Virtual Courts in Pakistan

Prospects and challenges

Zafrullah Saroya Advocate

As they say ‘in every crisis, lies an opportunity’, the spread of coronavirus as well as the lockdown to curb it has offered us an opportunity to revamp our system in various sectors. However, the most important institution that can be revamped and reoriented is the judiciary. Since the lockdown has brought to the fore the utility of information technology in managing office works from home, the justice system in Pakistan can also benefit from this revolutionary development. The court proceedings in Pakistan may also be conducted via teleconferences, Skype and video hearings.

 

Just after the outbreak of the coronavirus, many countries having e-readiness have taken immediate steps to conduct judicial proceedings online. We, too, need to upgrade our justice system and drag our courts into the digital age with intensive education and training in legal information technology. We have to move as quickly as possible from paper-based to digital processes to save time and cost whilst maintaining access in the new context that we are facing. Like many other countries, the advancement of AI, working remotely and communicating through digital platforms can also be a normal phenomenon in Pakistan.

Some Examples

Many countries are modernising their court procedures rapidly. Lord Justice Fulford (Investigatory Powers Commissioner, UK) opines: “In an era in which many people conduct a large part of their lives using some kind of an electronic device … the judiciary has got to enable how we conduct cases to match the expectations of the public.” Worldwide improvements in e-dispute resolution provide examples for improvements in our justice sector as well.

1. The United States

In the United States, some courts, such as the drug court of Daviess County, Kentucky, have experimented with drive-thru operations before shelter-in-place orders were implemented. Other courts have been experimenting for decades with other types of teleconferencing and video depositions in lieu of live witnesses. Virtual courts are now the primary venue for the majority of legal proceedings in both the United States. Harnessing technology and enhancing access to the judicial process have been two of the seven strategic issues of the U.S. federal judiciary for over a decade. Some believe virtual courts are the way of the future, as “more people in the world now have internet access than access to justice.”

2. The United Kingdom

Once the crisis hit the UK, the Judiciary of England and Wales issued New Court Practice Direction 51Y (Audio Hearings in Civil proceedings) and practice direction 51Z (Stay of possession proceedings and extension of time limits) for the duration of the COVID-19 period. Practice Direction 51Y, which (a) clarifies the manner in which the court may exercise its discretion to conduct hearings remotely in private; and (b) details what steps the Court may take make to ensure access by the public to remote hearings that have been held in private. It also issued Practice Direction 51Z, which makes provision to stay proceedings for, and to enforce, possession, sets out that all proceedings for possession brought under CPR Part 55 and all proceedings seeking to enforce an order for possession by a warrant or writ of possession are stayed for a period of 90 days from March 27, 2020. Claims for injunctive relief are not subject to this stay. Where face-to-face hearings are essential, HM Courts and Tribunals Service has taken steps to consolidate the work of courts and tribunals into a small number of ‘priority’ buildings. Where face-to-face hearings are essential, HM Courts and Tribunals have taken steps to consolidate the work of Courts and tribunals into a small number of ‘priority’ buildings. A daily update of which court buildings are open is available online.

In a similar vein, the Court of Appeal has published a document which sets out how it the Court of Appeal is currently operating – including prioritising only urgent applications in the Civil Appeals Office. In the United Kingdom, a considerable amount of work has gone into putting in place the infrastructure necessary to facilitate remote court hearings.

2. India

In India, on 6 May 2020, the Delhi High Court pronounced its first judgment through videoconferencing.  It disposed of a writ petition that arose out of the fact of violation of a compliance advisory of the Central Government to wear mask in Covid-19 situation. The petitioners filed the writ petition under article 226 of the Constitution of India for quashing the criminal proceedings against them under section 482 of the Code of Criminal Procedure. The Court dismissed the petition with directions that the judgment to be uploaded on the website of the Court within 24 hours and also to be forwarded to the counsels of the parties via email.

India started its Journey towards an e-judiciary in 2005 by a National Policy and Action Plan for Implementation of Information and Communication Technology in the Indian Judiciary prepared by the E-Committee of the Supreme Court of India. The Action Plan stated three phases to consider for implementation, i.e., Phase I – Initiation of ICT Implementation in the judicial system, Phase II – Coordination of ICT infrastructure for Judicial System and Phase III – ICT Coverage of Judicial process from filing to execution and all administrative activities. Indian e-courts project revealed encouraging information about the use of Free and Open Source Software (FOSS), which saved Rs. 340 crores to the Exchequer, excluding the enormous recurrent cost of the license fee and maintenance, simultaneously providing the freedom to customise and use the system software.

