen its apparent resolve 26   It should be remembered that we are including Judicial and Legal not to add employees who may not be needed. As it is, Service personnel as judges, a fact which reduces the ratio consid- the cut represents some drastic reductions in other line erably. items, and puts a damper on plans to increase its training 27   Based on data for Paraguay (World Bank, 2005a) and Mexico (Hammergren et al, 2009). activities, for example. 8  CHAPTER I: Background on Malaysia, Its Legal System and Judicial Organization Table 3: Budgets for Judiciary, 2008-2011, in RM Budget 2008 (expended) 2009 (expended) 2010 (expended) 2011 (allocation) “Judicial” 48,057,607 69,618,937 80,188,525 100,000,000 Operating 275,808,037 318,463,936 315,862,662 285,000,000 Development 108,843,714 130,679,343 239,866,000 Not Available Source: For Judicial and Operating budget, figures provided by the Chief Registrar’s Office; for Development Budget, Federal Court of Malaysia (2011). 31. It also should be noted, in line with comments underutilized buildings to other government agencies made in the Judiciary’s recent publication on its reforms (including the AGC’s DPPs28). (Federal Court of Malaysia, 2011; 177-178), that its use of its operating budget is somewhat constrained by the 34. It also bears mentioning that the Judiciary generates fact that the Controlling Officer for these expenditures substantial income for the Public Treasury in amounts is the Chief Secretary to the Federal Government. This falling not far short of allocations for its operating budget. means that the latter, and the Treasury, must approve According to Court sources, in 2008, revenues from fines, many specific expenditures for items beyond salaries, penalties and administrative and court fees totaled RM rentals and allowances, a requirement which the Chief 216,767,600. For 2009 they were RM 251,984,023, and Registrar’s Office describes as onerous and the cause of the estimated amount for 2010 was 257,541,586. These many delays. monies are not retained by the courts but are credited to the Federal Consolidated Fund. Although this is not 32. The Development Budget is no longer managed by the case in Malaysia, some courts in other countries have the Judiciary, but since 2003 has been handled by the argued that they should retain all these funds, in addition Legal Affairs Division in the Prime Minister’s Department. to their normal budgetary allocations. Among donors this Amounts allocated rose substantially between 2008 and is sometimes seen favorably as a way to make the courts 2010, as shown in the table below. Part of the increase “self-financing.” However, before any one jumps to the is accounted for by the two large IT contracts (totaling conclusion that the practice should be adopted in Malaysia, RM 130,000,000 or roughly US $43.3 million) which the it is worth a short discussion of the pros and cons. Division also managed for the Judiciary, in a role described by both parties as “project manager.” 35. First and foremost, when courts make this argument (as they do in many countries) they seem to forget that 33. Typically, however, the major portion of the they are not the only public agencies generating funds. If Development Budget has gone into new infrastructure, they deserve to keep what they take in, would one want with 60 buildings scheduled for construction between to make the same argument for the tax and customs 2005 and 2010. The Division has since been asked to use agencies, for prosecutors and police going after stolen a two-year planning period and there are other signs that assets or confiscating properties and bank accounts it may have to cut back on its former ambitious plans. belonging to convicted white collar criminals? In some Except for their role in developing the IT contracts, the cases, in the form of an incentive, these other agencies Judiciary and its Chief Registrar’s Office have very little (especially investigative police, as at the U.S federal level) input to these plans, and as they note, “no direct role in the planning, implementation, architectural design, and 28   A potential downside of this arrangement is the risk of collusion, even timing of the Courts’ development and infrastructural or at least the appearance of lack of sufficient independence, be- projects” (Federal Court of Malaysia, 2011; 106). This tween the prosecutors and the judiciary. However, it also has the does not appear to be a desirable situation, especially as advantage of placing several criminal justice institutions in one spot (a goal sought in other countries, especially in Latin America). The some of the infrastructure projects seem to be decidedly more certain problem is that the buildings for whatever reason ex- “overbuilt” for local needs. In fact it was reported that ceed current needs and thus that funds might be better invested in the courts are now renting out space in some of the other activities.   9 MALAYSIA Court Backlog and Delay Reduction Program are allowed to retain a part of what they recuperate purpose. On the other hand, if, as the Judiciary appears (often to cover investments to improve their work), but to believe, the infrastructure investments are excessive, the incentive argument works better there as it applies allowing the Judiciary to have a say over the use of the to their principal functions. Collecting fines and fees can Development Budget could free up moneys for other hardly be regarded in the same fashion for the courts, needs, including for the training program it would like to although admittedly for courts that are very careless introduce. In parallel, the Judiciary would be advised to about collections, this might be a means of encouraging strengthen its own planning capacity. It currently seems them to be less so.29 to do quite well in transferring, adding and subtracting personnel to meet short-term needs, but as it moves into 36. Second, even as an incentive, there are several a second stage reform, it will require more sophisticated downsides to this practice. It can create perverse behavior approaches taking into account more variables than and a distortion of work practices, leading members short-term growth in demand and developing a series to be overly aggressive in their work, or alternatively of alternative scenarios based on differing medium-term exceedingly permissive, as is the case when courts can forecasts and goals. charge by the action and thus might permit unnecessary motions and appeals simply because they generate more funds. In the case of fees there are also access issues – and policies would be needed to ensure they did not exclude those unable to pay. Finally, letting agencies keep their “own funds” complicates rational budgeting both for the benefitted agency (which may tend to regard this as a windfall) and for the government as a whole. In short, for courts (and conceivably for other agencies) the practice is of questionable value, even if, as the Judiciary has proposed, the retained funds are only a portion of the total and moreover are targeted for a specific use (in this case training). What is important is that the government recognize that courts do generate revenue and that this is thus one more reason to ensure they have sufficient budgets to do their work well, and so attract more users. 37. Until the budget cuts of 2011, the Malaysian Judiciary appeared to have ample funding to carry out its normal activities. Whether the subsequent cutbacks in some line items will present problems remains to be seen. Arguably it might be able to do better programming of the non-fixed items, but the real issue is the Development Budget and its nearly non-existent coordination with the courts’ own plans. Were it again be given control this budget, as the Judiciary would like, the Court would have to do its own staffing up to ensure adequate planning and supervision of implementation. An intermediate solution might be to let Legal Affairs continue to manage the infrastructure projects, but have the Court plan them. This, however, would still require some staffing up as the Judiciary does not have the engineers or architects needed for this 29   This is because their primary function is resolving disputes by ap- plying the law – collection of legal fees and fines in many countries is not even done by the courts. 10  CHAPTER II: The Reform Program: 2008 to Present CHAPTER II The Reform Program: 2008 to Present Reform History and Overview of Objectives 38. Historically Malaysia’s Judiciary, often trained in England and accustomed to the traditional British manner of operations, was always conservative in outlook, but until the late 1980s was generally regarded as relatively honest and reasonably independent. That judges did not rule contrary to government preferences when such issues arose was largely a matter of shared values, not of political compliance. According to some sources, Malaysian judges did exercise a conscious amount of “judicial restraint,” preferring not to second guess executive agencies or the Federal and State legislatures in the exercise of their constitutionally defined functions (Chan, 2007). However, this is also very much in line with the English tradition, whereby judicial review of executive actions, policies, and laws was similarly constrained. 39. It is generally agreed that since the late 1980s, the Judiciary as a whole went through nearly two decades of declining performance and decreasing public confidence. Cases commonly took unpredictable lengths of time to resolve, depending on the disposition of the judge and the actions exercised by the lawyers. Each judge operated in relative isolation, leading to considerable variation even in how cases were processed, and an often disorganized management of internal administration. For example, when the current Chief Justice and his team visited a series of courtrooms in late 2008, they found the files in complete disarray, piled everywhere inside and outside the courtroom. 40. The litany of common complaints is not that dissimilar from those found in many other countries and regions: politicization of appointments and decisions, corruption, inefficiency, delays, disorganization, inadequate and usually unreliable performance statistics or even counts of pending cases, arbitrary and often unpredictable decisions as well as handling of filings (which might be returned because the admitting officer did not like the way a name was spelled), disorganized filing “systems”, and a generally poor public image. These complaints had been building over the 20 years following the “judicial crisis” in part in response to concerns about external interference and in part as a result of the growing demand for quicker and better quality responses. 41. Prior to 2008, there had been some attempts to reverse this situation, but they did not prosper. There were a few important legal changes, such as the 2000 introduction of pre-trial case management into the Rules of the High Court. This move was intended to take control of the progress of a case out of the hands of the attorneys and give it to the court, thereby reducing a good deal of unnecessary delay. Unfortunately, it appeared not to have had much immediate impact. 42. The minimal impact was not for lack of trying. During the period between 2002 and 2005, the courts made a first stab at improving their efficiency. Reportedly, the proponents were largely High Court judges, and the series of Chief Justices were not actively involved. There was thus less a reform program than a series of pilot efforts, many of them based on practices the judges had seen in other countries during visits and international seminars. They included a first effort at automation beyond the use of computers as simple word processors. In Sabah and Sarawak, a firm was hired with local funds to design an automated case management system, which after being applied in 11 pilot courtrooms was abandoned as a “failure.” The experience is not unusual in court automation and it is likely that the failure was as much the result of minimal support from the Judiciary itself as of any flaws in the system. In any event, the software continues to be used in some courts to this day pending installation of that developed under one of the two (Formis and SAINS) contracts now in force for Western and Eastern Malaysia, respectively. 43. Additionally, a practice which would be adopted in the current reforms – the designation of “managing judges” to oversee the work of their colleagues -- was tried out. Those involved in the experiment report that these managing judges often had difficulty establishing management authority over the other judges because they were usually selected   11 MALAYSIA Court Backlog and Delay Reduction Program from among judges at the same level. The major obstacle, Strategy it is generally agreed, was the lack of support from top management because they simply had no interest. 46. In the following sections the individual reform components are discussed but a brief review of the overall 44. Thus, while the current reform program was not strategy is provided first. The initial goal of the reform was without precedents, it was only in October 2008, when the to reduce backlog and accelerate processing of new cases. current Chief Justice, Tun Zaki Tun Azmi, was appointed, It was decided to focus on the High Courts in the court that those within the courts who wanted reform finally centers receiving most cases. The centers selected varied found their champion. The Chief Justice was unusual in over time, and now include Kuala Lumpur, Shah Alam (the having come from outside the court system (with 22 years capital of an adjoining state), Selangor, and in some sense in private practice or working as a government lawyer), a part of metropolitan KL, but which also was known and experiencing a rapid rise to the top. Appointed to the as the “black hole” because of the notorious levels of Federal Court in September 2007, within two months, he disorganization and delay), Penang, Johor Bahru, and Ipoh. was designated President of the Court of Appeal where he Putrajaya, the seat of the Federal and Appellate courts, began an internal reform, aimed at organizing the Court’s was also included, and over time a few other districts have archives and eliminating dead pending cases or “backlog” been added. Sabah and Sarawak started a little earlier (the as the Court prefers to call them.30 Using techniques (an current Chief Judge was appointed in 2006 and a contract inventory of pending cases, reorganization of the filing with another firm was used for automation). system, and targets for closing or processing the oldest files) which would later be applied system-wide, the 47. Although there was an early interest in automation, number of pending cases over two years old fell from the necessary delays in letting a tender, choosing a 8,000 to about 1,600 within the first 11 months of the firm and allowing the contractor to develop a product Chief Justice’s tenure. meant that for the first year much of the work was done through manual processes. Whether or not this was also 45. In October 2008, inspired by his success in the Court a strategy (or just necessity) it was an excellent way to of Appeals and motivated by his experience on the other begin. With allowances for some overlap of phases side of the bench, Chief Justice Zaki met with other superior (and the understanding that the main project was court members, and especially his colleagues on the Federal applied to Western Malaysia with Sabah and Sarawak Court, to discuss a reform program. Events moved rapidly, following similar processes but with their own timetable), and by late 2008, he had convinced the Prime Minister to the steps, roughly in the sequence they occurred, were put money into the effort, securing RM 69 million (US$ 23 as follows: million) for an automation program.31 While a contract was let in mid 2009, the Chief Justice and his team had already (a) An inventory of cases held in courtroom files gone ahead with some early steps – undertaking a manual throughout the country (not just limited to the inventory of the largest mainland High Courts, reorganizing targeted courts). their files, and beginning a backlog reduction program. This (b) The purging of “closed cases” and the separation of would mean that by the time automation came on line, inactive (“hibernating”) cases for rapid closure or the number of pending cases to be dealt with was much further processing (depending on the interest of the reduced and the courts finally had an accurate manual parties). Targets were set for the elimination of older registry of all their caseloads. cases. The initial goal was the termination of all cases over a year old by end of 2011 (currently revised to mid 2012) for High Courts in target districts, and guidelines 30   Technically speaking it would be more correct to call this “pend- to this effect for other courts at all instances. This is ing caseload carried over from one year to the next,” as backlog explained in detail below. really refers only to that portion that have exceeded the legal time limits for their processing. Since no such limits exist in Malaysia, (c) Introduction of “case management” (pre-trial real “backlog” doesn’t exist either. However, that is too fine a point processing of cases) and a tracking system to advance to make, and in any event, the time limits imposed less formally the backlog reduction process. This was accompanied through court directives can serve that purpose as well. by the reorganization of High Court judges and staff in 31   The amount was subsequently increased to RM 100 million, or the target districts and the designation of “Managing US $ 33 million, with another RM30 million or US $10 million for the separate Sabah and Sarawak contract. Judges” to oversee the exercise. 12  CHAPTER II: The Reform Program: 2008 to Present (d) Introduction of Court Recording and Transcription 49. There are three remaining questions, but none of (CRT) equipment for most of the courts in West them detracts from the progress made. They are also Malaysia; this is still underway but began as soon as addressed in more detail in later sections: the contract was awarded (mid 2009). (e) Development of an automated Case Management (a) How will the program be extended through the rest System (CMS), including a principal module and of West Malaysia? This is largely a question of timing module for e-filing. (and funding) but as the initial program focused on (f) Installation of the CMS (henceforth, CMIS32) in the the most congested court districts first, its complete target districts (partially installed by end January, replication is not so urgent. 2011, with full installation scheduled for end June). (b) How will the Sabah and Sarawak program (and (g) Creation, most notably in Kuala Lumpur, of High especially its IT system) be joined to the Western Court divisions to handle more specialized matters Malaysia model?34 (Admiralty, Intellectual Property and Islamic Banking). (c) What will be the next stage? The first phase (“the The first two had been created prior to the reform, reform”) laid an excellent base for some sort of but they, like the new Islamic Banking Division, were second phase program, but so far there has been no also given targets for speedier processing of cases. time to focus on it in any detail. In any event, finishing (h) In target districts, creation of “new” courts (specialized and making necessary readjustments to the first High Court divisions) to handle recent cases and their phase will probably take several more years, giving reorganization, eliminating the two tracks (not needed the courts time to reflect on the aims and content of any longer) and the external case-processing unit, but their second phase program. These readjustments leaving judges with targets for productivity and delay might include strengthening the Judiciary’s own IT reduction. Again this is explained in detail below. Department. 48. When told this was a “textbook case” of how to Reform Components conduct a program to reduce judicial backlog and delay, the Chief Justice accurately pointed out that “there is no 50. The Malaysian reform was so fast-moving and so well- textbook” which the Court could rely on to guide its reform integrated that it is difficult to separate the components. planning. However, although this was admittedly a trial and The discussion below thus does not quite match the steps error process, the Court drew on experiences it had seen listed above, but still attempts a chronological ordering. elsewhere in refining its homegrown reform strategy.33 Thus, in a period of slightly more than 2 years, the Malayan Case Inventory (File room audit) and Improved Filing Judiciary has designed and conducted a model program System and one that merits study by those contemplating any 51. Based on his successful experience in the Court of reform. There have certainly been a few minor missteps, Appeal, the first step undertaken by the Chief Justice was and these have already been corrected. The Judiciary has to call for an inventory of all cases held in courtrooms and also adopted a series of additional innovative practices, the establishment of a better filing system in each. Courts only a sample of which can be covered here. were provided with new file cabinets, but otherwise this was a no-cost process depending on the efforts of existing staff. In doing the audit and the reorganization, cases were divided into three categories – those that were effectively 32   The various uses of the acronym CMS creates some confusion. It closed, those that were “hibernating” (inactive and thus is applied to pre-trial processing of cases as practiced by the MJUs, potentially subject to closure), and the active cases. The to the type of software developed by the two firms, and has been latter category was divided by years and put into the newly adopted by Formis as the name for its own version. For this rea- organized archives with a manual system for ensuring son, the term CMIS (Court Management Information System) will that the removal of files for whatever purpose would be be used below to refer to the type of system being developed by Formis and Solsis. recorded – thus making it easier to retrieve them and 33 Singapore’s earlier and more slowly implemented reform (Malik, 2007) was obviously an example (and a challenge inasmuch as Ma- laysia seems to see Singapore as an obvious competitor), but visits 34   Lack of time has precluded fully addressing this question in this to other common law countries also proved useful. report.   13 MALAYSIA Court Backlog and Delay Reduction Program also avoiding intentional or unintentional file loss. Closed 54. Equally critical is the immediate introduction of an cases were sent to the permanent archives (or destroyed) improved courtroom filing system so that things do not and inactive or hibernating cases were separated for their revert to their prior state.36 Again this can first be done own follow-up. They were also divided by year as the manually, as it was in Malaysia, by using cards and check- target was to eliminate the older cases first. out lists to ensure files removed from the storage room can be readily located. Although the overall reform focused 52. The process was, as all participants admit, far from on a smaller number of court districts and courts within perfect, and when subsequent inventories were done later them, the inventory and improved storage systems were in 2009 and 2010, it often developed that many cases had introduced nationally, and all courts received modern file been missed. Thus the number of pending cases in any cabinets to ensure cases could be stored properly. court might suddenly increase by substantial amounts. This is not unusual, especially when courtroom storage of Case Management and Tracking system files is very disorderly (and it certainly was as documented in the before-and-after photos kept by the Court). Judges 55. Initial purging focused on removing closed files, or staff may have taken files home, stored them in their but a better system was needed to handle the inactive desks or under papers, or placed them in other unlikely cases. This combined a more systematic approach to locations.35 Additionally, as a result of the audit, files might case management (here understood as the preparation be transferred from one court to another and thus not of cases for the judge who would decide them) with the captured by the receiving court in its initial count. Despite introduction of a “tracking system.” such setbacks, the initial exercise significantly decreased the number of cases held within courtrooms and gave 56.  The Tracking System: Contrary to ordinary usage, judges and staffs a far better idea of their real workload. in the context of judicial reform programs, case tracking does not mean “following cases” but rather dividing them 53. The inventory is an absolutely essential first step in into categories for separate treatment. This is usually any delay and backlog reduction program, and it is also based on the anticipated amount of work or type of critical for any other reform goal. However, because it is treatment they will require. It is also called differential boring, time consuming, and does not feature advanced case management although that term often involves technology, it is often resisted. It also is often postponed more sophisticated differentiations than what was first on the mistaken assumption that it can only be done introduced in Malaysia. following the introduction of automated systems. This belief is not only erroneous, but can also lead to perverse 57. The tracking system drew on a series of observations results. If an inventory and the subsequent ordering and made by the Chief Justice and others in his reform group initial purging of cases are not done first, automation (essentially a majority of Federal Court justices as well as becomes much more difficult. This is first because any the President of the Court of Appeal and the Chief Judges type of automated registry will have to include cases that of the two High Courts). Judges handling civil matters should have been closed already, and second, because the in particular commonly have two types of cases – those information collected during the inventory on caseload requiring the presentation of oral evidence, and thus full composition and procedures and practices that cause trials, and those involving only the revision of documents unnecessary bottlenecks will not be available to guide (trial by affidavit). The latter category includes both system design. principal cases and interlocutory motions and appeals connected to another case (which may have had or will eventually require a full oral hearing or trial). Because affidavit cases can be handled more quickly, judges faced with a quantity of both types tended to focus on 36   In several donor-sponsored reforms, stand-alone inventories (no follow-up) have been conducted, but this implies that the “snap- 35   In one such inventory conducted by an outside firm in a Cen- shot view” of caseloads will be outdated as soon as it is completed. tral American district court, once the firm thought it had finished, If one is going to take the time to do an inventory, it only makes someone opened a backroom only to find hundreds of additional sense to introduce an improved filing and case registry system im- files. mediately, and neither one requires automation. 