THE Malaysian judiciary, although an essential service, has been relatively quiet during the Movement Control Order (MCO) period.
Most of the hearings have been adjourned, and only selected remand cases are being heard. Filing of new cases, meanwhile, is being done through the court’s e-filing system.
Several lawyers have voiced concern that the extended MCO could impede justice being served, especially criminal cases that are being tried. Courts should remain open, says a lawyer, to uphold the rule of law and ensure fair trial rights.
Recently, the Federal Court Chief Registrar’s Office said parties in civil cases at the High Court and subordinate courts in Peninsular Malaysia may apply to court for online hearings.
It also said “online hearings could be done via the e-review system, exchange of e-mails or video conferencing provided that consent of parties and leave of court is obtained”. Why then, has our courts not seen much activity?
In theory, according to a lawyer, we do have e-courts, but in reality, he says, they are hardly being used.
Malaysia’s E-Court System started in 2011. The mechanism is through video conferencing, case management, community and advocate portal, and court recording and transcription.
The legal fraternity is in agreement that “closing” our courts is harmful and self-destructive.
It will eventually burden the country’s legal system, they say. The judiciary already has a substantial number of backlog cases, although they have been greatly reduced following the 2008 judicial reforms.
The extended MCO, says a lawyer, may set off another repertoire of backlog cases. Other problems, such as inefficiency, lack of transparency and accountability, would ensue due to the mounting workload.
Yes, the MCO is forcing unprecedented changes, but courts cannot remain “inactive” indefinitely. It may seem the safest approach, but putting off trials could have significant effects in the longer term.
As it is, it takes months for a case to come to trial. Many see this unfair for crime victims, and also the accused, some of whom are in prison on remand.
A former federal counsel says courts should start hearing cases on a staggered basis, where only a limited number people are allowed and social distancing can be observed.
It is being practised in some countries like India. Alternatively, he says, the minister in charge of law may want to discuss with the prime minister (via video conferencing) the available options for courts to start hearing cases.
Video court conferencing, he says, would be a good option. This Leader is all for the courts to start hearing cases again, but according to MCO limitations. What better time than now to have virtual court proceedings?
It is a natural development of our judiciary and would help us harness our virtual skills, increase productivity and enhance security in the judicial system. Many countries under lockdown are already doing it.
For instance, in New Zealand courts, some cases are being heard via remote or audio-visual link; in cases where court attendance is unavoidable, measures have been taken to observe social distancing and maintain hygiene. Singapore, too, has allowed more video conferencing and email hearings.
In the United Kingdom, the Supreme Court has started video conferencing to hear cases and deliver judgments where the parties, their legal teams, counsel and each of the justices are located in different places. Isn’t it time Malaysia starts, too?