When KPIs enter the courts

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Key Performance Indicators (KPIs) have been introduced in courts to improve efficiency. But the preoccupation with the speedy disposal of cases may come at the expense of justice, warns the Penang Bar Committee.

The Penang High Court - Photo credit: Qing Moments, Holidays in Penang, Picasa

It has been more that a year since the Tracking System was first introduced to the courts in Kuala Lumpur. Since then, the Tracking System has been introduced in the courts in almost all the major towns in Malaysia. A key feature of this Tracking System is the Key Performance Indicator (KPI) with the speedy disposal of cases becoming the “be-all” and “end-all” of the court system in the administration of justice. This is an undeniable fact.

This KPI, which had until then been kept out of the judicial system, took the courts by storm with the sole aim of clearing the backlog of cases which had reached serious proportions. The Court was made to function like a government department e.g. the Passport Section of the Immigration Department, which had to issue “y” number of passports in a day; courts too were given a target to dispose off “x” number of cases in a day. The clearing of the targeted number of cases meant that the KPI was achieved and justice served!

Whilst the use of the KPI as a measure of competency and efficiency for the judiciary served its purpose of accelerating the painfully slow wheels of justice and may be accepted as necessary to get under-performing judges and other judicial officers and staff scrambling to their feet, unfortunately there are some notable unhappy features in the implementation of the KPI, which need to be addressed immediately.

Speedy disposal of cases as a measure of KPI

The introduction of measures and short time-lines to speed up the various processes in the administration of justice is indeed much-anticipated and long-overdue in the following areas:

a) return of sealed copies of newly registered originating process and applications;
b) return dates for cases and applications;
c) approval of draft orders;
d) return of sealed copies of orders and judgments;
e) pre-trial case management before hearing dates are given;
f) video and audio recording of trials and open court applications;
g) significant increase in the number of courts, judicial officers and judicial commissioners and judges at all tiers;
h) significant increase in the number of supporting staff; and
i) introduction of the T-Track, A-Track & M-(FLJC) Tracks

The Penang Bar finds that the above-mentioned measures have gone a long way in speeding up the disposal of cases, extraction of sealed orders and originating process although there are still hiccups here and there due to shortage of supporting staff and documents, such as draft orders getting lost after being submitted to court.

In these areas of the administration of justice, we find that the use of time-lines and fixing a rate for disposal of the tasks as measures of KPI as not only useful and effective but a sheer necessity. All lazy personnel must therefore be weeded out because these are essentially mechanical tasks which do not require application of judicial discretion or the judicial mind and may be put on the administrative conveyor belt without much thought.

Lives and Liberty are not involved in these manual tasks. No one is sentenced to death nor loses his home by this administrative task. The use of KPI as a measure of performance is therefore fine in these areas.

The use of rates for disposal of cases as a measure of judicial expediency in the courts is, however, one that needs serious re-thinking because of the far-reaching consequences it has brought about and the repercussions that will necessarily follow.

The sanctity and quality of justice cannot be sacrificed in the name of speed and statistics. Although we agree that tougher measures had to be taken to get the entire judicial system moving at a much faster speed, it is regretted that the emphasis has been solely on the speedy disposal of cases – and all other important features to create a good judiciary, namely the emphasis on the integrity of judges and judicial officers; having sufficient time for hearing and disposal of trials and applications; giving due consideration of evidence and arguments and well-reasoned written judgments, which all are crucial for the development of law, have all been unceremoniously sacrificed in the process.

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Courtrooms, which should be the last bastion of justice, have become the very places where so-called speedy justice or injustice is dispensed because members of the bench are compelled to race to meet their judicial KPI. The steps that have been put in place in the name of speedier disposal of cases are in effect steps which will slowly and effectively destroy the Malaysian judiciary which, for all its shortcomings, was up to now still a significant contributor to the development of the common law by its judicial precedents reported in the law journals.

The question of what constitutes a “backlog” should also be given some serious consideration for old and/or dormant files and cases do not automatically slow down or prevent the disposal of newer cases when neither party to such actions are interested in pursuing them further. In these circumstances, the Court may call up such cases for show cause and dispose of them in the appropriate manner.