14  CHAPTER II: The Reform Program: 2008 to Present the affidavit cases, postponing those involving full trials. Although also affecting affidavit cases (as regards both Use of Court Rules to Enforce Faster Case Processing document submission and the final short hearings), the Like other common law systems, Malaysia relies on practice of leaving full-trial cases for later was encouraged Court rules (in its case developed by a Rules Committee, by the tendency of lawyers to request postponements – pursuant to Section 17 of the Courts of Judicature Act) because they were not ready, because their witnesses had to define many details (including timing of case events) not appeared, because of scheduling conflicts and so on. usually set out in procedural codes (which require leg- 58. Thus, in continuing with the backlog reduction islative enactment) in civil law countries. In many com- program (beyond what could be done by eliminating mon law developing countries, the Rules may exist but closed cases), the reformers decided to divide judges and are not enforced. In Malaysia, the Court took full bene- cases into two “tracks” – the A track (affidavit cases) and fit of their presence in its reform, and also used a series the T track (cases requiring an oral trial).37 The principal of directives (for example those setting targets for new tracking system (A and T tracks) was introduced gradually case processing times) to supplement them. Among over 2009 and 2010 for civil and commercial divisions of other details Malaysia’s High Court Rules set deadlines High and some Subordinate Courts: for dates of hearings and also give the “court” the abil- ity to decide on adjournments. These two items have • Kuala Lumpur High Court (Civil and Commercial been critical for speeding up processing of new cases. Divisions) February 3, 2010 This is a matter of discipline, not law (as Court Rules in • Shah Alam High Court, July 1, 2009 other common law countries often include similar pro- • Georgetown High Court, October 1, 2009 visions), and both judges and lawyers have simply had • Georgetown and Butterworth Subordinate Court, to toe the line. October 15, 2009 • Johor Bahru High Court, November 2, 2009 • Johor Bahru Subordinate Court, November 16, and the High Court Chief Judges were also assigned to this 2009 role. Since the Managing Judge (who also performed his • Malacca, Seremban and Muar Courts, January 1, other duties in whichever court on which he normally sat) 2010 was not always present, a designated “managing deputy • Ipoh High Court and Subordinate Court, January 15, registrar” or in one case an “organizing judge,” selected 2010 from among the High Court judges, supervised day-to-day • Alor Star High Court and Subordinate Court, March operations for each MJU and the courts it served. The latter 1, 2010 officers “fixed” cases (assigned them to judges), scheduled hearings and trials, and generally tracked performance. 59.  Case Management: The tracking system not The MJUs report directly to the Chief Judge. only involved dividing the judges; it also required a reorganization of staff. Deputy and senior assistant 60. In the MJU, staff prepared cases for handling by registrars who had been assigned to individual judges judges in either of the two tracks (or in the third M Track were put into a Managing Judge Unit (MJU), usually one where it existed), ensuring that the parties had submitted for each Division. Performance in each district (state) the necessary documentation, lists of witnesses, and was supervised by a Managing Judge. Most of the latter arranged for summonses for the latter. They could also came from the Federal Court, but Appeal Court Judges close cases administratively (for lack of action or expiration of the time limits), encourage settlement, and make basic 37   There was also a third M (for miscellaneous) track covering ap- decisions on pre-trial matters (although these decisions plications involving oral and affidavit evidence for appeals and FLJC might be resubmitted by the parties to the relevant (family, land, judicial review, and company winding up) cases. Its judge). It is well to remember that as members of the use was limited to Shah Alam, as an innovation of the Managing Judicial and Legal Service, the deputy and senior assistant Judge overseeing that complex, who found this the most practical registrars usually had worked as magistrates previously. way of dealing with that center’s less complex organization, as com- pared to Kuala Lumpur, and the fact that these areas tended to be This process, nearly entirely effected through Court Rules handled by only one judge (thus making dual tracking – the A and T and Federal Court directives and circulars, was resisted system – less feasible.). by some judges because it took pre-trial matters out of   15 MALAYSIA Court Backlog and Delay Reduction Program their hands, and by many lawyers, because it imposed 63.  Application to Criminal Cases: As discussed in a later strict deadlines and usually kept them in the dark about section on the separate crime reduction program, efforts which judge would hear the case until after the pre-trial to apply these goals to the criminal caseload have been management when the case was finally fixed. However, it somewhat less successful. Backlog has been reduced if proved extraordinarily effective in moving ahead both old not as dramatically, and there are instructions for limiting and new cases. adjournments and setting time limits for preparatory activities. However, the Judiciary as a whole feels it cannot 61.  Further Court Reorganization: Tracked cases initially be as strict with these measures in criminal matters because included both pending cases and new entries, but as there of the values involved. These include both an interest in was a further emphasis on eliminating the older cases, facilitating prosecution and in giving the defendant an this could have created delays in processing new filings. opportunity to organize his/her defense; both parties While two sets of goals were established – one relating commonly encounter problems in getting their witnesses to the gradual elimination of older cases in batches (first to court, and the latter’s absence is a common justification those entered before 2005, then before 2008 and so on) for adjournments. Moreover, except for interlocutory and the other to resolving all new cases within fixed time motions and appeals, criminal cases are not decided on limits (always under a year for full trial cases and less for affidavits but rather require full trials. When the recently affidavit cases), it was apparently the first that got priority. enacted plea bargaining measure is implemented, the Ageing lists thus only went by year of entry and did not length of trials could be substantially reduced and many “age” new cases by months. However, any such problem of the factors contributing to their duration (failure of was soon eliminated by a still newer policy, adopted first witnesses to appear for example) eliminated.38 in Kuala Lumpur and then in Shah Alam. This entailed the creation of New Commercial Courts (NCC) and then New 64. As regards criminal justice a few additional comments Civil Courts (NCvC) which were to receive only cases filed are in order. First while there are some very old cases after their creation. As the backlog was reduced, judges in the backlog, they are few in number and the major from the two other tracks were transferred to these complaint about criminal justice is not delay but rather the new courts (physically located in the same buildings – very low number of crimes successfully investigated and this was a change of nomenclatures and also of working adjudicated. The analysis provided by the Prime Minister’s rules, not of location) along with the deputy and senior Performance Management and Delivery Unit (PEMANDU) assistant registrars no longer needed in such quantities (2010) indicates that of the 2.5 million crimes reported in the Managing Judge Unit. The new model will thus in 2009, less than 10 percent resulted in the charging of return to the former courtroom organization, allowing a suspect and only 5.6 percent reached a verdict. Figures each judge to handle both A and T track cases and having for the 40,738 violent crimes reported were 13.7 percent case management done by their own staff rather than by resulting in a charge and 8.1 percent reaching a verdict. a separate unit. This is not quite full circle as judges will Verdicts included not only convictions and acquittals but now have targets for case resolution times. In the NCC and also DNAA (discharged not amounting to an acquittal) NCvC, the overall goal is to resolve all cases in 9 months or which is to say the case was closed without a verdict, but less. As discussed in Chapter III, this goal has been met. might be reopened later. However, most of this is not a problem of the courts but rather of the police and the 62. This entire process (tracking and reorganization) prosecutors. The courts only get involved once a suspect was most fully developed in the Commercial and Civil is charged. The larger problem, in the eyes of the public, Divisions of the High Courts in the five target centers. Only is the ineffectiveness of the police and the prosecution a few session courts adopted the tracking model, and it which results in only few of the crimes actually reaching apparently was not taken to the remaining court centers the courts. The same analysis did note that judges were for any level court. However, if in a slightly diluted form, the responsible for 23 percent of the adjournments (adding practices were imitated, and moreover the same targets to delays and probably the chances of an eventual applied across the court system – reduction of backlog so that by mid 2012, there would be no pending cases more than a year old, and speedier processing (with the target 38   The law has been enacted, but its implementation has been de- durations reduced over the course of the reform) for civil layed because of concern about some details. and commercial cases in particular. 16  CHAPTER II: The Reform Program: 2008 to Present DNAA) but also recognized that the courts had already Powers Division of the High Court. The latter (RKK) is a made significant strides in ending that practice. Statistics multi-judge Division. It hears civil appeals from the Kuala supplied by the Court indicate that by mid-July (six months Lumpur subordinate courts, issues relating to the Legal into the program), judge-caused postponements were at Profession Act, and judicial review applications against 18 percent.39 administrative decisions. In January 2009, its backlog was described as “alarming” and moreover affected the final 65. Second, as regards the entire criminal justice system, disposition of cases in the subordinate courts awaiting its there are ample criticisms, not necessarily shared by the decisions. Rather than dividing cases into tracks (which wider public, of its hard-on-crime approach, especially as made little sense as these were largely affidavit cases), its regards the severity of penalties, the inadequate supply of judges were each assigned a daily quota of cases, working legal assistance, and of course the large number of death hours were extended to Saturdays, and adjournments penalty cases (roughly 30 a month heard). However, this were strictly monitored. By September 2010, the number approach is based on law, not judicial preference (although of pending cases had been reduced by two-thirds, from judges seemed convinced of its necessity). Finally, criminal 3,759 to 1,228. cases represent only a fraction of overall workload. This could change if some of the additional crime reduction 68. It is likely, but would have to be verified through measures are successful (see section below on the site visits, that other districts had their own variations, PEMANDU program), but until it does, any effort to reduce but all shared the same goals of reducing backlog and so court backlog will logically emphasize the non-criminal improving the ageing list (over time fewer and fewer cases cases, first because they are a majority and second because from prior years) and accelerating the handling of new the complaints about delay are focused there. cases. . It was reported, however, that a so-called “Blitz” was exercised in many targeted centers (e.g. Shah Alam 66.  Additional Variations: The process described above and Penang). This entailed sending judges from other is based on observations and interviews in the main court divisions to assist judges doing criminal appeals from the complexes in Kuala Lumpur and Shah Alam. These are the subordinate courts to clear all the pending cases.40 largest and most organizationally complex judicial centers, and they feature multiple Sub-Divisions for their Civil High An Alternative and Less Successful Approach to Court as well as greater specialization of their sessions Backlog Reduction courts. Since some of these specialized Sub-Divisions or courts included only one judge, it was impossible to create In two Latin American countries with problematic civil backlogs (Peru and Colombia), the Judiciaries chose to two judicial tracks to handle their cases. This was one of create special, single-judge courts to handle older cas- the reasons for the introduction of the M Track for the es, transferring them from the most congested regular so-called FLJC (Family, Land, Judicial Review and Company courts. No initial inventory was done, no targets were Winding-up) cases in the Shah Alam courts. Nonetheless set, and the results have not been carefully monitored the results have been positive and the single-judge High making it difficult to evaluate their success. However, Court Division handling family matters in Kuala Lumpur, anecdotal evidence suggests it has been limited. Among for example, was resolving nearly 2,000 affidavit and full- other reasons this is because, as a Peruvian observer trial cases a year and had kept the carry-over from one noted, the judges transferring their cases now have year to the next at a constant and reasonable 500 cases. less reason to work faster, and the temporary judges in the new courts, interested in keeping their jobs, have 67. This was also true of the three additional Divisions little incentive to process their caseloads rapidly. Both located in Kuala Lumpur – Admiralty, Intellectual countries already had considerably more judges than Property, and Islamic Banking – as well as the Special Malaysia (although Peru has about the same size popu- lation) and individual workloads, to the extent they can be estimated were at (Peru) or below (Colombia) the 39   “Judge caused adjournments” are often a result of a judge being Malaysian levels at the start. Both countries use panels ill or on maternity leave and the failure to appoint a substitute. The of judges for more complex cases, but most of the con- Judiciary has addressed this issue by sending a senior assistant reg- gestion arises in single-judge “courts.” istrar or deputy registrar as a substitute. In other countries (World Bank, 2010 on Ethiopia) it also covers instances where a judge de- clares an adjournment because of not being prepared or for an- other, non-specified reason.   A World Bank study (2004) reported a similar exercise in Brazil. 40   17 MALAYSIA Court Backlog and Delay Reduction Program 69. The Court of Appeal and the Federal Court were not Additional Personnel Policies excluded from the process. Within the former, four special panels were set up to facilitate early disposal of pending 73. The reform did not hinge on the usual “first step,” civil and criminal cases. The fourth and last panel hears adding judges, but it soon became obvious that more would appeals from the New Commercial Courts to ensure that be needed. For the High Courts this posed a problem as they the rapid processing in the High Court is not defeated by a already had the maximum number of judges stipulated by slow appellate process. Although cases are fixed to panels the Constitution. This problem was resolved by the use of earlier on, the members of the panels rotate and are not short-term Judicial Commissioners. These individuals were assigned till the case is ready to be heard. This practice not assigned to special courts (as in the Latin American is intended to reduce any effort by lawyers to influence cases), but rather to ordinary duties, usually in authorized their decisions or to withdraw the case so they can get a but unfilled High Court positions. Their performance is “better panel.” Late “fixing” of cases for multi-judge High also monitored and over time, the best performers are Court divisions is practiced for the same purpose. given permanent tenure, thus allowing for the promotion of some existing High Court judges to the Court of Appeal 70.  Results: More specific information and statistics (where the numbers are still under the constitutional limit on the results of this and the prior exercise are given in and moreover, caseload has increased). As numbers of the chapter on achievements. By the end of April, 2011, subordinate judges are not similarly limited, some additions pending cases in all courts had been reduced by roughly were made here. However, additions are based on an 66 percent (see next chapter for details). The courts analysis of caseloads and at least eleven subordinate courts have continued to reduce the amounts carried over and have also been closed for lack of demand. Thus, despite moreover have maintained a clearance rate of 100 percent the addition of judicial commissioners (many of them only or higher. Monitoring of caseloads and disposition rates intended as temporary appointments) the reform has relied has been further refined, although still having to be done more on increasing efficiency than increasing personnel to manually for the most part. meet its goals. 71. This has, however, affected the workloads of the Court 74. The emphasis on increasing efficiency meant that of Appeal and most probably will have a similar effect on the incentive structures had to be modified, as there the Federal Court because as more cases are decided, was no guarantee that judges and registrars would more appeals are entered. Thus, whereas appeals filed at simply leap to the challenge. One way of doing this was the Court of Appeal in 2006 totaled 2,368, in 2009, they through the requirement for daily and monthly reports on reached 5,045 and in 2010, totaled 6,412. Leave-to-appeal caseload movement. The daily reports from each judge filings have likewise increased dramatically – 1,052 entries go directly to the Chief Justice who monitors a certain in 2009 and 1,711 in 2010. Consequently, the number of portion of them as they come in and communicates the pending civil and criminal appeals in the Court of Appeal, problems to the respective Managing Judge as they are after an initial reduction, had reached 10,209 by the end noted. The monthly reports are published (no longer with of April 2011 – as compared to the 9,714 pending at the names on them, but judges can still see where they stand end of 2008. Nonetheless most of the COA’s pending comparatively). Managing Judges make periodic visits to cases as of April 2011 were from 2009 and 2010. Pending courts to do surprise checks, and all judges are also given civil appeals as of the end of 2010 included only 204 civil a series of targets, all of which were discussed in periodic and 72 criminal cases from 2007 or earlier. judiciary-wide conferences. Common targets include those for reducing backlogs and for the resolution of new 72. As compared to backlog reduction programs cases within fixed time limits. Additionally, as the program conducted in other countries (see box), and usually has gone on, judges in the track system are allocated depending on the creation of special “backlog reduction specified numbers of cases on a weekly basis, based on courts” and the addition of more judges, Malaysia’s results estimates as to reasonable amounts. There has also been have been far more positive and are also monitored and a more recent attempt to weight cases (based on relative documented (something often lacking in other backlog complexity) so as to ensure more uniformity in the reduction programs, although see World Bank 2010 and composition of caseloads. In the new civil and commercial Walsh 2010 on a comparable experience in Ethiopia). courts, the practice has been to introduce the courts two 18  CHAPTER II: The Reform Program: 2008 to Present at a time and let the registrar assign all incoming cases Other Measures to Improve Performance and Eliminate arriving during a four-month period to one or the other, Some Traditional Vices using the weighting system as well. 77. Some of the most important measures here have been Use of Specialized Courts the tightening up, through the issuance of court directives of timeframes for lawyers’ provision of documents 75. In contrast to practices in other common law essential to decisions on both affidavit and full trial cases. countries (the U.S, England), Malaysia seems to have a This has been the crux of the case management process preference for specialized courts and this is reflected in and the effort to prepare cases for their hearing by judges. the overall reform program. The Commercial and Civil Additionally, courts, through their managing judge units High Court Divisions were already standard and Civil have taken a more systematic approach to 1) assigning Courts in Kuala Lumpur also has a Family Division. In cases to judges; 2) scheduling hearings and other events Kuala Lumpur there were already additional Divisions for (which lawyers ignore at the risk of a case being struck Intellectual Property and Islamic Banking matters. A new out or suffering a default judgment); and 3) setting and Admiralty Division was created in 2010. The addition of tracking performance targets. It bears emphasizing that the New Commercial Courts (NCC) and New Civil Courts until now most of this has been done manually as the (NCvC), while temporary (as over the longer run they will relevant automated modules are still not in place. Only be the only Commercial and Civil Divisions), follows on the performance monitoring now uses the automated system tradition if for slightly different reasons. Specialization is (and only at the courtroom or MJU level41), but case most pronounced in the High Courts in the most congested assignments and scheduling must still be done with manual districts, and there even subordinate courts are further specialized – for example in Kuala Lumpur, in corruption, Setting Targets for Case Processing money laundering, immigration, narcotics, intellectual In addition to the targets for backlog reduction, the property, various banking offenses, and claims in tort. processing new cases. courts have been given targets for ­ Elsewhere, magistrates, sessions and even High Courts These are moving targets – changed (and often pushed may hear all manner of cases, as they are too few to make up) on the basis of experience. Among those applied to specialization feasible. the New Commercial Courts (NCC) in late 2009 were the following: 76. One further note on specialized courts merits attention. The Malaysian system of rotating judges and • Processing of documents on day of filing especially those in the subordinate courts seems to • Return date within 3 months for writ summons emphasize specialized courts but generalist judges. This • Hearing date for Winding up petitions within 2 months of filing in some sense may contradict the principal argument • For other cases, case management within 2 weeks for specialization – the development of expertise on the of filing topic – since a judge who sits in the criminal division of • Hearing date for A Track cases before Judge within 2 a High Court one year may serve in a family division the months of filing next. The same is true of staff who also rotate. There are • Full trial (T Track cases) scheduled and completed doubtless other organizational and logistical advantages within 9 months of filing. to maintaining specialized jurisdictions (e.g. the greater ease of tracking cases when there is less variety in the Other, more recent targets for other jurisdictions include: issues and basic procedures). However, it would be hard to • Termination of corruption cases within one year argue that these have to do with judges or staff spending • Termination of uncontested divorces within 2 weeks. years honing their expertise. This apparent contradiction merits more attention. Except in matters like admiralty These targets affect both judges and lawyers, and law, intellectual property, Islamic banking or complex judges’ compliance with them is closely monitored. ­ white collar crime, it is doubtful that the majority of cases require any special kind of knowledge. Judges, however, 41   While the Judiciary has a Case Management Unit (CMU) attached seem to like the system, reporting (in interviews) that it to its Statistical Office, it relies on the manual compilation of statis- gives them a good overview of all kinds of cases. tics supplied by individual judges or the MJUs. Contrary to what its name suggests, the CMU does no “managing” but rather helps the Court get an overview of overall system progress.   