SALUTATIONS
(1) The Right Honourable Dato’ Seri Anwar bin Ibrahim, Prime Minister of Malaysia;
(2) Chief Justices and Heads of delegation of the Conference of Chief Justices of Asia and the Pacific,
(3) The Honourable Dato’ Sri Azalina Othman Said, Minister in the Prime Minister’s Department (Law and Institutional Reforms),
(4) The Right Honourable Tan Sri Datuk Amar Abang Iskandar bin Abang Hashim, President of the Court of Appeal,
(5) The Right Honourable Tan Sri Dato’ Abdul Rahman bin Sebli, Chief Judge of Sabah & Sarawak,
(6) Excellencies,
(7) YA-YA brother and sister judges and judicial commissioners,
(8) Mr Mohamed Ezri bin Abdul Wahab, President of the Malaysian Bar,
(9) Mr Shyam Divan, President of LAWASIA,
(10) Ms Karen Cheah Yee Lynn, Chairperson and other members of the LAWASIA Conference Organising Committee 2024,
distinguished guests, delegates, ladies and gentlemen,
Assalamualaikum warahmatullahi wabarakatuh and a very good afternoon.
INTRODUCTION
[1] First and foremost, I would like to thank LAWASIA and the Malaysian Bar for inviting me to deliver the Opening Address at this 37th LAWASIA Conference. This annual event is a key platform for the convergence of leaders from the Bar, jurists, and legal professionals from across the Asia Pacific, facilitating discussions on topics of fundamental importance.
[2] The theme of this year’s LAWASIA Conference is ‘Navigating the Legal Landscape in the Digital Age’. It is a timely topic that will inevitably spark a livelier discussion on the rapidly evolving legal landscape that confronts the international legal community and which rightfully requires a dialogue amongst its various stakeholders not only at the regional level but at the global level.
[3] As technology continues to advance at an unprecedented pace, it has transformed every aspect of legal practice from judicial processes to regulatory frameworks. In this regard, please allow me to share my thoughts on several issues that relate to this topic in various dimensions.
THE IMPACT OF TECHNOLOGY ON LEGAL PRACTICE
[4] In 1996, Professor Richard Susskind, who is now one of the world’s leading experts on legal technology, predicted that “many of our fundamental assumptions about the nature of legal service and the nature of legal process would be challenged and changed by the coming of technology and the internet”.1 He predicted, for instance, a greater use of emails between clients and lawyers and reliance on the internet for legal research — predictions labelled “outrageous if not plain seditious” at the time.2 Yet, as it turned out, he was remarkably accurate in his prediction because having these technologies no longer seem optional but a core necessity in the legal profession and the justice system.
[5] Today, three decades after he made them, Professor Susskind’s predictions have not only materialised but have been surpassed by innovations that were, in the late nineties, unimaginable. A prime example of this is the rise of smart contracts, which are contracts that can be partially or fully executed or enforced without human intervention. The growing adoption of smart contracts across various industries signals a future where transactional lawyers may find much of their work automated.
[6] Another technological development that has garnered widespread attention over the past two years is generative artificial intelligence (or “AI”).
[7] Generative AI tools are systems that can create new content, such as text, images and music, upon input or prompts from users. Perhaps the most widely known example is ChatGPT, a chatbot that took the world by storm upon its launch in November 2022, amassing 100 million users within just two months.3 ChatGPT’s popularity stems from its user-friendly interface, which is accessible even to the least tech-savvy user. One merely need to type a question into the text box and it will generate articulated and detailed responses in plain English. Through it, we can effortlessly draft sophisticated emails, reports, poems and even computer code in a matter of seconds.
[8] For the legal industry, generative AI might be the biggest game changer after the Internet. Much of a lawyer’s work revolves around the written word — whether in emails, letters, memos, cause papers, pleadings and so forth.
Although existing technology has made aspects of this work easier, such as through contract analytics and automated document assembly and review tools, their impact has been comparatively modest. In contrast, generative AI holds the potential of revolutionising the generation and processing of a much wider range of legal documents and information, fundamentally altering how legal professionals perform their work.
[9] The release of ChatGPT has prompted the development of generative AI tools tailored specifically for the legal sector. A notable example is Harvey, which is an AI platform capable of answering legal queries, summarising information, and drafting correspondence and legal documents. Harvey has already been adopted by several leading global law firms, including A&O Shearman, where thousands of lawyers across 43 jurisdictions now use it in their day-to-day work.4
[10] As AI-driven technology continues to advance, the landscape of legal work is assured to change significantly. Automation lends itself primarily to those operational tasks which are repetitive and time-consuming. Its capabilities have not yet extended to the doing of the more intellectual work such as legal analysis or providing opinionated suggestions or calculated advice — a feat which at present remains exclusive to us humans.
