The human dimension
The question of how judges treat litigants, and their counsel, is one that directly relates to their respective litigation experiences. And it has struck me that somewhere along the way the process appears to have veered off course. In the rush to decide cases, it sometimes feels that the expectations of the litigant no longer matter.
Malik Imtiaz
I have said before that the push for efficiency within the courts is something to be lauded. I have at the same time argued that administrative changes introduced to reduce the backlog of cases in the superior courts should not come at the price of the quality of justice. Numerous comments by lawyers at the recent Annual General Meeting of the Malaysian Bar about the litigation experience, none of them complimentary, have prompted me to revisit the subject.
Before turning to what I consider to be the possible reasons for what we are facing in the courts, I wish to underscore a fundamental aspect of the subject that seemingly has been lost in the tumult of reform. The Judiciary is there to mete out justice to parties who turn to it in search of the same. Though it seems to be an obvious point, the need to do justice is pivotal to the resolution of disputes. It is not enough for courts to adjudicate if one party goes away feeling that justice has not been served, a state of mind that one cannot brush away as the feelings of a disgruntled client.
Litigants go to court expecting that due consideration be given to the facts of the case, the points of argument made by counsel for the parties, the relevant legal principle and the competing interests of the parties.
These are fair expectation on their part. Unlike those of us who are directly involved in the legal profession, either as lawyers or judges, and as such are exposed on a daily basis to the process as we move from one case to the next, the litigant is someone who has been forced into the process by circumstance. He is not there by choice, there are those who have not in their lifetimes needed to go to a court for a judicial determination, and his involvement engenders an experience that is altogether different from that experienced by lawyers and judges. The litigant is personally, and is therefore emotionally, invested in his case.
Having said that, in my experience a losing litigant does not necessarily walk away feeling resentful if he feels he has been given a fair hearing. It is his experience of the process that defines this outcome. It is for this reason that one of the legal maxims that has come to most characterise the judicial process is “justice must not only be done, it must be seen to be done.”
Judging by the comments at the Bar meeting, a number of judges seem to have forgotten this in their rush to complete their caseloads. The complaints ranged from judicial temperament, with lawyers lamenting the fact that judges were acting injudiciously, to judges not having spent enough time with their files to fully appreciate the nature of the matters before them or the issues in contention, to judges not affording counsel the opportunity to present their cases to the fullest. Underscoring this were comments that pertained to the competency, or lack thereof, of some of the judges.