19 MALAYSIA Court Backlog and Delay Reduction Program tools. This complicates life for the Managing Judge Units (a) Adoption of plea bargaining for criminal cases; (MJUs) and especially for the managing deputy registrars, (b) Simplification of introduction of evidence for criminal but the results demonstrate that it is indeed possible and cases – in essence the admissibility of written thus a further lesson for courts who claim nothing can be documents for the evidence-in-chief (initial witness done “until the machines and software arrive.” testimony) as already allowed in civil cases/ (c) Further simplification of the High Court and 78. The Judiciary has also sought to overcome minor, Subordinate Court Rules to increase efficiency and but irritating delays caused by the different requirements make for a new “friendlier” court procedure; and placed by judges and their staff as regards ordinary filings. (d) Increase in the jurisdiction of the session and Lawyers not familiar with the quirks of a judge or his/ magistrates courts to reduce case volume in the High her staff might find their papers returned for corrections. Courts. Standardized forms have been introduced, and agreements reached (and recorded in a database) as to how judges’ 80. The lack of reliance on extensive legal change, names will be entered. This became necessary because of along with the decision to move ahead with backlog and the many honorific titles used and differing preferences delay reduction programs before the ICT systems were as to where they would be placed. Finally, there have developed, is an important aspect of the Malaysian reform. been attempts to encourage judges to write shorter Courts that have chosen the contrary path often spend opinions; this is a perennial problem for many courts, and unproductive years waiting for the right laws and the right is usually hard to combat because judges feel it interferes system to be installed. Procedural changes (requiring with their independence. Results were not reported, but legislative enactment) can help, but as Malaysia’s several of those interviewed noted that setting of the experience amply demonstrates, it is far more practical to targets for processing cases may be a sufficient incentive attempt targeted, as opposed to holistic, change, to make on its own, as writing overly long opinions clearly takes what changes are possible through less formal rules and more time. directives, and to base whatever changes are formally adopted on ample information on real performance and Procedural Changes if possible piloted testing. 79. The reform to date has not relied on extensive Mediation changes to laws regulating procedures. One of the most important, the introduction of case management, 81. One immediate result of the greater emphasis on had been adopted in 2000 as noted above although its moving cases ahead and setting firm dates for submission effective implementation only began with the current of documents, other pre-trial matters, and full hearings and reform and its extension to pre-trial matters for criminal trials has been a tendency of lawyers to see the benefits cases was a recent addition. Pre-trial “case management” of out-of court-settlement or court-annexed mediation. did exist for civil cases, but it was subject to the same Mediation has been widely used in road accident claims delays the reform has targeted for elimination. Court at the session courts. On several occasions judges publications and interviewees mentioned cases that had commented that when firm dates are set and the parties been “managed” 20 or 50 times without getting to trial. As and their lawyers know they will be respected, “their palms part of the reform, the courts have, either by modification begin to sweat” and they start to see the advantages of of their Rules or the issuance of circulars, tightened up taking the less complicated route. This sometimes means some of the timeframes for lawyers’ submission of withdrawing the complaint or going for a settlement with documents and taking of other actions in the pre-trial the other party. However to facilitate matters, in April (case management) stage and have otherwise worked to 2010, the Judiciary introduced the possibility of court- ensure that pre-trial preparation moves rapidly and that annexed mediation for commercial, family, and other civil lawyers do not arrive on the day of a pre-trial audience, cases. As the concerned stakeholders are still debating a hearing or trial with another request for more time. For new mediation law, advances to date have been through example, the witness statement is now used in civil cases less formal arrangements, making the services available as a substitute for a lengthy examination-in-chief. Among and encouraging lawyers and unrepresented parties to the further changes to be implemented, some of which use them. The Court’s reading on this is that inasmuch are still under consideration, are the following: as mediation depends on a decision by the parties, a 20  CHAPTER II: The Reform Program: 2008 to Present law, while helpful, is not required for it to be used.42 The Creating a Specialized Resource Center (Training)44 practice is new, but given Malaysia’s apparently highly practical approach to such issues it seems unlikely it will 84. The Judiciary has attempted to make improvements be challenged legally. Of course parties can always decide here, but budgetary constraints have been a problem. not to comply with a mediated agreement, but that is The roughly RM 400,000 (US $133,300) made available also true of a more formal judgment. In court-annexed annually for training has allowed the holding of workshops mediation, any settlement would in fact constitute a court and short courses, but has not permitted the development order and would be enforceable as such. Whether this of a permanent training program. Fortunately, poorly will put compliance rates at the same level of those for prepared judges do not appear to be an issue in Malaysia judgments remains to be explored. and courses have thus been able to focus on exposing judges to skills and concepts critical to the reforms. As 82. In Malaysia, court-annexed mediation is done by a discussed in a later section, the Judiciary has proposed judge, although usually not the judge who would hear setting up a permanent program, but this will require the case. The one exception was the Family High Court further analysis of needs and certain decisions as to career in Kuala Lumpur, but only because it has only one judge. trajectories.45 However, should disputants in that court desire another arrangement, mediation can be transferred to another Expanding Use of Information and Communications judge. Global statistics on mediated cases were not Technology (ICT) to Support Case Management, Facili- reported, but numbers of those formally mediated (as tate Filings, and in Court Hearings opposed to informal settlements) still appear to be low although the system does work to the extent of reaching 85. Most of the following discussion is restricted to an agreement for those who choose it. The Commercial activities conducted in West Malaysia. The program Division of the Kuala Lumpur High Court reported a 50 conducted in Sabah and Sarawak was not reviewed. As percent success rate (agreements reached) for the one noted it has its own IT contract with the firm SAINS, and month covered. The Family High Court Judge for Kuala started slightly earlier. It shares the same goals as the Lumpur claimed that her success rate was about 75 percent; West Malaysia program and appears to have made similar the number of cases mediated was not provided. Formal progress, perhaps due to its far less congested courts and mediation remains a fairly new concept in Malaysia and consequently lesser problems with backlog. In fact its it is thus not surprising that use rates remain low. There courts may be still more up-to-date at present, because is also the issue of whether parties to the agreements there was less to update when they began. reached through mediation will understand they are as much court orders as a formal judgment. 86.  Court Recording and Transcription System (CRT): The total being spent on ICT under the two main contracts 83. The courts have conducted training on mediation and (with Formis and SAINS) is RM 130 million or roughly if they continue to promote it, the numbers of mediations US$43 million. Of this RM 100 million is for Formis and conducted should increase substantially over time. In many RM 30 million for SAINS. Both contracts cover the creation countries, fee-based and free mediation centers are used of a Case Management System (CMS or perhaps more more extensively, often to head off cases before they get to appropriately CMIS, Court Management Information court, or soon after filing. Some countries even make this a System46) but in West Malaysia, the Formis contract also mandatory pre-condition for further consideration by the includes moneys for the creation of a Court Recording court, although this practice has many critics.43 In Malaysia, it appears that the courts will urge mediation only after the 44   When asked, none of the likely parties had any idea what was pre-trial case management. This takes advantage of the meant by a “specialized resource center.” It was thus surmised that this referred to training. so called “sweaty palms syndrome” but earlier mediation 45   The Judicial and Legal Service has its own training institute, but whether court-annexed or not might also be considered. it does not have a program for superior court judges. The Institute offers an obligatory orientation course for new JL Service members, 42   The Judiciary is considering introducing plea bargaining in crimi- and also offers roughly 25 short courses a year aimed at JL Service nal cases in the same way, while the new law remains under review. members working in the courts. Its programs are also open to con- 43   This is because compulsory mediation can become simply an- tracted court staff even before they apply for the service. other obstacle to justice, especially when one or both parties do 46   As noted above, the term CMIS has been substituted for CMS to not want to use it. reduce some sources of confusion.   21 MALAYSIA Court Backlog and Delay Reduction Program and Transcription System (CRT). This part was done first 88. Courts are also experimenting with other audio visual and will result in the delivery of audiovisual systems for tools. Because of the large distances in Sabah Sarawak, recording hearings to 387 courtrooms – as of early 2011, some hearings and witnesses’ testimony are done by 300 had already received the equipment. The rationale video conferencing. In West Malaysia, there are on-going behind this activity was the delay caused by judges having experiments with teleconferencing to handle some pre- to take notes on proceedings which would become the trial matters. This avoids having parties and their attorneys official record of their content. This created considerable go to the courts for relatively simple hearings. Most of delay and also did not produce entirely accurate records. this is not covered under the IT contracts but rather is a An earlier experiment with real-time transcriptions by separate initiative of the courts. court reporters did not work in West Malaysia because of language difficulties – proceedings are conducted in 89.  Queuing System: A second element, introduced in English, a language in which those doing the transcriptions the larger court complexes in Western Malaysia is the were not always completely fluent. East Malaysia has electronic queuing system, intended to facilitate holding fewer problems with this arrangement and it apparently of hearings by registering the arrival of attorneys, on the continues to use court reporters’ transcripts. This has day the event is scheduled and letting them know where advantages for criminal cases where the law still requires they stand in the queue. Once registered at the court, the courts to provide written transcripts to the attorneys they can also leave and call in using SMS or texting from (meaning that the audio-video recordings must later be their mobile phones to verify the time they must return transcribed by court staff). However, this is not required for the hearing. Attorneys arriving for a case management for civil cases, although the lawyers do object that they or chambers matter register at the court building, and need this service to be able to review the court record when both parties have checked in, the hearing is placed quickly and so comply with the 14 day deadline for filing in the next slot in the queue. If one lawyer arrives and an appeal. the other does not, the former can seek out the registrar to determine how to proceed. Hearings are scheduled for 87. The audiovisual equipment is stand alone, meaning that at present, the recorded transcript (a CD) is still stored in the equipment installed in each courtroom with A Further Note on Unique Numbers, copies being made and delivered to the attorneys at the E-files and E-archives end of the trial or hearing.47 Eventually, a central storage As anyone who has searched their paper and e-files for mechanism will be needed, but so far the collection a document knows, both processes can be equally frus- of recorded transcripts (the CDs) does not exceed the trating. As paper files are converted to electronic for- capacity of the courtroom facilities. Judges interviewed mat, there will be a need to develop a good e-archiving in Kuala Lumpur, Shah Alam and Putrajaya were quite system. This is one of the reasons the unique number pleased with the arrangements, although some of becomes important, as it should allow the case to be re- them seemed not fully familiar with all of the functional trieved wherever it is located. However, judges, courts, possibilities – for example their ability to type notes into and the entire court system will need to ensure their e- the audio-visual recording for their own future reference. archiving system is as easy to use as the current physi- Notes would not be visible in the copies supplied to the cal files. Paper files have one advantage here – they are attorneys. The recording system is nearly fully automatic, easy to see, and as was done in the physical backlog using 4 cameras and focusing in its video portion on the reduction program, can be moved into piles, or even person speaking. It is thus operated by ordinary courtroom separate rooms to facilitate processing, In a virtual fil- staff and does not need a special technician. No problems ing system, this is also possible, but software must be with equipment were reported and the judges concurred modified for this purpose. Since none of those inter- that it allowed them to conduct hearings and trials much viewed mentioned the virtual archives, it is a good bet more rapidly. these will need more work. The front-end of the process (e-filing) has received most attention, but now the back- end should get still more emphasis so that the courts   It bears noting that judges in Malaysia do not share courtrooms 47 are not swamped with millions of electronic files with so there is no problem with mixing CDs from one judges’ hearings inadequate means of navigating through them. with those from another. 22  CHAPTER II: The Reform Program: 2008 to Present the morning, but previously there was no way of knowing wide.48 The situation could be remedied by changing the when or whether a hearing would be held owing to the formula for creating a number (and thus adding a code for absence of one or both attorneys. This problem has now the intake center or court where it enters) or by waiting until been resolved. Attorneys interviewed in Kuala Lumpur the system goes fully on line, in which case, the sequential were not sure how much time this saved them, but did number would incorporate the universe of filings. Given appreciate the transition from the former chaos and the that all courts will not go on line for some time, the former opportunity to do other work while waiting. Although less solution is most practical (and in fact has reportedly been necessary in smaller courts, the system will be gradually partially adopted as an “invisible” numerical addition to expanded to them, because of the benefits for both staff the basic case number).49 Unique numbers are essential and lawyers. It eventually can be used for trials as well for tracking a case in its trajectory, however convoluted, (where the presence not only of the lawyers, but also of through the entire court system; they should thus be other parties is required). Similar mechanisms are used retained even when a case is transferred to another court in other judicial systems and are often part of a reform or instance for whatever reason (although the second program. However, the Malaysian version is especially court or instance may assign an additional number for sophisticated because of the combination of electronic its own bureaucratic purposes). However, such thorough scheduling with the attorney’s registry of their presence. tracking is really only possible with a fleshed-out CMIS, for This avoids the problem of “definitive” scheduling of which reason its importance was probably not recognized a hearing which will be postponed because one of the in the latter’s initial design.50 lawyers has not appeared. 92. Until now the entire process of admitting and 90.  Automated CMIS and E-Filing: The most complex registering a case had been done manually, and although part of the ICT contract, and one still under development the admitting clerks are extremely efficient, additional data in West Malaysia, is the creation of an automated had to be recorded manually and all documents went into case management information system with its various a physical file. It is the intent of the Court and the system modules. A first module, already installed but still handled designers that by the end of the contract (June 30, 2011), partly manually, registers the initial civil filing, enters most of these steps will be automated and for those who the pertinent information into an electronic database, chose to e-file, all documentation will be entered directly assigns a case number, and adds scanned copies of the into an electronic file with no need for paper copies. For accompanying documents. It also calculates fees and those preferring to bring their filings directly to the court, once these are paid (in the same building), issues a the process will still be more agile, but data will have to writ of summons for delivery by the attorney (or if s/he be entered and documents scanned by the court staff. wishes by the court for an additional fee). There is also E-filers will also be able to pay their fees by internet using a comparable model for criminal cases, but it was not a credit card. Whether e-filed or physically delivered to the examined for this assessment. The initial version, which courts, the case file will be electronic and paper copies of required manual transfer of the relevant data to the documents will no longer be retained. Currently bar codes court database, is already being replaced with “internet are placed on written submissions for their easier location filing” which provides forms to the filer from which data can be extracted automatically. It was reported that 40 48   The current system involves three numbers – one for the year, firms were already using this method, although it was one for the issue (e.g. violent crime, uncontested divorce, civil inter- introduced between the initial fieldwork in January and locutory appeal), and a sequential number apparently correspond- the follow-up visit in May and requires several additional ing only to the year (not the second issue-specific figure). A better, steps to be taken by any potential user (e.g. registration but no more complicated system would feature the year, the court or intake office, and the sequential number, based on both. A fourth of digital signature). figure, corresponding to the general matter (Civil, Family, Commer- cial, Criminal, etc) could be added, but unless incorporated in the 91. One of the few problems observed is that the CMIS numerical sequence, is really not necessary. It might, however, help will continue to use the older method for assigning case in organizing the e-archive. numbers, meaning that cases do not receive a unique 49   Why the number remains “invisible” could not be explained, but number (which is to say one not shared by any other case may have been easier for the vendor to add. 50   The “invisible” number was also added after the first field work, ever registered anywhere in the court system). Currently, possibly in reaction to the lengthy discussions about its impor- numbers are unique to each intake center but not system tance.   23 MALAYSIA Court Backlog and Delay Reduction Program in the files although this obviously will not be needed once in rudimentary form, to generate the required daily and files are completely automated. The perceived advantage monthly reports on caseload movement and to otherwise of this system, aside from saving space (and trees) is that monitor how cases are progressing. Unfortunately, as of the file will be accessible to many users simultaneously, May 2011, the central Statistics Unit did not have its own thus saving the time of circulating it among them, or only version of the database and thus still received reports in of locating it for transmission to the immediate user. written form and then had to enter data and calculate However (see box), for this to happen, the virtual archive the global statistics manually. However, the Formis may require further organization. representatives reported that the Unit would have its own database application by June and thus could receive 93. It is the e-filing and electronic case files that have data from CMIS courts electronically. If this is done, it captured most attention, but another very important means that the Statistics Unit could generate reports aspect of the CMIS should be the creation of an electronic automatically without having to do manual compilations. database recording key information and major events for For non-CMIS courts, data will still be processed and each case (another reason for emphasizing the unique entered manually. number). This is different from the electronic case files and registries although its contents would be based 95. It now seems unlikely that even with web-based on data entered there. The files will include scanned connections to the CMIS courts, what the contractor is documents and eventually may be linked to the CD offering (based on the initial contract) constitutes a global recordings of hearings. The current registries kept at the database installed in the Statistics Unit. Instead the Unit courtroom and court complex levels are largely records will still be working with aggregate data even from CMIS of case events (scheduling and minutes of hearings, basic courts. Ideally, its database would codify information information taken when the case is filed, and so on). managed at the courtroom level and thus offer an Because of the large quantity of text entries, they do not enormous potential for doing further analysis, no longer permit much quantitative analysis, but can be used to limited to the reports now created. This would certainly generate preprogrammed reports. The database should help with the sporadic requests the Unit gets for analysis comprise largely coded (not text) entries, replicating what not already contemplated. Depending on the codified is in the registries, but also allowing free-form analysis at elements of the database, a good deal more analysis the local and central levels (where analysts can focus on would be possible. Beyond this, the Unit would be able to system-wide performance trends). It is thus a vital tool conduct data mining, a less directed crossing of variables in courtroom and system management. The web-based to see what patterns emerge. All of this could and should design would allow considerable additional analysis for be closely coordinated with the budgetary, planning, and those with access to it. Access policies will of course have personnel offices because of the potential impact on to be developed, not only to protect the data entered future development plans. However, even with what now but also the privacy of parties. Since the Court tracks appears to be a database comprising aggregate statistics, performance through reports generated at the courtroom its full utilization will require several additional steps, or Division level, using statistics generated there, it is not as discussed in more detail in later sections. The most apparent that it has much interest in a global database important of these involves upgrading of the Statistics or understands its future uses; those interviewed were Unit. Most of the staff is currently involved in manual entry not sure the database in fact formed part of the initial of data and calculation of basic statistics. This will only be contract. The Chief Justice has asked the IT Department required in the future for non-CMIS courts. Instead staff to compile its own Excel database using the daily reports will now need a stronger background in statistical analysis from each judge, but this measure is really not a substitute as applied to judicial matters – although that application and it is unclear how it will be used – possibly to limit the will have to be developed on the job. manual compilation of global statistics which inevitably produces errors. 96. If not in the current contract, then in a future one, the Judiciary is advised to begin work on the construction 94.  Further Use and Limitations of the Existing CMIS of a real global database integrating the partial ones Database: In courts with the CMIS already installed, staff installed within each court or judicial complex. This would in the courtroom and in the respective Managing Judge constitute an extremely potent instrument for monitoring Units and Registrar’s offices use its database, though still and analyzing performance as well as for doing future 24  CHAPTER II: The Reform Program: 2008 to Present planning. The current program has functioned well on 98. Configuration control or management simply means the basis of the existing approach and the manual (but imposing a cut-off point on system requirements – “we soon to be automatic) compilation of global statistics, but are building Word 6, and anything beyond that goes into further reforms would be much aided by the addition of the next version, Word 7.”51 As of late January 2011, two a global database which really should be the core of any months before the contract was to end (and before a CMIS. Possibly using additional technical assistance for its subsequent no-cost extension), there were still on-going design, the following steps should be incorporated: discussions, for example, on what information would be automatically exchanged with other agencies (police, (a) Expansion of the information included in the prosecution, prisons, and the bar). Apart from last minute decentralized registries and databases to incorporate crises (e.g., the report that the police had decided not to more details and characteristics of interest and to participate in the exchange), the issue here is that constant enter as much as possible in codified form. revisions to basic functionalities or the details of their (b) Improved auditing of data entries. Entries are already design can produce their own contradictions. All of this will audited but this will become still more critical as need to be sorted out in the follow-on contract, and the additional uses are found for the contents. parties should really try, during the first year, to dedicate (c) Movement beyond the traditional reports developed their efforts to that, system maintenance, training, and when this kind of analysis was not possible. This is expansion of the system as is to other jurisdictions. Adding always a problem when databases are created as the more functional elements or enhancements during that usual tendency is to think in terms of the reports that early period will only complicate the production of a were formerly developed manually. It usually takes system that works. Future contracts to develop additional a while for users to recognize that they can now do applications or anyone else contemplating a new system much finer analysis – for example, reports on average should thus take configuration management more numbers and lengths of adjournments, globally, by seriously – this is fairer to the contractor, but it also can district and by judge. This process can be accelerated shorten the time needed to make readjustments later. by bringing in experts who have done this work with other systems. 