The Use of Electronic Signature and Communication in Sarawak

Legal basis for the use electronic documents in Sarawak

In June 2023, the Sarawak Electronic Government Activities Ordinance, 2022 established a legal framework for electronic communication.

The ordinance is similar to and follows the structure of the Electronic Government Activities Act 2007 enacted by the Federal Government.

We hope that this short list of frequently asked questions can help everyone understand the use of electronic documents, signatures and other related matters in Sarawak.

Can I make a proposal and accept a contract by email?

Yes. Contracts can be proposed, negotiated and agreed by email, WhatsApp or other electronic means. This will not affect its legal validity and enforceability. But it is still very important to keep a proper record of these for later reference and use as evidence. The act now states expressly what companies and individuals have been doing for a long time anyway.

Are electronic signatures legally recognised?

Yes. Form or contract can be signed or approved electronically. This signature must:

• be attached or associated with the electronic communication,

• adequately identify the person and their approval of the information;

• be reliable. A signature is reliable if it is linked to a single person and any alteration to the electronic signature or document after signing is detectable.

If a witness is required, the witness can also use an electronic signature.

Please keep in mind that a hand written signature on a contract which is then emailed is not an electronic signature, but a signature on electronic communication which can be an original.

Also note that the electronic and digital signatures is not the same thing. The digital signature is a sub-class of electronic signatures.

Is electronic communication information in writing?

Yes. Where a law requires information to be in writing, as long as the information is stored electronically usable at a later date, it satisfies the legal requirement to be in writing. 

Can I use a digital seal for my company?

Yes. The law empowers companies to use digital seals when signed or accompanied by a digital signature under the Digital Signature Act 1997.

Can I email originals, copies and certified true copies electronically?

You can send originals electronically. However, their integrity must be assured and the documents must be accessible in the future. The document must be complete and unaltered. A certified true copy can also be sent electronically if it satisfies these requirements.

When a submission requires more than one copy, it is now sufficient to only send one copy by way of electronic communication.

Can I file and submit documents and applications electronically?

Yes. If the law requires you to file any document, this requirement is now satisfied if the document is filed by way of electronic communication.

Where a law requires you to use a prescribed form, you can now fulfil the requirement if the document submitted is formatted in the same or substantially the same way as the prescribed form, accessible for future reference and can be retained by the other person.

The law now recognises that government, local or state bodies can issue licenses, approvals, authorisations or similar documents in the form of an electronic communication.

Summary

Digitalisation will no doubt bring great benefits such as accessibility, transparency, lower costs of compliance and increased efficiency for businesses. But it still remains to be seen how this will be applied by the local decision-makers. There are no timelines for implementation.

One year after its coming into force, LHDN Kuching still requires directors, company secretaries or senior managers to submit trade license applications in person. This is a significant cost and causes delays for companies intending to establish a foothold in Sarawak.

Other bodies communicate decisions by email or using their online platforms, but still require additional documents to be collected in person which are not available electronically.

In any event, the reform is welcome and it sends a clear message that the State Government is serious about improving digital accessibility for local and state government service.