Growing up in a small town, I took art classes to fill my time. I was never really good at it. Most of my artworks were between subpar to downright ugly. During this MCO, I picked up the brush again, and this time I was able to produce this fine piece of art:
Just kidding. This painting was actually completed using a “Paint by Numbers” kit, which is a DIY painting kit containing a canvas with printed numbers corresponding to numbered paints. It basically requires zero artistic expression on my part – I simply have to match the paint colour to the number on the canvas. (Nonetheless, I spent 2 weeks on this no brain job, hence the late post)
During the many hours I spent on this painting however, I couldn’t help but think about how something that was once the work of individual and creative talent/efforts can now be replicated by anyone who has the time.
More importantly, it got me thinking about how the legal profession (and perhaps other professions as well) which professes its own unique tradition is undergoing rapid commercialisation – thru technology and more convenient methods or practices. This commercialisation of the legal industry is further catalysed by the Covid-19 crisis of 2020.
Covid-19 as a catalyst to E-commercialisation
Since 18 March 2020, (most of) courts have shut down and law firms were made to close on site operations due to the MCO in Malaysia. The legal industry responded by resorting to new ways of carrying about their day-to-day operations, everywhere else known as “The New Normal”.
Live-streaming of court proceedings
As one example, on 23 April 2020 the Court of Appeal live-streamed its hearing of an appeal involving a bus crash in Johor on the e-kehakiman website. The hearing, led by Court of Appeal judge Justice Kamardin Hashim, was conducted through teleconference i.e. Skype and lasted for approx 75 mins.
This marked the first time in Malaysia that a Court of Appeal broadcasted its proceedings to the public. Previously, a person who wishes to view a Court of Appeal proceeding would have to go to Putrajaya in person. The live-streaming was said to be aimed at ensuring “continued access to justice” – in the sense that people should be able to view proceedings despite the MCO. Earlier on 22 April, the judiciary also said that they will be moving to virtual hearings in the future and that proceedings would be live-streamed on their official website.
Online hearings itself is not a new practice by the courts. What is new here is that the proceedings were broadcasted online so that the public is able to watch the match. International arbitration including sports law arbitration for example, had long since been conducted using online hearing method. Further, it is reported that East Malaysia have in the past been conducting online hearings including even full trial hearings in Sarawak.
Data sentencing in Sabah
On a more impressive note, in 19 Feb this year, a Sabah court had for the first time in Malaysia used Artificial Intelligence (“AI”) for data sentencing. The AI sentencing functions by replicating the manual labour of going through past cases and finding the recommended sentencing margin for the case at hand. It appears also that the AI would first let the accused know about what his expected sentence is before he makes his plea. This would be different from the usual practice where no indication is given to the accused before he makes his plea.
Of course, the AI sentencing in Sabah would have happened with or without Covid-19. However, and despite the “unconstitutional” objections, it is likely to gain significance in Peninsular Malaysia as part of a comprehensive package to the migration to E-fficient services, as a learning experience at the very least.
E-signatures
Another “new normal” observed by businesses during the MCO was the increased use of electronic signatures – which although have long been accepted as valid have not until the recent MCO been habitually accepted. Concerns over fraud means that physical signatures have often been the preferred method of signing. The MCO however presented itself as a catalyst in this area. I think faced with an 8 week long MCO, most businesses have relented to the hazards of using e-signatures.
E-Filing
Some people are of the view that the migration to e-Courts have already been progressing prior to the MCO and that the Covid-19 pandemic has slowed down this progress – in the sense that businesses have to halt and SOPs for e-services cannot be tested during this period. However, I think that the role of Covid-19 as a catalyst for AI takeover is much higher than we think.
If we look at when the E-Filing System (“EFS”) was first implemented in Peninsular Malaysia, it took nearly 6 years from date of implementation before it gained importance. The e-filing system which started in March 2011 had only a quarter of lawyers in Peninsular Malaysia registered then. It was only in December 2017 that it became requisite for every law firm to file court documents online. And today I think most lawyers will agree that the e-filing system has saved law firms a lot of time.
More significantly, and interconnected to the e-filing process, on 1 January this year the courts have started the online registration for Roaming Certificates. Essentially, the Roaming Certificate is to replace a physical token for signing on EFS, allowing people to do e-filing from their mobile devices (or work from home). Whilst it is true that the roaming service was introduced before the Covid-19 hit, no one (at least in my firm) was paying extra attention to the convenience it would bring. Then as we struggled with work from home during the MCO, the roaming service no longer became something to consider, but an imminent must have.
E-Review
Meanwhile, e-Review which is an online method for case management was only implemented in Peninsular Malaysia on March 2019 and even then it was not until the MCO that it was heavily relied on. Most lawyers could still be seen attending case managements in person and the e-Review service was more an option rather than the default method of case management. With Covid-19 however, it could be seen that e-Review, e-mails and video conferencing became the three frequent tools for case management, at least in my personal experience.
Note: It was announced that beginning 2 January 2020, case management for all cases filed by Writ from 2 January onwards will be conducted via e-Review system. Then on 2 February 2020, the same applies to all new cases involving Originating Summons and Appeals.
Video conferencing
Video conferencing services also started at the same time as e-Review in Peninsular Malaysia – with the exception that it is not free of charge. It similarly gained industry recognition as a result of the MCO/Covid-19.
Interestingly, e-Review and video conferencing had long been used in Sabah and Sarawak since 10 years ago. According to ex-Chief Justice Tan Sri Richard Malanjum, the video conferencing option have proven to reduce the judiciary’s costs in handling court cases. In Sarawak, an estimated RM6 – 7 million is saved by the courts each year as a result of video conferencing usage.
Long story short, the use of AI and electronic services is soon replacing many of current practices including to a larger extent i.e. courtroom etiquette – which is now replaced by simply positioning your camera above trousers towards a presentable upper body.
Virtual offices: time to unlift the ban?
On a side note:- Considering the move to e-commercialisation of the industry, physical offices may soon become obsolete and virtual offices may become a real need. It was reported that back in March 2015 the Malaysian Bar Council had banned the use of virtual offices by lawyers. I think what we’re looking at in the near future won’t just be online work from home or online hearings from home, but a total shift in the concept of law firms itself, beyond virtual offices.
(Ever heard of virtual world games such as second life? where you can start up your own business in a virtual world and actually generate real-life money from there?)
Conclusion
The unprecedented Covid-19 crisis has shown us why we need to fully embrace solutions that work i.e. virtual/e-services, no matter the difficulties in harmonising new practices. Whilst I do think there is some appeal in keeping to tradition, I also think that although law is an art, the legal industry is a business. To that extent, commercialisation or change is inevitable. Quoting Charles Darwin:
“It is not the strongest of the species that survives, nor the most intelligent; it is the one that is most adaptable to change.”
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That is a fine piece of art indeed. Haha. Nice job APPT. Finishing that must be quite a relief!
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