99. Except for the absence of a global database, what has been accomplished and what is promised by the end 97.  Future Adjustments to the Entire ICT Package: of the contract constitute the basic elements of a good Finally, it should be recognized that the CMIS and other management information and electronic processing ICT elements as delivered at the end of contract will system. Although the price seems high, this may be require further adjustments. The automated component warranted by the speed with which the product was to was developed extremely rapidly and there are many be delivered. Moreover, the winning contractor was details requiring attention (e.g. storage of CRT audio- selected not only on the basis of the quality of its system visual transcripts or CDs, improvements to the virtual (developed during a three month trial period in which archive, access policy for the CMIS database, gradual four firms participated) but also its price, which was phase-out of certain elements added over the short run the lowest offered.52 Those attempting to replicate the that many no longer be required with the movement Malaysian experience could doubtless negotiate a better to a fully electronic system. Two items here are the bar deal, especially if they are not so concerned with delivery codes used to identify documents and the entire physical within only two years, but given the availability of funds filing system, including the space it currently occupies). and the urgency of completing the project, there is little to Moreover, almost inevitably some aspects of the system criticize here. The Court could have demanded the source will require more work, either because they do not code for the CMIS, and more will be said about this later. function as intended or because the intentions were However, its non inclusion (always the preference of the misguided. System development has been complicated by the absence of adequate configuration control, either 51   Anyone interested in knowing more about configuration control because neither party understood its importance, or can access a number of documents by simply searching for “con- because the contractor was willing to be more flexible in figuration control” on the internet. The concept was developed for engineering products (including systems design) but it is probably accepting constant changes and additions than is normally applicable to any type of contract. the case. 52   In fact the highest bid was twice that of Formis.   25 MALAYSIA Court Backlog and Delay Reduction Program contractor for obvious reasons) appears to be the decision, but simply to ensure that what is done next is what is not of the Court, but of the Legal Affairs Division of the most needed.53 Prime Minister’s Office which handled the negotiations. (c) Development of a longer term plan for improving court performance. While members of the core team Next Steps (Chief Justice and others) have forwarded ideas as to a second phase (Federal Court of Malaysia, 2011; 100.   Ensuring continuity in the reform vision and 168-179), they do not as yet constitute a medium- approach is critical in sustaining and deepening the term strategic plan. This step will be inherently more reform’s accomplishment so far. Since the reform has difficult than the first stage because of potential been implemented by a team, most of whom will remain in disagreements among other stakeholders, if not the Federal Court even after the Chief Justice’s retirement within the team, as to priorities and the potential (September 2011), it seems unlikely that his exit will result loss of one enormous advantage enjoyed in the first in a sudden loss of reform momentum. But reforms do not stage – a consensus on measurable objectives which sustain themselves. They require continued leadership nearly everyone agreed were critical. The proposed and management. As the current team is aware, there are new emphasis on “quality” does not lend itself easily three critical steps required to keep advancing and cement to the identification of benchmarks and targets, the changes already made. There is also a fourth step, not except as regards the delivery of inputs (legal change, currently contemplated, that should be explored. These the development of one or more training institutes, actions probably should be pursued simultaneously so as and so on). Nor does it address specific recognizable not to lose momentum. problems of interest to those outside the court system. Thus, it will be important for those involved (a) Further expansion of the program elements (and to give more thought to the specific service problems especially the electronic systems) to courts not already they propose to resolve and couch their plans in these covered. This is already contemplated although terms. Of course they may negotiate funds for some there may be a need for a more specific timeline and of these inputs anyway, but their arguments would be sequencing of the expansion of coverage. Both this much stronger, and their longer-term impacts much and the next step are expected to be covered under greater if they could base their requests on goals as a second contract or contracts with the firms hired to concrete as those used in the first phase program. do the automation. (d) Creation of a real CMIS database integrating and (b) Readjustments to and further development of the improving the databases already managed at the new instruments and processes. This involves both courtroom, Division, or court complex level. This is organizational changes (use of managing judges, not on the Judiciary’s agenda, but as noted, it is really creation of the new civil and commercial courts and the core of a complete CMIS and furthermore will be the anticipated elimination of the tracking system essential in planning the next stage program. as currently organized) and the new automated instruments. The latter, along with ordinary system maintenance, is apparently contemplated under the Additional Reform Elements outside the Court Program second contract or contracts. The connection of the two CMIS will also be needed. Without that step, 101.   Unlike reforms attempted in other countries, usually developing global performance statistics will remain with more limited results, the Malaysian judicial program very complicated – the Judiciary may want to bring limited its early efforts to a single goal – backlog and delay in some outside experts for advice on this process as reduction. This is, as suggested above, hardly the limits of neither SAINS nor Formis has a long experience with its vision, but this single-minded focus over the shorter judicial automation, and both they and the courts run is arguably a part of the explanation of its success. may thus overlook some important aspects. This is standard procedure and should not be regarded as a 53   In any event, an outside firm that made recommendations for threat by either of the principal contractors. The goal the purpose of capturing the contract would be committing an act is not to turn their contracts over to someone else, of gross conflict of interest. 26  CHAPTER II: The Reform Program: 2008 to Present Backlog, the primary target, has clearly been reduced, expenses from this fund, but depending on pro bono work and delay reduction efforts focused on the targeted High by bar members for actual legal services. Despite these Courts (the most congested ones) appear to be working as advances the potential demand is far greater. The Bar well. The much touted “holistic” reforms with multi-year Council President notes that 35,000 people had already programs aimed at a much broader series of goals rarely benefited from the program but that 80 percent of those advance any of them significantly, and as the reform on remand and 95 percent of those going to trial still were community is beginning to admit, it may well be wiser to not represented.57 proceed by parts.54 Certainly the Malaysian experience argues for that approach. 104.   The Government and the Prime Minister in particular are now taking steps to resolve this situation by funding a 102.   Nonetheless the country does face other problems program proposed by the Bar Council to set up a private with its justice sector, and fortunately, the government foundation to attend to some of the needs. This new in coordination with other agencies has been able to entity, the National Legal Aid Foundation, was created address some of them. Noteworthy here are three areas: in March 2011 and is now functioning. Current funding is legal assistance (access to justice); crime control, and the equivalent of US $2–3 million, which the Bar Council anti-corruption. Progress in all of these areas will affect President estimates can be used to attend to two issues in court operations, and to the extent its cooperation has particular, police detainees and those on remand (in pre- been called on, the Judiciary has been involved. However, trial detention). The Council believes these are the two as regards its own direct promotion of these and other most urgent problems but that over time more funds can objectives, it has left them, wisely it would appear, for be obtained to widen the program’s reach. later stages of reform. 105.   It merits mention that the PEMANDU program on Legal Aid and Access to Justice crime reduction (see next section) also emphasizes the need to provide more legal counsel to defendants in 103.   Malaysia does have a legal aid program, but it comes criminal cases. Consistent with this thinking, the Chief nowhere near covering the need for such services.55 Until Justice has also lobbied with the Prime Minister to increase very recently (March 2011), the State only provided free the fees paid to lawyers contracted by the government for legal assistance (by contracting independent attorneys) this purpose. It is generally agreed that one of the reasons to defendants in capital cases who cannot provide their for the small size of the criminal defense bar is that this is own and through its Public Defense Office to some parties not a very lucrative profession. Hence paying contracted in civil (family) cases. This is supplemented by pro-bono attorneys more might both attract more candidates and work by members of the Malaysian Bar (one of the three also entice better qualified ones. The Judiciary has also bodies of legal practitioners in Malaysia but only covering taken its own steps to ease things for unrepresented those practicing on the mainland; the other two are the defendants, including the issuance of appointment cards Sabah Bar or Sabah Bar Association and the Sarawak to those not held on remand, showing the data for the next Bar or Advocates Association of Sarawak56). With annual hearing along with “a strict warning on postponements in contributions of about $25 from each of its members, the Malay, English, Chinese, and Tamil” (Zaki Azmi, 2010;28). Bar Council (the governing body for the Malaysian Bar) It might want to consider some sort of information service finances 14 legal aid centers, paying staff and operating for unrepresented defendants, or parties to any case, although there the issue always is making it clear to users 54   See USAID (2010) for a discussion of its strategic framework for where the service stops (does not extend to providing ROL programming which repeatedly refers to the need for a holistic representation, although it does give information on vision. Since all donors (the World Bank and USAID included) devel- alternative sources). op programs for a time frame of at maximum five years, the advice about being holistic presumably refers to this period. In any event, it is a common criticism of donor-driven (and some country-driven) reforms that they try to do too much in too little time. 55   For a comparison of the situations in Singapore and Malaysia and of judicial views on the same, see Chan, 2007. 56   Since representatives of the other two associations were not 57   At a sessions court, a defendant, who, while out on bail, was fac- interviewed, it is not known what kind of pro bono work they ing a 14-year prison sentence if found guilty of charges of robbery. support. He had no attorney and seemingly lacked the means to hire one.   27 MALAYSIA Court Backlog and Delay Reduction Program Crime Prevention did increase, from 510 to 612 per 100,000 over the 24 years, and that violent crime, while still representing only 106.   Compared to worldwide trends, Malaysia’s crime 15 percent of the total, had increased more rapidly than rates are quite low. Homicide rates are about 2.3 per property crime. The trajectory of property crimes was 100,000 (2010), below the East and Southeast Asian more erratic, and they showed peaks during the economic regional average of 2.8 per 100,000 and the worldwide crisis. Violent crime on the other hand seems to show a figure (unfortunately only updated to 2004) of 7.6 per steady, if not dramatic, increase over the period. As 100,000.58 It bears mentioning that East and Southeast opposed to property crime, its growth rate is also higher Asia is one of the least violent regions in the world – this than that of the population. However, the increases are may make it a better comparator than say Central or all within the range where they might be explained only South America (for 2004, 29.3 and 25.9 respectively; the by better reporting systems, something that is always a Central American figure has increased since then as the problem in interpreting these statistics. region has some of the world’s most violent countries).59 Homicide rates are usually considered the best standard 108.   Because of its effect on citizen well-being, and also for comparison as homicides are more likely to be on the economy (for example on tourism, costs of doing recorded by the police than say, petty street crimes. They business, and so on), crime reduction was thus included as and other violent crimes (armed robbery, rape, and so on) one of the 6 National Key Results Areas (or NKRA) in the are also most likely to attract public attention and thus a Government Transformation Program. The PEMANDU is demand for government attention although increases in responsible for planning and tracking the six NKRAs, set non-violent street crime can also contribute to the feeling out a crime reduction strategy and targets for this program of insecurity in 2009. The baseline figures correspond to 2009, but the program was conducted in 2010 with results reported in 107.   These facts aside, there is no doubt that the early 2011. Targets were set by a working group which Malaysian population regards crime and a perceived included members of the Judiciary. (and to some extent real) increase in its incidence as problematic. A survey funded by the government in 2009 109.   According to PEMANDU reports, nearly all of the found that citizens considered crime second only to the targets were met, some of them at far higher levels than economic situation as a source of concern (PEMANDU, projected. The most impressive achievements were the 2010). A fairly recent independent academic study of reduction of reported street crimes (35 as opposed to the crime trends, covering the period from 1980 to 2004 targeted 20 percent) and Index Crimes (15 as opposed to (Amar Singh Sidhu, 2005) does find that on a per capita 5 percent) and the increase in citizen confidence in the basis “Index Crime,”60 a concept also used by PEMANDU, police (55.8 as opposed to the target of 35.8 percent). Consistent with the requirements of crime prevention, 58   These and other figures on crime, unless otherwise indicated, the program incorporated several agencies, and much are taken from Wikipedia (“List of Countries by Homicide Rates,” of its work (and its most significant successes) involved based on a variety of official sources) as they appear to be most activities with the police (targeting of hotspots, placement recent and also cover the last decade. Moreover they track well of more police on the street, enlistment of civilian with the less recent UNODC figures (only to 2007-2008) found at volunteers to accompany police on patrols, tracking of www.unodc.org/unodc/en/data-and-analysis/homicides. 59   Use of regional neighbors is recommended for comparison police performance at the station level with rewards for for two reasons. Citizens are more likely to be aware of trends in those with the best results, and so on). The program also neighboring countries than of those halfway around the world. involved community prevention policies (better lighting, Furthermore, there are various regionally-specific factors (history, for example) which were somewhat inhibited by political culture, socio-economic characteristics, cross-border migration) conflicts within and with municipalities, and efforts to that are likely to influence crime levels. It is no accident that even improve police-prosecutor coordination (reportedly still Central America’s low crime countries (Nicaragua, Costa Rica) have homicide levels higher than Southeast Asia. facing problems). 60   As the author notes, this is a term adopted by the international police community to facilitate comparisons. “Index crimes” 110. As regards the courts, efforts mirrored and in some constitute all crime that occurs on a regular basis and has significant sense were preceded by judicial programs to reduce backlog impacts. Inasmuch as regular and significant are determined by and speed up processing of cases. However, they also crime patterns in each country, there is some country-to-country extended to activities the Judiciary could not undertake on variation as to the specific crimes included. 28  CHAPTER II: The Reform Program: 2008 to Present Table 4: Comparison of PEMANDU Backlog Reduction Targets for 2010 and Court Backlog Statistics (Violent Crimes Only) Real Backlog (Court statistics Initial Backlog as PEMANDU Target Court but using PEMANDU definition) by defined by PEMANDU for end of 20101 Dec. 2010 High Court   204   20 136 Sessions Courts 1233 123 486 Magistrates Courts 1383 138 233 Sources: PEMANDU 2010 for initial backlog and target; Judicial Statistical Units for achievements by end December, 2010. its own – for example, suggestions (not yet adopted) as to Ageing reports (showing pending cases by year of filing) how to ensure witnesses arrive for hearings and trials, efforts for 2010 do indicate movement toward the “internal” to prevent double-scheduling of defense attorneys and to PEMANDU target, although not full achievement. The increase the number of attorneys available, amendment target considered as “backlog” any case entered before of the Criminal Procedures Code to allow plea bargaining January 2009, which by the end of 2010 would thus be (under consideration), and escorting of defendants to over two years old. The ageing lists still include a few hearings by prison staff, not police. In all there were 28 very old cases, but for violent crimes little before 2006. recommendations, some of which had already been The following chart compares actual achievements with adopted by the courts (e.g. earlier starting hours), some of the status quo ante and the PEMANDU targets. It was which appear not to be in conformity with the Judiciary’s compiled on the basis of the PEMANDU projections and own reforms (e.g., recommendations as to increases in the statistics provided by the Judiciary’s Statistical Unit. number of judges in specific areas), and a majority of which really depended on actions by other parties (the police, 113. The figures above should be considered as prisons, prosecutors, defense, and witnesses) approximations as the Judiciary’s statistics do not always separate what PEMANDU has categorized as violent 111. The specific target set for the courts (once again crimes. According to judges interviewed, reducing backlog with participation of judicial actors) was the processing and accelerating processing of criminal cases has proved (bringing to trial) of 2,000 violent crime cases in 2010. The especially difficult given the tendency of both prosecutors Judiciary met this goal by trying 2001 cases. An additional and defense counsel to request adjournments (generally “internal target” was the reduction of the backlogged because their witnesses have not shown up), and the judges’ violent crime cases (estimated at 2,820 in 2009) by 90 unwillingness to refuse their requests and either decide on percent in the same period.61 The data source on NKRA the basis of partial evidence (in effect default judgments) achievements in 2010 (PEMANDU, 2011) unfortunately or dismiss cases as DNAA (discharged not amounting to did not include a report on progress on the courts’ acquittal), an objective the PEMANDU plan also shares. backlog reduction targets, but again this was a less formal goal. 114. As the extensive analysis underlying the PEMANDU recommendations (based on judicial statistics and a 112. The Judiciary’s own statistics (provided by the workshop with judicial, prosecutorial and police personal) Statistics Unit and, up to September 2010, reported in indicates and the further 28 recommendations suggest, Federal Court of Malaysia, 2011) indicate that the High the problem is very complex. The targets set for the Courts, sessions courts, and magistrates courts all achieved one year period may thus not have been realistic. While a clearance rate of 100 percent or more for criminal cases eliminating older cases is a goal shared by the courts, during 2010, but show a reduction in pending cases the additional target of trying “2,000 more violent crime (anything carried over to the next year) only in the sessions cases” is not necessarily consistent with it, as an increase courts (1,700 cases) and the magistrates courts (14,083). in violent crimes or in indictments for these cases might allow it to be met by focusing only on new entries. In 61   The target for backlog reduction varies from a final figure of 1,000 fact the sessions courts registered more violent crimes to 278 to 180 within the same presentation, but the 278 number entering in 2010 than the total amount of “backlog.” In coincides with the totals set for individual courts.   29 MALAYSIA Court Backlog and Delay Reduction Program any event, although the courts’ focus has been more on Corruption civil cases, they have done what they could to reduce criminal case backlog and speed up processing, and their 116. Corruption is a second NKRA that also involves the achievements here, if not quite as significant as in the courts. It has not progressed as far as the crime reduction non-criminal jurisdiction, are nonetheless noteworthy. program, but the Judiciary has done its part by creating four High Court Sub-Divisions and 14 sessions courts 115. As regards the overall anti-crime strategy it is specializing in corruption cases. Amendments were also generally consistent with the usual recommendations. made to the criminal procedures code to help accelerate The only exception might be the use of civilian volunteers corruption trials and the Chief Justice issued a circular to to assist police which would doubtless raise questions the judges setting a target for all corruption cases being about vigilantism in some quarters. However, the test processed in a year or less. Other actions (a whistleblower is really what resulted in Malaysia and so far there are protection act which went into force in December 2010, a no complaints registered. Putting 50 times the number public database on offenders, an electronic procurement of police in Bukit Bintang (an area of Kuala Lumpur with “portal,” strengthening of compliance units within other many five-star hotels and shopping centers, frequented agencies) do not involve the courts. So far the most concrete by tourists) may well have reduced street crime there, results are Transparency International’s finding of more but it seems to be a bit of overkill. Also the reported public confidence in government anti-corruption efforts. reduction in street crimes in particular is so large as to The PEMANDU presentation (2011b) on achievements to raise questions about the police possibly manipulating date did not include specific targets beyond the setting up data (or alternatively those outside Bukit Bingtang no of the various facilitating mechanisms. longer having police to whom to report crime). Finally, the preventive measures do not include efforts to work with groups, and especially youth at risk, something that might be contemplated in a subsequent stage. While the more usual criticism of contemporary crime prevention programs is that they are too heavy on similar soft measures, the Malaysian variation might err on the size of its police component. The emerging consensus among experts in the material (Fruhling, 2009; Berman and Fox 2010) is that both measures work best together. 