The Bar Council calls on the Chief Justice of the Federal Court of Malaysia (“Chief Justice”), YAA Tan Sri Tengku Maimun binti Tuan Mat, to revisit the directive of maintaining e-filing and e-review during the period when the Movement Control Order (“MCO”) is in effect, as well as the suggested practice of wanting to hear leave applications to appeal by way of written submissions without the presence of lawyers.
The Bar Council has written to the Chief Justice to make its views known and calls for a moratorium on e-filing and e-review, save for matters filed under the Certificate of Urgency.
The Bar Council urges the Judiciary to take into account the extraordinary problems faced by lawyers, who do not have access to their physical offices in order to retrieve their files and necessary documents for the purpose of filings, or to prepare for urgent hearings.
Compliance with the directive of the Judiciary only means that the lawyers or their staff are being encouraged to breach the MCO, which is neither desirable nor safe in terms of health and law.
On the matter of wanting to hear leave applications to appeal by way of written submissions, the Judiciary needs to appreciate that there are some firms that do not have the luxury of having access to online research materials from their homes, for the purpose of preparing their submissions.
Lawyers must be permitted to make oral submissions and clarifications, as the leave application would deal with points of law that might bear great importance to the outcome of certain decisions.
Latitude of justice cannot be shortened by an administrative order. Section 35 of the Legal Profession Act 1976 states that any advocate and solicitor shall, subject to this Act, have the exclusive rights to appear and plead in all Courts of justice in Malaysia.
The Bar Council is of the view that the Chief Justice’s directive on leave applications by way of written submissions may have the effect of contravening some provisions of law, subject to interpretation, and that this could lead to legal challenges in future. It is to be reminded that leave questions give the Federal Court a golden opportunity to view the throbbing heart of law.
During these testing times, everyone must come together and understand the problems of each other, and work on the best solutions that fit the need and purpose of all stakeholders.
The legal impediments and other problems surrounding several of the directives issued, require the Judiciary to engage the Bar Council and all relevant parties, in order that reasonable and fair solutions be put in place.
The principle of overriding importance in the administration of justice is that all the necessary precepts of rule of law must be adhered to, which includes fair trial and natural justice.
A revocation of the recent directive in respect of leave applications to appeal to be conducted by way of written submissions without the presence of lawyers by the Chief Justice, would have the effect of maintaining purity of the stream of justice during this time, when the nation is grappling with a war against an invisible enemy.
27 March 2020