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

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