30  CHAPTER III: Achievements of the 2008-2011 Reform CHAPTER III Achievements of the 2008-2011 Reform 117. In this chapter, the reform’s progress in advancing its principal goals is evaluated through statistics made available by the Court’s Statistics Unit. From the start, the program has used such statistics both as a tool to encourage judges and their staff to improve their work processes so as to reduce backlog and delay and to monitor performance. The reliance on statistics for these purposes is actually not a usual approach in many reforms. Courts often speak of reducing delay or backlog as their principal objectives, but as they have no way to measure either the point from which they are starting or how far they have progressed, and often make no effort to develop one, it is little surprise that their reforms are often considered failures – which they may or may not be, but there is no way of knowing. Measuring progress with numbers is really a sign of seriousness of intent, and thus the Malaysian approach is highly commendable, especially because until present day most of the statistical reports had to be generated manually.62 This is still the situation for the Statistics Unit although the courts with CMIS can now use the software to produce their own reports and to track their own performance. Their ability to do so should generate far fewer errors both in their own records and in what they submit to the center. This is an advance in itself. 118. The Judiciary has devoted considerable effort to documenting its advances in reducing backlogs and more recently, in accelerating treatment of new cases. The early results are already available in several of its own publications and presentations (See for example, Federal Court of Malaysia, 2011; Zaki Azmi, 2010). Internal reports are updated constantly not only to reflect but also to reconfirm their accuracy.63 For the present work, the Statistics Unit provided consolidated data through April 2011. Because a central database still does not exist, there are limitations as to the type of analysis that can be done. But for present purposes, the statistics provided (the same ones the Judiciary uses) are quite adequate to capture overall trends as well as some details. There is no reason to question their accuracy, and in its own reports, the Court consistently calls attention to the few (early) figures it believes may be in doubt. 119. It does bear mentioning that the Court’s use of statistics to demonstrate advances as opposed to producing them is a work in progress and still remains the less important of the two applications. The issue is essentially the following: the Court has focused on the use of data and statistical monitoring to establish targets and ensure judges are meeting them. As indicated by the global reports, now compiled monthly, and the daily, monthly, and annual reports from individual courts and even judges, this method has had an enormous positive impact. Nonetheless, the reports from individual units in particular are less adequate as a means of tracking overall improvements, and in their current form, do not lend themselves easily to this purpose. The Court’s own publication on the reform (Federal Court of Malaysia, 2011) is filled with such tables, but for any but the most avid consumer of judicial statistics, they are a very indirect means of grasping the overall story. This fact did not detract from the reform’s progress. It is only a problem as one wishes to demonstrate that progress in a global fashion. Some recommendations are made at the end of this chapter as to how the Judiciary can serve both ends simultaneously. The global view is less important for nudging judges ahead, but it is important for overall planning and furthermore for presenting the Judiciary’s results to a broader public. This is one of the reasons, although a less important one, for the insistence in the prior chapter on the creation of a global database. 62   This is another excuse offered by courts that choose not to set hard targets or develop means of measuring them. They claim they cannot do so without computers and once they get the computers and software it often results that this is not a part of the software’s functionalities. 63   It should be recognized that not all changes to past data represent corrections of past errors. Case status is a moving target, and if a case considered closed is reopened or sent to a higher court on appeal, then its status changes from “disposed” to active. This is true of all countries that keep statistics and can be very frustrating especially when it means that a court that was current now has an older active case. See World Bank (2010) for a discussion of similar issues raised in Ethiopia.   31 MALAYSIA Court Backlog and Delay Reduction Program Key Indicators of Results as Used Internationally and as 122. As regards the conventional indicators, the Adapted to the Malaysian Program Malaysian Judiciary uses neither clearance rates nor judicial productivity. It also does not use time to disposition. 120. Conventionally, several indicators are used to However, the indicators it has selected manage to capture assess judicial performance and thus to monitor backlog these concepts less directly. The exclusion of the more and delay reduction programs of the type undertaken conventional performance indicators is most probably in Malaysia as well as other trends. Any evaluation of explained by the fact that the interest since 2008 has performance typically uses several of them as each been in tracking reform progress, not in assessing provides only a partial view of what is occurring (National overall performance. Otherwise it is hard to explain why Center for State Courts, 2007). clearance rates and productivity (time to disposition is another, more difficult matter) are not monitored as they (a) Judicial productivity – caseloads per judge or case are the easiest indicators to calculate. In fact, the table dispositions per judge, annually or for shorter periods. on clearance rates presented below was calculated by Comparisons across systems are difficult because the author using the data supplied by the Statistics Unit. many factors determine a “reasonable” caseload, but Average disposition times cannot be calculated but at in any given system, increases in per judge caseloads least for the new courts, the Judiciary’s proxy indicator and especially number of dispositions would be a is adequate for now. Moreover, the Court’s tracking of positive sign the age of the active caseload for all judges does give a (b) Clearance rates – cases disposed (by whatever means) good idea of how current they are on their work (and thus over new filings for each year whether they are gradually decreasing the likely time to (c) Average disposition times for cases closed – cases can resolution). Up to the present the Judiciary’s indicators be grouped by categories for greater detail have served it well, first for motivating judges and second, (d) Ageing lists – showing age of active caseload, often by for monitoring progress towards its goals. However, grouping cases into categories (e.g. less than 30 days as it achieves its initial targets, it may want to consider since filing, 30-60 days and so on) modifying some of them and perhaps adding others. For (e) Number of cases pending with a duration of more example, ageing lists by year of filing will become less than two years. useful as older cases disappear in the initial cleanup. After that, it will be necessary to introduce some finer Sometimes the size of backlog or annual carryover is categories, either by month of filing, or by percentage of tracked as well, especially in the early stages where it may cases falling within certain time limits (1 month, 1 to 2 be quite large. months and so on). The use of clearance rates might also be considered, first because they are easily calculated and 121. The Malaysian Judiciary uses a slightly different set second because they can indicate where problems are of indicators based on its own experience and goals: developing. However, these are lesser details, and the Judiciary itself is already modifying and adding indicators (a) Pending caseload carried over from one period to the for better reform monitoring. Without a professional next, sometimes differentiated by age of cases—this judicial statistician to help, the Malaysian reformers have was especially important for the goal of reducing developed a good set of indictors for measuring their own backlog and thus cases filed in earlier years. progress and as they add new goals they should be able (b) Ageing lists – tracking absolute number of cases still to do the same as well. Over time, however, they might active by year of filing. This is an indirect measure of want consider adopting some of the more conventional delay as well, especially if categories are refined to performance measures especially because some of their the month rather than the year of filding. indicators were developed to evaluate targets that are (c) For the new courts (NCC and NCvC), progress in close to being met. disposing of new caseloads within the targeted time limits. This is a proxy for disposition times. It is Program Results Measured Against the Results Indicators tracked but not as systematically for other courts. It is facilitated by the way the new courts are organized 123. Ageing lists were not systematically compiled which in itself is unusual and is further explained in a by the Judiciary until late 2009. Prior to that date, the later section. backlog reduction targets worked with cut-off dates, 32  CHAPTER III: Achievements of the 2008-2011 Reform Table 5:  Backlogged Pending Cases for All Courts, End of 2009 and 2010; Numbers of “Backlogged” Cases (those filed before 2009) Still in Courtroom Files Court Cases As of 12/2009 As of 12/2010 Civil 39 14 Federal Court Criminal 36 18 Leave application 42 28 Court of Appeal Civil 2,888 204 (pre 2008 cases only) Criminal 260 72 Civil 44,873 9,738 High Court Criminal 3,514 542 Civil 61,659 10,947 Sessions Courts Criminal 9,377 2,984 Civil 71,681 1,173 Magistrates Courts Criminal 53,087 8,243 Source: Data provided by Statistics Unit of Federal Court first for the rapid closure of all cases filed before 2005 – end of 2009, end of 2010, and end of April 2011. The and more recently before 2009. Thus, the following table unconventional addition of a quarter year turned out to uses the previous format, monitoring decreases in the be important as even within that time period, there were numbers of active cases filed before the 2009 cut-off date. significant reductions in the number of older cases. Tables This information is now collected on a monthly basis. It 6 and 7, covering the same period, make it clearer how bears noting that the cases tracked are those that were the purging of old cases is occurring. defined as backlog at the beginning of 2009 – and thus those that were at least a year old then and would be 125. As the two tables show, even within this 27 two or more years old in 2010. As the backlog reduction month period, the Judiciary has attacked the backlog program proceeds, the target would have to be reset, but systematically, starting with the closure of the oldest this methodology is really an artifact of the early reform cases and moving up to the more recent ones: Table 5 days, and quite likely will be abandoned in favor of real demonstrates much the same thing, but without this ageing lists. In this and all the tables and figures shown level of detail. As a consequence many courts are now below, East Malaysia is included as well. This suggests completely current – as of April 2011, 120 of the 429 that whatever differences there may be in the way East sessions and magistrates’ courts were only processing and West Malaysia record data, the basic statistics are cases filed in 2010 and after. This has been easiest in common to both. the civil jurisdiction because judges can be stricter about disallowing adjournments and stretching deadlines, the 124. As the above table demonstrates, the program to perennial requests of lawyers. In the criminal jurisdiction dispose older cases has been extremely successful. This as explained in Chapter II, they tend to be more lenient becomes especially apparent with the adoption of real out of a wish to give both prosecution and defense ageing lists which track all active cases by year of filing. adequate opportunity to present their cases. However, The courts now track and produce monthly reports on even with this said, it is evident that all three levels of these statistics since the older cut-off date methodology is trial courts have been successful in clearing out nearly all no longer as useful and becomes less so as the older cases the very old cases and are gradually working their way to disappear. The following two composite ageing tables for the less exaggeratedly old ones – the goal being to have trial courts were thus kindly assembled by the Statistics for no actives cases over a year old by mid-2012. A further this report. Because the Judiciary’s movement toward its note is due on the scattering of very old cases, especially goal (of no cases more than a year old) accelerates month in the civil jurisdiction. These are usually cases the parties by month, court staff insisted that three periods be shown have reopened, or where they have submitted multiple   33 MALAYSIA Court Backlog and Delay Reduction Program Table 6: Ageing Lists by Year – All Trial Courts, Civil Cases, 2009-April 2011 HIGH COURT SESSIONS COURT MAGISTRATE’S COURT Year of Filing 2009 2010 April 2011 2009 2010 April 2011 2009 2010 April 2011 PRE 1990 10 6 6 1991 8 3 3 1992 2 7 1 2 1993 4 1 1 1994 9 8 7 1 1 1995 14 3 1 1 1996 25 9 7 4 1997 29 6 7 4 1998 50 13 10 12 1 1 1999 66 26 20 10 1 1 1 1 2000 256 35 20 68 6 1 3 2001 343 87 52 128 14 8 3 2002 604 144 73 332 23 6 12 2003 972 261 152 577 29 5 47 2004 1503 401 197 1060 39 19 109 3 2005 2179 480 285 2120 126 28 249 8 2006 3016 738 475 3339 237 58 511 21 3 2007 4710 1117 826 5870 577 172 1251 41 6 2008 8673 2354 1711 11995 2500 747 4169 201 128 2009 22400 4039 2789 36135 7394 2935 65324 898 245 TOTAL 44,873 9,738 6,642 61,659 10, 947 3,980 71, 681 1,173 382 2010 23901 9931 36894 15588 65618 5447 2011 11681 26978 48369 TOTAL 28,254 46,546 54,198 Source: Statistics Unit of Federal Court interlocutory or final appeals. As noted above any of these that even in the three months of 2011, the numbers have occurrences can change an apparently disposed case to an gone down even further. active one, thereby frustrating the efforts at eliminating older cases entirely from the active list. There are by 126. Clearance rates could also be calculated from now very few of these cases, but they are the ones that available statistics for all superior and subordinate courts seem destined to stay there forever. However, a backlog through December 2010. The calculation is simple – Cases reduction program should not be evaluated by these few Out/Cases In during any given period. Where there is odd cases (unless of course they are much more common significant backlog it should be over 100 percent if the than shown here). What is important is that the bulk of backlog is to be reduced. the older cases have now been permanently disposed and 34  CHAPTER III: Achievements of the 2008-2011 Reform Table 7:  End of Year Ageing Lists - All Trial Courts, Criminal Cases, 2009-April 2011 HIGH COURT SESSIONS COURT MAGISTRATE’S COURT Year of Filing 2009 2010 April 2011 2009 2010 April 2011 2009 2010 April 2011 1998 1 1999 8 4 4 2000 1 1 11 2 1 4 2001 1 9 2 34 7 7 2002 6 1 30 1 1 58 2 2 2003 17 1 72 4 4 170 8 3 2004 53 5 1 174 30 11 498 7 2 2005 70 9 6 325 55 14 1474 41 9 2006 125 7 9 596 91 35 2975 118 13 2007 249 27 20 1155 203 75 6363 389 94 2008 503 87 57 2182 799 365 10815 2162 601 2009 2490 404 227 4814 1793 955 30696 5509 1976 TOTAL 3514 542 321 9377 2984 1465 53,087 8243 2707 2010 2771 1679 5014 2622 20677 6116 2011 1738 2904 14059 TOTAL 3,738 6,997 22,882 Source: Statistics Unit of Federal Court Table 8:  Clearance Rates for Courts by Instance, for 2007-2010 Court Material 2007 2008 2009 2010 Civil Appeals NA 95.8 94.8 225.6 Federal Court Criminal NA 45.6 94.0 123.4 Leave to appeal NA 121.7 100 90.7 Court of Appeal Civil 75.0 91 92 99.7 Criminal 52.0 98 63 45 High Courts Civil 77.8 93.3 133.3 130.3 Criminal 89.0 96.6 118.8 101.4 Sessions Courts Civil 96.5 115.4 114.1 110.6 Criminal 91.9 99.3 98.1 105.3 Magistrates Courts Civil 89.4 104.5 119.9 103.6 Criminal 98.0 98.0 110.7 118.4 Source: Calculated on the basis of data provided by Statistics Unit of Federal Court   35 MALAYSIA Court Backlog and Delay Reduction Program 127. Three trends merit mention here. First clearance over from one year to the next (Table 9) support this rates have improved considerably over the period covered, interpretation, but it is hard to be definitive here because in some cases reaching levels far above 100 percent. the pre-2009 inventory was very inaccurate. Nonetheless However, once the backlog reduction goals are met, they we will use the 2008 figures as a baseline since there is will logically drop, as without a sizable backlog it will be little alternative. It is likely that the carryover from 2008 hard for courts to score more than 100 percent. Second, to 2009 (all cases, including those filed sometime in 2008) and somewhat ironically, it is the Federal Court and Court was far higher than shown below, but as the subsequent of Appeal that have had the most problematic clearance figures are accurate (except for the fact that older cases not rates, although the former seems to be improving now. captured in the inventory have been entered as new filings) The Court of Appeal’s figures could result from the greater this means that real backlog reduction may be even higher number of cases being processed and thus appealed in than the baseline would show. the lower instance courts, but there may be additional problems, and a need for further organizational change as 128. Thus, with that single exception, which affects only well. This merits exploration. Finally, Table 8 suggests that the baseline, Table 9 below is an accurate reflection of clearance rates were not that low in Malaysia even pre- progress in reducing the initial carry over despite, as also reform, except for criminal cases in the Court of Appeal in shown, a tendency for new filings to increase the caseload particular. If this is a longer term pattern, backlog (pending each year. Thus judges are not only reducing backlog but cases carried over to the next year) was accumulating (as it also working on new cases so as not to create a new would for anything under 100 percent), but not that rapidly. backlog of more recent entries. Historical statistics on accumulated backlog or cases carried Table 9:  Comparison of Carryover, New Filings, and Dispositions – All Courts, 2009-April 2011 Balance Balance Closed/ New Entries Closed/New Entries Closed/New Entries Court Case Type Forward from Forward to 2009 2010 thru April 2011 2008 May 2011 Cv 53 55/58 79/35 24/36 57 Federal Cr 103 172/183 179/145 89/77 97 Court L/A 154 374/375 419/462 241/179 242 Cv 8,832 4,054/4,385 5,553/5,572 2,203/1,637 8722 Court Of Crl 882 417/660 382/840 305/247 1487 Appeal L/A 0 569/1,052 1,548/1,711 526/453 697 High Cv 93,523 96,168/72,148 100,425/77,053 28,858/23,000 28,254 Courts Cr 4,544 6,629/5,580 7,117/7,125 2,409/2,408 3,738 Sessions Cvl 94,554 160.906/141,031 176,880/159,942 58,134/53,884 46,546 Courts Cr 8,750 31.247/31,856 27,418/ 26,037 13,945/12,941 6,997 Magistrates Cv 156,053 367,138/306,246 338.890/327,045 113,037/100,246 54,198 Courts Cr 65,221 159,392/144,048 205,334/173,417 44,506/39,782 22,882 Sub-Total 422,645 831,480/700,909 856,064/770,619 260,889/232,261 162,615 Trial Courts Total 432,669 827,121/707,622 864,224/779,384 264,177/234,890 173,917 Source: Statistics Unit 36  CHAPTER III: Achievements of the 2008-2011 Reform 129. According to these data provided by the Judiciary, (the terms tend to be used interchangeably) alone (Table total pending cases transferred from one year to the next 6) also give a partial picture as even a rate of 100 percent were 422,645 in 2009, and cases entering over the next 27 could be based only on reducing the older caseload, and months totaled 1,703,784. (To avoid double counting only especially where new filings are increasing could simply trial court numbers are used – i.e., excluding the Federal generate a “newer” backlog. Thus with this series of and Appeal Courts).64 This means that the originally pending tables, it becomes still more clear that if not reaching its caseload (422,645) was equal to roughly 57 percent of goal of total currency (not likely in so short a time and with average annual filings (average new entries, or 735,764) so many older cases to be eliminated first), Malaysia’s for 2009 and 2010. Not knowing the normal timing of Judiciary has managed to eliminate a large portion of aged filings it is hard to say whether those in 2011 will be higher cases, reduce its carryover from one year to the next, and than the prior two years, but it seems likely. Compared to for the most part maintain a clearance rate of 100 percent results from other countries, reducing a pending caseload or higher in a period of only 27 months. Table 9 also representing about half of normal annual filings is not an demonstrates the size of new filings versus dispositions impossible task, but it still would require an extraordinary to give some idea of the conditions under which this has effort to eliminate it entirely, and considerable dedication been done. Definitively, the common argument that the to reduce it, as happened here to 38 percent (162,615) of its courts can only bring themselves up to date by closing former level within 27 months, especially as the carryover their doors to new cases and only focusing on backlog has incorporates new filings (which appear to be increasing) as been disproved by Malaysia (as it probably should be for well as older cases. Since it is likely that the initial number virtually every country).66 Using strategies similar to those of cases transferred forward from 2008 was even higher applied in Malaysia, courts can attend to new cases at the (and not captured in the first inventory) the results are same time they are eliminating older ones, and they can probably an even greater reduction. This does not change do so to produce an overall reduction in the pending case what the courts disposed (although it would affect and carryover from one year to the next. Thus, the statistical probably improve the clearance rates65). It only means that results are important not only for Malaysia but for other many of the cases disposed after 2009 should have been in countries with similar problems and similar goals. the backlog rather than the new cases category. 131. There are several other problems in tracking overall 130. We leave the tracking of delay reduction for progress as the Statistics Unit has already noted:67 processing of new cases to a later section as it has been done systematically only for the NCC and NCvC. However, (a) First, the baseline data (for January, 2009 and the above discussion should make it quite clear that the earlier) was never audited, and virtually every table 27-month program has been quite successful in reducing displaying it adds that caveat. The first inventories did backlog and nearly ridding the courts of cases filed prior not capture all the caseload held in the courts for the to the early 2000s. It should also demonstrate why it is reason discussed in the prior chapter. It is impossible important to use a series of indicators rather than a single to go back and correct the figures, but the situation is one. Reduction of old backlog (tables 5, 7 and 8) could have further complicated by the next point. been accomplished at the expense of a substantial portion (b) Second, between early 2009 and the present, courts of new cases, which might have been left sitting while the doing follow-up inventories have discovered cases judges purged the older active ones. Hence the need for not captured in the initial exercise. In some instances Table 9 demonstrating the quantity of new entries and the effects on overall carryover. Disposal or clearance rates 66   No one seems to know where this myth originated, but it is found in proposals from all donors and in courts’ explanations to their governments as to why the solution must be based on new 64   Since nearly every case entering the Federal Court or Court of funds and new judges. Appeal originates in a trial court and still figures in its count, num- 67   Before the Statistics Unit provided most of the time series data bers from the former two courts are not included. and tables for this report, efforts to do this on the basis of the par- 65   This is because clearance rates do not look at what is disposed, tial reports initially made available did reveal some problems, many but are calculated only as cases closed over new entries. Hence, if now resolved, with the Judiciary’s earlier recordkeeping. This refers the new entries category is suddenly expanded to include old inven- not to the accuracy of the count, but rather to what is being count- tory, the clearance rates would be reduced. If a correction is made, ed, and it became apparent that such basic constructs as “backlog,” and clearance rates are calculated only against new entries, they carryover, and the like varied somewhat from report to report, even would rise, as would likely be the case here. when compiled in the Statistics Unit.   37 MALAYSIA Court Backlog and Delay Reduction Program (e.g. the Shah Alam High Courts), the number of Judiciary has handled this. Increasing productivity was “missing” cases was quite large. For lack of any easy never a goal (or a problem69) but given its addition to most alternative, they have simply been counted as “new performance measurement exercises we will examine it as filings” in the years they are discovered. 68 Thus some well. The registrars and deputy registrars in Kuala Lumpur of the apparently dramatic increases in filings in 2009 and Shah Alam High Courts have compiled an extensive and 2010 do not represent new cases but rather old set of monthly and annual reports on progress because cases not captured in the initial count. they were the first centers to adopt the new mechanisms (c) Third, counting the “newly discovered old cases” as and because they are the most congested (and in the “new” cases artificially inflate the number of new case of Shah Alam, formerly the most disorganized). entries. This clearly affects the clearance rates as Some of the most interesting of these reports track the measured for these courts, even though their actual progress in raising judicial productivity over time. When capacity for clearing cases would be higher than the the two-track system was introduced, productivity (cases data show. resolved per judge) went up, but as the two charts below (d) Fourth, it similarly affects the calculations of backlog indicate, it has continued to increase since then. This is (or pending caseload) reduction inasmuch as the the combined result of target setting and monitoring, and “backlog” (cases transferred from prior years) was of the judges and staff’s ability to use the various delay doubtless underestimated in the beginning. Thus, real reduction mechanisms more effectively. Many of these reductions in pending caseload are probably higher mechanisms will be carried over into the next stage, when than calculated here. judges, rather than a separate MJU, will be responsible for doing their own tracking and their own staff. 