APRIL 22 — The press conference by the Director General of Health in Malaysia, Dr Noor Hisham Abdullah, on April 20, 2020 made an opinion widely held, crystal clear fact. If the movement control order (MCO) in Malaysia is lifted in the near future, we cannot expect it to be a switch that will allow the economy to fire into action.
Rather, what we can all expect, like other countries battling Covid-19, is emergence from this lockdown to be staggered slowly. As the DG said on April 20, 2020: The cardinal rule in any exit strategy will be that if you do not need to be out in public, stay home.
He also made it plain that we would be wrestling with this staggered rollout for the next year at
least and that nothing returns to normal until a vaccine becomes available.
Among many industries that have been battered by this virus, is law. The courts have been shut down since the first MCO and in the third MCO only corporate and conveyancing firms in three small green areas have been allowed to operate.
The judiciary has moved fast to ensure that urgent matters can be addressed. From the first MCO, criminal matters related to remands, reviews and new charges continue to be heard physically in court and for civil matters judges are available to hear urgent matters on video conference platforms, if both parties consent.
What of the future though? If a sensible and staggered approach to the exit from the MCO is enforced and courts are not allowed to physically operate save for urgent cases, it will necessarily impact upon the courts and all who use them, not just for the near future but for some time to come. This impact occurs on different levels.
The first is for the consumer of the law: the client. For the criminal bar this will mean extended remand in prison for some and delays in hearings for others. For the civil bar this means that businesses will not be able collect billions of ringgit of debt that goes through our courts.
This will impact both the business and those who work for it. If present restrictions are continued it has consequences for all those who need relief from court.
Simply put, they will not have access to justice, a fundamental right.
The second level is lawyers. There are 19,000 plus members of the Bar and while some do not practise in the courts, many do. Their livelihoods are squarely in the crosshairs if they cannot ply their trade, for in most cases these members of the Bar only earn when they appear in court to argue cases.
The third level of impact is the many more thousands of employees that work in law firms across Malaysia. With lawyers not earning, their jobs face extinction.
The fourth level of impact is productivity for the economy and revenue for the government.
Apart from tax revenue from the monies collected by businesses through the courts, there is the tax to be collected on fees earned for legal services. In a press release on March 28, 2019, the Department of Statistics, Malaysia valued the gross output for legal activities to the economy as being RM5.6 billion, which made it the 4 th largest contributor in the professional services sector. This is hardly insignificant.
Even if courts suddenly become freely accessible to users immediately after the lifting of the MCO, would the cause of public safety be served by having thousands of lawyers flood court rooms across Malaysia?
A glance into the Federal Court or one of the Court of Appeals on a now long distant Monday morning would capture perhaps 50 to 60 lawyers, not to mention the dozens of members of the public and judges occupy just one room. Would all those people feel safe being within such close contact so soon after the MCO is lifted? Common sense dictates most would not.
While this provides gloomy reading, there is a solution for legal practice in the courts in Malaysia which would, if not address at least alleviate all four levels of impact that an enforced or desired restriction on physical attendance in courts would have. It is technology and proven technology at that.
Some countries around the world, such as the United Kingdom have already started conducting prior scheduled hearings even in the Supreme Court, by way of video link on platforms that are easily accessible and free.
An appeal with multiple counsel and five judges of the Supreme Court was held on March 24, 2020 and indeed even a trial was held by video link on March 18, 2020.
While there is no doubt that the gold standard for access to justice is for counsel, witnesses and judges to be in the same room, these times simply do not permit that, if concern is to be had for public health.
Parties should be able to have their cases determined during this difficult time by the technology that is readily available. Of course, it will be imperfect, of course there will be difficulties, but that does not mean that we should not attempt to do so and do so fast to minimize the impact on all concerned.
What also elevates this option as an opportunity for the industry to get back to work fast, is that there is no significant legislative change that is required.
Most required changes, which need only be in force for a limited period while public health is the overriding factor, can be done procedurally with necessary checks and balances to allow the courts to determine whether any particular case can and should proceed by way of a remote hearing.
The Chief Justice of Malaysia (CJ) made an announcement on April 17, 2020 recognising that the courts could not operate normally during the pandemic, particularly as they were not listed as an essential service.
The CJ also said that courts were ready to and had conducted civil hearings remotely by consent and indeed were equipped with the online tools to continue to hold such hearings. To that end, the judiciary had circulated a draft practice direction to stakeholders.
It is apparent that the judiciary is open to embracing remote hearings to allow access to and for the administration of justice. It is time now for the other stakeholders to also accept this as the only way to allow not just higher principles to be served but for the livelihoods of thousands to be safeguarded.
After all, the tools needed to do so are ready, free and available and all the stakeholders should leap at the chance to be productive again — as soon as possible. To do otherwise would be luddite.
In the final analysis, across any industry, the government must plan to allow businesses that can be productive while being as safe as possible, to get back to work as soon as possible.
What will be critical is that workplaces needing minimum access by personnel and which do not unduly compromise public health, such as those that deliver justice, can return to work.
They must be allowed to do so without battling for permission slips and under onerous conditions from overworked ministries that do not in any way add to public safety. Rather, they prevent these workplaces from being productive or safe.
Surely the days of the licence Raj are over. One need only look at Germany and Austria to see one sensible path for this, with reasonable restrictions gazetted publicly and businesses having to obey them or being forced to close and pay fines. With rigid enforcement, what more does one need?
That way, we can at least hope that we have in distant sight, a return to a small degree of productive, even if not normal existence.
* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
