A group of lawyers has come up with a proposal paper to conduct remote court hearings. The group includes prominent lawyer Ambiga Sreenevasan as well as Nahendran Navaratnam, Lim Chee Wee, Razlan Hadri, Gopal Sreenevasan and Brendan Navin Siva.
The proposal sets out the protocol to conduct remote hearings during the Movement Control Order (MCO) period, as well as for hearings post-MCO where physical attendance in court would be detrimental to public health.
The proposal covers both logistical and technical requirements as well as practical guidance for the conduct of hearings and trials. It deals with the current legislative framework and makes a proposal for an omnibus amendment to the Rules of Court 2012, the Rules of the Court of Appeal 1994 and the Rules of the Federal Court 1995 to give the courts the necessary powers to be the arbiter as to whether the proceedings will be conducted remotely, as opposed to making it by consent.
“We would also urge the National Security Council to include the courts and the judicial system in the list of essential services that may operate during the MCO, which will enable legal firms to access their office and make the necessary preparation for hearings and trial,” said the lawyers’ group.
The paper addresses two scenarios which may arise after the MCO is lifted, scheduled for May 12. The first scenario is the MCO will be lifted entirely or modified sufficiently to allow the courts to physically re-open for business as usual. In the second scenario, the MCO will be extended or modified in such a manner that the courts will be obliged to remain physically closed but can be open for remote business.
In the first scenario, it is likely that some form of social distancing will still be advised or mandated or it may continue to be unsafe for some lawyers and parties, particularly those at risk such as the infirm or elderly, to attend court as usual. In such cases parties should be allowed to seek remote hearings in place of face-to-face hearings.
In the second scenario, the courts should at least reopen for remote business. In such a case, it should be at the discretion of the individual judge or registrar hearing the case to determine on his or her own or upon application of any of the parties if the hearing should proceed remotely in the interest of justice and public health and safety.
In terms of infrastructure, most law firms in Malaysia would have installed or upgraded their computers or digital equipment in stages since 2009. This was when the Court Recording and Transcription system (CRT) was first implemented in the courts.
The lawyers’ group said that the urgency to do so was also accelerated by the advent of the e-filing system (EFS) in the Malaysian courts in 2011, starting in Kuala Lumpur and implemented in stages in all states in West Malaysia. Most law offices would have adapted to these changes and would be equipped with some form of digitalisation and scanning software and hardware.
Law firms will need to adapt to the changes that may be adopted after the MCO is lifted in terms of safe distancing generally and more specifically the new directions and protocols to be implemented by the courts moving forward.
However, the lawyers’ group said that some law firms will find the transition difficult. This is one of the matters that will fall within the discretion of the court in deciding whether a hearing should be conducted remotely.
It is also suggested that the Bar Council and the State Bars develop programmes to assist law firms who have difficulties with the transition, whether by way of providing facilities that can be shared or technical assistance.
Four options to host remote hearings are recommended: Skype for Business, which is currently being used by the Malaysian courts; Microsoft Teams, which will replace Skype for Business by July 31; Zoom Meeting; and Cisco Webex Meeting. – April 29, 2020
