Back to International Commerce and Distribution Committee publications

Gan Khong Aik
Gan Partnership, Kuala Lumpur
khongaik@ganlaw.my

Lee Sze Ching (Ashley)
Gan Partnership, Kuala Lumpur
szeching@ganlaw.com

 

Most countries in the world have opted to close their borders and to impose a partial or complete lockdown order to minimise the exposure of their citizens to the risk of contracting Covid-19. Subject to the nature of the lockdown order, many business operations and official functions are halted as a direct result of the enforcement of a lockdown order by the respective governments.

In Malaysia, a nationwide movement control order (MCO) was announced on 16 March 2020 to control and curb the spread of Covid-19 in the country. The MCO was in force for a period of 47 days from 18 March to 3 May 2020. As the number of reported cases reduced significantly, the Malaysian government substituted the MCO with a conditional MCO (CMCO) from 4 May until 9 June 2020. At the time of writing, the recovery movement control order (RMCO) has been enforced since 10 June 2020 and is scheduled to end on 31 August 2020.

In this article, we attempt to brief our readers on how the Malaysian judiciary responded during the MCO, CMCO and RMCO without compromising the public’s access to justice.

MCO: the initial measures adopted by the Malaysian judiciary

Upon the enforcement of the MCO on 18 March 2020, all government and private business premises were required to close, save for those providing essential services. Under the series of regulations[1]gazetted pursuant to the Prevention and Control of Infectious Disease Act 1988, judicial and legal services are excluded from the list of essential services. Hence, the courts and offices of advocates and solicitors were not in operation until the MCO is lifted.

In response to the MCO from 18 March until 3 May 2020, the judiciary deployed various measures and alternatives to safeguard the public’s access to justice during this period. On 17 March 2020, the day before the MCO came into effect, the judiciary issued a directive stating that:

• all trials or hearings, both civil and criminal matters, which were scheduled to take place during the MCO, were postponed until a future date to be decided by the parties and court;
• any urgent applications would be dealt with by an appointed court officer or judge at different court levels;
• documents and cause papers could be filed through e-filing, the court’s electronic filing system. However, courts without e-filing facility could accept the filing of documents only once the MCO had been lifted; and
• case management for civil matters by way of online e-review would continue, but matters scheduled for manual case management were postponed until a future date to be decided by the parties and court.

On 26 March 2020, a judicial notification was released where parties could apply to the courts for an online hearing of civil matters via an e-review system, an exchange of emails or a video conference, subject to:

• the agreement of all parties;
• the court’s discretion;
• the online hearing being limited to ex parte or inter partes applications filed with a certificate of urgency; and
• the application for the online hearing being made to the courts via email at least three days before the hearing date or as otherwise directed by the courts.

The measures adopted by the judiciary to ensure the administration of justice during the implementation of the MCO are commendable. These measures in effect are feasible, logical and in line with the approaches adopted by other countries. The effectiveness of such measures is evident from the statistics released by the judiciary on 15 April 2020:

• Federal Court: 376 cases have been conducted via e-review and 25 cases have been conducted via email.
• Court of Appeal:  1,813 cases have been conducted via e-review.
• High Court: 4,093 civil cases have been conducted via e-review, 2,549 civil cases and their hearings (uncontested matters) have been conducted via email and 18 civil hearings have been conducted via video conference. As regards cases with a certificate of urgency, 75 have been conducted via e-review and 12 have been conducted via video conferencing. Further, 370 criminal cases have been conducted via e-review.
• Subordinate courts: 2,509 hearings have been conducted via e-review, 27 hearings have been conducted via email and 7 hearings have been conducted via video conference.
• 111,183 documents have been filed and processed via e-filing.

Notably, the judiciary took a progressive move by live-streaming the online Court of Appeal hearings on 23 April 2020 at 1000. This enabled the public to observe the hearing, replicating the public gallery in an open court.

CMCO: the new normal for the judiciary

After an announcement by the Prime Minister on 1 May 2020, the MCO – which was initially scheduled to end on 12 May 2020 – was eased. It was replaced with a CMCO pursuant to Prevention and Control of Infectious Diseases (Measures within the Infected Local Areas) (No 5) Regulations 2020, from 4 to 12 May 2020.

