MALAYSIA Tanah Tumpah Darahku


Friday, August 5, 2022

One can’t keep blaming the courts


From Hafiz Hassan

The view reported in FMT’s “Do Najib’s new lawyers deserve more time to bring SRC appeal?” that the Federal Court was being unduly harsh on former prime minister Najib Razak in not allowing his newly constituted legal team’s application more time to prepare for his case should remind lawyers of what was said by a former chief justice in 2009.

Then chief justice Zaki Azmi wrote in a letter as follows:

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“It matters not who requested for the adjournment, be it from the lawyers, federal counsels, deputy public prosecutors or from the court, the public will still conclude that it is the court who is delaying the proceedings.

“In fact, it is unfair to have the blame imposed solely on the courts.

“In order to transform this inaccurate perception, I urge all judges and judicial officers to be strict in granting last minute postponements without reasonable notice.”

If the courts, on the other hand, are stringent with applications for adjournment, it “gives the wrong impression of haste on the court’s part” to dispose of cases.

The courts get caught between a rock and a hard place.

It must be remembered that it is settled law that it is in the absolute discretion of the court to decide whether to allow an application for the adjournment of a case which has been set down for hearing.

Some of the reported cases on the law were comprehensively referred to by justice VT Singham almost 20 years ago in 2003 in the case of Soonfroze Corp Sdn Bhd v Siti Salabiah Bte Chek Hassan & Ors.

The principles as regards the discretion in allowing or refusing an adjournment are as follow:

  1. Whether or not a party should be granted an adjournment is wholly at the discretion of the judge. He would exercise discretion solely upon his view of the facts.
  2. Prima facie this discretion is unfettered.
  3. The question to ask in any particular case is whether on the facts there are adequate or sufficient reasons to refuse the adjournment.
  4. Although an appellate court has power to interfere with the judge’s decision in regard to the granting of an adjournment, it would refrain from doing so unless it appears that such discretion has been exercised in a way which tended to show that all necessary matters were not taken into consideration or the decision was otherwise arbitrarily made.
  5. An appellate court ought to be very slow to interfere with the exercise of the discretion. But if it appears that the result of the order made below would be to defeat the rights of the parties altogether or that there would be an injustice to one or the other of the parties then the appellate court has power and indeed a duty to review the exercise of the discretion.

If there is an application for adjournment, the court, whether at first instance or on appeal, must look at the material and the grounds for the adjournment in order to exercise its discretion correctly.

In recent years, the courts have considered that in the exercise of a discretion to refuse or grant an adjournment, they are entitled to consider the effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing in the court as well as the interests of the parties. This was explained in the Australian case of Sali v SPC Ltd in the following words:

“What might be perceived as an injustice to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of court resources.

“In the past it has been left largely to the parties to prepare for trial and to seek the court’s assistance as required. Those times are long gone. The allocation of power, between litigants and the courts arises from tradition and from principle and policy. It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings.”

Counsels must therefore note that they not only have a duty to their client, but also a duty to the court. The latter is paramount.

It is also frequently said that a litigant is entitled to be represented by the counsel of his choice. Reference is inevitably made to Article 5(3) of the Federal Constitution. It provides that where “a person is arrested he shall be informed as soon as may be of the grounds of his arrest and shall be allowed to consult and be defended by a legal practitioner of his choice.”

Reference is made to Section 255 of the Criminal Procedure Code (CPC) as well which provides that “every person accused before any criminal court may of right be defended by an advocate.”

It can be seen from the above that the right to consult and be defended is a right of the person arrested. But, is the right unqualified?

In a recent Court of Appeal case of Ng Yee Hong v Malaysian Institute of Accountants [2021], Justice Ravinthran, delivering the judgment of the court, said as follows:

“We must perforce state that we are mindful of the cautionary advice of Arden LJ in Geveran Trading Co Ltd v Skjevesland [2003] 1 All ER 1, CA that a judge should not too readily accede to an application to remove opposing counsel lest it is used for tactical reasons to cause inconvenience and delay.

“The right to counsel of choice is not a trifling matter. However, the court should not flinch from striking a fair balance between the competing considerations of the right to counsel of choice and the broader interests of the administration of justice.”

The right to counsel of choice is not absolute and has to give way in appropriate cases to the overriding principles of fairness and justice.

Granting postponement is a judicial discretion. One can’t keep blaming the courts when the discretion has been exercised judiciously – that is, based on established judicial principles. - FMT

Hafiz Hassan is an FMT reader.

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

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