The Malaysian legal system is largely based on the English common law system. This is because of the long period of colonization by the British Empire starting in Penang Island from the year 1786 until the independence of Malaya in 1957. Besides that, the development legal system in Malaysia also being affected by many other factors like the rule of Malay Sultanates, the local custom, the spreading of Islamic religion, the immigration of various races into Malaya and many more. Like many other countries which were colonized before, Malaysia has a plural legal system which means there are two or more legal traditions within a national legal system. Today, the Malaysian legal system consist of the common law, Syariah law and customary law traditions. During the early days, there was no clear separation between the judiciary and executive and this concept only developed here with the arrival of the British. https://www.lawteacher.net/free-law-essays/constitutional-law/the-development-of-judicial-system-inmalaysia-law-essay.php The Malaysian Courts of Justice are made up of the Superior Courts and the Subordinate Courts. The Superior Courts comprise of the Federal Court (the highest court), the Court of Appeal and the two High Courts. https://www.nyulawglobal.org/globalex/Malaysia.html#:~:text=The%20Malaysian%20Courts%20of%20J ustice,and%20the%20two%20High%20Courts. The Hierarchy The Federal Court The Federal Court hears appeals from the Court of Appeal The Court of Appeal The Court of Appeal hears appeals from the High Court relating to both civil and criminal matters The High Court Civil Jurisdiction The High Court has jurisdiction to try all civil matters but generally confines itself to matters on which the Magistrates and Sessions Courts have no jurisdiction. These include matters relating to divorce and matrimonial cases, appointment of guardians of infants, the granting of probate of wills and testaments and letters of administration of the estate of deceased persons, bankruptcy and other civil claims where the amount in dispute exceeds RM1,000,000. Criminal Jurisdiction The High Court may hear all matters but generally confines itself to offences on which the Magistrates and Sessions Courts have no jurisdiction, for instance, offences which carry the death penalty. Appellate Jurisdiction The High Court may hear appeals from the Magistrates and Sessions Courts in both civil and criminal matters. Amount in dispute in any civil matters must exceed RM10,000 except where it involves a question of law. The Sessions Court Civil Jurisdiction A Sessions Court may hear any civil matter involving motor vehicle accidents, disputes between landlord and tenant, and distress actions. The Sessions Court may also hear other matters where the amount in dispute does not exceed RM1,000,000. Criminal Jurisdiction A Sessions Court has jurisdiction to try all criminal offences EXCEPT those punishable by death. The Magistrates Court First Class Magistrate Civil Jurisdiction – A First Class Magistrate may hear a civil case when the amount in dispute does not exceed RM100,000. Criminal Jurisdiction A first class Magistrate may hear criminal matters of the following nature: where the offence is punishable by a fine only – this would cover the majority of traffic offences; or where the offence provides for a term of imprisonment not exceeding ten (10) years. A First Class Magistrate may not, however, impose: a term of imprisonment exceeding five (5) years; a fine exceeding RM10,000; whipping exceeding twelve strokes; or any sentence combining any of the sentences above. https://www.globalbersih.org/resources/know-your-rights/malaysian-court-system/ During the pandemic, the Malaysian courts were closed due to the implementation of the MCO. All court proceedings save for certain criminal proceedings and urgent civil cases came to a halt. In April 2020, to ensure continuous access to justice in the wake of the pandemic, the Court of Appeal carried out its first online hearing on 23 April 2020 which was live-streamed for public viewing. While the unprecedented use of technology by the Malaysian judiciary to live-stream an online hearing during unprecedented times is commendable, the validity of online hearings remains to be seen. https://www.lexology.com/library/detail.aspx?g=311b8b57-c685-4fe4-b17e-45bc3ae0e00d For the purposes of this guide, four (4) options to host remote hearings will be explored: (i) Skype for Business, which is currently being used by the Malaysian courts; (ii) Microsoft Teams, which will replace Skype for Business by 31 July 2021; (iii) Zoom Meeting; and (iv) Cisco Webex Meeting https://www.malaysianbar.org.my/cms/upload_files/document/Remote%20Hearing%20Protocol%20% 7C%20Practice%20and%20Procedures%20%7C%20A%20Proposal.pdf Is online hearing feasible? There are pros and cons to having online hearings. The advantages are obvious, such as accessibility, convenience and cost and time saving. On the other hand, there are drawbacks to conduct hearings online, including: Not all users of Court are technology savvy. For trials and other proceedings involving witnesses, the demeanour of witnesses may not be easily evaluated by judges on screen. The possible lack of the “grilling factor” adopted by counsel to cross examine witnesses in court. Increased chances of evidence tampering or witness coaching. Witnesses could easily turn off or control their online connection to escape further “grilling” by counsel. https://www.lexology.com/library/detail.aspx?g=311b8b57-c685-4fe4-b17e-45bc3ae0e00d Chief Justice Tengku Maimum Tuan Mat recently wrote that the administration of justice cannot be brought to a “grinding halt” during the movement control order (MCO). She outlined measures implemented to counter disruptions of court processes and services. We hereby highlight two main points. Firstly, that the judiciary has proposed amendments to certain written laws to allow for greater use of technology in courts such as video-conferencing in