T The Evolution of the Practice of Law in Malaysia: A Post-Pandemic Picture

THE EVOLUTION OF THE PRACTICE OF LAW IN MALAYSIA:

A POST-PANDEMIC PICTURE

By Karyn Khor

As the world cautiously emerges from the COVID-19 pandemic era, one thing has become abundantly clear: legal practice and the machinery of justice have changed drastically, and will never be the same again.

When Malaysian court buildings and law firms were required to close their doors by the government’s movement control order (MCO) on 18 March 2020, it was difficult to imagine how it would impact the legal practice and the administration of justice. In fact, many people still held on to a hope that, like other diseases before it, COVID-19 would only persist for a number of weeks at most. However, as it became increasingly apparent that this was not going to be the case and government lockdowns showed little sign of returning to ‘normal’, the Malaysian courts and lawyers sprang into quick and decisive action.

The goal was to restore the legal system to full operations as much as possible, in spite of the government’s lockdowns and social distancing orders, and whilst ensuring minimal negative impact on the health and wellbeing of the public at large.

These efforts have certainly borne much fruit. In the two years since then, many aspects of the Malaysian legal system have changed. The court’s existing electronic filing system, implemented in Malaysia around a decade ago, was quickly supplemented with improved digital case management systems, court recording and transcription systems, and voice-to-text systems. In East Malaysia, sentencing decisions in the courts of Sabah and Sarawak found assistance in an artificial intelligence tool. Court registrars were trained to use video conferencing as a means of carrying on trials when courts were physically closed or over the permitted capacity, which proved invaluable as many witnesses, plaintiffs, or defendants (or their counsel) were under quarantine, stuck overseas and unable to return, or otherwise unable to physically appear before the court.

With the introduction of new technologies and systems, the existing rules and guidelines also needed to be updated. The year 2020 saw new protocols developed for the administration of online court proceedings. Malaysian laws and rules governing court proceedings were also amended, such as the Courts of Judicature Act 1964, the Subordinate Courts Act 1948 and the Rules of Court 2012. The principal change was to account for the use of ‘remote communication technology’, which is defined as ‘a live video link, a live television link or any other electronic means of communication’, for the running of trials. Of course, Malaysian practitioners also played their part to ensure the smooth operation of the country’s legal systems. Outside of the courtrooms, law firms quickly sourced digital file management and contract management systems and carried out basic training for the use of video conferencing systems and the court’s electronic filing platforms, especially for the more senior practitioners who were less familiar with the technology. On the corporate side, meetings and negotiations were scheduled around video conferencing applications, and brought to the forefront various issues which suddenly needed an urgent resolution: the question of acceptance of a digital signature and ‘virtual’ witnessing of signatures, how exchanges of valuable, original documents were to be carried out amidst the government’s movement and quarantine restrictions, being among them. The ability to think outside the box had always been a valuable skill for a lawyer, and this was accentuated during the pandemic as clients sought out legal advisors who not only understood business strategy and boardroom dynamics, but also displayed the ability to adapt to fast-changing circumstances and properly navigate and manage a crisis.

The ability to think outside the box had always been a valuable skill for a lawyer, and this was accentuated during the pandemic.

One cannot speak of external stakeholders without also considering the importance of managing internal stakeholders, namely the lawyers, clerks, secretaries and other staff. As business owners, law firm partners also had to deal with the equally important question of retention, as the effects of COVID-19 caused many people to come to question – in some cases, unwillingly – their life’s direction and priorities.

Ultimately, a variety of adjustments were made to provide staff with equipment and resources to work from home. Additionally, within the first six months employers began to pick up on the measurable, observable connection between employees’ mental health – a subject which had been very slow to pick up traction in professional circles in the two decades prior to COVID-19 – and work productivity and efficiency. Virtual ‘get-together’ events and online workspaces were set-up and implemented, in attempts to piece together a semblance of a pre-COVID-19 office environment, albeit temporarily. Many employers provided counselling or resources for staff to seek help for their lives outside of work, with multinational corporations and globally affiliated firms leading by example.