[11] To illustrate this, there was recently a large debate on the internet regarding the actual intelligence of AI. A user asked the AI platform the question: “how many Rs are there in ‘strawberry’?” The said AI platform could not properly explain how many “R’s” there were in the word “strawberry”. Its answer was that there are only two “R’s” in “strawberry”.
The meme that was circulated shows that the user then proceeded to “argue” with the AI platform resulting in it apologising and accepting its mistake that there are actually three “R’s” in that word. Incidentally, I will not say which platform, but I tried this myself with my officer two weeks ago and the platform also seemed to tell us that there are only two “R’s” in strawberry. I might add that we attempted this exercise on the AI’s paid subscription.
[12] As I understand it, one explanation provided on the Internet for this error by the AI was that AI models do not understand written words rather, they understand them expressed as codes and numbers. They cannot as yet interpret and think like humans. What might be exceedingly easy for us might be exceptionally difficult for the AI platform premised entirely on the difference in the “language” they speak and the way we process information.
[13] That said, things are evolving quickly. Glitches and flaws like this are quickly rectified as soon as they are picked up. This is another breathtaking feature of AI that it is constantly learning and improving. The trend continues to show slow yet steady displacement of humans by AI for certain legal tasks. This has caused many to prefer AI over humans for these tasks.
[14] Nevertheless, in my view, lawyers would not be completely removed from the equation. It has become and will continue to be increasingly important for lawyers to hone essential soft skills — such as critical thinking, clear and empathetic communication, and strategic decision-making — which remain beyond the capabilities of current technology as likely will for the foreseeable future. And it is my opinion that this promotes healthy competition amongst those in the legal profession to provide better and improved services in areas which require the human touch.
THE USE OF TECHNOLOGY IN THE COURTS
[15] Access to justice is a fundamental component of the Rule of Law,5 yet it remains out of reach for many. The reality is that the vast majority of people cannot afford to enforce their legal rights through the courts.
[16] Such widespread lack of access to justice undermines public confidence in the courts. A justice system that is accessible only to a privileged few erodes the legitimacy of an institution built on the foundational value of fairness. The principle of equality before the law can only be realised if there is reasonable access to justice for all and in this regard, technology has immense potential to help us bridge this gap.
[17] Throughout the years many jurisdictions have introduced numerous facilities that seek to integrate technology into the justice system. The Covid-19 pandemic certainly accelerated this integration process.
[18] Virtual courts, in addition to the digitisation of the bulk of our processes, have become an immutable aspect of system of litigation. The expanded use of virtual hearings has greatly enhanced access to justice, particularly for individuals in remote areas and those facing mobility challenges.
[19] And as alluded to earlier, a crucial element of access to justice is equality before the law. It is a principle that forms “one of the building blocks of democracy and necessarily permeates any democratic constitution; indeed, … treating like cases alike and unlike cases differently is a general axiom of rational behaviour”.6 Simply put, the principle of equality before the law requires that similar crimes are met with similar punishments. In this regard, AI holds the potential to significantly enhance the consistency and fairness of sentencing.
[20] On this note, it is important to appreciate that AI can only serve as a guide and is not the final determinant of the punishment. Judges retain the ultimate discretion to pass sentence especially in differing cases, bearing in mind the constitutional principles of fair trial and proportionality.
[21] Decision-making process generally requires human qualities. I would think that the legal profession will not soon be completely replaced by AI. Just as a human patient finds comfort in a human doctor, the legal profession too will not soon lose its human touch.
[22] But then one must not forget that with human touch comes human error. And, the legal scene, especially when life and liberty are at stake cannot afford human error.
[23] Viewing it harmoniously then, AI is the sturdy bridge that narrows the gap between the need for human touch on the one hand and the need to minimise or eliminate human error on the other hand. And AI, as that bridge, gets sturdier and sturdier day by day. It is therefore an invaluable assistive tool that enhances the quality of judicial decision-making by helping judges manage and analyse large volumes of documents and evidence.
[24] There are other practical examples of the use of AI in Courts. The International Business Machines Corporation (IBM) has developed an AI tool that enables judges in the German courts to quickly sift through voluminous documents and locate relevant information.7 Meanwhile, AI systems in the United States can flag inconsistencies in a party’s evidence and generate hyperlinked chronological timelines of key events related to the dispute.8 This no doubt boosts efficiency tremendously and allows judges to have a clearer view of the more substantive aspects of a dispute.
THE EVOLUTION OF SUBSTANTIVE LAW IN THE DIGITAL AGE
[25] When we speak about the digital age, it would be remiss to speak only about the judicial process. One must also pay attention to the evolving nature of the disputes that were brought to Court due in large part to the technological advancements of our time.