It should also be pointed out that although cases of this nature may have a minor bearing on the overall statistics of “outstanding” cases, they do not have any direct or immediate consequences on the actual number of trial cases that are pending hearing or which need to be disposed off expediently.

It must be remembered that judges are “demi-gods” who determine the fate and lives of those who appear before them; they are looked upon as the fountains of justice. The speedy justice expected to be delivered by the judges may deprive them of the opportunity to do justice, which often requires long and careful research and deliberation.

In time to come, there will not be any complaints of delay in the disposal of cases but the complaints will grow about the quality of the rushed justice being handed down. Any judge will readily admit that they have no time to deliver or write well-researched and reasoned judgments because Courtrooms have been turned into “statistical” departments to achieve the all important KPI. Justice must then give way to the number of cases disposed for otherwise the presiding judge will not be considered a “good” judge worthy of promotion.

What is the effect of KPI on the judiciary?

The preoccupation with the speedy disposal of cases overlooks the following repercussions:

(a) the requirement that judicial time on the bench between 8.30am to 5.00pm or more is to be spent to race against time to clear the “targeted” number of cases set for disposal, failing which the presiding judge has to explain himself, means: –

(i) there is no time at all allowed during the work day for reading and considering written submissions filed by parties, for his own research and for delivering or writing well-reasoned judgments – all of which are important tasks for a judicial officer who is tasked with dealing with the lives and liberties of the public. The public go to court not for speed alone but for justice as well. Even the one hour the judicial officers had from 8.00am to 9.00am to do the above has now been reduced to half-an-hour as of 1 July 2010 with the courts being directed to start at 8.30am, supposedly on the instructions of the Prime Minister’s Department;

(ii) the judiciary is expected to carry out all the above tasks in their own time, thus relegating very significant tasks to the sidelines. We cannot develop a world class judiciary with the present emphasis on speedy disposal as the only yardstick of a good judiciary. International investors may shy away when good, reasoned judgments became scarce. The government is rushing around the globe to bring investors into Malaysia and the judiciary should follow suit by to creating a world class judiciary to complement the government’s efforts;

(iii) as not enough time is given for these important tasks, judges who are not able to cope with them resort to short-cuts as a means of coping – for instance, striking out of cases, hearing cases and applications without reading the file or, worse still, deciding cases without giving consideration to the written submissions or oral arguments of parties, etc.

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A lack of time and opportunity to do a decent job will more adversely affect those handling the A-track and M-track cases as they will have to prepare for and hear not just one case a day but many. In some courts, the number of cases coming up before them range from 15 to 40 with at least four or five cases coming up for decisions on a daily basis; as such, the judge must not be forced to flip a coin to decide the case;

(iv) having to perform part of their judicial tasks at home means that family life is adversely affected as time that is meant for the family is usurped by having to read files and write judgments etc. This is contrary to the objective of the government’s introduction of a five-day week so that the Malaysian public can spend more quality time to raise their families;

(v) this also affects quality of life and health. The number of deaths in the Penang Bar recently has been unprecedented; some reportedly due to work pressure. Members of the judiciary too currently have no time for exercise and relaxation after a full day’s hearing. The much-needed opportunity for judges to unwind and to relax with their families, which is essential for mental, physical and emotional well being in this line of work, has been sacrificed. Many judges have complained that their health has suffered after the KPI was introduced into the Courts. The consequence of this may mean more broken marriages, deterioration of relationships, poor parenting and abandonment of responsibilities on the family front; and

(iv) there is bound to be adverse effects on the mental and physical health of members of the judiciary at all levels; the constant pressure to perform at present levels daily and the need to remain competent in order not to lose out on promotional prospects will definitely trigger a host of health problems, burn-out, mental depression and emotional problems as well, and lead to an unhealthy judiciary in the immediate future.

