Fusing two sets of different laws plus three sets of judicial systems to create a single national judicial structure may not achieve the intended objective of expediting dispensation of justice.

Yesterday, Chief Justice Ahmad Fairuz Sheikh Abdul Halim had said there is a need to look into adopting a new system to tackle the long-standing backlog of court cases. He suggested a new national judicial system that fuses the inquisitorial, adversarial and Syariah systems.

"Questions must be asked whether it is time for our judiciary system not to entirely depend on Common Law," he told reporters after opening a three-day National Judiciary Conference..

"Perhaps the time is now right for us to study other judicial systems adopted by non-Commonwealth countries."

'Idea not workable'

Contacted today for comments, lawyers and academician alike felt there are better ways to deal with the problem.

Bar Council chairperson Kuthubul Zaman Bukhari said he disagreed with the idea, explaining that changing the system would not be the answer to clearing the backlog.

"With respect to the Chief Justice, I don't think the proposal is workable. There are other measures that can be implemented to ease the backlog without having to change the whole system," he said.

He suggested case management and alternative dispute resolution (ADR) mechanisms as practical and effective options.

(ADR mechanisms settle disputes out of court and typically include such procedures as arbitration, mediation, early neutral evaluation and conciliation.)

"We in Malaysia should incorporate ADR into our High Court and Subordinate Court Rules because studies in other jurisdictions (such as Britain and the US) have proven successful," Kuthubul said.

(Inclusion of ADR in the court rules would ensure that litigants are obliged to go through such mechanism before taking their disputes to court.)

He also said adopting ADR methods would not require any in-depth study, unlike the CJ's proposal.

"This is already being discussed in the Statutory Rules Committee consisting of members representing the Attorney-General, the judiciary and Bar. To get things working, all the CJ has to do is to call for another committee meeting," he said.

"However, if the Bench insists on going ahead with the proposal, we hope that it will accept views from the public and legal profession."

'Identify the problem'

International Islamic Law University law lecturer Dr Abdul Aziz Bari said there has been little improvement to the situation over the years, despite the issue of a backlog having been raised by every judicial head since former Lord President the late Suffian Hashim.

"(Each) different chief justice seems to have different ideas about dealing with the backlog, but none of these seem to be working. There appears to have been no continuity of administration between the tenures of the various chief justices," he said.

Abdul Aziz said he hoped the Bench would first identify why there is a backlog, rather than venture proposals that may not just fail but also create other problems.

"Look at other countries like the US and Singapore...maybe we can learn something from them," he suggested.

"But whatever system is adopted, the problem must first be identified. Otherwise, the wrong medicine will be prescribed. The changes will not only affect the court and legal practitioners, but also - and more importantly - the litigants who are members of the public."

Asked if ADR mechanisms would help, he said the approach may solve the problem. However, he said there is no need for the current statutes to be amended to provide for this, since a voluntary approach may work just as well.

"This is because judges already make it a practice to advise litigants to settle out of court and only resort to a full court battle when they fail to reconcile. So that should be enough," he said.

Senior lawyer Karpal Singh also agreed that other measures be taken to clear the backlog.

"The remedy lies in the appointment of diligent and competent judicial officers," he said.

Concurring, lawyer Edmund Bon said the fault does not lie with the system but with the players, including judges themselves.

"Look at Singapore, which has the same adversarial system that we do, but yet doesn't have any backlog. This proves that the system can be improved with effective methods like ADR or even the fast track system (which was scrapped without much consultation)," he said.

"The backlog will still be there even if we change the system, unless judges and magistrates are administratively efficient and focused during hearings. Eighty percent of reported cases consist of decisions on technicalities because lawyers pick up those issues and judges accept them."

Another lawyer Yusmadi Yusof said changing the system should be the last resort and that the existing system should be fully utilised.

He said that speed should not be the main criteria, and that equal attention should be given to sustaining fundamental issues like judicial independence and integrity.

"I hope the Bench will not miss the wood for the trees If we can improve the system to be more credible and independent, then other minor things like the backlog will fall into place."