COVID-19 and Conventional Courts in Bangladesh

Md. Harun-Or-Rashid

30 May, 2020 12:00 AM printer

A well-functioning justice delivery system is essential for ensuring access to justice. According to Richard Susskind, the IT advisor of Lord Chief Justice of UK, there are three options for delivering of justice: 1) the traditional courtrooms, where whole court proceedings are held on in a specified public place, 2) the virtual hearings, where some of the hearings are held on through using the video- conference, and 3) the online courts, where evidence and arguments submitted to the court electronically rather than in oral hearings. However, in a broad sense, justice is delivered either through traditional court/conventional justice delivery mechanism or e-court/electronic justice delivery system.

However, our justice delivery system has suddenly come to a standstill during the pandemic of Coronavirus. People's right to access justice has clogged. It looks as if we and the existing justice delivery mechanism have a little to do with the situation. Do we really have anything more to do? Or, can't we do anything after we have the will and in terms of reality? Or, does the long-running conventional justice system plays a obstructive role in terms of dealing with the enduring situation due to its paucity of Digital Justice Delivery Act, logistics of e-courts/ virtual courts, secured and effective software, skilled manpower to manage it?

To answer the given questions, let us firstly try to understand why our judiciary is termed as conventional judiciary. By and large, traditional/conventional court proceedings indicate the paper-based filing process where face to face communications with and between the parties and physical oral hearings in a tribunal courtroom is held on and finally a written decision was published in an open court room. In this mechanism all the parties need to be presented physically in the same open courtroom, gives the court a good opportunity to hear and assess the applicant’s oral evidence, to consider documentary evidence, and to maintain an informed dialogue with the parties as to how the case should be decided. On the other hand, in an e-justice delivery system technology is used to create services more automated, integrated and smart through enhancing quality and ease of access to justice without personal appearance of the court-connected concern before the court.

Due to the traditional justice delivery mechanism and following the ongoing Coronavirus pandemic, our judiciary is sensibly closed. Considering this grave situation and the peril on lives of all the court-connected persons, the Hon'ble Chief Justice of Bangladesh has rightly stopped the proceedings of the traditional court through ruling out the possibility of a ‘limited court’. Nonetheless, on April 23, 2020 a new circular was issued from the Supreme Court of Bangladesh regarding to initiate court proceedings considering two courts in both the divisions as vacation courts to hear only the emergency matters, and similarly an order was given to the learned District Judge, Metropolitan Sessions Judge, CMM and CJM to conduct the court proceedings only for two days in a week to hear the bail petition upon following the strict social distancing and Coronavirus safety regulations. Although it was a good decision in terms of ensuring access to justice, even so, after two days it was stopped upon consideration how the mentioned courts and connected justice seekers would be able to maintain social distancing during Coronavirus pandemic due to its very nature of conventional justice delivery mechanism. So, in other word, it can be said that our judiciary is now more or less inevitably bound to stop its functioning due to its nature of conventional justice delivery system.

Inversely, to deal with the situation, courts around the world including our neighbour country are using smart technology to handle cases through virtual courts. As for example, in February, 2020 as a first country in the world, the Supreme People's Court of China (the country's top court), after considering the outbreak of Coronavirus, ordered courts at all level to adopt e-justice delivery system for dispensation of justice. On March 30, 2020 the UK Supreme Court has issued a notice about their arrangements for online hearings through using video-conference during the pandemic. In order to address the health and safety concerns, the United States of America has temporarily approved the use of video and teleconferencing for certain criminal proceedings and access via teleconferencing for civil proceedings during the COVID-19 national emergency as per the Coronavirus Aid, Relief, and Economic Security Act (CARES Act).

In view of the COVID-19 situation, the Supreme Court of Singapore is allowing video conferencing and telephone conferencing for hearing the cases and enacted a guideline on March 27, 2020 in this regard. Similarly, a specific guideline has been enacted by the Swiss Government for using of video-conferencing for hearing of their civil disputes. The Federal Court of Australia on April 02, 2020 issued a guideline to assist the legal professionals and litigants appearing in virtual hearings in the Federal Court through using Microsoft Team and remote access technology. Even so, on April 16, 2020 in the case of Capic v Ford Motor Company of Australia Limited, [2020] FCA 486, (File number: NSD 724 of 2016) Honourable Judge