132. For the Court’s goal of reducing backlog, none of this really matters, and the global running accounts, and 134. These figures require a little explanation. Both the more specific ones for individual courts, were sufficient show significant increases in the absolute number of cases to keep judges and staff’s noses to the grindstone. It does resolved each month but as this is occurring the number of make it difficult to capture the overall accomplishments judges assigned to each track is changing – in the A Track accurately, and as noted, undoubtedly underestimates reduced from 7 to 2 and in the T track increased from 7 the real amount of backlog reduction (given that the initial to 8. Thus the fact that overall monthly dispositions have inventory was far from complete). This is most evident at gone up significantly in both tracks must be interpreted the global level for High Courts, sessions and magistrates in light of this change since it is the per judge number courts. Accounting for Federal Court and Court of that taps productivity. The most dramatic change is for Appeal cases is more accurate, and the only problems the T-Track judges. Their numbers have been increased encountered there were some non-standardized reporting by one judge, but this hardly explains their multiplying mechanisms – for example, the restricting of ageing lists their production and productivity over the 2008 baseline. to cases filed two years prior to the final cut-off of end Increases are equally, if not more, significant for the 2010. For a Judiciary without statisticians, the Malaysian A-Track given that the number of judges decreased from courts have done very well in using statistics to push their 7 in 2008 to 2 in 2009 and 2010. Of course during 2008, reform goals ahead. each judge was handling both types of cases, the tracks not having been introduced yet. Separating the tracks allowed A Closer Look at the Tracking System and its Impact on the two groups to focus only on one type of case and each Delay Reduction and Productivity judge was able to process significantly more cases under 133. Since the impact on delay, the second objective of the Malaysian program, can only be inferred from the 69   It was not a problem because the average annual filings and indicators used above, it will be important to see how the dispositions per judge tended to be on the high side in Malaysia (apparently nearing 2,000 annually or 1,000 if all Judicial and Legal Staff is considered to be judges). The issue was only that more cases 68   There doubtless were better (but far more time consuming) entered than were disposed, and the program aims at eliminating means to deal with this problem, but the Judiciary’s primary in- that gap, the cause of both congestion (backlog accumulation) and terest was advancing the backlog reduction program, and for that delay. However, as the following discussion indicates, the delay and purpose this means was as good as any. It is only in attempts, like congestion reduction mechanisms have also increased productiv- the present one, to track overall progress, that the solution poses ity (not entries per judge, which the court does not control, but problems. dispositions). 38  CHAPTER III: Achievements of the 2008-2011 Reform Figure 2:  Comparison of Disposal of A-Track Cases, High Court Civil Division, KL Source: Statistics Unit Figure 3: Comparison of Disposal of T-Track Cases, High Court, Civil Division, KL Source: Statistics Unit   39 MALAYSIA Court Backlog and Delay Reduction Program this system. The question and the challenge for the courts in terms of time to disposition, running faster to stay in are whether, once the final model is introduced (all judges the same place. In any event, the Malaysian courts have again handling both tracks), productivity can remain not attempted to track times to disposition, but instead more or less at current levels. A slight decline might be have used a proxy indicator based on a system of caseload anticipated, as many of the cases disposed in 2009 and quotas and time limits for processing them, which is most 2010 were “inactive” and thus lent themselves to quicker developed in the new courts. The approach is facilitated resolution. In any event, for anyone doubting the benefits by the way these courts are being set up – sequentially, of tracking as a backlog reduction methodology, the two with a first court (using judges from the now less burdened charts (and comparable ones compiled for other Divisions “old courts”) set up to receive all in-coming cases over and districts, though not reported here) make it clear that a period of 4 months, after which it spends the rest of the method has worked. the year processing this caseload while a second newly created court begins receiving input over the next four 135. Productivity is an indirect way of getting at delay. It months and so on. On the basis of this system, new court also was never an official reform objective, and in fact the judges know they are expected to process their three two figures above were the result of someone doing some to four months’ worth of cases within 9 months. This is unprogrammed analysis (the equivalent of data mining relatively easy to track and Tables 10 and 11 show how had there been a database to mine). Higher productivity it is being done and with what results. In both examples, (more cases processed per judge within the same period the NCC and NCvC are in Kuala Lumpur and as the tables of time) might imply less delay although the connection is show, these courts are even ahead of their schedule in not automatic. For example, judges might be processing dispatching their new caseloads. more cases because they are receiving more, and thus Table 10: Monthly Pending Cases - New Commercial Court, Kuala Lumpur, September 2009-April 2011 Monthly NCC: Monthly Pending Cases Year Registration Sep Oct Nov Dec Jan Feb Mac Apr May Jun July Aug Sep Oct Nov Dec Jan Feb Mac Apr Sep 289 282 252 174 114 88 76 39 26 15 4 4 4 3 2 2 1 0 0 0 0 Oct 389 372 334 259 131 99 77 48 32 15 5 3 1 1 1 1 1 0 0 0 2009 Nov 328 306 277 237 103 74 53 34 12 5 3 2 2 0 0 0 0 0 0 Dec 363 342 308 266 145 90 57 40 19 11 5 3 1 1 0 0 0 0 Jan 289 285 255 168 127 105 76 62 41 31 17 10 9 8 8 6 5 Feb 299 287 252 160 139 88 70 62 37 26 22 14 8 7 5 3 Mac 426 412 355 273 201 161 136 87 58 41 29 13 10 9 8 Apr 370 356 336 241 170 125 85 52 39 30 16 5 2 2 May 367 348 308 232 168 124 84 59 40 29 21 15 14 Jun 361 341 296 235 148 108 86 54 37 26 18 8 July 345 327 265 199 119 90 67 50 39 29 16 Aug 352 339 306 210 116 84 61 48 42 35 2010 Sep 317 288 227 127 86 51 26 13 5 Oct 345 315 254 163 94 52 26 8 Nov 357 327 274 148 104 71 45 Dec 369 360 293 172 98 59 Jan 336 329 259 135 78 Feb 222 215 149 78 Mac 362 340 234 2011 Apr 315 292 TOTAL 6801 282 624 814 992 1049 1086 1167 1215 1339 1326 1351 1392 1316 1224 1173 1213 1144 998 964 890 40  CHAPTER III: Achievements of the 2008-2011 Reform Table 11: Monthly Pending Cases - New Civil Court Kuala Lumpur, October 2010-April 2011 Monthly NCvC, Kuala Lumpur: Monthly Pending Cases From Oct 2010 to Apr 2011 Year Registration Oct Nov Dec Jan Feb Mac Apr Oct 610 503 258 174 77 32 27 18 2010 Nov 515   386 235 134 88 37 27 Dec 576     503 257 158 67 40 Jan 615       461 255 125 75 2011 Feb 387         324 165 100 Mac 635           536 265 Apr 600             453 TOTAL 3938 503 644 912 929 857 957 978 Source: Statistics Unit 136. Since only the new courts function in this fashion, Other Findings tracking compliance with case-processing deadlines in other courts will be more difficult and will require 137. Although the Judiciary has largely used the data monitoring disposition times because each court collected as an incentive for judges and their staff, there will receive its cases over an entire year. Given the is some additional analysis which throws light on what Malaysians’ creativity in designing indicators to match normally happens to cases and how the backlog and delay their objectives, they probably will be able to find one reduction program has affected it. here. Still at this stage they might want to consider going back to the conventional, if only to make their process 138. One early finding reported in Zaki (2010) was the more intelligible to outsiders (either within the country relatively low number of cases registered in the Kuala or internationally). They may also want to speed up the Lumpur New Commercial Court (NCC) that go to full trial with creation of a database that would facilitate monitoring and witnesses. Instead as shown below, while 1.3 percent go to measurement of delay. These are steps for the future, but full trial, the major form of disposition is a default judgment, given the speed with which the Judiciary is advancing on followed by a judgment after a hearing without witnesses. the first objectives, the future may not be that far away. Figure 4:  Modes of Disposal for KL NCC Cases, September-December, 2009 Source: Zaki Azmi, 2010; 36   41 MALAYSIA Court Backlog and Delay Reduction Program Figure 5:  Percentage of Postponements by Parties, Criminal Cases, Kuala Lumpur, Sessions Court, July 2010 Source: Zaki Azmi, 2010; 21 Figure 6: Percentage of Postponements by Parties, Civil Cases, Kuala Lumpur, Sessions Court, July 201 Source: Zaki Azmi, 2010; 21 139. Since the chart shows the results in Kuala Lumpur and December 2009, 1,369 cases were entered and 377 for 2009, after the NCC was created, there is no way to were disposed. Two judges received and heard the cases. tell whether similar results applied for commercial cases By August 2010, only 18 of the initial filings had not been before then or for all civil cases more broadly. Perhaps disposed, a significant result in terms not only of eliminating the stringent policies on meeting case management and new backlog but also reducing times to disposition. trial deadlines were having an effect never seen before. However, studies in other countries also suggest that few 140. Another finding from this early period regards the civil cases come to full trial, although it may take far longer effectiveness of the policy on limiting adjournments, for them to be disposed by other means. Absolute numbers especially those caused by judges themselves. are not included in the chart, but between September 42  CHAPTER III: Achievements of the 2008-2011 Reform 141. By July, 2010, the courts had already improved on (a) First, all aggregate statistics submitted to the Statistics their 23 percent judicially-caused adjournment rate for Unit should be entered into its own database (or even criminal cases as reported in the PEMANDU baseline study, an Excel sheet) so that further calculations can be done and by late 2010, they were doing still better. In civil cases, more easily. So far as possible, the Statistics Unit should judge-caused adjournment has nearly disappeared, but avoid having to do these with hand-held calculators as postponements of all types remain a problem for criminal that only increases the chance of errors. cases in particular. Since adjournments remain a general (b) Second, there is apparently still some lack of clarity as concern for both types of cases, systematic monitoring regards a few basic concepts – most importantly, what probably should be done on several bases: the ageing lists contain. Some of those initially made available for this report only captured cases filed one or (a) Overall number of adjournments within each reporting two years before. Others included all cases filed in the period by material (at least criminal and civil), judge, prior year even if they are not carried over to the next. court, district and system-wide Whatever was done before, at this stage in the process, (b) Average number of adjournments per case, it would make most sense to include in the lists all cases disaggregated in the same manner. carried over, even those from the year immediately (c) Average length of postponements disaggregated as prior, so long as the year of filing is noted. above. (c) Third, there is not much sense in going back to recalculate old statistics (and thus try to get a better 142. All of these additional studies had to be done figure of the initial – 2008 or end of 2008 – backlog). through sampling. With a real database these and However, from 2011 onward, all the basic statistics other studies could be conducted directly off it by an mentioned above should be registered as accurately as enhanced Statistics Unit. This is already occurring in possible, and “quick and dirty” solutions like counting other countries, including some far less advanced than “discovered” cases as new entries, strictly avoided. Malaysia. (See World Bank, 2010 on the creation and use (d) Finally, until now the Judiciary’s use of statistics has focused of an integrated database on case events in Ethiopia). It on two applications: setting targets and monitoring may be difficult to do, at least in this great detail, until compliance. In both cases indicators have been tailored the CMIS is installed, but if the latter does not include to track reform goals. As these goals are met, the Court information on adjournments, this should be one of will have to readjust the measures (e.g. introducing the first additions in the new version. The Chief Justice more detailed ageing lists) and may want to add new does receive information on adjournments in the daily ones, but it should also consider two further uses of reports submitted by each judge, but it appears that this statistics: to detect and analyze additional performance information is not fully recorded in any general database. problems (e.g. the Court of Appeal’s apparent difficulty in keeping up with its caseload as reflected in its lower 143. Further Recommendations as Regards Further Data clearance rates) and to facilitate budgeting, planning, Collection and Statistical Reports and the design of the second stage reforms. For these two additional applications, movement toward a real 144. There is little to criticize about the way the Judiciary global database will be essential. went about organizing and tracking its reform. Its use of statistics to set and monitor targets is exemplary in the 145. These suggestions are a natural follow-on to the judicial world and explains a good part of the success in Judiciary’s initial success and a means of ensuring it will reducing backlog, eliminating very old cases, and as the be equally successful in maintaining the improvements examples from the NCC and NCvC demonstrate, reducing already made, especially as it moves into a second stage delays for new entries. Inasmuch as the author’s initial of reform. Global reports were not a necessary aspect of efforts to produce global summary statistics for the present monitoring the first phase. In the future, however, global report replicated many of the problems currently faced by as well as courtroom statistics will be the Judiciary’s core the Statistics Unit (e.g., need to convert a series of partial tool in taking its program forward. For that purpose, aggregate statistics into a single global summary; lack of it will need to ensure that results tracking is pursued in a database and thus the need to do calculations by hand), a consistent form from one year to the next. It is thus this experience has inspired a series of short, medium and essential, as expanded in the following chapter, that it long term recommendations. strengthen its Statistics Unit and add personnel with a stronger background in the material.   43 MALAYSIA Court Backlog and Delay Reduction Program CHAPTER IV Looking Ahead 146. This has been an extraordinarily rapid reform program, and as the Judiciary is well aware, what has been done to date does not represent the end of the process. However, the Court is already looking ahead. In recognition of the Judiciary’s current thinking of the next steps, the following discussion of gaps and additional measures is divided into two sections: (a) What the Judiciary already proposes to complete the first stage and move into Phase two of the reform (b) Additional actions it might want to consider for future work 147. A third and final section reviews additional studies and research that might be done in support of the program or of initiatives suggested by other actors. Areas Already Targeted to Complete the First Phase Reforms and for Work on the Proposed Second Phase Expansion of Measures Already Undertaken to the Rest of the Courts 148. The Judiciary designed the reform to focus first on the busiest court centers, Kuala Lumpur, Shah Alam, Penang, Johor Bahru, and Ipoh, as well as Putrajaya, the seat of the Federal and the Appellate Courts. The initial emphasis was on the High Courts in the first five areas (Putrajaya has none) and the priority areas have been gradually expanded to their subordinate – sessions and magistrates—courts. This is a reasonable strategy even in its lesser attention to the large number of subordinate and magistrate’s courts located elsewhere in the five states, as well as the High, sessions, and magistrates’ courts in the remaining states. As discussed below, Sabah Sarawak constitutes a special case. 149. All of these other courts have been incorporated in the program to the extent that their caseloads and disposition rates are also supervised and they are encouraged to follow the same guidelines. However, with the exception of the Case Recording and Transcription (CRT) System, they have not been included in the automation program, nor are they being as systematically monitored. Thus the next stage of the reform will require expansion of its full content to the remaining courts, but as their share of the caseload is far smaller, this is not as urgent as were the areas targeted in the first stage. 150. Expansion will require a second contract with the initial vendor in Western Malaysia (presumably the vendor covering Sabah and Sarawak is already committed to covering its courts). This will be a difficult contract to negotiate as the initial one (not including the source code) in effect gives the vendor an enormous advantage – the company owns the CMIS software, and if the Judiciary wants to expand its installation it presumably will be on the vendor’s terms. Much the same is true of a second or possibly joined contract for maintenance and further development of the system over the next two to three years. Afterwards the Court will have to decide how it will proceed. Integration of Mainland Programs with Those in Sabah and Sarawak 151. East Malaysia and its Chief Judge (who was appointed in 2006) introduced its own automation program (developed by a different firm, SAINS) and backlog reduction efforts before the Federal Court. Although coverage of the reform efforts in Sabah and Sarawak was beyond the scope of this report, there are a few innovations in Sabah and Sarawak worth noting, and required or allowed by its special characteristics – use of mobile courts and video conferencing to provide services to far removed areas, and an early adoption of a written transcriptions system (although CRT equipment has also been provided) made possible (as it was not elsewhere) because staff hired for this purpose was more fluent in 44  CHAPTER IV: Looking Ahead English. Courts in East Malaysia were never as congested 154. As the Judiciary begins to use the CMIS database(s), as in the West and thus started the process with less not only to track individual cases, but also to identify backlog. Most of them are now completely current (i.e. problems through more sophisticated analysis, it will need their oldest cases were filed in 2010). to add information to that which is already entered and to modify entry so as to develop a greater number of coded 152. As regards the first phase program, the only real variables (those which can be manipulated statistically). issue is how the Sabah and Sarawak CMIS will be merged According to the contractor interviewed for this review, with that developed under the larger Formis contract. this is not a technical challenge although it will require This could be a concern in terms of report generation and the Judiciary’s deciding what it wants added and how it the eventual creation of a global database allowing data wants it code.72 It is not fully apparent that the Judiciary mining and other unprogrammed analysis. But it should recognizes this need and potential. So far its notion of be resolvable so long as those in charge recognize that which data should be registered tends to be shaped by the these three functionalities are critical. statistical reports formerly collected manually. Obviously, an eventual global, web-based system allows for much Further Development of the CMIS as a Full MIS more and it would be important to raise awareness of this possibility and the advantages of acting on it. It is thus 153. The CMIS, as it will be developed by the end of the recommended that international experts be brought in to Formis contract, constitutes a good basic courtroom or discuss the issues with court leadership. court complex-level registry on case actions. Although not contemplated under the current contract, it should not Creation of Centralized Database in the Statistical Unit be technically difficult, especially given web connections, and Incorporation of Data from CMIS and non-CMIS to integrate the individual registries into a single global Courts version and use this to create a global database at the central level.70 However, each existing registry contains a 155. One of the surprising findings of the fieldwork significant measure of text entries (not suitable for analysis), was that the central Statistical Unit still receives all data and also does not record some case characteristics that in hard copy and enters them manually, making many will be important for further analysis of possible problems calculations with hand held calculators. Although courts such as gender of parties, differentiation of types of with the CMIS installed can generate all of the required organizational parties (aside from what can be surmised reports automatically, composite reports must be created from the type of case or court), amount requested and manually at the center. According to the vendor (Formis) awarded, whether or not the party has legal representation the situation will change soon, and the central Statistical and so on. Starting with relatively simpler data capture is Unit will have a global database comprising the statistics actually a recommended path for reform implementation. (but not the raw data) managed by the individual CMIS Attempts to start with the capture of more detailed courts. For courts without CMIS, data will continue to be information often run into problems of poor data entry entered manually and also in aggregate form. At present or an inadequate identification of what is needed. They there are no other differences, but if, under the present also can lead to endless discussions over categorization of or a separate contract, a global database comprising raw variables.71 Therefore, it is recommended that such efforts data from the automated courts is constructed, it will start less ambitiously and grow over time. allow the following: (a) Data provided by CMIS courts (a set of entries for 70   The database is separate from the registry but if the registry is every case) could be analyzed independently at both correctly done (using codes, not text) the creation of the database the courtroom and central levels, to provide, for should be virtually automatic. example, average times to resolution by court, by 71   This was apparently the case in Brazil. When the World Bank re- search team ended its fieldwork in mid 2004, the Federal Judicial type of case, by type of party and so on. Council (the executive secretariat of the Federal Judiciary) had been engaged for over a year in meetings with representatives of the five 72   Unless the contractor has done something very odd with the pro- regions to try to reach consensus on a single classification scheme gram, there is no reason to believe this could not be done. In fact, for recording criminal and civil issues. In retrospect it would have a gradual expansion of the items registered (and coded) is usually been better to develop a single set of categories and then let the recommended to avoid spending enormous time up front in devel- five regions discuss them. oping an exhaustive list.   45 MALAYSIA Court Backlog and Delay Reduction Program (b) This same type of analysis cannot be done by or for the Training non-CMIS courts as they will only manage aggregate statistics. What they don’t calculate themselves 158. This is a high priority item for the Judiciary’s second cannot be calculated at the center. stage program and the discussion in its report on the (c) Data mining – random analysis of disaggregated data initial reforms (Federal Court of Malaysia, 2011) mentions to identify significant patterns and relationships – will several variations, including a program for judges and an only be possible for data provided by the CMIS courts. Institute for all legal professionals (the Malaysia Academy However, it should be started nonetheless as these of Law). Training is important, but as discussed in the data still represent a significant portion of all cases section on needed studies, it often involves investing large and to some extent represent a special universe – the amounts of funds on activities that have little or no impact most congested courts.73 on improving performance. Moreover, there is a long and not very illustrious history of countries or donors funding mammoth training institutes that cannot be sustained over 156. Until the integration of the local databases can the longer run. It is thus recommended that before seeking be accomplished, as does not appear to be the short- funds, the Judiciary and other proponents do a thorough term plan, the Statistical Unit will be managing two sets study of training needs (see below) and also investigate of aggregate statistics, one entered manually and the the funding implications of any specific proposal. Since the other automatically. This will at least allow it to produce Court is thinking beyond judicial training, the suggested global reports without the use of manual calculators, study on the legal profession should also be relevant. but otherwise offers few advantages. Once a database receiving raw data from the CMIS courts is installed, it will have to manage two types of data, raw data from Areas Suggested for Immediate Attention or for Inclusion the CMIS courts and aggregate statistics from the courts in Future Programs without the installed system. However, since the CMIS courts have the highest caseload, the advantage will be 159. The following ideas are currently not contemplated the ability to do more sophisticated types of analysis of by the Court but are suggested here as desirable measures the data they supply. Data from the Sabah and Sarawak for the Judiciary’s longer-term institutional development. CMIS will also have to be incorporated, and to the extent Some of these, such as those related to the IT issues, possible, harmonized with the contents of the central may be critical to completion of the first phase program, database. whereas others are intended to strengthen the Judiciary’s own capacity for internal management. Further procedural change Build up IT Capacity, Attend Hardware and Develop 157. The Judiciary has a list of targeted changes it is Software promoting and those not already approved appear to be on the way to enactment by the legislature. However, over 160. As opposed to the following items, this one time, it is likely to find still more legal changes that will be deserves urgent attention. It should not wait for a second needed. It appears that conducting such modifications to phase program. According to the estimates of the IT basic laws is not that difficult in Malaysia and moreover department, the Judiciary has roughly 30 IT staff, half that there is a potential for trying out the changes on a of them technicians (largely responsible for maintaining pilot basis. This is usually recommended, but often not hardware) and the rest doing training, programming and possible, as even the best analysis may still not capture systems analysis to some unknown degree. They are all the potential consequences, some of which may prove all located in Putrajaya. Moreover, they are subject to more disruptive than the legal provision they sought to transfer anywhere in the public sector (belonging, like the override. Judicial and Legal staff, to a general civil service career). This situation needs review and serious modification. 