30 March 2011, by Brendan Navin Siva, Chairperson, Court Liaison Committee
Circular No 074/2011
Dated 30 Mar 2011
To all Members of the Malaysian Bar
Electronic Filing System
The electronic filing system ("EFS") was implemented in the Kuala Lumpur Courts effective from 1 Mar 2011 and applies to all filings in court in respect of originating process commenced on or after that date. The system does not presently apply to the criminal courts.
There are two options available to Members in respect of EFS:
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Option A: Usage of the Service Bureau at the counters in the Kuala Lumpur Courts. Members who opt for Option A may bring their hard copies or soft copies in PDF format to the counters in court and utilise the services provided there; or
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Option B: Online filing from your law firm.
Bar Council does not oppose the implementation of the EFS, as the long-term benefits of such an initiative are clear. However, we are extremely concerned about the pace of implementation and the lack of user-friendly information that was made available beforehand. A gradual and progressive implementation within realistically-timed phases would have been more practical and efficient.
The EFS in Singapore was implemented in stages so as to gradually ease the users of the system into it and to encourage "buy-in" from them. A voluntary pilot programme was first put in place in March 1997 to allow lawyers to experience the benefits of filing documents electronically. The first phase in March 2000 involved establishing a private secure network linking law firms with the courts. In this phase, e-filing was only mandatory for documents and cause papers emanating from a writ of summons.
Phase 2 was launched in July 2001 and covered the introduction of a web-based front-end interface, a full-text Electronic Index Search and Extract Service, and an Electronic Service of Documents Facility. Phase 3 was only implemented in December 2001 and this covered originating summons, appeals to the Court of Appeal and District Court appeals, etc. Phase 4A (May 2002), 4B(i) (December 2002), 4B(ii) (December 2003) and Phase 5 (December 2004) covered other forms of legal process.
Many issues have since arisen in respect of the implementation of the EFS in the Kuala Lumpur Courts.
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The requirement that law firms must pay RM1,500 for two years to acquire an Organisation Certificate from MSC Trustgate Sdn Bhd. MSC Trustgate Sdn Bhd is a licensed certification authority under the Digital Signature Act 1997 and provides the public key infrastructure, which Members are being told is required for online filing of court documents under the EFS (ie Option B above).
Bar Council takes the position that such a requirement should not be imposed on law firms. Steps ought to be taken to facilitate the implementation of a model whereby the courts are designated as the certification authority body and reliance on an external private company is not required. In this regard, Singapore adopted a model whereby an independent certification authority was set up within the Supreme Court Registry without any requirement of payment by the lawyers for any certification. It continues to be operated and managed by the Registry at present.
The Digital Signature Act 1997 provides that the Minister may exempt certain bodies from the provisions of the said Act and Bar Council will be making representations to the Minister in this regard.
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Issues relating to the payment mechanism for online filing (ie Option B above) have not been resolved. Online filing requires online payment of filing fees. Presently, most if not all law firms do not have online banking facilities linked to their law firm accounts. What may be required is the opening of a separate dedicated bank account for e-filing purposes but even then, most affiliated banks do not permit online internet payments freely from such accounts.
Bar Council is of the view that a mechanism with a pre-paid filing account maintained with the courts in the form of an e-purse or a similar mechanism may be more realistic and practical. Bar Council takes the position that until such time the online payment issues are resolved, online filing is a non-starter.
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Presently, the Service Bureau facilities are available for free until 31 May 2011. It is, however, envisaged by the courts that after 31 May 2011, charges will be imposed for usage of the Service Bureau facilities. The charges have yet to be determined and representations will be made by Bar Council to the office of the Ketua Setiausaha Negara on what the charges ought to be and what factors should be taken into account. This would include access to justice considerations.
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Having regard to the issues set out above, Bar Council is also of the view that the Service Bureau (ie Option A above), being the only available option for the time being, should remain free of charge until the aforesaid issues are resolved.
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When the EFS was first implemented on 1 Mar 2011, the materials available on the e-filing website were not properly organised and were not user-friendly. The briefings to lawyers held every Tuesday and Thursday afternoons were also poorly presented and not informative.
The KLBC has also been issuing explanatory notes to Members to help them understand the EFS. The notes are available on the Kuala Lumpur Bar website at
http://www.klbar.org.my.
There are also many teething problems in the implementation of the EFS in terms of the time taken to file and extract cause papers. Members facing problems should refer these specific filing or extraction problems to the helpdesk at 03-6209 4234 or
efs@kehakiman.gov.my and copy the said email to
brendan@klbar.org.my and yati@klbar.org.my. At the same time, the KLBC will continue to have regular meetings with the Judiciary and the service provider to iron out and solve as many of the day-to-day issues as possible.
We will continue to update Members as we try to resolve the abovementioned issues.
Thank you.
Brendan Navin Siva
Chairperson
Court Liaison Committee
* This circular is restricted to Members of the Malaysian Bar with a valid username and password to its website. To download click here.