Mr. Nye PERRAM has rejected an application filed by the respondent for adjournment of trial on the ground of adverse impact of virtual trial, where virtual trial proposed in circumstances of COVID-19 pandemic. Similarly, the Supreme Court of Japan also using Microsoft Teams in court proceedings to enable users to contribute more effectively in the justice delivery system. On April 20, 2020 the British Columbian Supreme Court creates COVID-19 telephone conference hearings for non-urgent matters. More so, some states’ courts in our neighbouring country of India have already gone paperless including the Delhi High Court in order to speed up the disposal of cases, and to digitise the whole judiciary with the help of the Technologies. They are using video-conferencing procedure for resolution of disputes during coronavirus pandemic. In fact, this leaves Bangladesh a peer pressure to adopt the same e- justice delivery mechanism in the Judiciary of Bangladesh.

However, it is matter of great concern that if the lockdown continues for a long term, the functioning of the conventional courts will be completely shattered, the profession of the lawyers and the court connected concern shall be hampered, and ultimately the people will be deprived of their right to justice. So, anyone may raise a question like, is there any immediate solution to get rid of this unwanted situation? The answer is a big no, because it is not possible to design and implement a system within a day or a month or two. What is more, it is virtually impossible to digitalise the entire justice delivery mechanism overnight, especially in Bangladesh, where at present a good number of courtrooms lack the coverage of large scale internet bandwidth, sufficient infrastructure, video conferencing system, e-cause list, e-evidence appreciation mechanism, online filling and submission system, modern database for judges, lawyers, court supporting staffs and the accused prisoners. More so, our system lacks dedicated identification mechanism like Face Detection Software with dedicated email addresses and mobile numbers for the Judges, lawyers, prosecuting teams, court supporting staffs and the law-enforcing agencies. Furthermore, there are also concerns of training for the stakeholders, vulnerability of the litigants, data privacy, management of e-service delivery professionals, and effective participation of all the stakeholders in e-justice delivery system. In addition, to ensure the equal access to justice of both the parties from remote point and its security/privacy is a great concerning issue. Although each of the issues are vital in terms instituting virtual court, nonetheless data privacy is the most concerning issue regarding delivery of service, because there is a possible risk of disclosing confidential and vulnerable information while recording the hearing of the case/suit on the party’s personal device, which either of them may use to fulfil their unfair means. Moreover, weak or lack of special agreement with video conferencing technology provider may lead to other problems like storing confidential information or using it for their own purpose etc. This problem may create extra concern in the ongoing context of Bangladesh, especially in the present era of technology when there is no data protection framework that can hold individuals accountable for privacy breaches.

 In spite of everything, it is a matter of hope that the Law and Justice Division of the Ministry of Law, Justice and Parliamentary Affairs of the present government of Bangladesh, as part of its vision of 2021, a few months back has undertaken an e-judiciary project to introduce digital justice delivery system in the judiciary. It also has a vision to create an e-administration and e-courts through enhancing the knowledge and efficiency of the judges, lawyers and other concern officials. The main activities of the e-judiciary project include developing system design for judicial service, developing system management, recording testimonies and digital evidences through video conferencing, establishing VPN in all offices connected with judiciary, upgrading data-centre of Law and Justice Division through establishing a network operation centre. A total of 1,400 courtrooms across the country will be turned into e-courtrooms. There shall be established 63 Micro Data Centres in 63 districts, except Dhaka, and the Law and Justice Division and the Supreme Court of Bangladesh shall be interconnected in this regard. Moreover, record rooms of the courts will be automated, case records and judgments shall be preserved through digital method, biometric attendance system will be established and a proposal will be made to formulate new acts and amend the existing ones to establish e-court room under the project. Of course, it is a highly praiseworthy initiative taken by the Law and Justice Division, and if it is implemented in full-fashion then the justice seekers including all the court connected concern shall get their justice in a convenient and efficient way. Nevertheless, these all are the policy proposal of the Executive Committee of National Economic Council of the Government of Bangladesh, so still a huge work has to be done and a long way have to go to make it as a functional one. So, for getting the fruit of digitisation, all the policies should be implemented effectively and efficiently without doing any further delay. In addition, very recently the Supreme Court of Bangladesh has formed a Supreme Court Special Committee for Judicial Reforms with a view to applying video/audio conferencing to tackle the Coronavirus pandemic situation in terms of resolution of disputes.

