Virtual courts: Intuitive extension to the notion ‘Access to Justice’
Taisir Hoque :
The COVID-19 pandemic and the anxiety it stirred resulted in so many unexpected and undesirable events. The havoc it caused almost incapacitated the judicial arm of the state from functioning and delivering justice, which not only threatened the wellbeing of a small section of the public but also a larger community making each of us susceptible to unavoidable evils such as – domination, violation of fundamental rights enshrined in our constitution, illegal eviction, lay- offs, discriminatory and preferential treatments, arbitrary actions taken by the authority and domestic violence. The effect of this infectious virus outbreak both socially and economically is apparent, and will continue to effect each one of us in the years to come.
It is in this extraordinary and unexpected phase that courts are expected to play a pivotal role as a significant balancer and leveler in the society by dispensing justice. Most importantly, by providing a critical check and balance against the functions of the executive and the legislature- which is to manifest during this crisis. The role of the courts as a significant balancer and overseers of many of the measures implemented to contain this deadly virus, thus became pivotal.
The complete closure of our courts for the last two months or sohad not only limited people’s timely and due access to justice but also had, in effect, suspended the execution of fundamental rights, available otherwise. Substantially, limiting the lawyer’s most sacred duties, duties to ensure a better society and to promote justice. Total closure of the courts also presented an issue with the notion ‘access to justice’.
If accessibility is the essence of justice then the procedural glitches and the complexities that are deeply ingrained within both the criminal and civil justice system, with added issues of design and structures of our courts, time and money entailed in order to have access to the existing services if not only traumatized and discouraged but also constrained many potential litigants in their efforts to access to justice. More recently, a Council of Europe Parliamentary Assembly resolution also pointed out that access to justice “is a cornerstone of any democratic State based on the rule of law, and a prerequisite for citizens’ effective enjoyment of their human rights |and that] access to the justice system often entails high costs in terms of time and money”, emphasizing on states efforts to reform court processes in order to accelerate procedures and make them more affordable, in particular through the use of modern forms of information and communications technology (ICT)”.
Given the fact that the understanding of what the notion ‘access to justice’means has significantly expanded and new parameters and dimension to the notion have been added over time, until recently, the notion frequently has been advanced by judicial systems worldwide with reference to the growing use of technologies, and to justify such use, which, depending on the context, are intended to increase the amount of information or improve services available to litigants or court users or to lower the barriers (taken to mean the material and financial costs) to accessing existing services [See: CEPEJ (2016)13].
In addition, there is another crucial factor that needs to be considered here i.e. the emergence of Government as a platform, the idea which has its roots in the 21st century public policy making and the global shift towards digital solution in terms of policy making. Even though in our country the impact of the shift is gradual but surely arepiecemeal . The introduction of digitalized management systems such as ‘e-sheba’ and the process of digitalizing the overall land management system are not just some isolated events. The slogan ‘Digital Bangladesh’ is indeed an affirmation to the global shift and reflects the inclination and commitment towards digitalization and more online government edifices. Considering the ever changing notion of access to justice and with added dimensions to it and Government’s commitment towards more equipped and digitalized edifices, we, rather intuitively if not intentionally, were heading for virtual courts, virtual courthouses , and virtual trials.
The nationwide virtual court roll out , with the growing concern over full closure of our courts due to the pandemic, to proceed with continuing obligations andthereby ensuring access to justice, by adaptation of ‘fully virtual hearing’ through video link was indeed the reflection of pragmatism and deliberate wisdom of the legislature and our apex court. This paradigm shift or deviation from the conventional practice came about pursuant to the “Ordinance for Usage of Information and Communication Technology by Court, 2020” allowing courts to resume activities only through virtual court proceedings i.e. ‘fully virtual hearing’- where there will be no physical or conventional courtrooms and participants taking part through a live video link. And this indeed showingsome prospects for both the judiciary and the litigants in envisaging a justice system that may remain unhindered and most importantly operational at all times even under extraordinary circumstancesand be accessed.
At present, Nine separate benches of the Hon’ble High Court division are hearing urgent matters virtually and the Subordinate courts were directed to hear emergency bail matters using through video conferring using live video links. There has been mixed response since the nationwide rollout of virtual courts. The lawyers from the Apex court have accepted this development as a continuing process, however, there is asense of skepticism and unease looming on the lower judiciary. What has resulted this distrust on the development, which has been nothing short of extraordinary, is indeed a matter worth further consideration. Indeed , such developments and modernization occurred, for example in United Kingdom, through gradual phases such as consultation programs, proof of concept and pilot schemes and mostly as a part of large scale judicial reform. But empirical studies suggests that fully video enabled hearing were actually proved most efficient in sensitive matters such as bail hearings, exactly on which the virtual courts are now operating. Even though it is too early to make any speculation, since the operational virtual courts are in embryonic stage, there is reason to believe that this moments may mark the start of a paradigm shift toward increased use of virtual hearing, considering its reputation as being non- invasive, in post pandemic Bangladesh, retaining the gravitas of the courts alongside conventional court proceedings, subject to Judges discretion and supervision by the Apex courts.
If COVID-19 pandemic has shown us the way to operational courts, then virtual court roll out has exposed our frailties and weaknesses deeply imbedded within our legal system. The questions to consider now are whether we are willing to embrace such developments and modernization with optimism and with open mind eradicating innate conservatism in the process and also the question which seemed to be almost analogous to any area of activity that is- ‘ whether we want a better health outcomes and would rather see the results of surgery being achieved through non-invasive techniques’, a question often posed by Professor Richard Susskind when asked about the future of legal system.
Taisir Hoque : Advocate, District Court, Kishoreganj