161. First, 30 technicians located in the central office are insufficient even for ordinary hard and software   It was estimated for example that Kuala Lumpur alone captures 73 maintenance. Admittedly, with good internet connections, about 28 percent of all cases, more than Sabah Sarawak. 46  CHAPTER IV: Looking Ahead a certain amount of assistance can be provided at a on very shaky ground. When an application (or for that distance, but the Court will still need to decentralize this matter a report, like the present one) is developed under a service given the current and probable future levels of contract, generally ownership rights are transferred to the automation. Moreover, local staff can be trained to do contracting agency, who will of course pay accordingly). ordinary repairs, but even in a country “where no location In the Latin American region, where the experience with is more than five hours away” from the capital, there will automation began twenty years ago, this was not the be times when the insufficiencies of trained generalists initial practice, but over time, competition has driven most and the travel delays will cause productivity problems. vendors to include the source code in their deliverables. Certainly more technicians will be needed and they Without the source code, the need for a large judicial IT probably should be decentralized, though determination department decreases, but with it (or with its anticipated of their exact numbers and locations requires a more handover) a larger and more highly technical department detailed analysis than possible in this assessment. Building will be necessary. A third option, also requiring a strong up IT capacity clearly should be a priority of the Judiciary, IT department, is for the latter to “retro-engineer the and if need be, negotiated quickly with the legislature and program,” which is to say that after a certain amount of executive. experience with the company product, the Judiciary’s IT staff develops their own version, with any improvements 162. Second, while technicians are probably inter­ seen as necessary. This has been a frequent development changeable (so that one who fixed computers, scanners in Latin America, in part because of perceived economies, or video equipment in an executive office should have and in part because of longer term dissatisfaction with the little problem in fixing them in the courts), programmers initial product. and system analysts may be another matter, especially as the courts begin to develop their own applications (or 164. Given the existing weakness of the Judiciary’s IT find a way to buy the source codes of the two companies department, not having the source code at the moment is developing CMIS – more on that below). The policy of arguably not a problem. However, the Court should begin transferring staff from one agency or even one branch to consider its future strategy, based on three options: of government to another needs revisiting – and in the case of IT this is especially important as agencies develop (a) Continue present practices – let the company(ies) or have developed their own specialized (proprietary) keep the source code(s) and rely on them for any software. Court automation may use the same languages future modifications. This implies a continuation of and platforms as those in other sectors, but the underlying the existing contracts (for system maintenance and logic of their organization is different.74 The quantity of further adjustments) and only a modest expansion staff needed hinges on a third issue as elaborated in the of the Judiciary’s own IT department, largely to meet next paragraphs. the needs of equipment maintenance. (b) Negotiate a transfer of the source code/s while at the 163. Third, the IT contracts for developing the CMIS same time building up its IT department to ensure it did not involve transfer of the source codes, necessary can manage it/them to make any changes to the applications. This is often (c) Consider the current contracts as acceptable for the the preference of the firms contracted as it virtually time being, but enhance its own IT capacity so as to guarantees them steady income for the foreseeable future. be able to develop its own applications, or in a later Anytime anyone wants a modification, they need to pay phase, work with a second generation of contracted the company to do it.75 The usual vendor argument that software, this time with the delivery of the source the CMIS is the company’s “intellectual property” rests code included in the contract. Depending on the skills of the new additions, they may be able to advance the needed integration of the local databases something 74   This arguably has contributed to problems with court automation in Mexico (Hammergren et al. 2009) and the author also observed a apparently not included in the Formis contract. court CMIS developed in Ecuador by experts with prior experience in banking. Unfortunately, the needs of banks (all transactions re- ported immediately to the center and the center’s assignment of a 165. The real issue here is not whether the initial single account number) are not those required by judiciaries. contract should have included the source codes but how 75   It also means the company can sell a modified version of the sys- the Court wants to manage its IT development in the tem to judiciaries in other countries.   47 MALAYSIA Court Backlog and Delay Reduction Program future. Given the country’s financial situation, costs may let to develop the virtual archive, although with vendor’s be the least important consideration although costing out retention of the source code this may not be feasible. the options over the next ten years would not be a bad Formis is creating a centralized archive of electronic case idea, and would also allow it to bargain more effectively files and may have added the “invisible number” referred with the vendors. It is well to remember that the life of to above once it realized the confusion that would be any specific software program is hardly infinite and that generated because the “visible” numbering system will many judiciaries, as well as other agencies, have changed include duplicate numbers. However, there was no further companies, software, or both in less than a decade. indication of the creation of tools to allow easy navigation Software may last somewhat longer than computers, but of the contents. in IT, change is the only constant. Development of a Planning Capacity and Its Impacts on Further Development of Policies on Access to the CMIS the Current Administrative Arrangements Database and Improvement to the Virtual Archive 168. As noted above, the Judiciary’s current adminis­ 166. In terms of system security, entry to the system (to trative arrangements appear sufficient for its present enter data or on a read-only basis) is already regulated needs. However as it moves to the next stages of by user identity and passwords. However, considerably reform, it will require a more sophisticated approach to more may be required.76 The other concerns have more identifying and proposing alternative solutions for future to do with protecting party privacy, especially, but not developments. This is especially important as beyond the exclusively in cases involving sensitive matters. Each expansion and refinement of the current reform (which country needs to develop and implement its own policy could easily take three to five years) the future directions here as what is regarded as “sensitive” is culturally are not at all clear. determined in part. Over the longer run, it would be desirable to make the database (or as in the present 169. The Court has a new “Planning Office,” but it appears version, databases) available to outside researchers, but to focus largely on training needs. The Judiciary’s Statistical this may require cleaning it of any information that could Unit is charged with collecting statistical data and reports be used to identify parties. Researchers in any event are from individual courts and producing the basic reports usually not interested in who sued whom, but rather in on court operations. Once the CMIS is fully operational, larger categories of cases (e.g., banks versus individuals; much of this can be done automatically and the staff individuals versus government agencies). This is not an assigned to do the manual keying and report production urgent consideration but over time should be taken into will be redundant. The two offices are mentioned together account. It bears mentioning here that Costa Rica, which because a real planning office will need statistics to do its has an excellent database and makes it widely available, work, and thus may either be merged with the statistical is now discovering that much of the information made office or be a primary consumer of what it produces (not available constitutes an invasion of privacy. In other only reports but also various kinds of analysis). The two countries the names of employees involved in labor offices currently do not coordinate with each other or with disputes have been downloaded robotically to create lists financial or personnel administration offices and neither of of workers one “should never hire.” the latter appears to do much forward planning. Moreover the Judiciary’s development budget is largely out of its 167. The issue of the virtual archive was explained hands, managed by the Division of Legal Assistance within above along with the need to introduce unique numbers the Prime Minister’s Office. Within the court system, most for all cases. It appears neither one is getting sufficient of the key administrative positions are held by Judicial attention at present. If they are not included in the and Legal Services Officers or alternatively, by members current IT contracts, both should be incorporated in any of a government-wide administrative service – interviews amendment. Alternatively a separate contract could be suggested, for example, that for those at the apex of the administrative officers, any further promotions would require changing to another agency. The Court reported 76   No information was supplied (or requested) on additional securi- that it had changed IT directors several times over the last ty measures – although one assumes that both those and adequate few years. off-site backup are taken care of. 48  CHAPTER IV: Looking Ahead 170. For a court system with no reform aspirations, Alternatives to the Judicial and Legal Service That Would the current arrangements may well work. But they are Give the Judiciary (and Prosecution) Its Own Specialized evidently incompatible with a more dynamic approach to Personnel organizational development. It is thus recommended that the courts seek a way to do one or more of the following, 172. The quality of the Judicial and Legal Service staff requiring both structural changes and alterations in the and their ability to carry out a number of non-judicial career paths of those in key positions: functions appear to be quite high. Staff defended the current system, which over the course of their careers, (a) Create a Planning Office staffed by individuals trained may assign them not only to judicial and administrative in planning techniques (use of statistics to make posts within the courts, but also to a position as a DPP projections, development of alternative scenarios for (prosecution), in other government agencies or even the resource deployment, multi-year budgeting and so on). legislature, as a good way of: (b) Reconfigure the Statistical Unit and staff it with individuals trained in basic statistical analysis. PhDs • Getting an overview of the entire justice area; in statistics will not be needed (and in fact may not • Letting them learn a number of functions and be desirable) but those who can do policy-oriented skills; and analysis will be a decided plus. This is probably not a • Providing judicially knowledgeable people to job for Judicial and Legal Service Officers, especially perform administrative roles in the courts. if they rotate in and out with the typical frequency. However, assigning a judge or two to the unit, or 173. Their only complaints were the low starting salaries. creating an advisory board composed of judges might Since this is a national service, the Judiciary has no control be considered. over the salaries, explaining why, when the Chief Justice (c) Strengthen the coordination among the Planning, successfully lobbied for a 40 percent increase in the Statistical, Financial Management and Human salaries of superior court judges, the subordinate court Resources Units so that they can collectively determine judges and other Judicial and Legal personnel assigned to short, medium and long-term scenarios for resource the courts could not be included. Certainly compensation needs and deployment. for this group should be reconsidered, especially at the (d) Regain control of its Development Budget, or at least lower end, and if it is easier to do this by separating those the ability to program it. If the Legal Affairs Division assigned to the judiciary from the general pool, that alone (of the Prime Minister’s Office) wants to continue as a could be a sufficient reason for doing so. “project implementer,” that may work, but it should not do the Judiciary’s planning for it. 174. Apart from the salary issue, there are additional (e) In the case of all administrative units, find a way to reasons for seeking this separation. For the time being, keep key staff and give them promotions or raises in the system (government-wide reach, frequent rotations place rather than losing them to the current career within and among agencies) seems to work well, but trajectory. End dependence on Judicial and Legal over the longer run there are clearly costs to encouraging Service staff for these positions, which by rights should people to jump from one position to another so that be judicial-administrative careers on their own. whatever expertise they develop in the first position they may never use again. Moreover that same expertise is lost 171. This is an ambitious program, and unlikely to be when a new person occupies the post. For example, the accomplished in one fell swoop. The difficulty of the Judicial and Legal Service officer who heads the Statistical undertakings (and their removal from judicial control) Unit clearly had or has developed an appreciation for the increases as one reads down the list. The last two items in use of statistics, but when she leaves, her replacement will particular will require changes in government policy, but have to redevelop those skills to function as effectively. In even the first three will be less successful if these changes addition, the practice clearly sets a limit on how expert any cannot be leveraged. one person can become. The Court has already recognized that they need statisticians in the statistical unit and is making plans to hire one, but this one example seems to be repeated in other, non-administrative areas as well.   49 MALAYSIA Court Backlog and Delay Reduction Program 175. For example it was mentioned that the sometimes- ranks, having entered, post university training, at a lower difficult relations between police and prosecutors are level, possibly working in a local court, or handling only probably aggravated by the fact that the police have financial or personnel matters. True, many of those now much more experience in investigating a case than holding the highest positions may never have studied the would a prosecutor, even one at a high JS level, who specific topic in the university (absent any such programs spent the earlier part of her career in the judiciary or as when they started) but they often had degrees or training a parliamentary drafting officer. Good prosecutors, like in more generic management, finance, or personnel good police, are not formed in a few years, but rather over management. They are rarely ex-judges although in the a much longer period. US in some complex court systems, there may also be a judge (called an “administrative judge”) assigned to 176. The use of specialized courts and the argument for oversee their work, but certainly not to do it. Malaysia their creation – that a judge becomes familiarized with appears ready to consider this alternative although it will the topic and can decide more wisely and rapidly as a certainly take a while to introduce, and will also require result –seems to fall apart in the face of the preference changes to the Judicial and Legal career system, at least for generalist judges, who might spend a few years in to the extent of eliminating rotation of its members into one specialized court, and then move on to another. administrative positions. As regards other professional The virtues of broad exposure (although never so broad staff not recruited from the Judicial and Legal career (e.g. as in Malaysia where the JS may serve in all branches of IT personnel) a similar problem exists and they reputedly government, albeit not so frequently now as formerly) rotate through the entire public sector, so that again, the has been recognized in other judicial systems (e.g. France chances of developing their expertise as applied to the and Germany) and in other agencies (US foreign service) judicial system is again limited. by rotating a new recruit through several positions, but then having them choose the career path they will follow. Suggestions for Additional In-Depth Studies and In several European countries, very junior judicial recruits, Assessments or those in a training program, may work as assistants to prosecutors, judges or even public defenders, but then are 178. This section offers some suggestions on additional channeled into one career stream or the other. Malaysia in-depth studies and assessments to address the potential may want to consider this example as an alternative to mismatch between supply of judicial services and manifest the present system although since the Judicial and Legal or latent demand for justice. The courts appear to be doing Service is a government-wide program, the decision fine, but their small size suggests either that Malaysia has will not correspond only to the courts. However, other a remarkably small number of justiciable disputes or that agencies may find themselves in the same predicament, citizens resolve their conflicts in other venues (or not at limited as to the degree of specialized expertise their all); thus the issue is whether the full range of alternatives personnel can develop. is adequate. Except for the first item on training, these additional studies are less immediately relevant to the Development of Court Administration as a Separate judiciary’s own reform program, but may be of interest Judicial Career to the government in assessing the effectiveness of the overall justice system and such issues as crime reduction, 177. The other area still more affected by the practice violence prevention, and economic growth. The courts is the administrative offices of the courts. In the US, seem to be playing their role quite effectively, but other Canada, Australia and England and Wales and increasingly actors and agencies may now need more attention. in other countries, court administration is a specialized career, combining knowledge of judicial practices (but Training Needs and Alternatives for Meeting Them not necessarily a law degree) with a strong formation in management. Practitioners of this career, and of its 179. The judiciary currently has a limited budget for various sub-specialties, are increasingly graduates of training and most of what occurs under that rubric involves specialized university degree or certificate programs, and short courses and large meetings (judicial conferences moreover are expected to sharpen their skills on the job. and seminars). There is no entry level program for new A court administrator responsible for overseeing an entire “recruits” to the Judicial and Legal Service, but none judicial system will normally have come up through the specifically for those then assigned to the courts. For 50  CHAPTER IV: Looking Ahead more experienced lawyers named to the superior court or that freed up by the elimination of physical files. Over bench or recruited as judicial commissioners, the Judiciary the short run that should be adequate and longer-term has no program – and that maintained by the JL Service decisions can be made later, on the basis of the earlier would not apply. There is apparently no requirement results. Directors and instructors are another problem but for Continuous Legal Education (CLE). Actual training while the director should be full-time with some sort of sponsored by the Judiciary appears to be somewhat ad tenure (thus making the selection of the candidate more hoc, constrained by budgets and also by the recruitment controversial) instructors should be hired on a part-time practices and rotation of staff to different positions. In basis for specific courses, or where possible, be judges in some sense, rotation is regarded as training inasmuch as practice. The needs assessment should also cover various individuals rotated from one position to another learn scenarios for starting and developing the program, relevant skills on the job and also develop what they call including with each estimated start-up and recurrent a “multi-tasking” orientation or a greater appreciation for costs. Initial programs could also be conducted through the different roles necessary to court functioning. an existing law school, thereby reducing start-up costs until final plans can be developed. 180. More systematic training will require a higher budget, but its creation also faces some unusual structural 182. The real issues have to do with content, and here impediments – the internal logic of the Judicial and Legal both the initial needs analysis and the courts’ personnel Services model. So long as this model remains in place, policies come into play. Some of the suggestions made it will affect the kinds of training that can be done. An above as regards separating the Judicial and Legal argument could be made for an entry level course for Services Officers assigned to the courts (or the creation Judicial and Legal officers starting judicial service – most of a separate judicial career staff, a proposal to this effect commonly as senior assistant registrars – and possibly already having been forwarded by the judiciary) or creating for those moving up to the next logical position – as a a court administrator as well as judicial administrator (for magistrate, deputy registrar, or administrator. However other administrative tasks) career track would also affect after that it is hard to say what kind of training might be long-term planning. Over the immediate run, however, needed under the current system or any modification of it the proposals and the study should address current needs, likely to be realized over the next few years. especially as regards three types of training – entry level, general continuing education for those in service, and 181. Training is always high on judicial wish lists but much very specialized courses on issues affecting only a limited of it, according to evaluations done in other countries, has range of cases (e.g. courses for those hearing corruption little impact on the quality or quantity of services.77 This is issues where a knowledge of money laundering, basic not because training is not important, but rather because accounting and so on may be needed). It is recommended it is so often poorly designed and organized. Hence a that the study be done by a multi-disciplinary team first step in establishing a training program should be a including members with experience in organizing training thorough evaluation of the situation of performance, programs as well as substantive experts. identification of how training might improve it and at the same time, specification of the additional measures that Situation of the Legal Profession and Its Possible would be needed for training to have its desired impact. Liberalization Few training programs start in this fashion which is the prime explanation for why so many of them produce little 183. The topic of liberalization of the legal profession improvement. Instead the focus is usually on the size of the was raised by a few of those interviewed and has also building, where we will place it, who will teach, and who been under discussion in the press, although further will be the director. As regards buildings, the courts could descriptions of the aims and content of any such measure probably start with some of the currently unused space varied among the few interviewees who referenced it. On the one hand, it is used to refer to loosening or eliminating 77   An unreleased review of World Bank judicial reforms thus found the restrictions on legal practice in Malaysia by lawyers that in the program evaluations, training often received the lowest from other countries. On the other (NEAC interviews), it grade among all components. Some problems encountered – for referred to allowing non-lawyers to handle certain kinds example, donor-funded training activities that collapsed once the of legal work and thus creating a larger pool of talent on donor left – are unlikely to affect Malaysia, but the impact on ser- which users could draw. In explaining their proposals, vices needs consideration.   