Practically, it is neither possible nor desirable to transform the whole justice delivery method instantaneously to an e-justice delivery system. Additionally, there is no system or mechanism in the world, which is perfect and just. Although it is more or less agreed by all that the e-justice delivery method can ensure more access to justice, nonetheless in furtherance of resolving the mentioned issues or drawbacks, some other issues need to be considered primarily before designing and implementing the e- justice delivery system for attaining maximum output from it such as effect of digitisation in access to justice (physical separation of the legal counsels, expert witnesses and lay witnesses in particular of cross- examination), trial length and expense; aided digital procedures and its effectiveness in access to justice; data collection, data selection and data authentication/validation in e-justice delivery system; equal accessing of data; ways of efficient management of e-justice delivery services and its supporting staffs; and one and the same engagement all the lawyers in e-justice delivery system. In addition, there are also issues of effective training to all the court-connected concern, especially judges and the lawyers, variation of technical knowledge, and the innate weakness of some of the justice seekers in terms of using technology that might affect the outcome of e-justice delivery system in comparison to traditional justice delivery method. So, system design and its implementation is a big challenge, because it cannot be change in every alternate year. According to the ‘Technology and the Court Practice Note (GPN-TECH)’ promulgated by the Honourable Chief Justice of the Federal Court of Australia, “The Court views technology as an important tool to assist in achieving the Court's key objective of quick, inexpensive and efficient resolution of proceedings. However, the Court acknowledges that the use of technology, if inappropriately applied or not properly managed, can itself have the potential to be expensive and to reduce, rather than increase, efficiency.”

As our Constitution Article 35(3) specifically declares about the public trial system that is, our justice delivery system shall be open trial system, so our constitution does not suggest any virtual or e-justice delivery mechanism due to its inherent lack of public trail characteristics. But, as one of the important organ of the State, like other countries of the world, the Judiciary of Bangladesh should think emphatically about the e-justice delivery mechanism during Coronavirus pandemic due to its commitment to the litigants and as the guardian of the constitution of the People’s Republic of Bangladesh. Moreover, due to maintain its zenith self-esteem and necessity during national crisis, it cannot go standstill for long days. As currently the Bangladesh National Parliament is not in session, so as per the mandate given in Article 104, 107 and Article 35 (6) of the Constitution of the Peoples’ Republic of Bangladesh, and Bangladesh Supreme Court (High Court Division) Rules 1973 may create a new hope. In this regard, a ‘Digital Justice Delivery Act’ with incorporation of necessary provisions of digital security and evidence appreciation system, and a guiding principles for all the court-connected concern need be legislated for effective and efficient service delivery. As Singapore Judiciary has unswervingly been graded by world-renowned independent reviews as a leading justice delivery system, even in April 1999, the World Bank recommended it’s Subordinate Courts as a model for both developing and developed countries to study, so the Judiciary of Bangladesh can exchange knowledge with a view to transform its justice delivery system (at the very least one court in each District with a view to handle the emergency situation) to e-justice delivery. Likewise, the applicable knowledge in relation to virtual courts from our neighbouring country (India) may be significantly helpful in this regard.

Taken together, it is a matter of apprehension that whenever the COVID-19 pandemic will be ended, our judiciary will experience an exponential enhancement of cases over the already existed 3,684,728 cases pending for disposal in the higher and subordinate judiciary across the country (as of December, 2019). So, there should be a general consensus between Supreme Court of Bangladesh and the Law and Justice Division of Government of Bangladesh that the use of video conferencing would not be forgotten once normalcy returns. Moreover, we may

consider the other mechanisms of dispute resolution such as e-Mediation, e-Arbitration, e-Med-Arb, and Online Dispute Resolution, like eBay in USA (by 2010 eBay, as a single entity, claimed to have handled over sixty million disputes in a single year), because only litigation mechanism cannot give solution for all. However, it is believed that the use of technology will not only reduce the need of personal appearance before the courts, but will help to mitigate the overcrowdings in the courts and mounting arrears of cases. Moreover, it will help to uplift the dignity of the judiciary and at the very least help to prevent financial crunch through earning court revenue during pandemic of Coronavirus. So, we can take the help of technology to get rid of this Coronavirus pandemic and for ensuring access to justice.

 

The writer is an Additional District and Sessions Judge, 1st Court of Settlement, Dhaka

 


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