Justice not a privilege, costs not a weapon

 Justice delayed is justice denied, but justice made unaffordable is justice destroyed.

I was shocked and saddened to read on FMT recently about a court cost award against an individual hitting the one million ringgit mark.

I do not wish to comment on whether the award was justified in that particular case, but the sheer scale of such an order raises troubling questions about access to justice.

When costs of this magnitude are imposed, the courts risk sending a message that justice is a privilege reserved for the wealthy, not a right guaranteed to all.

This is not merely a procedural issue — it strikes at the heart of constitutional duty, human rights obligations, and the principle of equality before the law.

Access to justice is not merely a lofty constitutional promise; it must be affordable, practical, and meaningful.

Judges, as custodians of the Federal Constitution, bear a duty to ensure that justice is not only done but is accessible to all.

This responsibility is reflected in Order 34 of the Rules of Court 2012, which emphasises the need for just, expeditious, and economical disposal of cases.

The provision is not a technicality — it embodies the courts’ constitutional duty and the state’s international obligation to guarantee affordable access to justice in line with human rights law.

At its core, these constitutional and human rights principles are essential preconditions for the rule of law. If justice is priced beyond the reach of ordinary citizens, the legal system risks becoming an exclusive tool for the privileged, undermining equality and non-discrimination.

Worse still, arbitrary or punitive cost orders can deter litigants from approaching the courts, effectively silencing grievances and eroding public confidence in the judiciary.

Vindictive cost orders

Arbitrary or vindictive cost orders are morally indefensible and cannot be part of judicial policy. Such practices discourage litigants from pursuing legitimate claims and force defendants into settlements out of fear rather than fairness.

This undermines the principle that courts exist to resolve disputes impartially. When cost orders are wielded as a weapon, the judiciary risks becoming complicit in denying justice rather than delivering it.

Mediation, while valuable, has increasingly been used as a tool to muzzle social justice.

In many jurisdictions, it is promoted as a solution to case backlogs. Yet, the backlog itself is often the product of inefficient case management and reliance on outdated British aristocratic litigation procedures.

By contrast, arbitration models in Commonwealth countries demonstrate that alternative approaches can reduce trial time without compromising fairness.

Case management reform

When I joined the judiciary, I was fortunate to bring with me both academic and practical expertise.

My doctoral thesis on civil procedure and justice laid the foundation for a case management methodology that reduced trial time for civil and commercial cases by up to 80 percent.

This approach was documented in my article Case Management and Preliminary Cross-Examination Witness Statement ([2010] 2 MLJ xlviii), and later endorsed by the Court of Appeal in Bisi Ak Jinggot [2012] MLJU 109.

The methodology was simple yet transformative. By introducing preliminary cross-examination witness statements, trial time was drastically reduced.

Examination-in-chief was already streamlined through witness statements, but cross-examination and re-examination consumed disproportionate amounts of time.

My approach curtailed unnecessary theatrics and focused proceedings on truth and substance.

Counsel often knew the likely outcome of a case, yet trials were prolonged by procedural drama. By cutting through this inefficiency, justice could be delivered swiftly and economically.

The litigation theatre

In my early months as a judicial commissioner, I observed that much of litigation resembled theatre.

Counsel engaged in lengthy exchanges, often despite knowing the inevitable outcome. Trials became entertainment rather than instruments of justice.

My reforms sought to align practice with reality: if truth could be established without unnecessary delay, then justice demanded efficiency.

Unfortunately, the judiciary has been slow to adopt these reforms. Had they been implemented in 2012, billions of ringgit in taxpayer funds could have saved, and case backlogs could have been significantly reduced.

The failure to innovate has perpetuated inefficiency, eroding public trust.

University-court annexed arbitration

Another concept I proposed was the establishment of University-cum-Court Annexed Arbitration. This model would integrate academic institutions into the judicial process, providing arbitration facilities that complement court proceedings.

By diverting civil and commercial disputes into arbitration, courts could focus on criminal and public law matters, where judicial oversight is most critical.

This idea, if adopted, would have reduced trial work and allowed judgments to be delivered more efficiently. Yet, despite its potential, the judiciary resisted implementation.

Way forward

The judiciary must now take positive steps to minimise cost orders and embrace reforms that ensure affordable access to justice. This requires:

• Revisiting Order 34 of the Rules of Court 2012 to strengthen its emphasis on economical disposal of cases.
• Curtailing arbitrary cost orders that deter litigants and undermine equality.
• Adopting case management methodologies such as preliminary cross-examination witness statements to reduce trial time.
• Exploring university-court annexed arbitration as a structural solution to case backlogs.
• Ensuring mediation remains voluntary, not coerced through fear of punitive costs.

The Parliamentary Select Committee and the judiciary must study and review these proposals seriously.

Justice delayed is justice denied, but justice made unaffordable is justice destroyed. - FMT

 The views expressed are those of the writer and do not necessarily reflect those of MMKtT.