The pressure is greatest on Judicial Commissioners, who are constantly bugged by the acute awareness that their contracts may not be extended or that they may have to wait a long while before they are confirmed. Such uncertainties, whilst it may be good to ensure that they work hard, nevertheless have negative impacts. The emphasis on faster disposal of cases as a criteria for measuring KPI will make many decide to concentrate solely on disposing off cases at all costs – thus the refusal to allow adjournments even on reasonable grounds, a higher rate of DNAAs, the demand that cases be closed even if witnesses are not available for good reasons, the refusal to fix dates suitable to parties, etc.;

(b) the emphasis on speed as opposed to competence gives an opportunity for incompetent and low-calibre judges or judicial officers to make their mark and be touted as role-models even though they succeed only because of the short-cuts they resort to in the name of speed. As a consequence of this, good, competent judicial officers who still believe in giving a good hearing and sufficient opportunities for parties to put forward their case and who write good, reasoned judgments may find their efforts totally unappreciated and may eventually resort to joining the bandwagon instead (some in fact have already done so!);

(c) the emphasis on speed does not take into consideration that there are different levels of competence and knowledge amongst judicial officers. For instance, a judicial commissioner who has spent all his working life in the Attorney-General’s chambers or who has done mainly prosecution work will need time to familiarise himself with the law if he is placed in the civil court.

However, once he has been given time to familiarise himself with the processes and the law, the Judicial Commissioner may prove himself to be very good in the field; but only if his acquisition of knowledge can be harvested and the need to maintain a speed for disposing off cases remain secondary only;

(d) There will be gradual deterioration in the quality of judges and judicial officers because of the lack of emphasis on integrity, acquisition of knowledge and research, writing of reasoned judgments, judicial temperament and proper exercise of judicial discretion. There have been so many dos and don’ts piled upon the bench that judicial discretion has been almost completely over-ridden by administrative directives and the KPI and some may say that judges are becoming robotic!;

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(e) There will soon be little or no growth in common law in Malaysia because judges are not encouraged to, and are not given time to, write reasoned judgments but are told to keep judgments short. As there is then no need to justify their judgments and set out their thought process in arriving at decisions, judges and judicial officers will not bother to give much thought to decisions they make and there will be an avalanche of appeals to the appellate courts, which we believe has already taken place;

(f) The future of the judiciary is at stake because magistrates are not given the right on-the-job training to become good judges in future – everyone is caught up in speedy disposal of cases and producing statistics and there is so little emphasis on justice in the courts. This is of special concern given the impending increase of jurisdiction for lower courts;

(g) the art of advocacy is slowly being killed because of the requirement for written submissions in almost every case. The future generation of lawyers will be purely solicitors! Why call yourself an advocate when advocacy is forbidden in many Courts.

(h) public frustration with the judiciary will soon increase considerably because they may find their cases which had been languishing for years in the courts suddenly being disposed off without much of a hearing. They are not able to be represented by, say, a senior criminal lawyer of their choice in a capital case or a senior civil lawyer in a complex commercial case. Their life and liberty may be compromised. The client will then find himself in a position akin to a heart patient being operated on by a general practitioner and not by the heart surgeon he has so carefully chosen to save his life.

Conclusion

If remedial measures are not taken to address the above concerns, then the legacy of the Tracking System will not be a speedy and efficient judiciary as hoped for, but a judiciary that is incompetent, poorly-trained and that has scant regard for proper dispensation of justice. Needless to say, in time to come, the public will lose confidence in the judicial system and foreign investments will look elsewhere.

It is time to reflect, make adjustments and help to create a judiciary that the public can be really proud of. This memorandum is presented by the Penang Bar Committee, after careful thought, as joint stakeholders in the administration of justice in Malaysia. It is not intended to play down some good achievements after the introduction of KPIs in Court, as stated above. At the same time we cannot lose sight of the fact that the present system of concentrating only on speed – and without sufficient emphasis on quality of justice – may mean that we are heading in the wrong direction.

The judiciary cannot be statistics driven; it must be justice driven.

Justice comprehends not merely a decision after a case but also a fair hearing where litigants, lawyers and judges alike are not rushed and pressured to complete a case just to meet the KPI. An unduly rushed hearing is a denial of a fair hearing/trial and consequently a denial of justice. One of the components of natural justice is the guarantee of a fair hearing/trial to litigants who appear before the Court. A backlog of cases cannot be a reason to deny the litigant a fair hearing/trial. A fair hearing/trial is as important as a just decision; neither can be sacrificed for the sacrifice of one may lead to the sacrifice of the other.

This open memorandum is sent to the Chief Justice and Chief Judge with the hope that our views and the general views of the members of the Bar will be taken into consideration and that a compromise between speed and quality of justice can be achieved.

Mureli Navaratnam is chairman of the Penang Bar Committee.

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