Online Hearings in Court – A New Era in the Covid 19 Pandemic

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Courts of Judicature (Amendment) Act 2020, Subordinate Courts (Amendment) Act 2020 And Subordinate Courts Rules (Amendment) Act 2020

The long awaited amendments to the Court of Judicature Act 1964 (CJA 1964), Subordinate Courts Act 1948 (SCA 1948) and Subordinate Courts Rules Act 1955 (SCRA 1955) have finally been gazetted. They are Act A1621 – Courts of Judicature (Amendment) Act 2020, Act A1622 – Subordinate Courts (Amendment) Act 2020 and Act A1623 – Subordinate Courts Rules (Amendment) Act 2020.

The Amendments

The amendments focus mainly on the online court proceedings. This brings the Malaysian Judiciary to a new era as we are nowhere near the end of the Covid-19 pandemic. The pandemic shows no signs of being eradicated soon and Malaysia as of late has been continuously recording new surges in the number of Covid cases, the conditional movement control order (CMCO) has already been re-implemented in certain parts of Malaysia, eg: Selangor, Kuala Lumpur and Putrajaya, thus forcing the Malaysian Courts to close their doors during this period. 

Online hearings

In ensuring continued access to the justice system in Malaysia, the Judiciary has started implementing remote communication technology in court proceedings. Our Court of Appeal conducted its first ever online hearing on April 23, 2020 which is also made available to the public.  

Online hearings, also known as remote hearings, as the name suggests, is conducted remotely instead of the traditional courtroom proceedings. It can be conducted via live streaming/ meeting softwares, eg: Zoom. The courtroom etiquettes and practices remain practically the same for online hearing, except that the counsel now can sit down while submitting during the hearing.

Remote Communication Technology

Remote communication technology, newly introduced by the amendments, was defined under section 3 of the CJA 1964, section 2 of the SCA 1948 and SCRA 1955 as, “a live video link, a live television link or any other electronic means of communication.”.  

Proceedings via Remote Communication Technology

Courts are generally known to be open and public, to adapt to the new challenges brought by the pandemic, Courts may now conduct proceedings through remote communication technology under section 15A of the CJA 1964 and section 101B of the SCA 1948. It is also provided that court proceedings carried out by this mean shall be deemed to be conducted within the local jurisdiction of the Court. 

The provision for Rules of Court for regulation and prescribing the procedures and the practice to be followed in the High Court, the Court of Appeal and the Federal Court is amended to provide specifically for the hearing of any matter or proceeding through a remote communication technology. This amendment is done through the insertion of paragraph (aa) under section 16 of the CJA 1964 and section 4 of the SCRA 1955.

Substitution of Rules Committee membership

The Rules Committee membership of the Senior Judge of the Sessions Court of Kuala Lumpur is now substituted by the Chief Registrar of the Federal Court under paragraph (f) of section 17(2) of the CJA 1964 and section 3(2) of the SCRA 1955.  

Practice Directions by Chief Justice

The power of the Chief Justice is widened under the new amendments of insertion of section 17B of the CJA 1964 and section 107A of the SCA 1948. After consulting the President of the Court of Appeal or the Chief Judge, the Chief Justice may issue practice directions when necessary to carry into the effect of the new amendments. 

Oral Examination via Remote Communication Technology on Appeal

On hearing of Appeals, while traditionally the Court of Appeal has full discretionary power to receive further evidence by oral examination in court, this can now be done through a remote communication technology under section 69 of the CJA 1964

In short, Malaysia Judiciary is moving a step forward by introducing the remote communication technology in light of the Covid-19 pandemic, to ensure that there is always access to justice in Malaysia. 

Act A1621 – Courts of Judicature (Amendment) Act 2020

Act A1622 – Subordinate Courts (Amendment) Act 2020

Act A1623 – Subordinate Courts Rules (Amendment) Act 2020

Rules of Court 2012 and Remote Hearing

The Rules of Court 2012 has been amended in December 2020,

The Rules of Court 2012 has been amended in December 2020, please click here for more details.

Power to Amend  

Pursuant to the earlier mentioned amendments to the Principal Acts, the Rules Committee and the Subordinate Courts Rules Committee has recently, in December 2020 published their amendments to the Rules of Court 2012 (ROC 2012), which is the Rules of Court (Amendment) 2020.  

The amendments were made in exercising the power conferred upon them under section 17 of the CJA 1964 and section 4 of the SCRA 1955 together with the consent of the Chief Judge of the High Court in Malaya and the Chief Judge of the High Court in Sabah and Sarawak.  

Amendments to Principal Acts Reflected in Rules  

These amendments in the ROC 2012 is the reflection of the amendments in the Principal Acts, to facilitate the online hearings in the new era of the Covid-19 pandemic.  

The definition of remote communication technology was inserted under Order 1 rule 4, after the definition of “sign”, which expressly stated that it bears the same meaning assigned to it under the Principal Acts.  

