By: Judge Zainun Ali, Malaysia
Judge Zainun Ali is a federal court judge in Malaysia. All opinions expressed in this piece are solely those of the author as an external expert and do not necessarily reflect the official position of UNODC.
As the world watched in dismay at the distressing consequences of COVID-19, what held us together in Malaysia is the belief that nothing is insurmountable. Thus, with characteristic stoicism, the Malaysian Judiciary put several measures in place, for it is inconceivable that the administration and accessibility to justice should come to a grinding halt.
Even if the courts are not listed as 'essential services' under the relevant regulation, the enabling provision of the Prevention of Infectious Diseases Act (1988) allowed certain protective measures to be put in place to ensure that COVID-19 is curbed and confined. As such, comprehensive Standard Operating Procedures for the courts were formulated, incorporating both the form and substance of court administration. For the past six months, the accessibility to justice followed a rigid formula, based on the various phases of the lockdown:
1) March-May 2020: the public had no access to court buildings, but critical applications especially in criminal matters were allowed;
2) May-June 2020: court officers returned to work on a rotational basis, subject to stringent criteria;
3) June 2020-present: Most courts resumed full operations, with the following guidelines: social distancing, remote hearings, court management measures, enhanced cleanliness and hygiene control, and a general emphasis on the well-being of court staff and public.
Firstly, what can be gleaned from the new protocols and procedures in and around the justice system is the importance of coordinated communication and interaction with all branches of government- the checks and balances here are more prosaic than political. It is to ensure that everyone performs their respective obligations efficiently to meet the demands of these new health protocols.
Secondly, there has to also be a healthy relationship between the judiciary and all stakeholders of the justice system for the same reasons as above. Little can be accomplished if there is resistance to change.
Thirdly, the judiciary will now need to play a proactive role in directly engaging with the public on these protocols constantly, to educate and keep them informed.
Fourthly, in the context of the 'Digital Age' all members and stakeholders of the justice system must acclimatize themselves to the reality that technology is increasingly crucial in all aspects of life and business.
Some groups of lawyers and judges remain skeptical to these new approaches of administration of justice - for instance, that hearings be conducted online - and think they will destroy the advocates' courtroom skills. The traditional method of advocacy is preferable, but what is usually preferable may not always be practical.
It has to be said that a common objection against online hearings is the perceived notion that the trials may not be fair. However, one of the elements of a fair trial is that the dispute is to be resolved without inordinate delay. As hackneyed as it may sound, "justice delayed, is justice denied."
The Malaysian courts take the position that online or remote hearings are by their nature not in contradiction of the notions of natural justice and a fair trial. It is merely a change in venue from a physical to virtual one. It does not alter any part of the substance and procedure in a civil appeal. The principle of open justice can be preserved in a remote hearing by way of live streaming. Parties are in no way inhibited from presenting their case, knowing the case against them or responding to their opponents' submissions. Unless a party demonstrates that real prejudice will be occasioned, there can be no objection based purely on the technical or procedural basis that the hearing is a remote one. The key here is in keeping a healthy balance.
The measures the Malaysian Judiciary has taken will require that judges, officers, practitioners, litigants and the general public adapt and adjust. This is critical in ensuring that continued access to justice is not brought to a halt.