Legal Aspects Of Electronic Communication Involving The Malaysian Courts

Conceptualising ICT Adoption in the Courts

Since quite some time ago, the judicial offices in various jurisdictions, such as courts in the United Kingdom, Italy, United States of America, Brazil, Singapore and Australia have begun to embark on the adoption of ICT in their daily work routines. Malaysia is no exception. As early as 2003 with the launching of the website for the Sabah Courts, the Malaysian courts increasingly adopted ICT in its work process, both in West Malaysia and in East Malaysia.

Over the years, the ICT adoption at the Malaysian courts becomes intensified with more applications are being introduced and implemented. Numerous past literature had discussed the overview of the ICT applications in the courts (Zakaria, 2013). Nevertheless, such literature has provided descriptions of the technical aspects of the ICT at the courts. For instance, Hassan and Mokhtar (2011) outlines the various types of ICT applications available at the Malaysian courts system without delving into the implications of such applications. Additionally, Saman and Haider (2013) examined the ICT applications at the courts from the information management perspective. Meanwhile, Hamin, Othman and Mohamed (2012) provides an overview of the development of the electronic court system in Malaysia. Such ICT applications which are adopted at the Malaysian courts include the case management system (CMS), queue management system (QMS), court recording and transcription (CRT), audio and video conference systems (AVS), advocates’ portal and the electronic communication involving the courts and other parties (Hamin et al., 2013).

Electronic Means of Communication by the Courts

Often times, communications by or with the Courts would involve dealing with parties outside of the Courts complex. These parties would include the solicitors handling the litigation cases at the Courts, the officers from the Prison Department, the Attorney General’s Chambers, the Royal Police, and not forgetting the general public who might be unrepresented by solicitors, those who appears before the Court on their own behalf. Courts are moving from paper-based to paper-less.

For a lot of matters, Courts are seen to be engaging in ICT as their means of communication. Such ICT tools and applications include notification and messages, using various mediums such as electronic mails, and for various purposes. It is within this line of thought that this research was initially carried out.

Library-based research

First and fore more, the researcher engaged in library-based research, or sometimes known as armchair research to do paper analysis of the secondary data relating to the study. The data sources at this stage is the written rules, practice direction by the Courts and the bar committees, law textbooks, journal articles, government reports and other readily available data on this subject matter. The purpose of the library-based research is to examine what has been laid down under the law and by other past researchers on the issue of electronic government, ICT adoption in the Courts, electronic Courts and electronic justice.

Fieldwork research

The second stage of the research involved data collection by using the fieldwork approach. For the purpose of this study, four Courts the entire of Malaysia have been chosen to become case studies on this subject matter (Yin, 2013). The Courts are Penang, Kuala Lumpur, Kota Kinabalu and Kuching. Field visits to these Courts enabled the researcher to grasp better understanding and knowledge on how the Courts run their judicial business by engaging in ICT tools and applications at the Courts. No doubt that the researcher focused primarily on the means of online communication by and to the Courts.

The research instrument adopted by the researcher at this stage is the semi-structured interviews, which was convenient for the purpose of the study as it allowed for flexibility on the part of the researcher as well as the interview participants. In total, 16 people were interviewed, comprising of judges, court administrative officers, ICT officers at the respective Courts as well as the solicitors. The different occupational roles of the interview participants were specified and chosen based on purposive sampling, particularly to facilitate the ‘within-case’ and ‘cross-case’ analysis of the data.

Later, the interview data generated from the fieldwork was digitally recorded, and transcribed for the purpose of loading it into the qualitative data analysis software ATLAS.ti for analysis (Mohamad, 2014). The coding structure of the data was developed by using both the deductive and inductive approaches, driven by the main themes of the research (Fereday and Muir-Cochrane, 2008).

Various means of online messages involving the Courts

First, the study found that there are various means of online messages created by the Courts, or sent to the Court officials. Such means of online messages include electronic mail by the Court officials as well as the website of the Courts (www.kehakimangov.my) and the Malaysian Bar (www.malaysianbar.org). Apart from that, solicitors and the Courts also make their presences to communicate useful information relating to the Courts by social media, interaction in the advocates’ portal ad well as notifications via the CMS maintained by the Courts.

Another interesting finding is that the online messages are between the Court officials and various other parties, such as the Prison Department, Police Department, Bar Council, and State Bar Committee, solicitors as well as the general public. Essentially, the online messages are revolving around various matters inherent to the judicial business of the Courts, such as notifications, request for updates as well as reminders sent by the Courts to the solicitors by using online means.

Application of the EGAA in the electronic messages involving the Courts

It is significant to note that EGAA applies to communication activities by or on behalf of government services in Malaysia. Courts, being part of the government services, are therefore governed by EGAA. The following findings are derived from the legal provisions of EGAA as well as the interviews conducted for the case studies at the Courts.