KUALA LUMPUR — To ensure continued access to justice during the extended Movement Control Order (MCO), criminal proceedings should be continued with restricted access, says legal fraternity.
Prominent lawyer Datuk N. Sivananthan said the authorities should allow criminal courts to operate by allowing only allowing relevant parties such as the judge, prosecutor, lawyer and the accused person to be present.
“Criminal courts should be allowed to function not only for matters involving remand, fresh charges, bail and revision applications, but also for matters involving appeals and miscellaneous applications because there is no need for anyone apart from the prosecutor, lawyer and the accused person to be present. No witness need be present.
“For habeas corpus applications involving individuals detained without trial, the presence of the accused is dispensed with so even fewer people are involved. Case management before the registrar and the judge can be done online to further reduce the number of people in court,” he added.
For example, he said, many people were arrested on suspicion of drug use and and most could not pay bail, and their cases were being postponed for long periods as they cannot even plead guilty because the chemist reports cannot be provided.
“So, longer dates are set by the court, and they are then held on remand, adding to the congestion in prisons. I see no reason why, with proper planning, the criminal courts cannot be reopened and I am certain the judiciary is more than able to come up with the necessary protocols consistent with the guidelines set by the Health Ministry,” he said.
The lawyer is of the view that the extension of the MCO had caused tremendous injustice to accused persons (for non-bailable offences) and detained persons under preventive laws.
“Individuals in both categories cannot be released until the proceedings are completed in court and by not allowing the criminal court to operate means all these people have no remedy available to them.
“For those on bail, however, there is no real prejudice since they are basically in the same position as everyone else. Therefore, the authorities should allow the courts to operate but restrict access only to those involved in the proceedings and not others,” he said.
Sharing the same sentiment, lawyer Nor Zabetha Muhammad Nor said the authorities may consider alternative ways such as to create a venue in prison to function as a court by allowing the Deputy Public Prosecutor, Magistrate and lawyer to attend the proceedings.
She said it would at least avoid the number of detainees from different prisons or lock ups from being brought to court which may pose a risk of COVID-19 infection.
“At the same time, this may reduce congestion in prisons and for the accused person who wants to plead guilty to the charge, it could help them to expedite matters, instead of waiting for new hearing dates after the MCO is lifted, something which is still uncertain.
They can pay the fines or go to jail based on court decisions that may be shorter than the period they are detained throughout the MCO,” Nor Zabetha said.
Most criminal cases including high profile trials have been postponed such as the 1Malaysia Development Berhad (1MDB) trial of former prime minister Datuk Seri Najib Tun Razak and his wife Datin Seri Rosmah Mansor as well as the trial of former deputy prime minister Datuk Seri Dr Ahmad Zahid Hamidi who is facing corruption charges.
Meanwhile, for case management proceedings such as in forfeiture cases involving the Kedah UMNO liaison committee and Habib Jewels Sdn Bhd which were fixed for case management were also vacated following the extension of the MCO.
Last Friday, the judiciary in a statement said during the extended MCO period, parties in civil cases can apply for online trials at the Federal Court and Court of Appeal and the High Court of Malaya, there are additional proceeding lists involving civil cases which can be heard online beginning May 4.
According to a statement, these proceedings are interlocutory appeal hearings, uncontested interlocutory applications, contested interlocutory applications which are brief, and appeals to judges in chambers on the decisions of the deputy registrar or senior assistant registrar.