I am very disappointed to read the latest statement by Chief Justice Ahmad Fairuz Sheikh Abdul Halim on how he intends to tackle the problem of delay in the courts.

This is especially so when the head of the judiciary, one of the three organs of state, sounds no better than a mediocre politician with nothing to say.

He claims that he will do his best to eradicate delays and, in the same breath, offers the hackneyed view that the delays are due to lawyers asking for adjournments.

This is not to say that the problem of delays are not important or pressing. It is horribly, devastatingly, unavoidably real.

What is most disappointing is the attitude of the present and former CJs in approaching this problem. They are not interested in really looking at the root causes and acknowledging that perhaps the officers, procedures and attitudes in the judiciary contribute a fairly substantial portion to the problem.

I have no illusions that members of the Bar do cause delays but to say, '... don't blame the court' betrays the fundamental assumption of the CJs that the judiciary is not at fault at all. If this is the kind of attitude that the judiciary insists on maintaining, then any proposals or solutions will only be shallow, ineffective and ultimately counter-productive.

Furthermore, the CJ just talks about postponement of trials, but not anything else. This again clearly reveals how poorly his lordship appreciates the problem. There are a whole series of procedures to go through before a case is brought to trial and this is where most delays arise.

Why doesn't the CJ discuss, for example:

1. How long it takes for an originating process to be issued

2. How long it takes for an application to be sealed

3. How long it takes for a hearing date to be fixed

4. How long it takes for a hearing to be conducted - because most hearings are conducted by way of written submissions for even the simplest of applications

5. How long it takes for a judgment to be sealed by the court and issued

What about discussing that black hole of a court in Shah Alam where applications, files and anything that one files in court goes missing? It is almost divine intervention whenever anything moves on there.

The problem of delay must be looked at in its entirety and every participant and procedure in this legal process must be examined, evaluated and revised.

Just look at how seriously England and Singapore tackled similar problems. The former took a good hard look at its procedures and decided these no longer served their purpose and revamped the system. The latter looked towards technology as the driving force in tackling the problem.

What have we done? Where is that computerisation of the courts that I read about every once in a while when the legal news gets a little staid? Why aren't we overhauling our procedures?

And why must we always announce what we are going to do? 'We are going to eradicate delay.' 'We are going to not give any more adjournments.' 'We are going to be strict on procedure.'

For heaven's sake, get on with it. Perhaps the CJ can also show, nay prove, to the public that the judiciary is also not just lip flapping.

Lest I be accused of being negative, here are a few areas that the CJ might like to consider.

1. Quality of judicial officers: This extends from the magistrates to Federal Court judges. Firstly, they must be good. And I don't just mean good. I mean very, very good. An officer who does not know the law or hasn't the intellectual capability to understand it, will take more time to make his decision. And if lawyers and clients can see this from the way this officer conducts the case, you can bet they are going to appeal because they would want somebody better to listen and decide their case. An officer who also knows the law, has the diligence to read the file before the hearing, and has a reasonable level of intelligence would be able to better appreciate the issues involved and even give a decision on the spot (if they are confident enough).

Secondly, they must be experienced. In all the more civilised Commonwealth jurisdictions (e.g. England, Canada, Australia, Singapore, Hong Kong) only the best and most experienced are appointed to judicial positions. Why? Because who would be more suitable to decide, for example, a commercial case but the best commercial lawyer in the country? Its sheer common sense (and yes, I have heard that refrain that it is not common).

But not in Malaysia. The judiciary does not pick the best. It just picks those available (sometimes, however, through sheer serendipity it gets some good ones, but still not the best). The CJ must understand that you cannot just put somebody there and hope they get better as time goes on. People appointed to judicial office must be at the peak of their legal career, not a bunch of amateurs. The better qualified the judges are, the faster the cases will move.

2) Retirement/transfer of judicial officers: Firstly, judges should not be transferred from division to division. Judges in Malaysia are transferred around with unfortunate regularity like civil servants. I need not say anymore that this is the era of specialisation but why is it the CJs do not understand this? Judges are transferred not only from court to court or state to state, but also from the commercial to criminal division. Why is this? What business does a commercial judge have in the criminal courts? This is the ancillary effect of not appointing people to their corresponding judicial specialty. The transfer of judges stalls everything in the courts as well.

