Judiciary Outlines Plans For Virtual Court Hearings

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Virtual court hearings may be allowed, without a physical presence in court, under proposed amendments to court rules.PETALING JAYA: The judiciary is preparing the way for virtual court hearings and trials to be conducted using remote communications technology, and lawyers have been asked to provide feedback on the proposal
The judiciary proposes to allow remote hearings instead of requiring proceedings to be in a physical courtroom. There is provision for hearings to be broadcast so that the public may be kept informed
The proposal is contained in draft amendments to the rules of the higher courts prepared by the rules committee, which comprises senior judges, the attorney-general, and lawyers
A draft of the proposed amendments has been circulated to lawyers by the Bar Council of Malaysia, which said the Chief Justice’s Office had written to ask for feedback
Court hearings in Malaysia were suspended from March 18 to May 13 after the government imposed restrictions on public activities to curb the spread of Covid-19
Lawyers have been informed about the proposed amendments in a Bar Council circular, which contains a draft of the proposed changes to the rules of court
It says that appearances (by lawyers and witnesses) and evidence given through the remote communication technology, in accordance with the direction of the court or registrar, will be taken to have been given in person and will form part of the record of the proceedings
Opposing counsel will be able to cross-examine witnesses using the online platform, and a judge will be allowed to deliver judgments or decisions through an online method
The proposed amendments will allow judges of the Court of Appeal and Federal Court to hear leave applications, without oral submissions in an open court
“The proposed amendment as regards to the determination of leave application to be made on paper without oral hearing is necessary to save the court’s time as well as to simultaneously provide opportunity to parties to conduct more research on the grounds submitted,” according to the circular
“The court would not have to limit the time for lawyers submitting the case and the backlog of cases will be reduced. More importantly, the quality of written submissions for leave applications will be significantly improved,” the circular said
However judges may also direct lawyers to appear before the court for oral submissions if the courts want to hear further clarifications on their written submissions
The proposed rules will also allow courts to hold online hearings on weekends or public holidays, if there are written requests from counsel
In response, Penang based lawyer Nur Shahidhzul Naqieya Zulkernian said she disagreed with the plans to move trials online due to Covid-19
“As a litigator, a lot will be lost if trials are conducted online. I also do not really understand the mechanism of how trials will be conducted. For example if I am conducting a criminal trial and my client is in prison, will I need to be in the same room as him during the online trial?” she asked
Shahidhzul also said that it may be difficult for online trials to be done efficiently if witnesses need translators or sign language interpreters
“I think it is better to wait and conduct trials as usual in court and reserve only case management through online means as the situation, for us anyway, is improving. It is important to retain a human association with court proceedings,” she added
Another lawyer, Terrence Lee Rohui, agreed with interlocutory or pre-trial applications being moved online as they do not involve witnesses. “I felt it was more efficient as judges read submissions from both sides,” he said
“However for trials and hearings, in civil and criminal proceedings that involve witnesses, I still think it is better to do it in open court, and I don’t feel comfortable cross-examining witnesses (via videoconferencing),” he added
While lawyer Lim Wei Jiet agreed to the changes, as courts in some other countries have moved online, there might be difficulty with ensuring that no one attempts to “coach witnesses” during the trial
“What are the rules for witnesses when they have to give evidence online? Do they need to be in a venue that the court wants them to be for example a room in the nearest court at the district or they can just do it from home?” he asked
For leave applications in superior courts, Lim said that he foresees that some lawyers would not agree to filing submissions and not arguing their cases before an open court
“It will be the last chance for your case to be heard at Federal Court. If leave is dismissed, then it will be the end,” he added

Aggrieved parties in civil cases, originating from High Courts, need to obtain permission (leave) from Federal Court in order to ventilate their cases at the highest level. In the appellate court, aggrieved parties need to get the court’s nod in criminal cases originating from the Magistrate’s Court and civil cases from the Sessions Courts. - FMT

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