During the CMCO period, most economic and social activities, except for mass gatherings or activities that would expose the public to infection, were allowed to take place provided that the health and safety measures are complied with.

On 2 May 2020, the judiciary confirmed that the directions on hearings to be conducted online during the MCO would continue to apply during the CMCO and provided a non-exhaustive list of unchallenged applications in the High Court which can be heard online starting from 4 May 2020, such as applications for:

• amendments;
• time extensions;
• ex parte and interim injunctions;
• setting aside;
• judicial reviews; and
• winding up.

To facilitate the online hearings process, the judiciary also issued guidelines on conduct of proceedings via Skype for Business, Skype or other appropriate video conferencing platforms (notably, the use of Zoom is prohibited).

On 3 May 2020, the judiciary announced that all courts would resume operations on 13 May 2020 subject to strict safety measures. The following directives relating to courts’ operation were extended to advocates and solicitors:

• Case Conduct Guidelines during the CMCO and post-MCO; and
• Prevention of COVID-19 Standard Operating Procedures during the CMCO and post-MCO.

After the Prime Minister’s announcement in his address on 10 May 2020 and the enforcement of the Prevention and Control of Infectious Diseases (Measures within Infected Local Areas) (No 6) Regulations 2020 on 13 May 2020, the CMCO was further extended from 13 May to 9 June 2020.

In a press release by the judiciary on 11 May 2020, the following standard operating procedures with particular regard to court hearings are announced, among others:

• as far as possible, court may conduct online hearings having regard to the interest of justice, nature of the matter and the public health and safety; and
• if cases are to be heard in physical courtroom, they will be heard in open court and on a staggered basis.

In line with the new normal, online mediation procedures have been enforced since 2 June 2020. Subsequently, a panel consisting of nine Federal Court judges had heard four criminal appeals through e-appellate on 9 June 2020. E-appellate refers to a paperless proceeding where the physical copies of documents are no longer required. Nonetheless, the physical presence of the judges, parties and accused are required. At the time of writing, studies have been conducted to introduce the e-appellate system in the High Court. 

RMCO: online hearings are the way forward for judiciary

Upon the expiry of CMCO, a new set of measures have been put place through the promulgation of the Prevention and Control of Infectious Diseases (Measures within Infected Local Areas) (No 7) Regulations 2020, which take effect from 10 June until 31 August 2020. This period is known as the RCMO. With the enforcement of RCMO, the courthouses are resuming operations in full capacity on 1 July 2020. The measures adopted during CMCO are expected to apply during the RMCO.

In an announcement dated 12 June 2020 by the Chief Registrar Office of the Federal Court in Malaysia, online hearings are to be adopted for the Court of Appeal and Federal Court in Sabah and Sarawak. This covers the appeals and applications for both civil and criminal cases. During the online hearing, a panel of judges will preside in the Palace of Justice based in Peninsular Malaysia, while the lawyers will conduct their cases in the respective courthouses in Sabah and Sarawak determined by the court registrar. For criminal cases, the accused will be brought to the nearest courthouse with the Deputy Public Prosecutor. On the other hand, the lawyers conducting civil cases may appear before the panel of judges from their respective offices with the necessary permissions from the panel concerned.

The Court of Appeal in Sabah began online hearings on 15 June 2020 and the first appeal conducted online were live streamed. The Court of Appeal in Sarawak started to adopt online hearings on 22 June 2020. At the time of writing, online hearings for Federal Court cases will be carried out in Sabah on 6 July 2020 and 10 August 2020 for Sarawak.

Conclusion

Due to the Covid-19 outbreak and the implementation of the MCO and the CMCO, conducting legal proceedings through online platforms is becoming the new normal in the legal industry for social distancing purposes. In hindsight, the pandemic has accelerated the adoption of technology by the courts and the legal profession in Malaysia. While there might be some hiccups in the initial stages, the use of technology would assure a wider access to court and an effective delivery of justice to the litigants.

The Chief Justice of Malaysia, Tan Sri Tengku Maimun Tuan Mat, also indicated that amendments to the relevant procedural and substantive laws and the drafting of a practice direction outlining the conduct of online hearings were in the pipeline. At the time of writing, the amendments to the court rules had been circulated to lawyers in Malaysia for their views and comments. With all of the present measures and directives in place, parties can rest assured that they will continue to have access to justice while bracing through the Covid-19 pandemic.