THE MALAYSIAN EXPERIENCE
JUSTICE NALLINI PATHMANATHAN
Access to Justice during the Coronavirus Pandemic
The Malaysian Experience Justice Nallini Pathmanathan is a judge in the apex court of Malaysia, the Federal Court. She was Called to the English Bar at Middle Temple in 1984 and returned to practice in Malaysia at a leading law firm, Skrine. She practised in various fields, specialising in commercial law. She was elevated to the Bench in 2007.
The Covid-19 pandemic afflicted the world with such swiftness that the gravity of the situation was not immediately grasped. When it was, Malaysia was put on a reluctant hiatus of sorts – with every part of society grappling with a new normal, virtually overnight. Our lives, like those of people around the globe, were altered irreversibly. Today, the everyday aspects of living can no longer be taken for granted and we are, each of us, each day, learning to cope with an altered way of life. Social distancing, considerably reduced physical movements and a virtual halt to social activities. Access to justice is a core aspect of our lives. With stringent restrictions on aspects of our lives that we have, until now, considered essential to our way of life, the significance of the rule of law has been increasingly underscored. The rule of law in the context of the pandemic requires a necessary balance between the primary objective of safeguarding the safety of the lives of the population on the one hand, and ensuring, on the other, minimal erosion of fundamental human rights. The rule of law further requires that vital rights such as the right to livelihood, education and protection from crime are not endangered. In achieving an optimal balance, the key is proportionality. In these altered times the enduring debate between collectivism and individualism is brought to the fore. The virus has forced us to recognise the importance of collective responsibility for the health of society. We are constrained to stifle our ‘need’ to prioritise our individual 46
habits for the collective. We are being forced to factor the societal effect into every decision we make. This need is as important in the provision of legal services as in other sectors. The issue for Malaysia was, and remains one of whether the courts, as an essential service were, and are, able to transform the provision of its services to meet the essential needs of Malaysians. As Albert Einstein famously stated: ‘The measure of intelligence is the ability to change’. In the context of the provision of legal services, the true measure of the viability of an institution is its ability to evolve to meet the needs of a fundamentally altered world. The operation of the Courts in Malaysia was necessarily impacted and courts throughout the country were closed. Proceedings were adjourned, save for selected criminal proceedings. Civil matters were similarly adjourned save for urgent hearings, which continued to be heard via video-conferencing platforms, with the consent of parties and the judge. The Commercial Court in Kuala Lumpur in particular remained in operation to accommodate hearings particularly those related to injunctive relief and admiralty matters. The Admiralty Court continued to issue and execute warrants of arrest during the term of the movement control order. Most hearings in relation to these matters were heard via video-conferencing platforms, either Zoom or Skype Business. Malaysia is fortunate in that the Courts have focused on the increased implementation of information technology consistently since 2009. This resulted in the majority of courts 2020 Middle Templar
throughout Malaysia being equipped with an ‘e-court’ system. As a consequence, routine matters were conducted during the term of the movement control order. However, the reality was that the number of disposed matters remained low as the majority of lawyers chose not to operate. As with other countries, the Malaysian courts will now have to cope with a backlog of cases. Save for the movement control order, no interim Covid-19 legislation was enacted. This meant that judicial proceedings to accommodate ‘circuit breaking’ or ‘social distancing’ had to be undertaken within the context of existing law. The Judiciary took the initiative to enable hearings to continue with the use of emerging technologies. However, the efforts made by the Judiciary to provide for hearings online, particularly in respect of interlocutory matters and appeals met with considerable resistance from the Bar. The primary concern was that it was necessary to continue with the physical presence of counsel in a courtroom under the provisions of our existing relevant law. The merits of this contention remain to be adjudicated. The practical result, however, was that only hearings with the consent of parties continued via online platforms. While initial pilot attempts were initiated with Zoom, Pixel and Skype for Business, the latter was eventually the choice of the Malaysian Judiciary. The Court of Appeal successfully initiated and conducted appeals using Skype for Business. The requirement for a hearing open to the public was achieved by live streaming. On Wednesday 13 May 2020, the Courts resumed operation in stages. Stringent operating procedures were put in place, including the monitoring of body temperatures, restriction of persons entering or remaining on court premises, the wearing of face masks, safe distancing for seating in court rooms and corridors, sanitisation of court rooms and