51 MALAYSIA Court Backlog and Delay Reduction Program the two groups did agree on a few aspects of the current by lawyers which could be done by an appropriately situation they regarded as problematic. certified paralegal or someone from another profession. It would thus be important to explore the potential here. 184. First, the quality of legal education and thus of Facilitating the process for allowing lawyers to practice in lawyers in the country leaves much to be desired. A Malaysia on the basis of adequate certification in another proliferation of law schools and the popularity of the country could also have benefits, especially, as suggested discipline may also be producing an overabundance of above, in raising local standards, and not incidentally, in lawyers as well as of trainees who stop short of admittance promoting the formation of multi-national law firms. Such to the bar. Many of those who are admitted (an estimated a measure should be quite consistent with Malaysia’s 60 percent) operate individually; there are few law firms intention to attract international business. The presence and even they are relatively small. of foreign law firms and lawyers is likely to raise legal standards, raise fees and remuneration in some sectors 185. Second, it was said (but could not be verified) that and spur investments in Malaysia by firms that require high fees for legal services were low, and that as a result some quality legal services. On the other hand, liberalization is of the best local candidates went to other countries (e.g. less likely to improve the criminal bar and other measures Singapore) to practice. Moreover since criminal practice need to be considered to improve them. Liberalization is still less remunerative, the criminal bar remains very is also likely to increase inequality as the salaries of best small.78 paid lawyers are likely to increase very quickly. 186. Third, while no interviewee referenced this point, 189. The experience of the manufacturing sector where it is likely that most lawyers reside, as they tend to do Malaysia has liberalized is instructive. The arrival of MNCs everywhere, in the major cities and thus there may be a helped upgrade Malaysia’s manufacturing sector in short shortage in certain parts of the country. Thus although order and was the basis for a substantive transformation legal representation is not required to go to court, of Malaysia’s economy and success in reducing poverty. the shortage of lawyers in many areas may constitute Services such as the legal profession have been a lagging a further restriction on expressed demand. It bears sector as they remained unliberalized. mentioning here that the Malaysian bar, law schools, and the Judiciary have continued with a very formal set of legal 190. It is recommended that a more detailed study on procedures, parts of which have already been eliminated the local legal profession be done for the purpose of in England (the multitude of writs and other formalities better understanding the issues, their underlying causes, unintelligible to the layperson). Hence seeking to conduct and most importantly the impact, not just on lawyers’ a case without a lawyer could be a daunting and probably livelihoods but on the functioning of the justice system not very productive proposition. Judges can of course be and the quality of services provided to all types of actual trained to deal with unrepresented clients, but so far, that and potential clients. practice appears not to have been adopted in Malaysia. Analysis of the Organization, Distribution and Working 187. Liberalization will not be a panacea for all the Methods of Public Prosecutors (DPPs) problems facing the legal profession. However, the decision on whether to liberalize should be based on 191. This is not a study the Judiciary would finance, but an analysis of the larger public interest, and not just on having it done and having its recommendations adopted the impact of livelihoods of legal professions. And the would have important effects on court performance. benefits to the economy as a whole of having high-end The study done by PEMANDU as a prelude to its crime legal services would be considerable. reduction program suggests a number of areas where more focused research would be useful. Among them, the 188. No one wants unqualified lawyers performing legal delays attributed to the prosecutors seem to require more work, but there may be types of work currently monopolized concerted attention, as opposed to the targeted remedies offered. Other interviewees provided further details that could not be verified but do indicate the possible presence 78   It bears noting that the current Chief Justice was applauded by of more fundamental structural problems calling for the Bar Council for lobbying with the Prime Minister to increase organizational reforms, possibly along the lines of what the fees to attorneys hired by the government to do this kind of work. 52  CHAPTER IV: Looking Ahead Judiciary has already done. On the one hand, references what impact on their lives. This type of study, essentially were made to prosecutors being overburdened, and on a rather complex survey asking respondents about their the other, to their already large number (as one judge own experience, can be relatively expensive, especially said, “more than judges”). One interviewee noted that in a country as linguistically and culturally diverse as prosecutors sometimes request adjournments because, for Malaysia. Moreover, not all attempts to do this have been whatever reason, they have had no time to review the case successful.79 However, in no country in the world, and much files; however the same interviewee noted that prosecutors less in Malaysia with its several legal traditions, do courts were very reluctant to provide full discovery (information on resolve all problems. Therefore, it becomes important to evidence) to the defense lawyers, and that this in turn might know whether in combination with the alternatives they provoke the latter’ request of a postponement. Obviously are adequately addressing disputes that could escalate there are some problems although with the information into more violence or otherwise negatively affect citizen provided it was impossible to assess their dimensions or well being. The issue is thus less whether people take broader impact. their disputes to the courts than how and whether they find means to resolve them. Knowing this can allow 192. Based on experience elsewhere it is not uncommon countries to plan more adequately their investments in to find that prosecutorial agencies, like courts, often suffer dispute resolution mechanisms, determining for example from counterproductive organization, illogical distribution whether to try to expand access to the courts, improve of staff, and unnecessarily complicated working rules the performance of various alternative mechanisms, that make it difficult for them to use their resources or even attack more directly certain sources of conflict effectively. Thus it is recommended that this situation be so that they do not require the use of any such forum. explored, ideally using a team of experts with experience Examples of the latter might include expanding public in more efficient agencies from elsewhere in the common services to groups and communities at risk, improving law world. Rather than focusing on investigation and the performance of administrative agencies that seem other skills training (as is often done in these studies), the to produce conflicts based on poor service provision or study should concentrate on internal organization and unnecessarily complicated rules for accessing it and so on. procedures, including distribution of staff and mechanisms Thus while in many Latin American countries, poor service for assigning and monitoring work. It is not known whether by social security agencies has been addressed by creating the DPP has its own “CMIS” to register cases, record their special courts to handle the resulting disputes (see World processing, and generate management reports. If not, Bank 2004 on Brazil), the better route might be to improve one should clearly be introduced. Coordination with agency performance. the police should also be covered as it is a problem the resolution of which may require more than the punctual 194. It is entirely possible that a study of this sort might remedies proffered by PEMANDU. The suggestion implicit find that the Malaysian population as a whole and in some of the discussions, that the solution is to add more distinctive groups within it (entrepreneurs, the poor, prosecutors, may be correct, but before any move is made certain ethnic collectivities) are entirely satisfied with in that direction, these organizational and procedural the alternatives, but if there are exceptions to that rule, issues should be analyzed thoroughly. it would be well to identify them now so as to be able to develop reasonable remedies for addressing them. For Unmet Dispute Resolution Needs the courts, one conclusion might be to create real small claims courts (as opposed to the small claims proceedings 193. This is the current state-of-the-art term for this currently applied by magistrates courts), to ensure that type of study. The preferred methodology is based on judges are trained to deal with parties not represented that developed by Hazel Genn (1999) in England, and by lawyers, or to simplify proceedings (and language) so subsequently applied both by Genn (1999) and others in other countries. Essentially the interest here is in 1) 79   The South African Legal Aid Society attempted one recently with identifying the types of conflicts commonly encountered disappointing results because (as reported in private communica- by the population as a whole and specific groups or strata tions with the author) of methodological problems with the sample. within it; 2) identifying the mechanisms (including doing Abbreviated forms have also been included in national household nothing) they use for different types of disputes; and 3) surveys (Republic of Kenya, 2006) with some interesting findings. Adopting this mechanism might be a quick way of determining determining how they fare in resolving them and with whether a more extensive study is needed.   53 MALAYSIA Court Backlog and Delay Reduction Program that pro se (self) representation is more effective. It also were not ICT dependent (although clearly having computers might develop that the courts are doing fine, but that helped the courts in their manual tracking and generation more attention is required to other mechanisms that are of statistics). Now that the CMIS is coming on line, it will not performing as well. be important to ensure that its use consolidates the early advances. This means, inter alia, an emphasis on building up Administrative Tribunals (and Other Non-Judicial the Court’s IT and Statistical Units as well as finding ways to Dispute Resolution Forums) integrate the three sources of data – the Formis and SAINS systems and the manual information that will continue to 195. This could be a follow-up to the unmet needs study be supplied by some court districts. Eventually, it implies or might be conducted independently. Malaysia has a the construction of an integrated database incorporating series of administrative courts – for labor, housing, social and improving the systems managed in individual courts security, and fiscal (taxation) matters among others. and court complexes. The direct intersection of the tribunals with judicial work occurs largely in the context of the potential for 197. Two types of activities will be essential for the appealing their decisions on the basis of constitutional Judiciary’s second stage program – the strengthening of and legal violations (not substance). Judicial review cases its administrative offices to feature a focus on planning as represent a significant but not overly large portion of opposed to ordinary (house-keeping) administration and civil cases; however the way statistics are kept do not a series of studies to explore areas (especially training) allow a distinction between these cases and those filed where it believes it wants to work. Many judiciaries, after by government to collect taxes and fees. In theory a well- first focusing on efficiency, then attempt to move to the functioning administrative law system should reduce court issues of quality (as the Malaysian courts appear to want congestion by providing satisfactory responses to citizens to do), but this transformation is difficult because 1) it is and thereby discouraging appeal to the courts. There much harder to operationalize objectives and develop is no reason to conclude that this is not the case, since means for monitoring their achievement and 2) there is where appeals are allowed, there will always be some more likely to be disagreement as to priorities.80 There is use made of them, and the numbers of such appeals are a tendency in these reforms to turn to a focus on inputs not dramatic in Malaysia. Nonetheless, it might be well to (a training institute or program, an outreach program for review performance of these tribunals as regards overall disadvantaged groups, the creation of more specialized user satisfaction (by interviewing users and also reviewing courts, and so on) without ever defining the improvement cases sent to court on appeal to determine whether in services to be achieved. Malaysia’s courts avoided there are patterns here), organization, caseload, delays in this vice in their first phase programs; it is to be hoped resolving cases, and the size and composition of the carry- that they can continue to do so. The low-hanging fruit – over from one year to the next. In short, any such study efficiency – poses fewer problems in that sense. There are could replicate much of the judicial reform program, critics of efficiency as a goal, but even they cannot dispute starting with a caseload audit, and then continuing as the how its advance should be measured. In discussing results of that exercise indicate. Similar exercises might quality of performance, the disputes are likely to be far be done for the Syariah and traditional courts, but these more divisive. In short, a second phase program poses a might be more controversial, and unless the unmet-needs second set of challenges, and the courts should probably study or other information already indicates serious take their time in deciding how they will overcome them. problems, could be deferred for another time. In the meantime, the first phase is hardly complete, and if the next steps – to ensure advance already made are Conclusions on Next Steps retained – are less exciting than the first ones, they are no less important. Taking them will also provide time to 196. Although the Judiciary is already looking ahead to its reflect on what should be done afterwards. phase two reform, it will (or should) be engaged in perfecting its first stage program for the next few years. The strategy of moving ahead with all due speed has produced important 80   For example CEPEJ (see reports cited) is now engaged in efforts to results, but to ensure those results are maintained (and produce “quality” court systems in the European countries it covers. expanded throughout the entire court system) more work This is in response to concerns that there has been too much empha- will inevitably have to be done. Most of the early results sis on efficiency, an argument sometimes heard in Malaysia (although largely from lawyers who resist the emphasis on timeliness). 54  CHAPTER V: In Conclusion CHAPTER V In Conclusion 198. This last section expands on an idea forwarded in the introduction, the value of reviewing the Malaysian reform as an example, model and source of lessons for other would-be reformers. The most striking aspect of the Malaysian example is the amount accomplished in very little time and moreover the fact that this was done before the large investments in ICT came on line. This is not to discredit the latter, but simply to point out that there is no need to wait for ICT or to lament the lack of funds to finance it in order to produce some important results. In summary the lessons derived from the experience are as follows: (a) A reform’s success is largely conditioned by the ability of its leaders to identify problems and define concrete, measurable goals for resolving them. A reform that simply aims at “improving performance” without defining specific targets is less likely to accomplish anything. Quantification is important, no matter how objectives are further defined. (b) Increasing efficiency is a good start, representing a sort of “low-hanging fruit” in the goal hierarchy. (c) There is a logical progression to reforms, and the Malaysian judiciary recognized and acted on this principle. It may be hard for reformers to get excited about some of the preliminary steps (e.g. case file inventories), but if they are skipped reforms will founder. (d) One preliminary step usually recommended, a thorough assessment or diagnostic of the judiciary’s situation, was skipped in Malaysia. However, the PEMANDU crime reduction program did begin with a diagnostic and others have been recommended in the present report. It does not appear that the judiciary’s reform was adversely affected by this shortcut, but there were some additional special circumstances. First, the Court’s working hypothesis, that there was delay and backlog that could be eliminated rather quickly, was based on prior, if less systematic, observation by the reform leaders (and especially the Chief Justice). Second, the way the reform was organized (the sequence) meant that the early steps served to verify the hypothesis. Had the inventories discovered, contrary to expectations, that all pending cases were recent ones and moreover active, the program would have needed modification. Third, there was constant monitoring of progress which inter alia allowed the identification and resolution of additional problems along the way. Thus, for the reform’s immediate purposes a further diagnostic was probably not needed (would only have added delays and possibly weakened the initial consensus), but others contemplating similar programs should not assume this applies equally to them. (e) A first, essential step in any reform is to put order to what is there and establish a system for monitoring performance. Neither one requires automation, although the monitoring system can certainly be improved once ICT is introduced. Without order and without information, it will be very difficult to plan, implement and measure the effects of any further reform efforts. (f) It is generally recommended that prior to automation, courts improve and simplify their work processes. This is advice that few heed, but whether as a conscious strategy or simply a question of necessity, this did occur in Malaysia. This left the contractor with the task of automating an already improved process, facilitating and doubtless accelerating activities that had been done by hand (e.g. programming of hearings). How flexible CMS (the Formis software) will be as regards future changes remains unclear, but it has certainly done a good job of automating the improved manual procedures as well as adding items like internet filing and CRT that could only be done with ICT. (g) While seemingly simple minded, an inventory of cases and an improved filing system are essential parts of the “putting in order” phase. On the basis of both these steps, courts, or for that matter any agency, can most probably substantially reduce existing workloads and so facilitate further reform. (h) A tracking system, like but not necessarily the same as that introduced in Malaysia is a recommended means for further reducing backlog. The logic behind any such system is to separate cases by the level of effort required for their resolution – in the future a similar logic can be applied to more sophisticated forms of differential case management.   55 MALAYSIA Court Backlog and Delay Reduction Program (i) Judiciaries often underestimate the importance of (m) Committed leadership is essential, and it is also having a global database with raw data (as opposed important to ensure such leadership persists over the to statistics), and here the Malaysian courts are no longer run. Broadening the reform team (to include exception. They have done an excellent job of utilizing the President of the Court of Appeal, the two Chief basic statistics to encourage judges to improve their Judges and more members of the Federal Court) as work, but the continuing absence of a global database was done in Malaysia is thus a recommended strategy. is a concern. The absence does not limit the Judiciary’s Reforms have progressed with only one high-level current plans, but it will impact on the formulation of leader, but they are easier to reverse when that is the the next stages. major source of their momentum. (j) Once the low-hanging fruits have been harvested, the next challenge is to define the further directions of 199. These are only a few of the lessons that might be reform. Although Malaysia can still spend several years derived from the experience. A further recommendation terminating the first stage, it will need to consider is that countries embarking on judicial reforms, especially, where it will go next and how it will get there. but not solely thus emphasizing efficiency, take a closer (k) Courts are only one part of a justice system, and as look at the experience, if possible by visiting the Malaysian the PEMANDU study clarifies in the case of crime courts and talking with the participants. The Malaysians reduction, many other actors are involved. Much the designed their program on the basis of many such visits, same is true of more ordinary dispute resolution as and the experience clearly paid off. They selected what discussed in the prior section on additional studies. they saw working in other countries and then tailored the When attention is not paid to these other agencies, approaches to their own situation. Successful imitation and comparable reform programs established, the with an eye to appropriate modifications allowed them to impact of even the best court reform will be limited. move ahead with extraordinary speed. Thus, a final lesson (l) It is easier to carry this all out with substantial is to learn from others, and so to take advantage of being funding, but many of the measures introduced by the a late-comer by building on existing examples. Those who Court were accomplished with few additional funds are only starting or who are revising “failed programs” and others (the ICT contracts) could be simplified and should take heed. thus the overall costs cut back. This might produce less dramatically rapid results but over time the same types of improvements should be possible. 56  REFERENCES REFERENCES Arfah Wan Hanzah. 2009. A First Look at the Malaysian Genn Hazel. 1999. Paths to Justice: What People Do and Legal system. Shah Alam: Oxford Fajar. Think about Going to Law. 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Justice Fadzilatul Isma Ahmad Refngah, Head of Statistical Unit Laws Nourul Fitri Hamdan, Special Officer to the Deputy Chief Registar Courts of Judicature Act, 1964 (as amended to 2010) Husna Dzulkifly, Office of Case management Unit Criminal Procedure Code, Act 593 (as at January 1, 2006) Federal Constitution (as at March 1, 2010) Court of Appeal Government Proceeding Act 1956 (Act 359) and Judicial Azimah Binti Omar, Registrar Proceedings (Regulation of Reports) Act 1962 (Act 114) (As at March 10, 2009) Kuala Lumpur High Court Judicial Appointments Commission Act 2009 (Act 695) Yeoh Wee Siam, Judicial Commissioner, Family Court, Penal Code, Act 594 (as amended to January 1, 2006) High Court Rules of the High Court, 1980 (as amended to 2010) Mohamad Ariff bin Md Yusof, High Court Judge, NCC Subordinate Courts Act 1948 (Act 92) and Subordinate Noraida Sulaiman, Managing Deputy Registrar for NCvC Courts Rules Act 1955 (Act 55) (as amended to July Fatimah Rubi’ah, Managing Deputy Registrar, for OCvC 15, 2010) Hamidah Binti Mohamed Deril, Deputy Registrar High Court Nazri Ismail, Deputy Registrar for Civil High Courts Mohd bin Ismail, Senior Assistant Registrar for Civil High Courts Adira Adnan, Senior Assistant Registrar for Civil High Courts Ong Wee Ching, Registrar, Subordinate Court 58  REFERENCES Shah Alam, High Court Mohtarudin bin Baki, Senior High Court Judge Nurchaya Haji Arshad, High Court Judge Zaleha binti Yusof, High Court Judge Tasnim binti Abu Bakar, Deputy Registrar for Civil High Court Ramesh Gopalan, Deputy Registar for Criminal High Court KB Elina Hong Tze Lan , Senior Assistant Registrar Mislia Mohd Aris, Registrar for Subordinate Judicial and Legal Training Institute Azian binti Mohd Aziz, Director-General National Economic Advisory Council Prof. Dato Norma Mansor, Secretary to the NEAC Mary Artylan Fernandez, Executive Director (Economics) James Lidi Mathew, Deputy Secretariat Prime Minister’s Department Mahzum binti Arifin, Deputy Director General (Planning and Development), Legal Affairs Division Syed Mohamed Bin Koyakutty, Legal Affairs Division, Director of Planning Khairulizam Othman, Legal Affairs Division, Chief Assistant Director Samalaa a/p Perumal, Legal Affairs Division, Senior Assist Director Mohd Asta Ali, Legal Affairs Division, ICT Staff (Asst. Director Chung Kuet Ping, Legal Affairs Division, Assistant Director (Project implementation) Adeline Lee, Senior Manager PEMANDU Bar Council Ragunath Kesavan, President Formis Mah Slew Kwok, Executive Vice Chairman and Chief Ex- ecutive Officer Mah Xian-Zhen, Personal Assistant to the Chief Executive Officer Lim Puay Aun, Senior Manager Philip Ng, Assistant Manager Lau Khek Hui, Assistant Manager   59 MALAYSIA Court Backlog and Delay Reduction Program 60