Local companies and firms with international networks, connections and affiliations thankfully found themselves already with one foot through the door, as the support which Malaysian companies and businesses received from their foreign counterparts was instrumental in speeding up the process of getting over COVID-19’s initial stumbling blocks. Some of them were already in the process of rolling out programs for mental health awareness and integration of technology into work prior to the COVID-19 lockdowns, and these businesses became the guiding light for others in the local markets.

On the part of the Malaysian courts, similar efforts were made to push the judiciary down a path of technological progression and integration as swiftly and smoothly as possible. Malaysian judges and clerks were dispatched to attend seminars, discussions and workshops on what COVID-19 would mean for the judicial system in the long term, and it is safe to say that, at the very least, Malaysians began to see a potential future where access to and administration of justice are but several mouse clicks away – a far cry from what the average Malaysian could have imagined barely five years ago.

These efforts may not have been ideal, and in many cases the road towards a sustainable process was not paved easily. Forcing an entire country’s workforce to adapt swiftly to new, strict rules is a perilous exercise on its own, much more so given that the implications of the COVID-19 pandemic went far beyond professional work and seeped into everyone’s personal lives. One must recall that all these changes happened while people were learning about COVID-19 itself, and adjusting their processes to every new guideline and standard operating procedure issued by the health authorities. One reminds oneself that, without COVID, these changes would likely not have occurred for many years to come, albeit with fewer sacrifices.

It was doubtless a challenging exercise to establish a new routine and to find a ‘system’ that works; COVID-19 had forced a swift and staggering evolution in legal practice. Now that the threat of COVID-19 has significantly reduced and any further technological integration has returned to being a matter of convenience rather than necessity, it is a good time to look back on where we’ve been for the last two years with a calm and steady gaze, so that the inefficiencies can be improved upon and properly resolved.

Without COVID, these changes would likely not have occurred for many years to come, albeit with fewer sacrifices.

If anything, it is clear that there is no ‘one-size-fits-all’ solution. Even within our little country, population roughly 33 million, people from various walks of life were tested on how and what they were willing to personally compromise for the sake of their communities. Work-life integration, which in pre-COVID-19 days was a mere buzzword, seems to be the common way forward. Opposition to the digitisation of legal practice and the dispensation of justice will simply delay the inevitable. It has become a question of ‘when’, not merely ‘if’. Even within our little country, population roughly 33 million, people from various walks of life were tested on how and what they were willing to personally compromise for the sake of their communities.

Now that the worst is – hopefully – behind us, it is exciting to imagine how we will step forward into the future.

It was both humbling and encouraging that Malaysians were able to benefit from the experiences, infrastructures and technology of our global peers in adapting and integrating technology into business and legal practice. It is now abundantly clear that laws and guidelines to facilitate technology must be further developed clearly, to provide legal certainty whilst ensuring the law is properly upheld. Smart contracts, chatbots, artificial intelligence and more robust technological infrastructure (such as faster and more steady internet and affordable hardware with which to access it) in less developed countries and regions will become ever more crucial to ensuring equal access to justice. The increased efficiencies brought about by technology could be key to creating more jobs and increasing the overall happiness of the legal workforce, provided that care is taken to balance its profit-earning, cost-saving effects against the long-term benefits of ensuring the mental and physical health of the people who make the gears turn in the grand machinery that is the administration of law. Malaysia has proven that it is well equipped and very much capable of marching towards a technology-embracing future; it is the minds and hearts of its people that must be won over if Malaysia is to keep up with its ASEAN neighbours and international counterparts.

At this stage, just off the precipice of one of the most farreaching diseases our generation has seen, it would do the legal profession well to continue to push for the integration of technology in the development of our legal systems. Even if technological innovation is no longer ‘necessary’, other industries and professions continue to embrace it unswervingly, and therefore it is imperative that we in the legal profession do the same. We must make hay while the sun shines, and listen, learn, and share our own ideas amongst our clients, peers, and colleagues so that we, and the legal system we uphold and represent, continue to best serve the people.

Karyn Khor

Secretary of the Malaysia Inner Temple Alumni Association

This article was prepared with the great assistance and contributions of members of The Malaysia Inner Temple Alumni Association.