In 1936, English Parliamentarian Sir Austen Chamberlain was quoted in his address to the annual conference of the Birmingham Unionist Association, ” It is not so long ago that a member of the Diplomatic Body in London, who had spent some years of his service in China,told me that there was a  Chinese curse that took the form of saying, ‘May you live in interesting times.’ There is no doubt that the curse has fallen on us.  We move from one crisis to another. We suffer one disturbance and shock after another.” 

Interesting times is the ultimate understated phrase of 2020. The world came to a halt in the first few weeks of this year.  We who have come to take our lives, our liberties, our security, our safety, our pleasures and most importantly our health for granted are now paying the very price we have paid for over the decades, centuries and generations before.  

 A lot has changed. I will not use the phrase that has been blatantly thrown around the world eversince lockdowns began globally for I believe we have to change ourselves and return to the one and only normal. As a member of the global population, the period of shutting off or closing down one’s life whilst the world tried to recover and stay safe was the only option available for us to try to recover but the consequences were always going to be difficult. Coming out of something like a pandemic in 2020 is going to be extremely difficult. It’s a matter of willpower and a survival of the strongest.

Speaking as a criminal defence lawyer in Malaysia, I was helpless to say the least. To not know when one would continue the fight for another’s life and liberty was itself the added psychological burden that wasn’t foreseen, but then again who ever foresaw such a global crisis of this magnitude? Whilst litigators and others in the legal field in Malaysia were slowly adapting to reinventing themselves through either hosting and conducting Webinars through platforms such as Zoom, Microsoft Teams and Webex or attending them, they knew it would be a metamorphosized litigatious landscape on the horizon. And it’s coming.

In the middle of April 2020, the Malaysian Judiciary announced that the administration of justice cannot be brought to a “grinding halt” and measures were being taken via proposals to ammend certain written laws to allow for the wider use of technology in courts and practice directions were in the final stages of getting feedback from the stakeholders of the legal system. Although the Malaysian courts have already begun their process of digitalization back in 2009 through their electronic filing systems, lately the electronic review system was introduced to allow the case management of cases via online messaging platforms between Judges, Judicial Officers and lawyers.

But the Movement Control Order that was announced by the Prime Minister on 16th March 2020 had not only come into effect but had been extended numerous times only for the benefit of Malaysia’s population and in the hope that we would eventually limit, reduce and perhaps end the unseen killer that is Covid-19. This has naturally led to calls by the Judiciary to prepare the path towards what is now termed as virtual court hearings and trials that are planned to be conducted using remote communications technology or video conferencing platforms and applications. And instead of being in a courtroom physically, trials are to be conducted as they ordinarily would but via these new methods. Where would the criminal justice system now stand in light of these proposed changes? Would there even be one? Could the word Justice still be included in there?

Criminal trials are the very foundations of the age old adage of justice. The said proposals aim to streamline trials so as to produce scenarios where defence lawyers are holed up in their offices cross examining witnesses who are in undisclosed locations whilst Trial Judges and the Deputy Public Prosecutors are in their respective chambers. Would the words “virtual bench” be the norm now? How are we to circumvent potential witness tampering scenarios where either Prosecutors or Defence advocates have been able to set up private chat rooms in order to secretly advise or give cues to their respective witnesses or even be present at the location but not be detected by the video?

Do we have the resources to set up video link and virtual facilities in every single courtroom in Peninsula and East Malaysia? Not to mention setting up these facilities in the Public Prosecutor’s offices in every state. Now how about the prisons? Accused persons cannot be brought to court for the very reason of quarantine and exposure so the proposals would have to include setting up witness rooms in all prison facilities in every state. The current Court Recording System available in each courtroom will have to be either upgraded or changed wholly to be able to detect and record all evidence. But is this foolproof? Are we not to include additional video facilities for court interpreters and language translators? I’m sure somewhere along the way, evidence through these unchartered ways will be lost in translation. We have to also consider the “hang time” when giving evidence through video platforms. Criminal lawyers from both the Defence and the Prosecution will tell you that it all hinges on the answers of witnesses and how fast counsels jump to their feet to challenge or object to certain pieces of evidence. And delay in the recordings or inability to ascertain answers and questions due to a poorly covered Wi-Fi area would only lead to more confusion and destroy the very argument that the new way was supposed to be better! And as a Public Prosecutor pointed out recently in a online discussion a few weeks ago, all these issues and setbacks will only be credible points to raise on appeals, thereby nullifying the trial and making a mockery of this new process.

