[This is Part-1 of a two-part article. For Part-2, click here]

‘Virtual’ or ‘online’ court hearings are those conducted via the medium of the internet.

They will soon become ubiquitous: there is no question about that:

The question is, are such hearings legal just now – without new Parliamentary laws being introduced?

The answer: ‘No’.

Our first ‘Live streamed hearing’

Some weeks ago, a local newspaper implied that the courts were ‘not doing’ their part during the coronavirus pandemic.

Shortly after, Registrar of the Federal Court announced that some hearings would be ‘streamed live’.

On 23 April 2020, a virtual hearing of an ‘online’ application was streamed live: it was at the Court of Appeal.

Was that legal?

Pose an opposing question: ‘Why not?’

Then test the several answers you get with a, ‘So what?’

A Fiddler on the Roof

When cases are filed, they are brought before a judge – or a group of judges – for a ‘hearing’.

All over the world, the rules that control them are similar.

Different countries all use differing terms, but the intent of any court anywhere is always the same: every person has a right to a fair trial.

So where did these practices come from?

Have you seen ‘Fiddler on the Roof?’

There, the protagonist, Topol, declares that everything in the life of his community is dependent on ‘tradition’.

So also the courts.

In the old days, how courts conducted their ‘hearings’ depended on tradition.

Over hundreds of years, these traditions hardened into almost inflexible conventions. Then, the legislature (parliament) enacted these ‘conventions’ into laws.

Now law determines how cases are to be conducted.

If one departs from the law, what do you think the consequences would be?

What does the law say?

In Malaysia, how the courts conduct their respective hearings is determined by the Courts of Judicature Act 1964 (‘CJA’).

Oddly, the Subordinate Courts Act 1964, which controls how the Magistrate and Sessions Courts work – and where 90% of all litigation cases originate – has no provisions similar to the CJA.

Note that the CJA is considered ‘higher law’: only the Constitution is superior to it.

Where other laws conflict with the CJA, to that extent, the provisions in the CJA prevail.¹Section 4 CJA

The CJA sets out two ways in which ‘hearings’ are to be conducted: one method is specified for the High Court; another for the Court of Appeal and the Federal Court.

HOW ARE  HIGH COURT PROCEEDINGS TO BE CONDUCTED?

The CJA is specific. It uses particular phrases, like ‘every proceeding’ and ‘all business’ of the court. This is how section 18(1) starts it:

‘…every proceeding’ and ‘all business’  (meaning the work of the court) shall be conducted ‘as provided by any written law’.²Section 18(1) states: Every proceeding in the High Court and all business arising thereout shall, save as provided by any written law, be heard and disposed of before a single Judge.’

Let us take these words apart, one phrase at a time.

Do hearings have to follow any particular law?

One must start with the phrase ‘save as provided by any written law … every proceeding in the High Court in all business arising from it, shall be held and disposed of before a single judge’.

And so anything that the High Court does must be ‘as provided by any written law’.

As an aside – does the High Court have any other power?

It does.

Section 25 of the CJA gives ‘extra powers’ to the High Court.

Even that extra power is to ‘be exercised in accordance with any written law or Rules of Court.’³Proviso to section 25, CJA

You see again the phrase ‘in accordance with any written law or rules of Court’. So there is a parallel here to section 18, CJA.

“To repeat, tediously,  the starting point is: everything that has to be done at the High Court, must be,  ‘in accordance with any written law’.

What does ‘Written Law’ mean?

‘Written law’ means (a) the Federal Constitution, (b)any Act of Parliament or (c) any Rules made under it.⁴See section 3 of the Interpretation Act 1948 and 1967

And yet, the Federal Constitution does not say how judges should carry out their work.

So we have to look at the CJA, and the Rules of Court.

So does the CJA or the Rules allow ‘virtual hearings’?

They do not.

Look at the CJA: what does the phrase ‘before a High Court Judge’ mean?

The phrase that ‘proceedings … shall be heard and disposed of before a single judge’, in plain English, would mean that the litigant, or his counsel – would have to ‘appear before’ the judge.⁵Section 18, CJA

What does ‘before’ mean?

