KUALA LUMPUR, Jan 1 — The Malaysian judiciary and lawyers in the country had a faster transition in 2020 to digital systems and online court hearings that reduced the past reliance on court documents printed on paper or on physical court attendance, spurred on by the challenge to continue working amid the movement control order (MCO) and its various variations due to the Covid-19 pandemic, the chief justice has said.
Chief Justice Tun Tengku Maimun Tuan Mat noted that the Covid-19 pandemic has changed how Malaysians work with many working from home and others continuing their work amid trying conditions.
The main challenge to the judiciary in 2020 was to ensure that the administration of justice did not grind to a halt due to the lockdown measures imposed to control the Covid-19 pandemic, with significant efforts made across the justice system to ensure progress in court proceedings despite the limitations imposed, she said.
“Our priority is to ensure continued access to justice to all members of the public while at the same time ensuring the safety of the public and the court staff,” she said in her new year message for 2021 when looking back at 2020.
With Malaysia going into lockdown in March 2020 via the MCO, only essential services were allowed to operate, while the judiciary — which for the most part was not categorised as an essential service — could not operate in the usual way.
Tengku Maimun said some of the public including lawyers were “seriously misguided” in thinking that the courts refused to operate at all during the lockdown period, before going on to list the multiple initiatives taken by the courts to continue hearing court cases through online methods.
With the Malaysian judiciary having already taken steps in the past to start digitalising court processes, 2020 with its Covid-19-related challenges hastened the speed at which both the courts and lawyers adopted digital innovation.
“For the Judiciary, there is a ring of truth in the phrase ‘adversity breeds innovation’. I would say that we have achieved more in one year than we have in the past decade if we compare the time taken to roll out our initial e-Court reforms,” Tengku Maimun said, before going on to thank all stakeholders, the attorney-general, officers of the Legal Service and Malaysian Bar members, the Sabah Law Society, the Advocates Association of Sarawak and the public who had been supportive of these positive changes in 2020.
What the judiciary achieved in online hearings in 2020
Between March and December 2020, the High Courts nationwide disposed 5,663 of 7,544 cases heard online or a disposal rate of about 75 per cent, while the Court of Appeal disposed about 43 per cent or 484 out of 1,122 appeals fixed for online hearings, and the Federal Court disposed 48 per cent or 164 of 345 civil and criminal cases (including appeals and motions for leave) heard online.
As for the Magistrate Courts and Sessions Courts nationwide, a disposal rate of 44 per cent was achieved, with 5,659 of 12,733 cases heard online disposed.
“I trust that if everyone remains committed, we will achieve a better disposal rate via online hearings without compromising justice and the quality of our decisions/judgements,” the chief justice said.
Tengku Maimun expressed her gratitude to all the judges for their continuous commitment, and the judicial officers who supported the judiciary in the “major transition to cyberspace” including by their assisting of judges in preparing softcopy files of cases for hearings and in setting up equipment and ensuring a smooth process for online hearings, as well as the support staff such as technicians and interpreters.
“There is obviously much work to be done. Due to the initial MCO and the reluctance of parties to have their cases heard online, we are now facing a backlog of cases.
“We hope to address the backlog by increasing the frequency of sittings and by increasing the number of cases fixed per sitting,” she said.
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Past challenges to shifting to online hearings
Tengku Maimun noted the initial challenges to online court hearings, such as the lack of provisions in the law that expressly allowed online hearings, which she said has since been overcome through amendments to the law in 2020.
The law amendments which came in effect on October 22, 2020 expressly allowed online hearings, while changes to various rules for the courts which came into effect on December 15, 2020 now regulate and prescribe the procedure for how online hearings should be conducted, while Practice Directions and guidelines on online hearings will also be issued and take effect in 2021, she said.
“Initially, lawyers — and I hope I can be forgiven for saying this — especially senior lawyers were quite unreceptive to online hearings. The common objection against online hearings is the perceived inability to have a fair hearing and loss of advocacy skills.
“Indeed, the initial phase of change and shift was not easy; many equate conducting cases with hearings in ‘open court’ with the judge, counsel and all parties being physically present in the courtroom. However, upon deeper reflection and upon ‘giving the process a shot’, we were eventually met with positive feedback,” she said.
There was also some difficulty in hearing criminal cases online, as the right to fair trial requires the accused to be present in proceedings, she had said.
