Justice Nallini Pathmanathan

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 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 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 buildings periodically, staggered timing for hearings and the mandatory conduct of non-disputed matters online. The number of cases per day was reduced drastically. The physical presence of judges and court staff is minimised such that most continue to work from home.

Appellate courts continue to hear appeals, a fraction are disposed of through the use of video- conferencing facilities premised on the consent of the parties, while the remainder continue to be disposed of in the traditional manner in court rooms.

One other area warrants observation. A perhaps unusual feature of the implementation of the movement control order in Malaysia is the considerable emphasis that was and continues to be placed on its enforcement.

The World Health Organisation officially declared the spread of Covid-19 as a pandemic on Wednesday 11 March 2020. A week later, on Wednesday 18 March 2020, the Prime Minister of Malaysia announced the movement control order, pursuant to provisions under the Prevention and Control of Infectious Diseases Act 1988 for an initial period of two weeks, until Tuesday 31 March 2020. The movement control order was then extended periodically for a further three months. However, by Monday 4 May 2020, the restrictions were relaxed to enable most businesses to resume operations albeit with restraints, to revive the declining economy.

The initial phase of the movement control order took the form of a lockdown with most citizens confined to their homes, save for those services categorised as essential. Travel within the states in Malaysia was prohibited, save for specified exceptions. The movement control order was strictly enforced, with severe sanctions.

The penalties prescribed under the Prevention and Control of Infectious Diseases (Measures within the Infected Local Areas) Regulations 2020 for a contravention of the movement control order comprise a fine not exceeding one thousand ringgit or imprisonment for a term not exceeding six months or both.

The number of prosecutions and convictions rose to the thousands. As of Saturday 4 April 2020, some 2,294 individuals were reported to have been preferred with charges of contravening the order.

Media reports disclosed that initially the form of punishment imposed was fines. However, this soon escalated to the imposition of custodial sentences. As of April 2020, it was reported that several hundreds of individuals were serving custodial sentences for violating the movement control order.

Malaysia’s performance, in first cloistering and then systematically bringing down the numbers of infected cases and deaths has been acknowledged as being commendable.

The escalation in the imposition of custodial sentences gave rise to a barrage of queries and protests about the encroachment of citizens’ civil liberties. The public outcry and debate about the necessity and practicality of imposing severe custodial sentences resulted in a reversion to the imposition of fines as the punishment of choice, rather than imprisonment.

This episode brought to the fore the application of the rule of law, as outlined earlier. It highlighted the need to retain the balance between the overarching need to prevent the spread of Coronavirus clusters, and individual civil liberties. Malaysia’s performance, in first cloistering and then systematically bringing down the numbers of infected cases and deaths has been acknowledged as being commendable. The number of deaths to date stands at 123 as of Friday 24 July 2020, while the number of infected cases has shown a ‘flattening’ of the curve and greatly reduced numbers. While this is not to say that a second wave will not ensue, the emphasis on compliance has been effective. As against this however, many critics maintain that this achievement nationwide has been accomplished with considerable encroachment on civil liberties. The question remains whether collectivism or individualism should prevail in catastrophic situations such as this. There can be no simple answer.

Perhaps the answer to the episode above actually lies in the art of sentencing, and the continuous struggle to achieve acceptable levels of consistency, a problem that is not confined to Malaysia alone.

Access to justice requires a justice system that is efficient, effective and economically viable. The public must have confidence in the system, as should Iitigants, lawyers and judges. The system should also be both open and transparent. Can technology provide these essential requirements? While this is a question that can only be answered fully if and when technology is more fully implemented in our courts, it is undeniable that the role of technology in access to justice is essential and has to be fully accommodated in our justice system. The pandemic has brought home that point credibly.

From our experience during the term of the movement control order, it has become apparent that technology can and ought to be harnessed in significant parts of the court system to enable fair and effective justice to be made available to a large segment of Malaysians, particularly during and in the aftermath of the pandemic.

It is equally apparent that we have a not inconsiderable task ahead of us to ensure that amendments to existing legislation, and new legislation, is implemented to facilitate this shift in the administration of justice. In doing so, it is imperative that the system provides access to justice to all, including those who are self- represented, that changes, albeit procedural or otherwise are well publicised and understood, that the technology incorporated is efficient and secure and that lawyers and judges are given adequate training. The gravitas and function of the judicial process must be maintained.

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