Should the subordinate courts have more power?
By Ding Jo-Ann, The Nut Graph
WHY has there been such a furore over the government’s amendment of the Subordinate Courts Act? And why should the public care that the Act has been amended?
As a result of Parliament passing the amendment, the Sessions Court can now hear civil cases worth up to RM1 million while the Magistrates Court cases worth up to RM100,000. This represents a four-fold increase from their previous jurisdictions.
Bar Council vice-president Lim Chee Wee called for the amendments to be delayed pending a proper study on its impact. Lim also pointed out that the increase in amounts meant that lower court judges would be hearing more complex cases, previously reserved for High Court judges. Minister in the Prime Minister’s Department Datuk Seri Nazri Aziz, however, said the amendments merely took into account inflation and did not change very much.
Both sides have valid points. A sudden jump in jurisdiction would surely shunt many cases from the High Court to the Sessions Court and from the Sessions Court to the Magistrates Court. The lower courts may well have trouble coping with the increased workload. Having said that, increases in jurisdiction, in 1987 and again in 1994, did not have any serious ill-effects.
But there are other underlying issues with the lower courts that the recent amendments do not address. If these issues are not looked into, whatever doubts that existed about the lower courts before the amendments would only be compounded by the increase in their power. Hence, the question that needs to be answered is, should the sessions and magistrates courts have been granted additional powers to hear cases of higher amounts?
Quality of judgments
Unlike High Court judges who must have at least 10 years experience before being appointed, there is no such minimum requirement under the Federal Constitution or Subordinate Courts Act for lower court judges. Sessions court judges and magistrates are appointed from the Judicial and Legal Service (JLS), which is effectively part of the executive. Fresh law graduates can technically be appointed magistrates, although internal guidelines require Sessions Court judges to have served for about eight years before being appointed. JLS officers are not required to complete their pupillage or have any practical experience in a law firm before joining.
This system differs from the practice of other countries where the majority of judges are appointed from amongst lawyers. In the UK, for example, district judges, who perform a similar function to Malaysian session court judges, must have practised in court for at least seven years. Having practised as a lawyer helps ensure judges are familiar with court procedure and legal arguments.
It is of course possible for a hardworking and bright JLS officer to “learn on the job” and become experienced with time. Having said that, many lower court judges, even senior ones, unfortunately display their lack of practical experience on the bench.
Decisions are often delivered simply by them saying “case dismissed” or “claim allowed”, without any analysis of how the decision was arrived at. It is also not uncommon to see judges confused about the rules of evidence, correct procedure, and legal concepts. At times, time-consuming written submissions have to be filed to clarify a simple matter for the judge.
It is therefore all well and good for Nazri to say that the amendments were merely on account of inflation. But what will be done to improve the quality of these judges who now have additional powers? Especially since Sessions Court judges can now decide on injunctions and make declarations which can have wide-ranging effects on businesses and individuals?
Independence
Another major area of concern is the independence of JLS officers. JLS officers answer to the Judicial and Legal Service Commission. The commission consists of, amongst others, the Public Services Commission chairperson and the Attorney-General (AG), who advises the government on legal matters and represents it in legal disputes. JLS officers often get transferred between departments in the AG’s Chambers and could also serve, for instance, as public prosecutors or in the drafting division.