all cases; and secondly, that the judiciary has in fact drafted a Practice Direction and is awaiting adequate feedback from all stakeholders. Digitalisation of the justice system is fundamental to provide efficient and equitable justice in the 21st century. In fact, the judiciary has digitalised most of its processes since the year 2009. This includes an electronic filing system (e-Filing) – a system which allows practitioners to file documents electronically. There are also other electronic mechanisms such as e-Lelong and e-Review. The e-Review system allows case management to be conducted online. It was introduced during the tenure of former chief justice Richard Malanjum. In fact, the high courts in Sabah and Sarawak are more technologically-advanced than their Peninsula counterparts due to the efforts taken by Richard when he was the chief judge of Sabah and Sarawak for over a decade. The e-Review system is a mechanism that allows judges and judicial officers to conduct case management proceedings through an online messaging platform with lawyers. Accordingly, lawyers (and members of the court) need not be in each other’s physical presence to manage their cases. Richard sought to expand the Sabah and Sarawak version of e-Review throughout Malaysia. But given the time he had in office, the judiciary was only able to roll out the system in Kuala Lumpur, Penang and Shah Alam. Currently, the judiciary is working, with some success, towards ensuring that the system is available in almost all courts in Malaysia. Soon, only electronic documents will be used for hearings conducted at the Federal Court i.e. “paperless hearings” without referring to physical documents. While the talk to expand technology in the courts is abound, the courts in Sabah and Sarawak have long adopted electronic hearings via video-link for simple applications. Technology has been utilised to overcome onerous obstacles to access to justice, such as geographical and cost factors. While it is easy to criticise the judiciary for not expanding the adoption of modern technologies fast enough to cover all Malaysian courts, we believe there must be some valid reasons behind it. One valid reason could be budgetary constraints. Our government needs to invest more in the judiciary. For example, the United Kingdom invested £1 billion to modernise courts and tribunals. Our government should be equally as committed in digitalising our justice system. Another reason, judging from the chief justice’s statement, may be the seemingly inadequate response from the stakeholders to undergo such change. This could be perceived as criticism or perhaps better be taken as calls for assistance by the judiciary. The judiciary cannot work alone and support from its stakeholders is absolutely crucial in order for it to fully adopt modern technologies. Meanwhile, we too understand that adequate time must be given to the stakeholders to provide meaningful feedback. It is also reassuring to know that the present measures taken by the judiciary are not initiated simply by virtue of the present circumstances but that they have long been in existence. Other countries such as Singapore and the United Kingdom have already taken proactive steps to pass legislation to allow their institutions to make full use of technology to overcome the physical barrier erected by the coronavirus. The respective stakeholders in their justice systems are also coming to terms with the change that looms over them. This is illustrated by the fact that proceedings have been going on electronically. In those countries, the question is not “when” but “how” do we make the change most effectively. It is therefore hoped that the seed planted by Richard and nurtured by the present chief justice will continue to grow. It cannot however bloom if all parties do not play their respective roles. The sooner we can all accept technological change the better. Hence, the primary stakeholders, including the Attorney-General’s Chambers, the Malaysian Bar and the respective state Bars in Sabah and Sarawak, should enhance their cooperation with the judiciary to fully embrace further digitalisation of the justice system in Malaysia. Hishamudin Yunus is a former judge of the Court of Appeal, and Marcus Lee Min Lun is an advocate and solicitor of the High Court of Malaya. https://www.malaysianbar.org.my/article/news/legal-and-general-news/legal-news/working-towardsdigitalising-the-justice-system Nations like Argentina, Bangladesh and Uganda are accessing available remote technology to maintain their justice systems during the COVID-19 pandemic https://www.thelawyermag.com/au/news/general/over-40-countries-will-continue-serving-justiceonline/221869 The coronavirus pandemic of 2020 has affected every aspect of our lives. In some ways, the courts and tribunals of England and Wales were at a particular disadvantage: a decade of underinvestment in court buildings meant that some were unable to provide such basic necessities as soap and water, let alone hand sanitiser. But those same courts and tribunals had an advantage over their counterparts in many other countries: they had already started working online and they were able to conduct hearings and deliver decisions remotely, without any of the participants having to leave home. By the year 2022, most civil disputes in England and Wales will be resolved through an online court. https://long-reads.thelegaleducationfoundation.org/ Virtual courts in India have been an emergency, temporary response to the COVID-19 pandemic, but a section of judges and lawyers wants to include virtual courts in normal court proceedings even after the health crisis is over. Senior advocate and president of the Supreme Court Bar Association, Dushyant Dave, supports a combination of the online and physical systems, but he says that the current technological challenges are a hindrance in accessibility to justice. https://www.dw.com/en/how-coronavirus-is-propelling-the-rise-of-online-courts-in-india/a-53774109