Service of Originating Process  

The service has been widened to allow the writ now, to not only be served either by hand or by prepaid A.R. registered post addressed to the Defendant’s last known address, but also to be sent “by means of electronic communication in accordance with any practice direction issued for that purpose[Order 10 rule 1(1) of ROC 2012]. In other words, service through either of these three methods would suffice.  

New Order 33A  

This new Order 33A covers on the proceedings through remote communication technology. The Court or Registrar is conferred upon the power under O. 33A r. 2, to direct any cause or matter under ROC 2012 to be heard or any proceeding to be conducted remotely, either upon its own motion or by application of any party to a proceeding.  

O. 33A r. 3  

Any person, witness or prison as witness or party to any proceedings may now attend the court and/ or give evidence in those proceedings by means of remote communication technology. In cases of a person attending, a witness giving evidence and a prisoner as a witness or a party, attending or giving evidence, the Court or Registrar shall be satisfied that sufficient administrative and technical facilities and arrangements are made. Also, the appearance or evidence given remotely are taken to be appearance and evidence given in person and form part of the record of the proceedings.  

O.33A r.4  

The Court or Registrar is also conferred with power to revoke, suspend or vary its earlier direction made under rule 2, if either of the following circumstances provided under rule 4 applies. For example, where remote communication technology stops working and the proceedings would be unreasonable delayed to wait until a working system becomes available.  

O.33A r.5  

In ensuring open justice to remain available while the Court is working towards a shift to the remote hearings, the Court or Registrar may direct the proceedings to be broadcasted so as to make it available to the open public. The proceedings may also be recorded for the Court or Registrar to keep an audio-visual record of the proceedings.  

Pre-trial Case Management  

Mediation in securing the just, expeditious and economical disposal of the proceedings, has been stressed its importance as can be seen in the insertion of paragraphs (1A) and (1B) under O.34 r.2, as compared to its previous provision under paragraph 2 subparagraph (a).  

Paragraph (1A) provides that a High Court finds that an issue arising between the parties can be resolved by way of mediation, he may so refer the parties. Paragraph (1B), on the other hand, is clear as it reads, “All running down cases shall be subject to mediation”.  

To secure just, expeditious and economical disposal of the proceedings also, O.34 r.5 now provides that a pre-trial case management “may be adjourned not more than three times, unless the circumstances otherwise require”, rather than the previous “may be adjourned from time to time…as may be appropriate”.  

Adjournment of trial  

For the same reason in O.34 r.5, a Judge may now adjourn a trial not more than three times, unless the circumstances otherwise require as provided under O. 35 r. 3.  

Judgment and Orders  

The amendments made under Order 42 of ROC 2012 is to reflect the fact that proceedings now may be held through remote communication technology. The rules under rule 1 and rule 1A, shall apply to every judgment or order pronounced or delivered in the remote hearings. Under rule 5, it provides that the facts that the judgment or order pronounced or delivered in the remote hearings shall be reflected in the judgment or order.  

Ordinary service  

In addition to those manners provided for under O.62 r.6(1) for the service of documents which are not required to be effected through personal service, subparagraph (cc) was inserted under subparagraph (c), which provides for service by means of electronic communication.  

Service of documents using electronic filing service  

This provision is newly introduced in the Rules, to enhance the service of court documents in light of the current pandemic, under O.63A r.17. Under rule 17 paragraph 1, a party may effect the service to the other party who is a registered user or is represented by a solicitor who is also a registered user by the electronic filing service, if the documents are not required to be served by personal service.  

A party may still effect the service through electronic filing system though the service required is that of personal service, provided that the other party to be served has consented to it.  

The service is deemed effected on the date and at the time that the first part of the electronic transmission is received in the Court’s computer system (rule 17 paragraph 3). A record of the service is issued by the Court’s computer system or the service bureau as evidence of the service, the person serving the document may provide this record to the person being served the document (rule 17 paragraph 4). The proof of service may be filed through the electronic filing service (rule 17 paragraph 5).   

Practice directions by Chief Judge  

The power of the Chief Judge to issue practice direction is now more clearly defined under O.92 r.3B that, if the “Chief Judge is of the opinion that the circumstances warrant that it is necessary in the interest of the dispensation of justice, public safety, public security, public health or propriety or for other sufficient reason to do so”. This amendment ensures that the Chief Judge is better allocate with power to issue practice direction to adapt to change in circumstances, when needed.  

[*I believe that there is typographical error under the amendment to r.3B, the sentence “The Chief Justice after consulting the Chief Judge may issue such practice directions” should be read as “the Chief Judge after consulting the Chief Justice may issue such practice direction”, and that “if the Chief Justice is of the opinion” should be read as “if the Chief Judge is of the opinion”]  

All in all, the Rules of Court (Amendment) 2020 focuses mainly on the introduction of the remote communication technology into the Rules. The amendments in the Rules reflect the amendments in the Principal Acts, but the Rules lay down more precisely on how the practice would go. These amendments are definitely a welcome move.  

Anni Ng
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