The courts had in the initial stage of the MCO and conditional movement control order (CMCO) period decided that it would be best to postpone criminal trials until online hearings could be stabilised, especially with objections from the Bar Council which was concerned about the possibility of witness-coaching in online trials.
Tengku Maimun said that a new rule has since come into effect on December 15 with a specific procedure on how online trials are to be conducted, noting however that even before then, the High Court in Kuala Lumpur had successfully conducted examinations or questioning of witnesses online.
“No process is ever perfect but we have to move in tandem with time,” she said.
With the courts already having the e-Filing or online filing of court documents for about five years already and also the e-Review or online case management system in major court complexes since 2018, the target now is for all courts nationwide to be equipped with the e-Courts platform by February 2021, she said.
The e-Courts platform is the base platform for all other related digital court services such as e-Review, e-Filing and e-Lelong.
Just before the MCO in 2020, the judiciary had also adopted the e-Appellate system for appeals heard by the Court of Appeal and Federal Court sitting in Sabah and Sarawak where court hearings are conducted on an entirely paperless basis, and which has now been extended to hearings of appeals at the Palace of Justice in Putrajaya.
“The e-Appellate mechanism has attracted rave reviews. In the past, lawyers would refer to their own bundles of documents and would wait for the judges to catch up to their point of reference. Now, both judges and counsel share a common screen with their documents ready and prepared beforehand.
“During the hearing, the lawyers — usually through their junior counsel — navigate the screen and refer judges directly to the passage in question. It saves both time and paper and ensures that everyone in the Court is literally on the same page at all times,” Tengku Maimun said.
She noted that the judiciary has piloted a similar project known as “eBicara” in December 2020 in selected courtrooms in the High Court in Kuala Lumpur, where all appeals from the lower courts to these selected High Court courtrooms are heard on an entirely paperless basis.
She said the eBicara project seems to be functioning well so far and will be extended in 2021 to all High Court branches in Peninsular Malaysia.
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Another innovation was the decision by the judiciary in December 2020 to hear petitions for admission to the Bar online instead of physically in courtrooms, which is an event where chambering students are called to the Bar and formally become lawyers.
While noting that aspiring lawyers were naturally upset that they could not experience the same solemn and grand setting of a courtroom for a key defining moment of their legal career, she noted that having the proceedings aired online such as on YouTube gave a unique dimension to their call to the Bar which their seniors did not enjoy and allowed it to be witnessed by not only their family and friends but by the nation and the world.
Another innovation expected to be fully implemented in the courts in 2021 is the replacement of the Court Recording Transcription (CRT) system in courts with the Recording & Voice to Text (RVT) System through the installation of new hardware, which is expected to save time and money for both the courts and lawyers.
Tengku Maimun said that currently magistrates and Sessions Court judges have to spend a lot of time in transcribing the CRT recordings of court proceedings, while lawyers and those in lawsuits spend a lot of money in getting professional transcribers to convert the CRT into a printed transcript.
The RVT hardware has a voice-to-text application capable of converting speech into a written transcript, with the system not expected to be entirely fool-proof but still capable of adapting and learning as it is a smart system.
“The goal is that eventually the RVT system will be able to correctly and automatically transcribe witnesses’ testimonies and oral submissions into written form. Judges and lawyers will only have to sieve through the final product to confirm the accuracy of the transcription.
“Installation is presently under way and is expected to be completed in 55 locations across 320 courtrooms by January 2021 except in Ipoh. We expect to implement RVT by April of 2021,” she said.
In a December 2, 2020 written parliamentary reply, the Prime Minister’s Department had said that the courts have been using the Zoom Business platform with 104 licences subscribed worth RM124,800 annually for online court proceedings via video-conferencing.
The Prime Minister’s Department had also said the RVT project is a two-year project from June 15, 2020 until June 14, 2022 costing RM86,522,850 to replace the CRT system used since 2009, with the project including the supply of services and hardware and audio visual equipment and software to record proceedings in 320 courtrooms and 51 witness rooms in 55 court locations in Peninsular Malaysia.
In her new year message, the chief justice had also spoke of other upcoming digital innovations in Malaysia’s court processes, including plans to introduce online methods for accused persons to plead guilty to traffic summons brought before the court and to make electronic payment of fines online for such traffic court cases. Currently, traffic offenders have to physically attend court for such cases.
The full 20-page speech of the chief justice released yesterday for New Year’s Day can be read here on the Malaysian judiciary’s website in both Malay and English.
