by Wan Zafran Pawancheek
Published April 23, 2020
The Malaysian Judiciary today held its first live-streamed Court of Appeal hearing.
Counsel for parties and the judges (and their registrar) appeared on video. The matter was fully heard, and a decision was delivered immediately after.
It was a great effort. I will refrain from comments on the performance of the judges and counsel, and will focus instead on the online proceedings and how it could be carried out better in the future.
Disable live chats. I am of the view that the Court should disable live chats.
In physical court proceedings, people do speak with each other in the public gallery. But they have private conversations, not public ones.
In comparison, YouTube’s live chats are public, extremely casual, and often contain questionable, mocking, or lowbrow content. (For instance, see the recorded text of today’s chat stream, before it was disabled.)
The issue does not concern subjudice - as the judiciary is unlikely to be affected by YouTube comments - the issue concerns propriety. People who have thoughts are free to discuss them on social media or elsewhere, but they should not do it in/during the forum itself, much like in physical proceedings.
While today’s live comments of the formal proceedings were harmless, future chats could invite disparagement against the bench. The judiciary should guard against this.
Judges should not pass comments. During the live session, a participant by the name of ‘Kamaludin MdSaid’ made a comment - “very practical”.
For all intents and purposes, a member of the public and particularly legal practitioners would immediately infer this participant to be another serving judge on the bench.
This is another reason why live chats should be disabled, as judicial officers could be impersonated or be seen as descending to the public gallery, which they should not do (especially in matters not involving them personally) in line with the spirit of the Judges’ Code of Ethics 2009.
Seating positions/labels. In physical proceedings, the bench seating matters.
The presiding judge, who is the most senior judge, appears front and center. The second-most senior appears on on his/her right, and the third-most senior appears on his/her left.
This seating position matters especially in Federal Court proceedings, where the presiding judge will be addressed differently from the flanking judges.
In today’s hearing, one judge appeared first, and spoke. The other judges did not appear (or log in) until much later - it was not even clear that they had already logged in, until the grid visual arrangement was used to show all participants together.
I was there, like many other lawyers, watching the stream from the beginning. And throughout it remained unclear to me who was the presiding judge. An observer who enters midstream would face similar difficulties. While seating positions are harder to replicate virtually, the registrar should find ways to label positions, so that counsel in future hearings may identify and address judges better.
Order of appearance. The registrar should ensure that all judges appear on screen and comprise a full panel before the case is announced. Judges should not appear sequentially, or after parties introduce themselves.
Court attire. Proceedings in the Court of Appeal take place in open court, and under the relevant Rules, judgments must also be issued in open court.
As it were however, and though the judges were dressed for open court today, counsel were instead dressed for chambers. I am of the view that counsel must appear robed for online proceedings of open-court nature, whether at home or at the office, as:
counsel must match the formality of judicial attire - if the court dresses down, so can we - but if they dress up, so must we; and
we dress for the dignity of the event, not by our location.
Documents. Things quickly turned confusing when counsel began referring to documents. I learned that lay observers (and even lawyers) cannot glean much from document-heavy proceedings where the documents are not obvious.
The attending registrar should be trained to play a much larger role in online proceedings, to ensure that the documents or authorities being cited are set on screen. This should not be an issue, since those documents have already been filed, and it is not difficult to do (and from my observation, the court is using a particular streaming software that will allow it).
Alternatively, counsel could also place documents on their own screen when they are submitting, and reveal themselves after they have exhausted the document. Judges then need not waste time flicking through the pages of their tablets, more so when they are without their orderlies (court assistants) to help them navigate through the court bundles.
Quality. Today’s video session went smoothly - but the Court should look into the following for future livestreams: how to improve/maintain the low latency of the stream sessions, the court’s/parties’ voice capture quality and microphone levels, the strength of the Internet connection between parties, and on what the court/parties will do if the connection drops.
These are funny points, and should be set out so that it does not happen again:
A cat (or a baby, but it sounded like a cat) mewed during the proceedings. Everyone (presumably) loves cats, and our fellow fluffballs may have claim to lord themselves over us, their human subjects. But both judiciary and counsel should isolate themselves from where their pets are, much like in physical court proceedings.
As commenters pointed out, Justice Azizah was seated in a gamer’s chair, and wearing what seemed to be a gamer’s head-mic. No further comments.
In any event, none of the above detracts from the success of today’s pioneering court session. I further note:
Live-streamed sessions are usually archived; even if not, they can be recorded by any savvy computer user. This offers much in terms of educational value.
Live-streamed sessions are a boon for Malaysian judicial/legal transparency. Like Parliament recordings, the public will be able to see and evaluate both smart/hardworking judges and inefficient/incompetent/intemperate judges (the ones who shout, mock and snide) for who/what they are. Counsel too will also have to be ever more prepared for court performances, and be ready to be chastised if they engage in uncouth behaviour, badgering, impatience, unfair play and the like.
All this will hopefully better both the Bench and the Bar.