Having read the unproofed version of the Federal Court decision on the Anwar Ibrahim appeal case, I wish to deal with an issue that was brought into sharp focus for me.

While there were many issues undoubtedly to be complained about, one thing stood out for me — the lack of technology use in the courtroom can result in substantial injustice in a case and its subsequent appeals.

In terms of the receipt of evidence in the courtrooms of Malaysia, I am fairly certain we are nowhere as apt as the English, Australian, American or even Singaporean jurisdiction. Verbal evidence in these jurisdictions is taken by a stenographer or are recorded and subsequently transcribed by a third party/stenographer — not by the judge. Most lay people that come to court are surprised to discover that evidence is taken down by the judge and not a stenographer.

The disadvantages are many, for example, often a judge is not able to write everything down because a witness may answer a question too quickly, and usually resort to merely writing down only the answers and not the questions (they seem to think the question is not as important).

As a result they are unable to carefully study the demeanour of the witness and later, on appeal a court is unable to tell from the notes of evidence whether a witness was being evasive. Furthermore, witnesses often have to repeat their answers because they said it too quickly the first time. When they do repeat them, the answers sometimes are different.

The examples here go towards criticising the accuracy of the evidence which is very important because judges are finders of fact and if their records are inaccurate, their findings would be as well.

More seriously, as seen from the Anwar trial, when there were strong allegations against the judge regarding his impartiality by the defence, how is it possible to tell on appeal from the notes of evidence that the judge was unfair or acting in a biased manner when he was the person taking down the evidence?

There is in this case a clear conflict of interest with respect to the recording of evidence. His biased actions and comments, if true, would not be reflected in the records — sometimes because he would not write it down and sometimes because he could not write it down.

It is also common knowledge in the legal fraternity that a judge usually does not take down everything in the proceedings. This is one of the problems the defence had in trying to mount an attack on the judge for acting unfairly and in a biased manner against the accused — it does not show on the records.

However, reading the verbatim transcripts that were published in the local newspapers certainly gives a strong impression that the judge was acting as a prosecutor himself and many times descended into the 'arena of dispute'. Having said this, I do not mean to say that reporters are completely accurate, but I am fairly certain that they took down a more accurate transcription of what really transpired in court than what the judge took down.

Ths sum of this is that a court must remain and appear impartial in all aspects of its proceedings, from the taking of evidence and conduct of the proceedings, not only in highly contentious matters when allegations are being made against the judge but in all cases right down to the small debt claims in the magistrate courts.

With our country being driven into a "K" [knowledge] economy, and the ubiquitous use of networks, computers and dazzling array of audiovisual equipment available, I find it extremely hard to accept that judges and counsel have to resort to pen and paper to painstakingly write down the evidence. Why must this be so when tape/computer recorders can be used to record proceedings?

Taking this one step further, I don't see why appeals itself should be limited to what is on the paper. Why can't entire proceedings be videotaped and then be available for review on appeal for greater justice to be done since the Appeal Court won't be bound by finding of facts by the judge at first instance?

The cost of acquisition and storage and the improvement in technology have made it viable to deploy more audiovisual equipment to be used in the courts.

While the judiciary has some blame to bear for dragging its feet over the improvement of technology in the courts (compare Singapore's Chief Justice Yung Pung How who was not technologically savvy but had the foresight to drag the Singaporean courts into the information age and our past and present chief judges and lord presidents who have been deafeningly silent on this issue), the government would share the greater burden for failing to provide adequate funding and indeed encouragement for the courts.

The Bar Council also should take equal share of the blame as the government since it tends to overlook the more nitty-gritty aspects of practical concerns itself and more with high-flying and noble causes like human rights and injustices everywhere else but in its own backyard.

The Bar Council must be constantly reminded that it is here first and foremost to regulate and promote the practice of lawyers before taking on any other agenda because it has been failing miserably in this respect.

There must be a greater push towards the use of technology in the courts by the judiciary, executive and the Bar Council — with the proper implementation it would not only result in greater efficiency, accuracy and transparency in relation to court proceedings and the completion of cases but also go some length to ensure that justice is maintained.