I refer to the article that appeared on The Malaysian Insight today titled, “Court hears civil but not criminal cases online during shutdown”. The Malaysian Bar has, since the start of the Movement Control Order (MCO), been attempting to get the judiciary to have a proper shut down of the courts including the e-filing and e-review systems. The judicial and legal services were excluded from the list of “essential services” under the MCO.

The Chief Justice in her wisdom refused. Instead, the judiciary issued a directive on March 17 stating that:

• All civil and criminal matters during MCO are adjourned to a date to be informed;
• Filing of documents can continue through e-filing system but for courts without e-filing, they can only accept after the MCO;
• Any urgent matters are to be dealt with on a case by case basis by an appointed office/judge, and
• All administrative management of matters by way of online e-review will continue.

The Malaysian Bar appealed against this directive seeking instead for the judiciary to suspend the court e-services as lawyers will then be faced with filing deadlines without being able to access their office infrastructure. 

This was ignored. Instead, after the extension of the MCO, the judiciary issued another directive on March 27. Instead of shutting down the court e-services when the MCO was being further tightened, the judiciary expanded it to allow for hearings to be conducted via video conferencing. In other words, when the world was shutting down further, the judiciary, like the US president, wants to rush business as usual. My favourite line in the circular is,

“Pihak-pihak hendaklah berpakaian sopan dan yang bersesuaian semasa prosiding secara sidang video”.

Translation: All parties must be dressed appropriately and suitably during video proceedings.

It seems that the judiciary is only thinking of its own self-imposed key performance indicators and has lost sight of the gravity of the pandemic faced by the world. 

Firstly in doing this, the judiciary is instigating breaches of the now tightened MCO. To insist on a business as usual mentality risks lawyers, in-house legal officers and even judicial officers having to travel in order to deal with commercial issues.  

At a time when safety and lives are at stake.

To illustrate, a lawyer or a judge having to travel to their office to take files in order to prepare the case. A company legal executive risks travel across town because he/she needs to access documents to pass to the lawyer. Jobs are on the line. In desperate times people will take risks. Is it necessary?

Secondly, the judiciary also assumes that everyone is in the pink of health physically and mentally and has access to all the resources needed to handle their cases. Imagine this. A sole proprietor lawyer who is in hospital for Covid-19, or a judicial officer with a family member in the intensive care unit on a ventilator because of Covid-19. Will they be able to handle the stress of court deadlines and hearings? Will they be in a frame of mind to deal with commercial matters? 

Maybe the above is too extreme of examples. Picture a lawyer living on the edge of Jengka with a patchy 3G signal and unreliable dial-up internet. Will this lawyer have access to an expensive document management server system to handle online litigation? Simpler, a lawyer who is trying to work from home with three screaming kids requiring attention. Fair?

I hope you get the picture. Have compassion.

We all have to get our collective heads out of the sophisticated Klang Valley delusional bubble. A bubble where everyone has a nice home office with high speed link to their office ‘document management system database’ and research material. Maids to take care of the children whilst the lawyer/judge/judicial officer can dress up and log in via HD broadband ready for video hearings. 

Anyway, since when have commercial matters become a life or death issue? Why put your own judicial officers, lawyers and clerks at risk and potentially in breach of the MCO? For what? Vanity’s sake that we have an e-system that can allow business as usual?

Be human. There is enough stress and death in the world today without the judiciary adding another unnecessary self-indulgent layer to it. Give KPIs a rest for a month. Unlike the pandemic, no one is going to die if the KPI is not met. – March 28, 2020.

* Robbie Isgod reads The Malaysian Insight.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.