Does that mean that one has to be ‘in the physical presence’ of a judge?

This is what the framers of the CJA must have meant.

Why?

Because in 1963, they did not have the internet, let alone Zoom, Google, Skype and Webex!

Take it even further…

Could it be that the phrase ‘before the judge’ in the sentence ‘proceedings … shall be heard and disposed of before a single judge’, mean the ‘cyber presence’ of the judge?

If a judge could ‘hear’ you through a ‘virtual proceeding’ could he have complied with the CJA?

The clever lawyer might say ‘on such days and at such places’ can also mean ‘cyberspace’.

I think this would be to do violence to the language of the CJA.

Are High Court and Court of Appeal Proceedings ‘Open to the Public’, a CJA requirement?

The problem with this ‘clever lawyer’ argument is shown up in section 15 of the CJA.

It states that the courts are ‘to be open’.

Section 15(1) CJA states that ‘the place in which any Court is held for the purpose of trying any cause or matter, civil or criminal, shall be deemed an open and public court to which the public generally may have access: provided that the Court shall have power to hear any cause or matter or any part thereof in camera if the Court is satisfied that it is expedient in the interests of justice, public safety, public security or propriety, or for other sufficient reason so to do.’⁶A similar provision exists in section 101 of the Subordinate Courts Act 1948.

A clever lawyer would say that ‘in camera’ can mean ‘live streaming’; that the need for efficiency and efficacy of court proceedings should be ‘in the interests of justice’.

The purpose behind section 15 is ancient: it grew through historical events. Those in power condemned their challengers in secret proceedings, or, in commercial cases, rendered judgement in favour of friendly parties.

So the purpose behind section 15  is that those in power must try an accused at a place to which the public have access.

In this way members of the public can see for themselves that court proceedings are conducted in a manner which is proper, and importantly, fair.

This principle is ancient.

Were members of the public allowed in the virtual proceedings?

They were not; for, just now, we do not have that kind of technology.  Yet the judiciary, to its credit, did the best it could: it ‘streamed it live’.

‘What is so unfair’ asks the clever lawyer, ‘in live streaming, because everyone can see it?’

Because it is after the fact:

So I ask this question: the proviso in section 15 refers to ‘interests of justice, public safety, public security or propriety, or for other sufficient reason’.

How do we interpret these words?

Words keep the colour and the meaning of other words in whose company they sit.  This is called the principle of ‘ejusdem generis’.

The important words are ‘Public Safety’, public security’ or ‘public propriety’.

I do not think the ‘online proceedings’ are held because there is any fear of lack of ‘public security’.

I doubt the framers of section 18 would not have stretched the meaning that far!

Next, we have to look at what are the powers of the person who is in command of the High Court: Chief Judge.

There are two Chief Judges: one for the Peninsular, and one for Sabah and Sarawak.

The power of the Chief Judge of the High Court to give directions

Section 19 of the CJA says that ‘the High Court shall sit at such times and at such places as the Chief Judge shall from time to time appoint.’

What directions can Chief Judge of the High Court give?

The Chief Judge has two powers.

One is the power to ‘distribute the business among judges’.⁷Section 20 of the CJA states: ‘The distribution of business among the Judges of the High Court shall be made in accordance with such directions, which may be of a general or a particular nature, as may be given by the Chief Judge.’

The second is more interesting:

The Chief Judge has the power to appoint ‘where’ and ‘when’ the High Court shall sit.⁸Section 19 CJA states: ‘The High Court shall sit at such times and at such places as the Chief Judge shall from time to time appoint.’

What does ‘at such times and such places’ mean?

Does the word ‘place’ mean ‘cyberspace’?

No one knows the answer to that.

Could we stretch the word ‘place’ to mean ‘cyberspace’?

I doubt it.

What if the Chief Justice or the President of the Court of Appeal issue new Rules of Court allowing virtual hearings?

