In PP v Anwar Ibrahim, the Federal Court rolled back statutory amendments introduced in Section 51A of the Criminal Procedure Code to augment the rights of accused persons. By enacting this provision that imposes a statutory duty on the prosecution to provide documents to the defence prior to the commencement of trial, Parliament made it plain its intention to level the playing field between the prosecution and the defence.

In a regrettably regressive decision, the Federal Court refused to allow the defence access to documents other than the usual basic documents pre-dating the amendments. The full and timely disclosure of documents and statements would surely assist in a speedy disposal of the trial. More crucially, courts must exercise their discretion in favour of enhancing an accused person’s right to a fair trial, and increasing transparency and fairness in the country’s criminal justice system. Non production of documents and information merely gives rise to the perception, in the public mind, of a cover up and will not assist in enhancing public confidence in the criminal justice system.
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Yang Amat Arif, saya dengan rendah diri memohom izin meneruskan hujah saya dalam Bahasa Inggeris.

My Lord,

I am honoured to speak not only for the Bar Council but also on behalf of the Sabah Law Association and the Advocates Association of Sarawak, who are represented here today with the presence of their respective Presidents, Datuk John Sikayun and Khairil Azmi bin Mohd Hasbie.

It gives me great pleasure to be able to address this distinguished gathering on the occasion of the opening of the 2011 Malaysian legal year.

A year on from the historic first ceremony in January 2010, we cannot rest on our laurels but must continually strive to improve the administration of justice and the rule of law in Malaysia. We cannot be satisfied with pioneering first steps, but must be sufficiently courageous to extend boundaries. This may transgress well-worn customs and traditions, and may find displeasure among those with vested interests in preserving the status quo. However, we cannot be inhibited by such considerations. If adjustments are required we must be bold and mature enough to stand up for such corrections purely in the interest of justice and fairness.

The introduction of court mandated mediation, court recording transcription services, structured and uniform case management directions and the introduction of the “New Civil and Commercial” courts have increased the efficiency of our judiciary. The changes brought about by Your Lordship have, by and large, been welcomed by the legal fraternity. We were plagued with problems of public distrust and disdain of the judiciary for reasons of judicial indiscipline, alleged corruption even at the highest level of the judiciary, judge fixing, an administration system that had not been revamped for decades, inconsistent case management styles and directives issued at the whims and fancies of each judicial officer. The appointment of three inept and unacceptable chief justices post Tun Salleh Abas led to the near complete breakdown and destruction of our judiciary.

We can stand tall and reflect that we had firmly and consistently spoken out and acted against the massive decline in judicial independence.

Your Lordship had the most arduous task of instilling discipline, order and direction in the judicial system.

However, we caution that reform including the pace of such reform, must always be in tandem with the needs of all stakeholders, including the capacity of the judges, lawyers and court system. Speed alone cannot be the sole and overriding factor, for there must be no miscarriage of justice in the prompt completion of cases. In the matter of postponements and adjournment of cases, it is a critical part of the individual independence of judicial officers that they have sole control of cases before them, including the discretion whether or not to grant an adjournment because they must be guided by the need to do “substantial justice” between the parties.

The criminal justice system requires a much more detailed and tempered approach. The problems faced there are considerably different from those of the civil courts and expediting hearings may not entirely be in the public interest if this results in more instances of acquittals, or an accused is denied the right to a proper and full defence.

The paramount objective of the administration of justice must be to achieve qualitative justice in every instance. An excellent justice system requires a combination of a fair conduct of cases, their prompt disposal and well reasoned decisions so as to ensure that justice is done and seen to be done.

As we consider the challenges that lie ahead, we would do well to reflect on the following words, taken from Chapter VI of Machiavelli’s “The Prince”:

“. . . there is nothing more difficult to take in hand, more perilous to conduct, or more uncertain in its success, than to take the lead in the introduction of a new order of things, because the innovator has for enemies all those who have done well under the old conditions, and lukewarm defenders in those who may do well under the new. This coolness arises partly from fear of the opponents, who have the laws on their side, and partly from the incredulity of men, who do not readily believe in new things until they have had a long experience of them.”

The reforms that have been implemented have resulted in a significant improvement in the quality of the administration of justice. We welcome such changes even though disagreements are bound to exist from time to time. We do not always agree or achieve consensus on issues but we have a good working relationship with the Judiciary and the Attorney General’s Chambers upon which we can build, and we look to continued constructive dialogue and discussion with both parties. Continue reading ‘Speech by Ragunath Kesavan, Chairman of The Bar Council, at The Opening Of The Legal Year 2011 (15 Jan 2011)’