Introduction
Due to the Covid-19 pandemic and the movement control order being imposed and implemented in Malaysia, the courts face several difficulties when it comes to conducting physical hearings and trials. To overcome this issue, some changes have been made in regards to the manner the hearings and trials would be conducted in the near future. That being said, Hearings and trials are being conducted remotely and virtually due to the ongoing pandemic.
Amendments
The legislation has made few amendments to three Acts, namely, Courts of Judicature Act 1964, Subordinate Courts Act 1948 and Subordinate Courts Rules Act 1955. These amendments are crucial as new sections have been added or the provisions have been amended in order to accommodate and safeguard the well-beings of the Malaysian lawyers and judges and guide them on the relatively new procedures of conducting online hearings.
Definition of Remote Communication Technology
First of all, the definition of remote communication technology has been added into those three Acts above respectively, in Section 2 of Subordinate Courts Act 1948 and Subordinate Courts Rules Act 1955 and Section 3 of Courts of Judicature Act 1964. Remote communication technology is defined as a live video link, a live television link or any other electronic means of communication.
Amendment to Courts of Judicature Act 1964 (“CJA”)
One new section has been added into the CJA, namely Section 15A. Section 15A[1] states that the Court may, without limiting to section 15, conduct the hearings or trials of any cause or matter, be it civil or criminal, through a remote communication technology in order to ensure the access to justice is available to the public.
Furthermore, section 15A(2)[2] of CJA also states that for High Court cases, the place in which the High Court is held to conduct the proceedings through a remote communication technology shall be deemed as to be conducting within the local jurisdiction of such High Court.
The word “place” in this section 15A includes cyberspace, virtual place or virtual space.[3]
Section 16 of the CJA is also amended by adding a new paragraph (aa) to this section. Section 16 talks about the Rules of Court, by adding paragraph (aa), the Rules of Court may be made for the regulation and prescription of the procedure and the practice that needed to be followed by the High Court and the Court of Appeal as well as the Federal Court in conducting the hearings or trials through a remote communication technology[4].
Added section after section 17A of CJA, which is Section 17B. Section 17B talks about the practice direction in which the Chief Justice after consulting the President of the Court of Appeal or the Chief Judge, may issue practice directions, for the purpose of carrying into effect the provisions of this Act[5].
Lastly, the phrase “or through a remote communication technology” has been inserted into section 69(1) of CJA right after the words “in court”.
Amendment to Subordinate Courts Act 1948
A new section has been added as well, which is section 101B where it states that the Court may, without limiting to section 101 of this Act, conduct the hearings and trials or hold any inquiry via a remote communication technology, in the interest of justice[6].
Subsection 2 of section 101B[7] states that the place in which the court conduct the proceedings or hold any inquiry through a remote communication technology shall be deemed to be conducted within the local limits of jurisdiction as assigned in sections 56 or 76. If there is no such local limits of jurisdiction being assigned to, it shall be deemed to be conducted in any part of Pennisular Malaysia. Similarly, the word “place” in this section means cyberspace, virtual place or virtual space as laid down in section 101B (4) of this Act.
Other than that, a section 107A has been added, in which it states that practice directions may be issued by the Chief Justice after being consulted with the President of Court of Appeal or the Chief Justice for the purpose of carrying into the effect of the provisions of this Act.
Amendment to Subordinate Courts Rules Act 1955
Apart from the added definition of remote communication technology, section 4 introduces a new paragraph (aa).
Paragraph (aa) of Section 4[8] states that the Committee may make rules for the regulation and prescription of the procedure and the practice to be followed in the Subordinate Courts with respect to the hearing or proceedings through a remote communication technology.
Conclusion
In conclusion, these are the amendments that have been done to those three Acts in order to ensure the access of justice remains available to the public and also to ensure that the justice could be delivered through a remote communication technology in the midst of this pandemic.
Act A1621 – Courts of Judicature (Amendment) Act 2020
http://www.federalgazette.agc.gov.my/outputaktap/20201022_A1621_BI_Act%20A1621.pdf
Act A1622 – Subordinate Courts (Amendment) Act 2020
http://www.federalgazette.agc.gov.my/outputaktap/20201022_A1622_BI_Act%20A1622.pdf
Act A1623 – Subordinate Courts Rules (Amendment) Act 2020
http://www.federalgazette.agc.gov.my/outputaktap/20201022_A1623_BI_Act%20A1623.pdf
Jasmine Ha
[1] Section 15A(1) CJA: Without limiting to section 15, the Court may, in the interest of justice, conduct the proceedings of any cause or matter, civil or criminal, through a remote communication technology.
[2] Section 15A(2) of CJA: In the case of the High Court, the place in which the High Court is held to be conduct the proceedings of any cause or matter, civil or criminal, through a remote communication technology shall be deemed to be conducted within the local jurisdiction of such High Court.
[3] Section 15A(4) of CJA: In this section, “place” includes cyberspace, virtual place or virtual space.
[4] Paragraph (aa) of Section 16 of CJA: For regulating and prescribing the procedure and the practice to be followed in the High Court, the Court of Appeal and the Federal Court in all causes and matters whatsoever in or with respect to the hearing of any matter or proceeding through a remote communication technology.
[5] Section 17B of CJA: The Chief Justice may issue such practice directions as may be necessary for the purpose of carrying into effect the provisions of this Act after consulting the President of the Court of Appeal or the Chief Judge.
[6] Section 101B(1) of Subordinate Courts Act 1948: Without limiting section 101, the court may, in the interest of justice, conduct the proceedings of any cause or matter, civil or criminal, or hold any inquiry, through a remote communication technology.
[7] Section 101B(2): The place in which the court is held to conduct the proceedings of any cause or matter, civil or criminal, or hold any inquiry, through a remote communication technology shall be deemed to be conducted within the local limits of jurisdiction assigned to it under section 59 0r 76, if no such local limits have been assigned, arising in any part of Pennisular Malaysia.
[8] Paragraph (aa) of section 4 of Subordinate Courts Rules Act 1955: For regulating and prescribing the procedure and the practice to be followed in Subordinate Courts in all causes and matters whatsoever in or with respect to the hearing of any matter or proceeding through a remote communication technology.