The CJA allows the judiciary to issue Rules of Court that will regulate the ‘procedure’ in all the courts.⁹Section 16 CJA

But they cannot issue rules giving the courts powers that have not been granted by the CJA.

A number of statutory provisions and case law have seen to that.¹⁰Section 23, of the Interpretation Act 1948 and 1967, read with the 1890 QBD decision in See Hugh v. Somerton [1890] QBD 239, 243; and the 2002 decision of the Federal Court in Megat Majmuddin Bin Dato Seri (DR) Megat Khas v Bank Bumiputra (M) Bhd [2002] 1 MLJ 385, infra

That leads us to the next question.

Could Practice Directions be made allowing virtual hearings?

The answer is, ‘Yes’, provided that the parent act, the CJA, has authorized the courts to use virtual proceedings.

Have they?

The answer is, ‘No’.

Any Practice Direction that veers away from sections 18, 39 and 75 of the CJA would fall foul of the law. The courts themselves have said so.¹¹See Hugh v. Somerton [1890] QBD 239, 243. See also the Federal Court decision in Jayasankaran v Public Prosecutor [1983] 1 MLJ 379 . The Court ruled that Practice Directions were no more than ‘direction for administrative purposes’: [p.380]. The Court of Appeal in Ooi Bee Tat v Tan Ah Chim & Sons Sdn Bhd & Anor & Another Appeal [1995] 4 CLJ 484 (CA) followed Jayasankaran: [p.489 of Report]. In 2002, the Federal Court in Megat Majmuddin Bin Dato Seri (DR) Megat Khas v Bank Bumiputra (M) Bhd [2002] 1 MLJ 385 (FC) was, again, asked whether a Practice Direction could supersede or amend Rules of Court or an Act of Parliament. While accepting that the Chief Justice could issue Practice Directions under r.110 of Rules of the Federal Court [Note that the President of the Court of Appeal has similar powers to issue Practice Directions for proceedings under Rule 77 of the Rules of the Court of Appeal], the Federal Court ruled that no Practice Direction could overcome the Rules of the Court or any Act of Parliament. For a Practice Direction to be legally issued it must comply with written law. Ooi Bee Tat was not followed. Again, the High Court in Suhaimi bin Mohd Yusof v Public Prosecutor [2005] MLJU 543 (HC) held that for Practice Directions to have any force of law they must be issued pursuant to some legislation:[pp.4 & 5]. I doubt the correctness of the phrase ‘any force of law’ used by the High Court.

Can jurisdiction be granted by consent of the parties?

One clever lawyer suggests that perhaps the parties could ‘consent’ for the proceedings to be conducted in this way.

I am afraid the parties cannot by their consent grant ‘extra jurisdiction’ to any written law.

In conclusion, as for the High Court…

If so, what ‘jurisdiction’ is there that allows proceedings and the ‘business of the High Court’ to be conducted by ‘virtual hearings’?

The answer is, none.

The CJA does not give any power to the Chief Judge of the High Court to decide the manner in which ‘proceedings’ are to be conducted.

He is bound by tradition, convention, and practice to use the older methods.

APPEALS AT THE COURT OF APPEAL AND THE FEDERAL COURT

At the Court of Appeal

Section 39 of the CJA says that the court ‘shall sit on such dates at such places as the President may from time to time appoint: Provided that the President may, when he deems it expedient, direct that any appeal be heard at any time and in any place in Malaysia.’ ¹²This is in section 39(1).

What is missing from this section is the phrase ‘in any manner’.

Some lawyers suggest that where there is a reference to ‘dates’ and ‘places’ then one could assume that the manner in which they hear an appeal should be left to the President of the Court of Appeal.

Contrast the Power of the President of the Court of Appeal to that of the Chief Judge of the High Court in section 18.

Under section 18, the Chief Judge of the High Court can only have proceedings ‘as provided by any written law’.

That is absent in section 39.

I do not think that makes any difference.

I do not think that gives the President of the Court of Appeal extra powers that are absent in the CJA.

