BACHELOR OF LAWS AND SHARIAH (LLB AND SHARIAH) (HONS.

)
CIVIL PROCEDURE I (LAD 5033)

WRITTEN ASSIGNMENT
(100 MARKS)

LECTURER’S NAME: DR.NOOR DZUHAIDAH OSMAN

NAME: NUR SHAHIRA NATASHA BINTI ROSLAN

MATRIC NO: 1192091

KLB: KLB2

TLB: TLB5

DATE: 8 JULY 2023

MARKS: /100

GRADE:
 Contents

Definition of Artificial Intelligence (AI) and Digitalisation in Law Field ...................................... 3

Potential and Risks of Digitalisation in Malaysia Judiciary System .............................................. 3

Implementation of Digitalisation in Malaysia Judiciary System ................................................... 4

Comparative Analysis of Digitalization in other Jurisdictions ...................................................... 7

England ........................................................................................................................................ 7

Australia ...................................................................................................................................... 7

Conclusion ....................................................................................................................................... 8
Definition of Artificial Intelligence (AI) and Digitalisation in Law Field

Artificial Intelligence (AI) refers to the development of computer systems or algorithms

that can perform tasks that typically require human intelligence, such as reasoning,
problem-solving, decision-making, and language understanding. AI technologies,
including machine learning and natural language processing, have been increasingly
employed in various legal applications to enhance efficiency and provide new perspective
and view for legal professionals. AI in the legal field correlates with the digitalization and
automation of legal processes. It involves the use of algorithms and software to analyze
tremendous amounts of legal data, conduct legal research, predict case outcomes, automate
contract review, and perform other tasks that normally and traditionally carried out by
lawyers and legal professionals. By using the Artificial Intelligence, advocate and solicitor
can optimise their processes, save time, and getting benefit from data analysis to decrease
the burden of their job scope. There are certain areas in which AI has been blend in with
the legal framework such as legal research, document review, case predictions and virtual
assistants or legal chatboxs. While the use of AI in the legal field presents lots of benefits
and advantages, it also raises the issue of legal and ethical considerations whereby it may
cause and resulted in biases and discriminatory outcomes. Thus, before digitalisation can
be fully adopted in Malaysia judiciary system, it is essential to first highlight the importance
of fair and transparent AI system that balanced well with the legal framework in Malaysia.
With regard to this matter, a specific guidelines and direction need to be developed by one
entity to address these concerns and to ensure that AI is used responsibly and ethically by
the officers of the court.

Potential and Risks of Digitalisation in Malaysia Judiciary System

As Covid-19 cases rose in Malaysia, the government implemented strict measures,

including the Movement Control Order (MCO). This led to physical court hearings being
replaced with online trials conducted through video conferencing. As time passed, a well-
organized system was established to handle online case settlements and document
exchanges using video conferencing, email, and the existing e-Review system. This
pandemic situation has been seen as a unique chance to utilize AI as a tool in the judicial
process, in addition to the existing sentencing procedures. Among the potential benefits of
digitalization in Malaysia judiciary is to improve access to justice. Digitalization can
enhance justice by providing online platforms for case filing, virtual courtrooms, and
electronic case management systems. This can benefit individuals in reducing travel costs
and time coupled with to enable more efficient justice delivery. In addition, digitalization
able to promote transparency by providing access to court records, judgements, and case
updates. By enabling people to follow the development of cases and ensuring that judicial
proceedings are open and accessible, this can improve accountability and public
confidence and trust in the judiciary. Moreover, as lawyers do multiple tasks that time
consuming, the existence of AI may help in delegating the task and allow the lawyers to
have sufficient time to focus more on complicated duties. However, despite all the
potential benefitted from digitalization in Malaysia judiciary system, there is also risks that
need to bear with it. This includes violation of cybersecurity and data protection. When AI
is used, there is possibility for data breaches, online threats and unauthorized access to
sensitive legal information. In order to maintain public trust and confident, it is important
to first safeguard the integrity, confidentiality and privacy of data. It has to be a top priority
to overcome any misuse or unauthorized disclosure of information. Another concern is
based on ethical considerations regarding AI. It is important to manage AI systems in a
safe and ethical manner. The algorithms used in AI should be transparent or at least
understandable. AI systems should also align with human values to work properly in our
society and the intended professions.

