@ Free Malaysia Today (used by permission)
by Hishamudin Yunus and Marcus Lee
Chief Justice Tengku Maimum Tuan Mat recently wrote that the administration of justice cannot be brought to a “grinding halt” during the movement control order (MCO).
She outlined measures implemented to counter disruptions of court processes and services. We hereby highlight two main points.
Firstly, that the judiciary has proposed amendments to certain written laws to allow for greater use of technology in courts such as video-conferencing in all cases; and secondly, that the judiciary has in fact drafted a Practice Direction and is awaiting adequate feedback from all stakeholders.
Digitalisation of the justice system is fundamental to provide efficient and equitable justice in the 21st century.
In fact, the judiciary has digitalised most of its processes since the year 2009. This includes an electronic filing system (e-Filing) – a system which allows practitioners to file documents electronically.
There are also other electronic mechanisms such as e-Lelong and e-Review. The e-Review system allows case management to be conducted online.
It was introduced during the tenure of former chief justice Richard Malanjum.
In fact, the high courts in Sabah and Sarawak are more technologically-advanced than their Peninsula counterparts due to the efforts taken by Richard when he was the chief judge of Sabah and Sarawak for over a decade.
The e-Review system is a mechanism that allows judges and judicial officers to conduct case management proceedings through an online messaging platform with lawyers.
Accordingly, lawyers (and members of the court) need not be in each other’s physical presence to manage their cases.
Richard sought to expand the Sabah and Sarawak version of e-Review throughout Malaysia. But given the time he had in office, the judiciary was only able to roll out the system in Kuala Lumpur, Penang and Shah Alam.
Currently, the judiciary is working, with some success, towards ensuring that the system is available in almost all courts in Malaysia. Soon, only electronic documents will be used for hearings conducted at the Federal Court i.e. “paperless hearings” without referring to physical documents.
While the talk to expand technology in the courts is abound, the courts in Sabah and Sarawak have long adopted electronic hearings via video-link for simple applications.
Technology has been utilised to overcome onerous obstacles to access to justice, such as geographical and cost factors.
While it is easy to criticise the judiciary for not expanding the adoption of modern technologies fast enough to cover all Malaysian courts, we believe there must be some valid reasons behind it.
One valid reason could be budgetary constraints. Our government needs to invest more in the judiciary.
For example, the United Kingdom invested £1 billion to modernise courts and tribunals. Our government should be equally as committed in digitalising our justice system.
Another reason, judging from the chief justice’s statement, may be the seemingly inadequate response from the stakeholders to undergo such change. This could be perceived as criticism or perhaps better be taken as calls for assistance by the judiciary.
The judiciary cannot work alone and support from its stakeholders is absolutely crucial in order for it to fully adopt modern technologies.
Meanwhile, we too understand that adequate time must be given to the stakeholders to provide meaningful feedback.
It is also reassuring to know that the present measures taken by the judiciary are not initiated simply by virtue of the present circumstances but that they have long been in existence. Other countries such as Singapore and the United Kingdom have already taken proactive steps to pass legislation to allow their institutions to make full use of technology to overcome the physical barrier erected by the coronavirus.
The respective stakeholders in their justice systems are also coming to terms with the change that looms over them. This is illustrated by the fact that proceedings have been going on electronically.
In those countries, the question is not “when” but “how” do we make the change most effectively.
It is therefore hoped that the seed planted by Richard and nurtured by the present chief justice will continue to grow. It cannot however bloom if all parties do not play their respective roles.
The sooner we can all accept technological change the better. Hence, the primary stakeholders, including the Attorney-General’s Chambers, the Malaysian Bar and the respective state Bars in Sabah and Sarawak, should enhance their cooperation with the judiciary to fully embrace further digitalisation of the justice system in Malaysia.
Hishamudin Yunus is a former judge of the Court of Appeal, and Marcus Lee Min Lun is an advocate and solicitor of the High Court of Malaya.