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12 May 2020
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 are closed, save 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 are excluded from the list of essential services. Therefore, the courts and offices of advocates and solicitors are closed while the MCO is in effect.
Following an announcement by the prime minister on 1 May 2020, the MCO – which is initially scheduled to end on 12 May 2020 – will be eased. It is being 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 has currently been further extended to 9 June 2020 pursuant to the prime minister's announcement on 10 May 2020. A regulation for such extension has yet to be gazetted. Most economic and social activities will be allowed, except for mass gatherings or activities that would expose the public to infection. On 3 May 2020 the judiciary announced that all courts will resume operations on 13 May 2020, subject to strict safety measures, and that the following have been circulated which relate to the courts' operations:
Given that the courts are resuming operations, law firms are also opening, with some employing duty rosters to allow employees to work rotationally.
Throughout the MCO from 18 March 2020 until 3 May 2020, the judiciary had taken 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:
On 26 March 2020 the judiciary issued a notification stating that parties can apply to the courts for an online hearing of civil matters via an e-review system, an exchange of emails or a video conference, subject to:
On 10 April 2020 the judiciary confirmed that the directions on hearings to be conducted online during the MCO will continue to apply.
The measures taken to regulate the administration of justice while the MCO was in effect are feasible, logical and in line with the approaches adopted by other countries. The measures' effectiveness is evident from the statistics released by the judiciary on 15 April 2020:
The judiciary also took a progressive move by live streaming the online Court of Appeal hearings on 23 April 2020 at 10:00am. This enabled the public to observe the hearing, replicating the public gallery in an open court.
On 10 April 2020 and 2 May 2020, respectively, the judiciary confirmed that the directions on hearings to be conducted online during the MCO will continue to apply during the CMCO until 12 May 2020 and provided a non-exhaustive list of unchallenged applications in the High Court which can be heard online starting from 4 May 2020, such as applications for:
To facilitate the online hearings process, the judiciary has also issued guidelines on conduct proceedings via Skype for Business, Skype or other appropriate video conferencing platforms (notably, the use of Zoom is prohibited).
The above is expected to continue to apply, 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 with particular regard to court hearings were announced, including that:
Due to the COVID-19 outbreak and the implementation of the MCO and the 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 in the pipeline. With all of the present proper measures and guidelines in place, parties can rest assured that they will continue to have access to justice during the COVID-19 pandemic.
For further information on this topic please contact Gan Khong Aik or Lee Sze Ching (Ashley) at Gan Partnership by telephone (+603 7931 7060) or email (firstname.lastname@example.org or email@example.com). The Gan Partnership website can be accessed at www.ganlaw.my.
(1) Prevention and Control of Infectious Diseases (Measures within the Infected Local Areas) Regulations 2020; Prevention and Control of Infectious Diseases (Measures within the Infected Local Areas) (No 2) Regulations 2020; Prevention and Control of Infectious Diseases (Measures within the Infected Local Areas) (No 2) (Amendment) Regulations 2020; Prevention and Control of Infectious Diseases (Measures within the Infected Local Areas) (No 3) Regulations 2020; Prevention and Control of Infectious Diseases (Measures within the Infected Local Areas) (No 4) Regulations 2020.
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