Implementation of Digitalisation in Malaysia Judiciary System

In Malaysia, there have been several significant reactions to the implementation of

digitalization of the justice system. One notable response came from Malaysian lawyers
who initially expressed disinclination and unwillingness to the involvement of technology
to assist judges in sentencing process and trials. They argued that by the interference of
digitalization, unlike traditional system where the officers of court and parties need to
presence in the court during trial, the use of video conferencing such as Zoom, Microsoft
Teams or any other alternatives may not properly understand and take into account the
specific details of each case and the mitigating factors involved such as the body language,
face expressions and voice recognition. This concern raised the possibility of justice being
denied. In response to the COVID-19 pandemic, the Malaysian courts have embraced and
moved towards modern technology. Instead of requiring the officers of the court and
parties including witnesses to travel to the court for trials in person, hearings and meetings
can now be conducted electronically using internet platforms like Zoom, Skype, Google
Duo, Google Hangouts, MS Teams, and Adobe Connect. This shift towards online
communication is to encourage the use of digitalization in court proceedings besides to
minimize physical interactions during these challenging times. Since the existence of
Covid-19, the use of digitalization in judiciary system is not only applicable in Malaysia,
instead this practice has extended to cross-country disputes as well.

In the case of SS Precast Sdn Bhd v Serba Dinamik Group Bhd (2020), the High Court
had discussed the novel issue of the validity of online hearings and the use of unaffirmed
affidavits for court proceedings during Movement Control Order (MCO). The plaintiff
commenced an action against 10 defendants in suit where in the same time, the MCO was
implemented and effective that caused in the closure of non-essential business. Since the
defendant had failed to file a defence, the court had granted the plaintiff judgement in
default for the sum of RM14,020,601.56 against the first to sixth defendant. Subsequently,
D1 to D6 file two applications to the High Court to set aside the judgement supported by
an unaffirmed affidavit. Meanwhile, the plaintiff filed an ex parte application to the court
for a court order to freeze two bank accounts of the first defendant and the fifth defendant
also supported with an unaffirmed affidavit. Upon receiving both the D1 to D6’s
application and the plaintiff’s application, the court had ask both parties if they were agree
to hear D1 to D6’s application by way of video conference through Skype. Both parties
agreed to it and the court ordered for a consent order between parties to be recorded.
During the video conference, the court had granted a stay order to the defendant.
Unpleasant with the judgement, the plaintiff alleged that the court did not have power to
hear D1 to D6’s application through online meeting and that the plaintiff did not consent
to the video conference. It was also alleged that the court did not consider the unaffirmed
affidavits. The court in its finding stated that the plaintiff is bound by the conduct of its
counsel. It was clear that the plaintiff consented to video conference as the plaintiff’s
counsel did not object to the video conference from the first place. In fact, the plaintiff’s
counsel had actively participated during the online meeting. Therefore, the video
conference was valid in hearing the case. Moreover, the court further stated that if only
one party applied for the video conference while another party did not, the court has
discretionary jurisdiction under the Rules of Court 2012 to order the hearing to be heard
by way of video conference. It is essential as every person has right under Article 5 of the
Federal Constitution to have access to justice.

Moreover, the Court of Appeal had run its first virtual hearing involving three individuals
against a transportation company on April 2020, which also made available to the public.
The live-streamed proceedings showed a three-man Court of Appeal bench, lawyers and a
deputy registrar from their homes and offices. Even before the proceedings began, parties
had stated their agreement on the mode of hearing which is by way of live streaming.
Meanwhile, the first virtual hearing for a criminal case was heard online on March 2021.
Since 2018, the accused has been serving a 12-year prison sentence after being convicted
for his involvement in a gang robbery targeting a 58-year-old victim in a house located in
Bandar Puchong Jaya. In this particular case, the accused participated in the proceedings
remotely via Zoom from the Kajang Prison, with several prison officers present to ensure
security during the ongoing trial.

