A day before the scheduled live hearing, lawyers T Gunaseelan and Syed Iskandar Syed Jaafar Al-Mahdzar voiced their concerns that live streaming the proceedings may be invalid.
The article will explore some of the possible issues with live streamed hearings vis-a-vis the Courts of Judicature Act (“CJA“) 1964.
The sittings of the court
Section 39(1) of the CJA 1964 states:
“The Court shall sit on such dates and at such places as the President [of the Court of Appeal] may from time to time appoint;
Provided that the President [of the Court of Appeal] may, when he deems it expedient, direct that any appeal be heard at any time and in any place in Malaysia.” (emphasis mine)
A similar provision exists for sittings of the Federal Court, though the power vests with the Chief Justice rather than the President of the Court of Appeal.
An extensive/wide interpretation of Sections 39(1) and 75(1) of the CJA 1964 could include the live streamed hearing of matters.
One could argue that, for live streamed hearings, “such places” would refer to the respective locations of the judges hearing the said matter (“Judges’ Location Interpretation“). This would appear to allow for judges to hear matters from their respective homes, especially during the Movement Control Order period.
Alternatively, it could even be argued that the phrase “such places” is wide enough to include cyberspace (“Cyberspace Interpretation”) wherein the live streamed hearings are held/hosted. Admittedly, this proposed interpretation is highly novel.
Section 15(1) of the CJA 1964 codified the concept of open justice:
“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.” (emphasis mine)
The Federal Court in Dato’ Sri Mohd Najib bin Hj Abd Razak v Public Prosecutor  4 MLJ 281 emphasised that:
“The overarching theme here is that as far as is possible, court proceedings should be open and accessible to the public in the interests of transparency.
Open justice is fundamental to a functioning democracy and promotes good governance.”
In the event judges hearing a live streamed matter are doing so from their respective homes, this would appear to run afoul of Section 15(1) of the CJA 1964 as the judges’ homes cannot be “deemed to be an open and public court to which the public generally may have access.”
It remains to be seen what effect this apparent violation would have on the three (3) live streamed appeals heard on 23rd April 2020.
Moving forward, one way to circumvent this apparent conflict would be for judges to be in a physical courtroom while hearing a live streamed matter. The physical courtroom would be “deemed to be an open and public court to which the public generally may have access.” Television screens featuring the live streamed hearing can then be placed in and/or outside the courtroom to enable the public to observe the proceedings.
Meanwhile, although it would satisfy the access to the public aspect of Section 15(1) of the CJA 1964, the Cyberspace Interpretation would fall short of the “open and public court” aspect of the same.
The taking of additional evidence
Sections 61(3) and 93(3) of the CJA 1964 provides:
“The parties to the appeal shall be present when additional evidence is taken.”
Since the CJA 1964 is silent on the definition of “present,” the virtual presence of parties when additional evidence is taken may suffice.
The issue of the compatibility of live streamed hearings in relation to the CJA 1964 remains a live issue. It would be ideal for the CJA 1964 to be amended in order to properly accommodate live streamed hearings, lest the validity of decisions of the courts be challenged on technical grounds.
 V Anbalagan, “Live-streaming of court proceedings may be invalid, warn lawyers.” FreeMalaysiaToday.com. Free Malaysia Today. Accessed April 24, 2020. https://www.freemalaysiatoday.com/category/nation/2020/04/22/live-streaming-of-court-proceedings-may-be-invalid-warn-lawyers/
 Section 75(1) of the CJA 1964: “The Court shall sit on such dates and at such places as the Chief Justice may from time to time appoint;
Provided that the Chief Justice may, when he deems it expedient, direct that any appeal be heard at any time and in any place in Malaysia.”
 As some have explored, albeit not in a legal context. See e.g. Paul C Adams, “Cyberspace and Virtual Places.” Geographical Review Vol. 87, No. 2, Cyberspace and Geographical Space (Apr., 1997), pp. 155-171; see also Slavomír Gálik and Sabína Gáliková Tolnaiová, “Cyberspace as a New Existential Dimension of Man.” IntechOpen, DOI: 10.5772/intechopen.88156.
 Dato’ Sri Mohd Najib bin Hj Abd Razak v Public Prosecutor  4 MLJ 281, at paragraphs 30-31
 Civil Appeals No. J-04(NCvC)(W)-552-10/2019, J-04(NCvC)(W)-554-10/2019, and J-04(NCvC)(W)-555-10/2019