How will trial exhibits be viewed and, verified and marked in virtual criminal trials? Have we found procedures and ways to get around virtually inspecting, opening, challenging and subsequently marking exhibits such as murder weapons, drugs, handwriting samples, financial statements, test tubes, DNA cards, sketch plans and maps of scenes and locations, documents and the likes? Of course they may be uploaded on a common platform being shared by everyone involved in the trial but therein lies the basis to challenge them if doubt arises where they cannot be seen in person, thereby depriving the Accused person of inspecting them and challenging them. Isn’t that one of the fundamental rights of an Accused person to demand a fair trial? And when it comes to an Accused person’s rights, wouldn’t instructing his or her counsel during a trial be of the utmost importance? If he or she is in a witness room in a prison or in some other facility far and away from Counsel, therein lies the denial of a basic constitutional right to a fair trial. Mind you, these are only the technical issues,amongst many, that could arise.

But what’s been proposed to be done is taking away something that never should be taken away. That is, the art of the advocate. The power to persuade in person, in an arena that sees the greatest battle of men and women to shout at the very top of their voices that which they believe in and lay that before a Judge of fact, procedure, evidence and humanity. You cannot and should not concise that onto a screen miles away from each other. A Judge is deprived of judging a witness, his or her character, demeanour and truthfulness. That is a sure loss when a virtual trial takes place for nothing replaces a trial judge’s ability to assess all before him or her. When counsels proceed to submit on points of law, to object and challenge issues of evidence or sum up and close their arguments and submissions either at the end of the Prosecution’s or Defences’ case, to do so virtually is ripping away the very skill a criminal litigator possesses that stands him high and apart from his brethren. When counsel argues his or her case or makes his or her plea for the Accused, the difference almost always occurs in the very courtroom where everyone is seen, including justice.

And the greatest loss to an advocate of the Criminal Bar is their inability to conduct the most effective cross examination of a witness that is done so in a virtual trial. The speed at which cross examination in a criminal trial is crucial and so is the reply and response of a witness. Criminal litigators will tell you that cases are won and lost on this very specialised skill and area. To test a witness, to ensure that witness’s credibility, honesty and integrity must never be taken out of a courtroom, much less become part of a digital record.

Edward Marshall Hall was greatest criminal lawyer of all time. He was second to none. I have been inspired by him, and a family member, since I was 10. And here is what the Right Honourable Earl of Birkenhead said of Marshall Hall in 1929, ” To watch him in court was an educational process in the study of human nature. Where such an attitude was not impossible, he always believed to be profoundly passionately convinced of the integrity of his clients; he threw round them the glamour of his appearance and his personality like a cloak to ward off unmerited misfortune; he fixed the jury with an eye that compelled consideration and demanded assent from every reasonable man, even the most sophisticated. And so he won his cases and his fame. ” (For The Defence; The Life of Sir Edward Marshall Hall)

I believe the pandemic will pass. I believe we will regret how we have come to pillage, overrun and destroy this beautiful planet. I believe that we will learn from this. I believe we can change. I believe there may be yet more to come, be it good or bad. I believe we haven’t contributed more than we should to this fragile planet and we were reminded of it this year, we were reminded of how its past inhabitants were way more important than us human beings.

But I also believe that of all that we have brought to this world, the very idea of justice was our greatest hour. Let no one take that from us.

#askdev. #obeythelawoftheheart