Virtual Court in Bangladesh: A few words
Rajib Kumar Deb :
With the spreading of Corona pandemic, an invisible spermatozoon to human movement, stemming the actual suspension of protection of law and access to justice, in the opinion of the Legal experts, lawyers and judges as well as for the urgency of justice disposal, entails the concept of the virtual court. A historic decision, first ever made in Bangladesh Judicial era, came from a full court meeting, for virtual hearing, has stepped a footprint of e-judiciary throughout the promulgation of the Ordinance, a quiet vague and very brief law, Adalot Kortrik Tothyo Projukti Byabohar Odhyadesh, 2020 followed by three separate “Practice Directions” along with one additional.
The virtual presence, an antithesis to secrecy to judicial proceeding, is not oblivious to the constitutional principle of public trial (Article 35) as well as, somewhat, incognizant to the procedural principle of “open court having public access” (Section 352 of CrPC) construing to mandatory requirement of taking evidence (Section 353 of CrPC) and pronouncing judgment (Section 366 of CrPC) in the open courts while Rule 4 of Order 18 and Rule 1 of Order 20 of the CPC require with the same. In an inquisitorial system of law like us, where the presence of litigants is conventionally thought to accrue to the possibility of fees recovery and the collection of necessary papers like Vokalotnama, bail bond, release order form causes mass gathering over the court compound, physical presence, in that given circumstances, will make the virtual presence more challengeable. E-formations of collecting necessary papers may contribute to pave the challenge.
The provision initiated in section 5 apparently appears to have imposed the power to issue “Practice Direction” upon all SC judges is oblivious to the contemplation in Chapter 3B rule 1-4 of Supreme Court of Bangladesh (High Court Division) Rules, 1973, as the later, empowers, even without calling full court meeting, the honorable Chief Justice to issue “Practice Direction”. This is likely to have wrinkled his exclusive administrative power over both Divisions including the subordinate court, with a consequence, the decision even on a trifling matter on virtual proceedings requires full court meeting. Hence there should be an immediate amendment to section 5.
The Ordinance, as extends the accessibility of the procedure outlined in CrPC and CPC requires the physical presence of the concerned in criminal matters like complaint filing, investigation, issuance of process, petition on surrender, CS/report hearing, cognizance taking as well as civil matters like pleadings filing, ADR, framing of issues, arguments or pleadings filing etc. E-swearing virtual affidavits, e-service of processes, digital signature or e-signature of the concerned in the digital space may rear up a hope for the successful virtual proceedings.
The expenditure for surrounding digital infrastructures like one laptop/desktop with webcam, one scanner, one printer, Wi-Fi, necessary for setting up virtual court needs the government help initiating strategic development programme by the relevant stakeholders like Ministry of Information and Communication Technology etc. Not all virtual courts like Chawki Adalot are having with the required infrastructures and therefore, will avail the advantages of the same until they are likely embedded with accordingly. Again improper infrastructural technologies causing causal interruption in the video connectivity or any like other difficulties will be impossible to conclude the virtual hearing smoothly. Therefore, its success would depend upon ensuring digital technological support making short-term, mid-term, and long-term action plan.
The central surveyor initiated in association with UNDP avails the access of the software like “My Court” and “My Order” facilitating e-filing and disposal by virtue of video conferencing like Zoom or Microsoft Teams etc. using the devices like smart phone or desktop. Unfortunately most legal counsels, having no access skill to device connectivity, do the odds like miss e-filing, several filing on the same matter, attachment of invisible documents abruptly obstruct the smooth success to virtual proceedings. To train them in holding virtual hearings and disposing of cases on digital platforms, initiative should come immediately.
The post payment of court fees facilitated by “Practice Direction” within 72 hours of regular court opening is obsolescent to the manual procedure of payment as arranged by the Court Fees Act along with the Supreme Court Circular. With the initiation of e-payment system, by virtue of, on line services like Credit Card, Bkash, Nagad will certainly make the payment system easy and smooth and ensure the actual virtual compliance. The “Urgent cases”, though left to the subjective satisfaction of the judge concerned, by virtue of the guidance accrued to the preamble of the Ordinance along with directions thereby made, may amplify the virtual idea to include the matters of “Shown Arrest”, “Remand”, “Bailment” within the virtual proceedings.
The virtual proceedings, as filing has yet not been inclusive, upsurge a logical question whether it will be right for the virtual court, to accept filing under NI Act. The reliance placed upon the scrutiny of law like section 141 of NI Act, section 10 of General Clauses Act and section 3, 4, 29 of Limitation Act along with three “Practice Direction” and additional “Practice Directions” dated 30.05.2020 and SC circular no. 1 dated 22.03.2020 hints at the interpretation that the time of thirty days, as fixed for limitation, shall exclude the general holydays and shall start when the court is open, and its filing, in consideration of time binding matter, may be inclusive of emergency matter. The CJM and CMM court of Dhaka, in its effect, has already made initiative but, needless to say, such an initiative, in absence of authoritative appreciation by the apex court, may give rise to a judicial chaos over the implementation of the virtual court. As such, the best fitted way is to make out, in its effect, a circular by the SC or necessary amendment by the legislative assembly, as the case may be.
The Ordinance along with “Practice Direction” is left to some loopholes in the legal framework of the “Virtual Proceedings”. “The person responsible shall be dealt with in accordance with law” not being crystal indication to punitive provision may exasperate the undertaking given as to the truth of the statements and the genuineness of any document. A chance of recording virtual proceedings or absence of any agreement with the software provider may cause the privacy concern. Abruptly Legal Aid job, as declared to be judicial work, being not inclusive of the virtual proceedings may accrue to mass gathering to the court compound.
To list a few words, we saw a timely and welcome move by the Supreme Court with a modest attempt to digitalize our judiciary in the context of crisis and critical circumstances. Now time is, to take the footprint, with a hope of successful e-judiciary, with the inclusion of all the general matters into the virtual court.
Rajib Kumar Deb: Senior Judicial Magistrate, Cox’sbazar