[26] Due to these advancements, the Judiciary has been called upon to address novel and complex legal issues stemming from emerging technologies, such as AI, the Internet of Things, blockchain and cryptocurrencies. These technological innovations have already given rise to numerous legal disputes, with many more anticipated in the coming decades.
[27] The Malaysian High Court decision in Robert Ong9 illustrates how the courts are adapting existing laws to accommodate technological developments. This case involved a claim relating to the recovery of mistakenly transferred cryptocurrency. Luno, a cryptocurrency exchange platform, mistakenly transferred 11.3 Bitcoins to the electronic wallet of one Robert Ong. Luno subsequently commenced proceedings against Ong to recover the mistakenly transferred Bitcoins, relying on section 73 of the Contracts Act 1950, which states that: “A person to whom money has been paid, or anything delivered, by mistake or under coercion, must repay or return it”.
[28] The High Court held that the term “anything” under section 73 was wide enough to cover cryptocurrency, thereby entitling Luno to the return of the mistakenly transferred Bitcoins. In so holding, the High Court observed that the Contracts Act 1950, drafted some seven decades ago, ought to be construed in a manner which reflects changes in modern technology and commerce.
[29] Judges must inevitably develop a working knowledge of emerging technologies that shape novel legal claims, defences and technological evidence, as well as the systemic changes to courtrooms and judicial processes brought about by these advancements. The legal profession is likewise impacted, with lawyers being required to continuously adapt and evolve to ensure their expertise remains effective in upholding justice.
THE PITFALLS OF DIGITAL TRANSFORMATION
[30] While technological advancements offer significant opportunities to enhance the legal landscape, they also introduce challenges that must be carefully navigated to ensure that the integration of new and emerging technologies within the justice system does not undermine the Rule of Law. In addition to some of the issues I shared earlier, the use of generative AI tools, in particular, present other serious risks and limitations.
[31] Unlike lawyers, tools like ChatGPT are not bound by professional ethical obligations or values such as honesty and integrity. These tools are prone to what are known as “hallucinations”, meaning they can produce wholly inaccurate or fabricated responses. This is an especially serious problem in the legal context, given the potentially drastic repercussions of incorrect legal information.
[32] While lawyers continue to remain answerable for the use of AI tools, judges must remain circumspect to potential misuse. There is also an urgent need for robust governance frameworks and guidelines to regulate the use of AI within the justice system. Such guidance is vital in helping judges navigate the challenges that arise from the use of AI in the courtroom.
[33] Additionally, we must not overlook the digital divide. For people with limited access to technology or low literacy level, the shift to technology can be intimidating. As we continue to harness technology to expand access to justice, it is crucial to support those who struggle with its use so as to ensure that technology enhances rather than obstructs their ability to engage with the legal system.
CONCLUSION
[34] To conclude, we are undoubtedly, in a fast-changing legal landscape due to technological advancements. What remains constant is the sacred duty of judges and lawyers in particular, to continuously uphold the rule of law. In this regard, the independence of the judiciary must be safeguarded at all costs and the public confidence in the judiciary must be maintained. No one can deny that a society bereft of an impartial, fearless, strong and independent judiciary, capable of upholding the rule of law, is indeed a valueless society.
[35] With that, I thank you and wish you a fruitful conference.
1 Richard Susskind, Tomorrow’s Lawyers: An Introduction to Your Future (2nd edn, OUP, 2017) at page 123.
2 Ibid at page 125.
3 Krystal Hu, ‘ChatGPT sets record for fastest-growing user base – analyst note’ (Reuters, 2 February 2023) <https://reuters.com/technology/chatgpt-sets-record-fastest-growing-user-base-analyst-note-2023-02-01/> accessed 9 September 2024.
4 ‘Artificial Intelligence’ (A&O Shearman, 2024) <https://www.aoshearman.com/en/expertise/artificial-intelligence> accessed 9 September 2024.
5 Thomas Bingham, Rule of Law (Penguin, 2010) at Chapter 3.
6 Matadeen v Pointu [1999] 1 AC 98 (UKPC) at page 109.
7 Eckard Schindler, ‘Judicial systems are turning to AI to help manage vast quantities of data and expedite case resolution’ (IBM, 8 January 2024) <https://www.ibm.com/blog/judicial-systems-are-turning-to-ai-to-help-manage-its-vast-quantities-of-data-and-expedite-case-resolution/> accessed 16 September 2024.
8 Rachel Curry, ‘AI is making its way into the courtroom and legal process” (CNBC, 1 November 2023)
<https://www.cnbc.com/2023/11/01/ai-is-making-its-way-into-the-courtroom-and-legal-process.html> accessed 16 September 2024.
9 Robert Ong Thien Cheng v Luno Pte Ltd & Anor [2020] 3 AMR 143 (HC).