Secondly, why is it whenever a judge retires or is transferred, there is almost never any immediate replacement? This is something that is hard to fathom for people not in the CJ's loop. A court can go empty for months without any replacement or any indication from the judiciary about the replacement. And this happens all the time. Surely, they can see it coming and make the necessary preparations for the transfer or retirement in advance.

3) Computerisation of the courts: This I think is one of the most important contributory factors to the delay. We are incessantly told that we are in the multimedia age. But, just stepping into any of the magistrate or sessions courts, one would think we are an updated version of the medieval courts where judges use pen and paper. What about bits and bytes? What about email? What about video-conferencing? What about court lists on the court website? What about recording evidence digitally?

But Mr CJ probably doesn't understand all this technology. And doesn't want to. Never mind that his Singapore counterpart CJ Yung Pung How - who, when he started didn't know a bit from a byte - understood the need to use technology to enhance the efficiency of the courts. He was the driving force of the Singaporean judiciary into the Digital Age. That's what you call foresight. All we have are CJs with hindsight.

I need not paint pictures of trials proceeding at a pace no faster than the presiding officer's pen. Or that they slow down when the witness doesn't speak clearly or speaks too fast. Or that the officer cannot write fast enough and may not write down all the answers (how on earth is the appellate court supposed to tell from the notes that a witness has been evasive?). Or that sometimes witnesses can change their answers because the judicial officer cannot write fast enough. Or that lawyers also have to write everything down and have to refer to their own notes of evidence instead of the official notes of evidence when drafting their submissions.

4) More staff: Yes, this is trite but the reason I list this is because I don't think the CJs understand what it means to hire more staff. It's not just hiring. Has the judiciary been monitoring, analysing and perhaps even forecasting the cases on a bi-yearly, or yearly basis and then hired people on the basis of their projections or analysis? And where do all these 'hired' people go? For all the talk about hiring more staff, the situation in courts in Shah Alam haven't improved at all.

6) Procedure: The rules for the respective courts have been around since the 1980s with hardly any amendments or revision to make it easier, more efficient and cheaper to use. Even though the CJ is just one of the members of the board that looks into the rules, his lordship should be the driving force of its dynamism and constant evolution. Just look at Lord Woolf's civil justice reform proposals. We don't have anything like that over here. There is also no discussion from the CJs about more sophisticated issues like proposals on access to justice, equality in the criminal process, or revising the law on locus standi on matters of public interest. Nothing. All we get is the same hackneyed issues being bleated every now and again.

This is what I can come up with, by drawing on my paltry experience at the Bar. This is why I am disappointed.

For someone of the CJ's experience, counsel and resources, the best that he could come up with after a three-day conference with the judges is: (i) a 'gotong-royong' concept by the judges; (ii) looking into proactive and positive procedures of the adversarial, inquisitorial and Syariah systems to see what can be implemented in our civil system; (Did anybody tell Mr CJ that ours is a common law system? Or that Tun Salleh Abbas landed himself in hot soup a long time ago when he suggested incorporating Islamic principles into our system of law?); (iii) form a committee to study a completely tangential issue of adopting a national judiciary system that will see the blending of judiciary systems practice in other countries; and (iv) hiring more judges.

I think these proposals are pathetic and betray the lack of creativity or insight into the problem of delay. There is no willingness to be humble and reflect.

If the CJ is really serious about tackling this problem of delay, then his lordship should not only look into those issues I've raised but postpone his publicised tour of the courts to purportedly speed up the disposal of cases. Instead, his lordship should take a good hard look at the state our courts are in first. 'Spot check' visits with all the judicial officers rolling out the red carpet and adjourning their cases for the reception doesn't count!

I would humbly suggest going about it a la Caliph Harun Al-Rashid by going down to the courts as an ordinary member of the public (a disguise would be better), sitting in the gallery and watching what goes on.

The least the CJ can do is to acknowledge and tackle the problems. Anything less would just be lip flapping, leg shaking, mind numbing and frustrating, but not at all surprising.