IMPROVEMENT IN THE COURTS

By : JOHN KAH (OBG)

FORMERLY known as North Borneo, Sabah was a British colony until 1963 when it became independent through the formation of Malaysia, The rule of law as administered during colonial rule continues to be applicable as affirmed by Section 3(1)(b) of the Civil Law Act 1956 of Malaysia.

This states that the courts in Sabah shall apply the common law of England and the rules of equity together with statutes of general application as administered or in force in England on December 1, 1951 but subject to such modifications as rendered necessary by local circumstances, Furthermore, Section 5 of the act affirms the application of English commercial laws in so far as there are no other provisions made by any written law in force in Sabah.

Much of the legislation in Malaysia that deals with commercial matters is modelled on similar legislation in other Commonwealth countries. lt is therefore not unusual for the courts in Sabah to refer to decisions of the courts of other Commonwealth countries when dealing with cases of a similar nature. This will assure, litigants, especially those from outside Malaysia, of the uniformity and certainty of the law in certain areas. However, the application of English law relating to immovable property is expressly excluded.

A backlog of cases in the courts has been a perennial problem faced by thejudiciary in Malaysia, Sabah included. The judiciary has been striving to improve the situation. In 2006;i the High Court In Sabah and in Sarawak underwent a major transformation with the implementation of the Integrated Court System (ICS).

This system, which comprises the Case Management System, Community and Advocates Portal, Court Recording and Transcription System (CRTS), e-Registration and e-Filing System, Court-Advocate Resource Engagement System and Video Conferencing System (VCS), efficiently integrates IT, video and mobile technologies to improve the productivity and efficiency of court case dispositions and improve the quality of services. .

The ICS has won two awards: the UN's World Summit Award 2009 and the MSC Malaysia Asia Pacific ICT Alliance Award 2008 in the category of “Best e-Government and Services". According to the Chief Judge of Sabah and Sarawak, Tan Sri Richard Malanjum, the implementation of the lCS has reduced the average number of days taken to settle a case by 80%. The CRTS facilitates the recording and tracking of audio and video in order to ease the creation of court transcripts of the proceedings.

ln addition, 'virtual courttrials' are enabled through the use of the VCS. This allows hearings to be carried out when attendees are at different locations, thereby reducing time and saving travelling costs, The judiciary's commitment to ensuring that justice is not delayed was further solidified in 2010 when the Chief Judge of Sabah and Sarawak introduced the practice of setting targets for the disposal of cases by the courts, For instance, trials of civil cases are to begin 18 months from the date of registration, Commercial cases, meanwhile, may be tried within three to six months from the date of service of the cause papers if requested by the parties.

This new practice is welcomed by the business community which does not want litigations hovering over their heads for long periods of time. Speedier resolution means having to look at alternative dispute resolution (ADR). The courts in Sabah have moved into the avenue of ADR, Judges are required to give directions to facilitate settlement of the matters by way of mediation, The objective is to encourage the parties to arrive at an amicable settlement without going through or completing a trial or appeal.

Between 2007and 2009, over 746 mediations were conducted in the courts of Sabah and Sarawak with 44% settling at the close of the sessions.

A unique feature in the judicial system in Sabah (and also in Sarawak) is that the official language of the courts is English as opposed to the national language, which is made mandatory in the other Malaysian states.

This is provided for under Article 161(2)(b) of the Federal Constitution. Although seemingly insignificant (as most Malaysians speak English), this fact would indeed provide added comfort to foreign litigan is in the courts.

(NOTE : John Kah is a Managing Partner, Jayasuriya Kah & Co)