At the Federal Court

The Federal Court has the same jurisdiction and may exercise the same powers in its appellate jurisdiction.¹³Section 86, CJA

Section 75 states that the sittings in the proceedings of the Federal Court shall be ‘on such days and at such places as the Chief Justice may from time to time appoint: Provided that the Chief Justice may, when he deems expedient, direct that “at any time and in any place in Malaysia.”¹⁴(Section 81(1))

So we can see that the Federal Court’s powers are almost identical to the powers of the Court of Appeal in section 39.

‘Mind the Gap’

This is a commonly used phrase in the London Underground.

We might well advise ourselves of the same when we deal with the powers of the court to order ‘virtual hearings’.

If you do not, we might fall into the gaps between the law, and come to real harm.

The only way to deal with this is by legislation.

New law needs to be created.

Can ‘Amending’ current Rules of Court or issuing New ‘Practice Directions be good enough?

Some lawyers suggest that the judiciary can ‘amend’ the Rules of Court or issue Practice Directions.

This argument is flawed.

Rules can only be created when the Parent Act has, in it, an express power.

In various Commonwealth jurisdictions, statutes similar to the Malaysian Courts of Judicature Act have specific powers that allow virtual hearing in court.  In the United Kingdom, for instance, such an express power exists.¹⁵CPR Part 39.3(3)(g), CPR39.2(5) CPR Part 39.9 provides that “[a]t any hearing, whether in the High Court or the County Court, the proceedings will be tape recorded or digitally recorded unless the judge directs otherwise” and that “[n]o party or member of the public may use unofficial recording equipment in any court or judge’s room without the permission of the court”. CPR Part 39.2(3)(g) provides that hearings can (actually must) be held in private if the court is satisfied that it is, for any reason, “necessary, to secure the proper administration of justice”. In such a case, however, a copy of the court’s order to that effect must, under CPR Part 39.2(5), “[u]nless and to the extent that the court otherwise directs”, and non-parties may apply to attend the hearing and make submissions, or apply to set aside or vary the order. New Practice Direction 51Y entitled ‘Video or Audio Hearings During Coronavirus Pandemic’ – states that a hearing to be conducted by video or audio if it is impractical to use Court Buildings. It has been in force since 25.03.2020].  Such a hearing is considered as a ‘public hearing’ because media representatives are allowed to log in and/or enter into the live streaming of the hearing over the internet. Broadcasting hearings is authorised in legislation, such as the new s85A recently inserted into the Courts Act 2003.

In India, its constitution allows it, and grants the Supreme Court wide powers to regulate court hearings.¹⁶Article 142 Of Constitution

When the Covid-19 pandemic lockdown was declared, Indian Supreme Court, on its own initiative, framed video conferencing  guidelines for Indian courts.¹⁷In a case titled “In Re Guidelines for Court Functioning through Video Conferencing During Covid-19 Pandemic”. See here: https://english.sakshi.com/national/2020/04/07/sc-issues-guidelines-for-video-conferencing-across-courts and also https://www.indialegallive.com/constitutional-law-news/supreme-court-news/supreme-court-frame-guidelines-hearing-cases-via-video-conferencing-94965

Malaysia has no such equivalent.

Where no such power exists, subordinate legislation cannot create one.¹⁸see section 23, Interpretation Act 1948 and 1967. Again in the Federal Court in Megat Majmuddin Bin Dato Seri (DR) Megat Khas v Bank Bumiputra (M) Bhd [2002] 1 MLJ 385 (FC), was asked if a Practice Direction could supercede or amend court rules or an Act of Parliament; and whether the Chief Justice could issue Practice Directions under Rule.110 of Rules of the Federal Court. [The President of the Court of Appeal has similar powers under r 77 of RCA].  The Federal Court held that Practice Directions could not be issued in contravention of procedural rules, had to comply with an Act of Parliament.

So it is time to ask Parliament to intervene – until such time, we are stuck with an old system.

If it is not broken, why fix it?

For that you need to go to Part-2, for which click here.

[The author wishes to thank Ms.KN Geetha, Mr GS Saran and Mr JD Prabhkirat Singh for their assistance.]