3. Bangladesh

Bangladesh has also started its journey of conducting judicial proceedings through virtual courts on 12 May 2020. The Supreme Court of Bangladesh issued practice directives for the Appellate Division, the High Court Division and the subordinate Courts for conducting judicial proceedings through video conferencing. In its first virtual hearing over a writ petition, the High Court Division has issued directives to stop the killing of dolphins in Halda River. The Judicial Magistracy throughout the country has enlarged a number of accused individuals on bail through virtual hearings.

4. Pakistan

On May 27, 2019, judges of the Supreme Court of Pakistan based in Islamabad heard cases of litigants from all over the country through videoconferencing. Although efficient videoconferencing technology has been widely available for more than 15 years now, this was the first time our Supreme Court made use of it.

The then-Chief Justice of Pakistan, Mr Justice Asif Saeed Khan Khosa, while hearing first case through the technology remarked that a big milestone has been achieved in the Judicial history of Pakistan that case are been heard through latest technology. The facility will benefit lawyers and litigants to save them time and money.

Provincial high courts like the Peshawar High Court and the Lahore High Court have installed the facility of video link in distant districts to dispense inexpensive justice by facilitating lawyers from faraway districts to argue cases online and save precious resources and energy of counsels and litigants. They are being instrumental in times of COVID-19, especially when inter-district travelling is banned and lawyers from adjacent areas are unable to appear before the court physically.

More recently, in April 2020, the Lahore High Court allowed lawyers to send their written arguments to the courts. Today, in specified matters, the lawyers can send the brief of their cases/written arguments along with the relevant material to the court through mail or email at the principal and all regional seats.

Challenges

As easy and practical as it may sound, setting up virtual courts has its own challenges and “one size fits all” approach may not be suitable in this case. Not all countries are fortunate to have the required infrastructure for the easy use of videoconferencing technology, and therefore, will not be able to take advantage of the same until and unless such technology is seamlessly embedded in its physical infrastructure. For example, apart from issuing practice directions, the relevant stakeholders will need to check whether such videoconferencing technologies are available to the relevant litigants at the said ‘remote points’.

Also, special care needs to be given to confidentiality. There will always be a high chance that confidential information disclosed during virtual proceedings may be recorded by any of the litigants in their personal devices and used in other situations to the advantage of an unscrupulous litigant and/or made viral on the internet to the disadvantage of the innocent litigant.

Another potential difficulty may arise out of the absence of any special agreement with the software provider which will supply the videoconferencing technology. The question that needs to be asked is whether the courts should use a software application without having any special agreement or engagement with the software provider. Are the general terms and conditions of a software provider sufficient enough to protect the sanctity of the proceedings which may involve fundamental rights of the individual litigants concerned? Most of the small print ‘terms and conditions’ of the software providers give extensive authority to these providers to deal with data in such manner as they deem fit. In fact, the terms may be changed unilaterally, at any time, which would be binding on the users. For example, Zoom’s privacy policy clearly states, inter alia, that ‘We may transfer your data to the US, or to third parties acting on our behalf, for the purposes of processing or storage.’ This may not be appropriate for conducting cases where the litigants may not feel comfortable or wish that their data be stored by third parties and used at their own will—especially in this day and age where technology and information are closely interlinked.

The temporary measures advised by the SC in the wake of Covid-19 are appreciable. However, to introduce long-term reforms, the National Judicial (Policy Making) Committee – a body of all chief justices charged with bringing judicial reforms in the country – should establish an advisory board of leading experts in legal information technology and IT. This board should keep our justice system under constant review and advise on how it should be improved, particularly regarding online dispute resolution in civil and criminal cases. To facilitate buy-in from Pakistan’s legal fraternity, Section 3 of the National Judicial (Policy Making) Committee Ordinance, 2002 should also be amended to provide representation to national and provincial bar councils.

A pilot internet-based court service (‘Online Court’) should also be established to encourage digital justice. The lessons from this pilot project could be applied in other courts and tribunals such as civil courts, family courts and tax tribunals. The impact of such projects should, of course, be assessed, periodically, to upgrade our online processes and procedures. For example, the private data of citizens collected through online systems must be strongly protected.

Conclusion

The concept of work from home is being successfully implemented in all sectors of work; the lawyers and their staff must also benefit from this trend. When e-classes, online work, telephonic advisories, Skype meetings, Zoom conferences and policymaking meetings through electronic means are becoming the norm of the day, our justice system must also not fall short.

In a nutshell, justice-sector reforms should provide increased access to e-justice, enabling citizens to get their disputes resolved more conveniently and quickly. Litigants should engage with online proceedings that ensure, first and foremost, procedural fairness. To do this, online procedures must integrate the role of judges and lawyers in a meaningful way. This will strengthen our justice sector and enhance the capacity of our country to meet the global crisis, including, in the first instance, the crisis growing out of our encounter with the Covid-19 virus.