Covid-19: Effect of the Movement Control Order on Court Proceedings

The Movement Control Order (MCO) that has been implemented throughout Malaysia from 18 March 2020 to 14 April 2020 has disrupted activities in nearly all aspects of the lives of Malaysians. Among others, schools and businesses that provide non-essential services have ground to a halt or nearly so.
How has the MCO affected the administration of justice? Below is a short write-up which summarises the effect of MCO on court proceedings in Malaysia at the time of writing.
  1. Closure of courts
Following the extension of the MCO, all courts nationwide will remain closed until 14 April 2020. All trials and/or hearings including appeal hearings for civil cases which have been fixed from 18 March 2020 to 14 April 2020 are adjourned and new dates will be fixed by the courts.
Any Case Managements for civil cases which are scheduled to take place via the Court’s e-Review system are not affected by the MCO and will proceed as usual via online. 
  1. Filing new cases
Filing of new civil cases can be carried out through the Court’s e-filing system. However, where e-filing is unavailable, new cases can only be filed after 14 April 2020. If the latter is problematic by reason that the statutory limitation period expires during the period when the MCO is in force, a practical solution could be to e-file the case at the nearest court where e-filing system is available.
  1. Online hearings for civil cases
To ensure access to justice during the extension of the MCO’s enforcement, the Federal Court Chief Registrar's Office (PKPMP) Corporate Communication Unit recently issued a statement that parties in civil cases may apply to court for online hearings.
According to the statement, these online hearings can be done via the e-Review system, exchange of e-mails or video conferencing provided that consent of parties and leave of court (which is at the court’s discretion) is obtained. 
The proceedings that can be disposed online are those at the High Court and subordinate courts in Peninsular Malaysia where all applications, whether ex-parte or inter-partes, must be supported by a certificate of urgency.
For the High Court and subordinate courts in Sabah and Sarawak, all proceedings including mentions, applications, hearings, appeal hearings, mediation, case management, clarifications and decisions on dates which have been fixed earlier are to be done via e-Review or video conferencing.
The application for online hearings must be made to court via e-mail at least three days prior to the scheduled date of hearing or as directed by the court.
  1. Filing of documents
All court directions in respect of filing of cause papers and documents, including notices of appeal, are not affected by the MCO and documents can be filed as usual through the Court’s e-filing system.
However, for courts where e-filing is unavailable, filing of documents can only be done after 14 April 2020.
If a deadline prescribed for filing a document falls within the period when the MCO is in force and it is not possible to comply with the same (for example, due to the unavailability of the Commissioner for Oaths for affirming an affidavit), a party can seek an extension of time from the counter-party, or e-file a request for extension by the court if the counter-party refuses to grant the extension. 
For Sessions Court’s cases which require urgent filing, e-filing can be done at the nearest court with e-filling system. Certificates of urgency can be filed by parties.
  1. Leave to appeal applications
In light of the extension of the MCO to 14 April 2020, all hearings for leave to appeal applications to the Federal Court from 1 April 2020 to 14 April 2020 will be adjourned.
A circular issued by the Federal Court on 25 March 2020 stating that that all applications for leave to appeal scheduled to be heard from 15 April 2020 to 30 April 2020 are to be decided based only on written submissions has been revoked by a further circular dated 28 March 2020. As such, all applications for leave to appeal in the Federal Court will be heard in the presence of parties as usual after the expiry of the MCO.
From the above, it can be seen that the administration of justice continues to the extent possible during the period when the MCO remains in force.  It will therefore be prudent for litigants to liaise with their lawyers to ascertain the extent to which their court proceedings have been affected by the MCO.
This Alert is prepared by Karen Tan Wee Sean (Associate) of Skrine.