Introduction
In order to curb the spread of COVID-19, on 16 March 2020 the government announced the Movement Control Order (MCO), which took effect on 18 March 2020. During the MCO period, all government and private business premises were closed, except for those providing essential services. Under the series of regulations gazetted pursuant to the Prevention and Control of Infectious Disease Act 1988,(1) judicial and legal services were excluded from the list of essential services. Therefore, the courts and offices of advocates and solicitors were closed while the MCO was in effect.
Following an announcement by the Prime Minister on 1 May 2020, the MCO – initially scheduled to end on 12 May 2020 – was eased. It was replaced with a Conditional MCO (CMCO) pursuant to the Prevention and Control of Infectious Diseases (Measures within the Infected Local Areas) (No. 5) Regulations 2020, from 4 May 2020 until 12 May 2020. The CMCO was further extended to 9 June 2020 pursuant to the Prime Minister’s announcement on 10 May 2020. Most economic and social activities were allowed, except for mass gatherings or activities that could expose the public to infection. On 3 May 2020, the judiciary announced that all courts would resume operations on 13 May 2020, subject to strict safety measures, and that the following documents relating to court operations had been circulated:
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Case conduct guidelines during the CMCO and after the MCO
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Prevention of COVID-19 standard operating procedures during the CMCO and after the MCO
Given that the courts were resuming operations, law firms also reopened, with some employing duty rosters to allow employees to work rotationally.
Judiciary Response to MCO
Throughout the MCO from 18 March 2020 until 3 May 2020, the judiciary took adequate measures to ensure that the public was not denied access to justice.
On 17 March 2020, the day before the MCO came into effect, the judiciary issued a directive stating that:
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All trials or hearings of civil and criminal matters scheduled during the MCO were postponed until a yet-to-be-determined date
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Any urgent applications would be dealt with by an appointed court officer or judge at different court levels
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Documents could be filed through a court’s electronic filing (e-filing) system. Courts without e-filing could accept documents only once the MCO had been lifted
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Case management for civil matters via online e-review would continue, but matters scheduled for manual case management were postponed until a yet-to-be-determined date
On 26 March 2020, the judiciary issued a notification stating that parties could apply to the courts for an online hearing of civil matters via an e-review system, email, or video conference, subject to:
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The agreement of all parties
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The court’s discretion
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The online hearing being limited to ex parte or inter partes applications filed with a certificate of urgency
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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
On 10 April 2020, the judiciary confirmed that the directions on hearings conducted online during the MCO would continue to apply.
The measures taken to regulate the administration of justice while the MCO was in effect were feasible, logical, and in line with approaches adopted by other countries. Their effectiveness is evident from the statistics released by the judiciary on 15 April 2020:
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Federal Court – 376 cases conducted via e-review and 25 cases via email
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Court of Appeal – 1,813 cases conducted via e-review
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High Courts – 4,093 civil cases conducted via e-review, 2,549 civil cases and their hearings (uncontested matters) conducted via email, and 18 civil hearings via video conference. For cases with a certificate of urgency, 75 were conducted via e-review and 12 via video conferencing. Additionally, 370 criminal cases were conducted via e-review
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Subordinate Courts – 2,509 hearings conducted via e-review, 27 hearings via email, and seven hearings via video conference
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Documents Filed – 111,183 documents filed and processed via e-filing
The judiciary also took a progressive step by live-streaming online Court of Appeal hearings on 23 April 2020 at 10:00 am. This enabled the public to observe the hearing, replicating the public gallery in an open court.
Judiciary Response to CMCO
On 10 April 2020 and 2 May 2020, the judiciary confirmed that the directions on hearings conducted online during the MCO would continue to apply during the CMCO until 12 May 2020, and provided a non-exhaustive list of High Court applications that could be heard online starting 4 May 2020, such as:
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Amendments
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Time extensions
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Ex parte and interim injunctions
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Setting aside
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Judicial reviews
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Winding up
To facilitate the online hearings process, the judiciary issued guidelines on conducting proceedings via Skype for Business, Skype, or other appropriate video conferencing platforms (use of Zoom is prohibited).
These measures are expected to continue, or be expanded, until the end of the CMCO on 9 June 2020.
On 11 May 2020, pursuant to a press release by the judiciary, the following standard operating procedures regarding court hearings were announced:
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Where possible, courts may conduct online hearings considering the interest of justice, the nature of the matter, and public health and safety
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If cases are to be heard in a physical courtroom, they will be heard in open court on a staggered basis
Comment
Due to the COVID-19 outbreak and the implementation of the MCO and CMCO, conducting legal proceedings through online platforms is becoming the new normal in the legal industry for social distancing purposes.
The Chief Justice has also indicated that amendments to the relevant procedural and substantive laws and the drafting of a practice direction outlining the conduct of online hearings are underway. With these measures and guidelines in place, parties can rest assured that they will continue to have access to justice during the COVID-19 pandemic.
Article Authors
Gan Khong Aik
Partner, Gan Partnership
E: khongaik@ganlaw.my
Lee Sze Ching (Ashley)
Associate, Gan Partnership
E: szeching@ganlaw.my
Endnotes
- Prevention and Control of Infectious Diseases (Measures within the Infected Local Areas) Regulations 2020; No 2; No 2 (Amendment); No 3; No 4 Regulations 2020.