In addition, the Chief Justice of in Federal Court of Malaysia had issued a Circular on 7
January 2021 to set out certain procedures and guidelines regarding how the proceedings
through a remote communication technology should be conducted. When deciding
whether to use remote communication technology for court proceedings under Section
15A of the Courts of Judicature Act 1964 and Section 101B of the Subordinate Courts
Act 1984, the Court can take into account various factors such as the type of case, how
complicated it is, the health of those involved, the ability of witnesses to participate,
whether the parties have legal representation, the availability and quality of the technology
used, and whether it's feasible for everyone to be physically present in court. Therefore,
the court may consider either to direct the proceedings to be conducted in remote
communication technology or physical means or by way of hybrid. The Circular has
provided guidelines for how to handle court proceedings using email, video conferencing,
or the Court's e-Review system. For instance, if a proceeding will take place through email
or video conferencing, the Court will send a notice to both parties at least 1 week before
the scheduled date, or a shorter period if it's more appropriate, with the date, time, and
other necessary instructions. The above case shows that the courts in Malaysia are prepared
to embrace electronic communication to ensure fair access to justice, particularly in light
of the challenges posed by the ongoing COVID-19 situation. Although the courts have
started reopening and conducting hearings gradually, the pandemic has permanently
altered court proceedings and the litigation landscape in Malaysia. This calls for a
reevaluation of traditional practices. It remains to be seen whether remote communication
technology will become the new standard in the judicial process in Malaysia.

Comparative Analysis of Digitalization in other Jurisdictions

England

In England, the courts have power to conduct remote hearings based on the Coronavirus
Act 2020 and the English Civil Procedure Rules (CPR). The new Practice Direction
stated that if a court decides to have a video or audio hearing and it is not possible to
broadcast it in a courtroom, the court can make the hearing private if it is necessary for the
fair and proper administration of justice. Similar to Malaysia, there is also protocol relating
to the conduct of hearings in England called the Civil Justice’s Protocol Regarding
Remote Hearings. Basically, this protocol sets out the basic guideline as how the remote
hearings should be conducted especially in the issue of whether the hearing is going to be
in public or private and the manner of the hearings such as preparations and steps to follow
before any remote hearing can begin. In the case of Re One Blackfriars Ltd Hyde v
Nygate (2020), the court denied the application to postpone a five-week trial and instructed
the parties to get ready for a remote trial to take place and held that the remote hearing was
appropriate. The court also had consider other issues in arriving at his decision which
consist of safety, the technological challenge and equality of both parties.

Australia

During the pandemic, courts in Australia have continued to operate with many restrictions
and limitations whereby this applies to all courts across multiple jurisdictions. Therefore,
the national courts, known as High Court of Australia and Federal Court of Australia has
established procedures to conduct hearings, trials and appeals through video and telephone
conferences. It has been proven that that the courts will not postpone its hearings merely
due to the challenges in application of remote technology. Parties involved have been
required to show that there will be some form of disadvantage, unfairness and prejudice
will occur if hearings are to be adjourned due to pandemic. In the case of Capic v Ford
Motor Company of Australia Limited (2020), the Federal Court declined a request from
the respondent to postpone the hearing due to various challenges related to conducting a
virtual hearing which include limitations of technology, difficulties in cross-examining
expert and lay witnesses, and the potential for a longer and more costly trial. The Federal
Court recognized the challenges and difficulties, however the court concluded that it would
not result in an unfair or unjust trial. Thus, the court decided to against the postponement
of the trial due to the pandemic, as doing so might lead to an indefinite delay.

Conclusion

In conclusion, the use of technology in Malaysia's judiciary system has made great strides
during the pandemic. Despite the challenges and adjustments, remote hearings and virtual
court proceedings have proven to be effective and beneficial. As we look ahead, there is a
good chance and possibility that digitalization will remain and contribute a significant part
of the judiciary even after the pandemic ends. The advantages, such as saving time and
money, and increasing access to justice, are clear. However, it's important to address any
concerns and make sure that the necessary infrastructure and security measures are in place
coupled with training for everyone involved such as the lawyers, judges and stakeholders
is also crucial. It's possible that some cases will still require in-person hearings, but overall,
the move towards a more technologically advanced legal system seems likely to continue
beyond the pandemic.