As of 2021, we Malaysians have encountered various types of movement control orders that have been implemented in response to the COVID-19 situation. This year, the Movement Control Order (MCO) was implemented again as a countermeasure to the rising COVID-19 cases. Thus, one question on the minds of law students is ‘How has the Malaysian Legal System been affected?’
To gain insight into the effects COVID-19 has had on the Malaysian Legal System, particularly regarding how law firms and courts operate during MCO, Taylor’s Lexicon interviewed a number of practising lawyers. Firstly, Datuk N. Sivananthan, the founder of Sivananthan, Advocates & Solicitors regarding the impacts of COVID-19 on Criminal Law Firms and The Criminal Justice System. Next, Mr John Yong & Ms Irene Song, the founders of John Yong & Irene Song, to get some insight regarding the impacts of COVID-19 on The Civil Justice System and Conveyancing.
Law Firms
There have been some changes made in law firms across the board, be it criminal, civil or corporate law firms. The following sentiments have been echoed by Datuk N. Sivananthan, Mr John Yong & Ms Irene Song.
One of the most impactful guidelines imposed was a limit on the number of people permitted to work in the office. This led to lawyers working both from home and the office on a rotational basis. As such, law firms needed to invest in technology - both software and hardware - in order to accommodate the heavier reliance on technology.
Software: Lawyers working from home needed to ensure that they had all the relevant and necessary physical documents available to them, and had no issues accessing files remotely. With a cloud-based management software such as Synology drive, everything is in sync and lawyers can ensure that files are readily available whenever they need them. This allows them to deliver their services at home without compromising on the quality of their work.
Hardware: To work from home efficiently and without difficulties, law firms need to ensure that their lawyers are sufficiently equipped with an uninterrupted internet connection, laptops, conference room microphone, webcams and other necessary equipment to facilitate video calls. However, as bandwidth strength and internet vary in different states and locations. Thus, it all depends on each service provider, where lawyers have limited control over it.
Communication: Law firms also need to ensure that there is smooth communication between lawyers and legal clerks, especially issues relating to dispatch and filing systems. Additionally, discussions among team members need to be conducted remotely through software such as WhatsApp, Zoom or Microsoft Teams. Thus, law firms need to provide basic guidance on how these platforms can be used to facilitate meetings and hearing.
Aside from the general changes encountered by most law firms, there have also been some changes specific to criminal law firms. Given the nature of criminal work which still requires physical presence in courts and police stations, Datuk N. Sivananthan did not have to implement major changes in his law firm. However, he did have to implement some changes regarding the mode of consultation with prisoner clients due to the fact that lawyers are no longer allowed to visit their clients in prison.
Moreover, although virtual consultations allow lawyers to meet more prisoner clients in a shorter period of time in comparison to physical consultations which require lawyers to travel to prison, there are some issues in relation thereto. There are concerns regarding privacy as there may be a third party listening to or even recording the conversation, difficulties may also arise when there is a need to pass or refer the prisoner to documents that used to be simple.
Virtual Hearings
All the lawyers that Lexicon interviewed found virtual hearings to be time-efficient, with travelling time and waiting time in court taken out of the equation. Another small joy brought to lawyers by this shift is the fact that they no longer have to lug around heavy stacks of court documents. Presenting such documents virtually has been made easy through Zoom’s handy screen-share function.
However, these virtual hearings are also a lot more volatile and are dependent on several factors such as Internet connectivity and technologically savvy parties. Unfortunately, the lack of experience with technology may cause delays and disturbances if those involved in the hearing cannot get their devices or internet connection to function well. Another issue that may arise is the possibility of abuse of process during hearings. The absence of court officers and witnesses physically may make it easy for parties involved in hearings to bypass certain rules of court. For example, during cross-examination of a witness, it would be difficult to ensure that the said witness is free of help and guidance when answering questions.
Moving forward, Datuk N. Sivananthan hopes that the system can further benefit from virtual advancements to save time and resources. For example, case managements which tend to be fairly quick proceedings are currently only conducted virtually in appellate courts. Mr John also recommends that the court schedules a test run before the commencement of the real hearing to eliminate the possibility of technical difficulties.
The Criminal Justice System
The criminal justice system has decidedly been impacted by the pandemic, albeit slightly less than other areas of the law, given the nature of criminal trials which largely cannot take place virtually. Although Chief Justice Tun Tengku Maimun Tuan Mat has confirmed that all criminal case proceedings at all levels of the judiciary will continue to be held in open court during the MCO 2.0 period (with priority will be given to criminal cases involving child offenders and public interest), online hearings in some areas have been incorporated.
On the flip side, one of the negative effects of this pandemic is the much slower rate at which cases are being disposed of. Prior to the pandemic, the criminal justice system was already overburdened with many backlogged cases. Now with the added restrictions of movement, reduction in court operating hours and quarantine issues, cases are being delayed a lot more. This issue is further worsened by the fact that proceedings are likely to be further postponed due to parties non-compliance with COVID-19 regulations, such as quarantining, which is unfortunately quite common.
In conclusion, the criminal justice system has somewhat adapted to the situation at hand but further steps could be taken to maximise efficiency and improve the system. The changes would be beneficial no just in the time of COVID-19, but further down the line as well, creating a better, more flexible system.
Conveyancing
As for the legal practice of conveyancing, solicitors have encountered major inconveniences hindering their work due to the MCO. With travel restrictions in place, solicitors would find much delay in the execution of their work if they are unable to meet with clients for signings. Apart from that, the closure of certain banks and land offices have also contributed to the delay. It is safe to say that the inherent uncertainty glooming over lawyers’ heads about whether their matters can proceed smoothly does a good job at keeping them on their toes at all times.
Hence, as highlighted by Ms Irene, in most agreements, solicitors have included special force majeure clauses to provide for any unforeseen circumstances which might cause delays in the timeline of the execution of the agreement between parties. Solicitors have since become more flexible regarding deadlines and compliance with agreements due to the unpredictable circumstances - in recent times, a few banks and offices were shut down due to COVID cases and following sanitisation procedures.
Conclusion
Recently, there has been a debate as to whether law firms should be operating during MCO. However, it is equally undeniable that it would be nearly impossible for law firms to operate completely virtual taking into account the needs of dispatch service and legal clerical works. Thus, to avoid the risk of staff and lawyers being infected with COVID-19, it is important for law firms to comply with the social distancing procedures and ensure that offices are properly sanitised. It is also apparent that the COVID-19 has accelerated the adoption of technology in the Malaysian Justice System. Although there might be some hiccups, such development is necessary and could ensure that justice is served in such difficult periods.
Taylor’s Lexicon extends our sincerest gratitude to Datuk N. Sivananthan, Mr John Yong & Ms Irene Song for generously sharing their experiences and their valuable insights.