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Virtual law and justice during a pandemic

The covid-19 pandemic could fast-track virtual courts and e-filing systems, in turn addressing Pakistan’s piling caseload.
by Arooj Khalid

A lmost a year ago, the Supreme Court issued a press release informing the public about the establishment of an e-court system. The system would run through videolink connectivity and allow lawyers to argue cases from the respective Supreme Court branch registries in Karachi, Lahore, Peshawar or Quetta while judges could hear and adjudicate cases from the Principal Seat in Islamabad. According to many, it was a step in the right direction.

And while at the time setting up an e-court might have seemed a nuisance, given other pressing matters facing the justice system in Pakistan, the coronavirus pandemic has, among other things, shed a glaring spotlight on the importance of such a system in place.

Pakistan has suffered on multiple levels due to the pandemic and has had to rethink, like much of the rest of the world, about existing systems and their efficacy. This has proved feasible for certain domains, albeit with awkward restructuring, such as mainstreaming working from home and remote education in areas it previously could not have been imagined.

The justice system of Pakistan, however, hasn’t caught up. The courts have been partially closed, with the continuation of essential hearings and procedures only.

In countries around the world, the judicial system has undergone changes after the spread of covid-19. Partial or holistic virtual courts and e-filing systems for judicial and legal matters have been functional in countries like the United Kingdom, South Korea, and the United States of America for years.

In other countries, the justice system has faced closure, postponement, or operation with minimal staff. The United Nations Development Fund (UNDP) has been monitoring the situation and provided guidelines for the court systems to operate with a people-centered approach while minimizing the risk of virus transmission. A report published by UNODC (United Nations Office of Drugs and Crime) and UNDP addresses the prolongation of dispute resolution as a consequence of covid-19 pandemic, encouraging countries to develop robust systems. Among the report’s recommendations are: determining criteria for prioritization of cases, facilitating remote access, legal rights education, cooperation between departments, and judicial oversight. In Pakistan, UNDP collaborated with the Peshawar High Court to establish 14 virtual courtrooms in order to ensure that justice is served to the deserving citizens involved in civil and criminal cases.

Due process

A virtual court allows litigants and lawyers to file cases, submit required documents and evidence, and receive court dates and other notifications through an electronic system. In a virtual court, the proceedings and court hearings may also be held through video conferencing software, as well as the presentation of witnesses, and evidence, etc.

As covid-19 infections increase day by day, lawyers, litigants, and judges continue to visit the courts regularly, often throwing caution to the wind and ignoring social distancing measures. These actions can cause a potential catastrophe in Pakistan, a country already wavering in the face of consequences owing to the rapid spread of the virus. There has been a rising demand for a virtual court system to be implemented in the country by stakeholders.

However, for Abdul Nasir Jasra, an advocate at Lahore High Court (LHC), such a system would only be efficient if it delivers results and speedy justice to the people since currently, the resolution of lawsuits can take anywhere from a few years to a few decades.

Pakistan’s justice system is already challenged by a huge backlog, an overload of lawsuits, and a low judge to case ratio. One way of circumnavigating this is by introducing virtual courtrooms and digital procedures in the justice system.

Even so, while the demand for a virtual system soars high, given the risks taken by stakeholders visiting the courts, there are many stumbling blocks to overcome before a smooth-running system can be implemented in the country.

A virtual arraignment in session at Criminal Court in New York.

Zafar Kalanauri, an Advocate of the Supreme Court of Pakistan tells MIT Technology Review Pakistan that the mere implementation of such a system will be futile unless the integral issues are dealt with. “People think that the use of a computer or an electronic system is going to have a magical effect. This is absolutely incorrect. It doesn’t have a brain of its own”. Kalanauri highlights that a similar system was proposed in March 2020 for the LHC and ‘completely failed’. The system was based on emailing scanned copies of bail applications, to the judges, who would then conduct the hearing through videolink, catering only to 10-20 cases out of the 700-800 cases filed everyday.

In April, the LHC IT department, under Justice Ali Baqar Najafi’s instructions, formed a ‘model court’, which maintains social distancing in the physical space, while allowing lawyers and witnesses to appear remotely. The courtroom has a large LCD screen for this purpose. The ‘model court’ allows written arguments and evidence to be shared via email. According to Kalanauri, both e-court systems failed due to a lack of rules, lack of software, training and linkage between stakeholders and the institutions. He says the administrative committee of the court declared the system a complete waste of time and millions of rupees were wasted due to ‘bad program design’.

The country’s justice system is already challenged by a huge backlog, an overload of lawsuits, and a low judge to case ratio. One way of circumnavigating this is by introducing virtual courtrooms and digital procedures in the justice system.

Burden of proof

Many advocates point out that no existing software can be implemented to run the current judicial system, instead there’s a need to come up with an entirely new software which caters to the needs of the judicial system in Pakistan.

Zafar Kalanauri, Advocate Supreme Court of Pakistan

An associate of Khatana’s Law Chamber, Qurat ul Ain Naseer, says that her law firm has developed a new comprehensive software suited for this purpose and proposed it to the high court, which is in the process of considering its implementation. The software is designed to be used by judges, IT staff, and lawyers at the high court level. It includes features such as e-filing, e-notices, and e-hearings. Currently, this software can cater to bail applications and writ petition services, but more services can be added once it’s up and running. With the help of senior Supreme Court lawyers, this software has also been test-run in Lahore for three months. Before deployment, the software needs to be discussed with various stakeholders, which might cause a delay in its implementation.

Once it is implemented, however, citizens and lawyers will be able to file cases remotely through an online portal. The electronic notices can also be sent to litigants through emails. On the day of the hearing, all parties can connect through the portal and commence the proceedings.

She explains that this system would be more efficient than another e-court mechanism completely based on e-mailing, which was introduced last year in the Lahore High Court.

Similarly, the unavailability of electronic devices and a lack of internet connectivity is one of the most pressing issues that can be anticipated with the implementation of such a system. According to Data Reportal’s Digital 2020 report, while 76% of Pakistan’s population is mobile users, only 35% of citizens have access to internet services.

In many parts of the country, internet connections are not available at all, and even in areas where the internet is available, the quality and speed are questionable. Moreover, many citizens cannot afford electronic devices, such as smartphones or computers, let alone a video conferencing set up that allows an uninterrupted and smooth virtual connection.

For this purpose, Zafar Kalanauri, suggests the establishment of numerous facilitation centers across the country, where fast internet connections and electronic devices such as video conferencing equipment are made available by the government. These centers should be recognized by the courts and provide training materials and digital literacy to the lawyers as well. Lawyers and litigants, if needed, can travel to these facilitation centers instead of traveling to the district or high courts. This will not only save the cost of traveling but also provide an efficient way for the legal system to proceed without the risk of coronavirus spread, especially in times when travel and movement of citizens are restricted due to smart lockdowns.

Around the world, similar systems have been implemented. In the United Kingdom, civil courts already permitted remote court hearings depending on circumstances, but have now issued additional guidelines to facilitate the remote hearings. In March, the UK Supreme Court also shifted to hearing all cases remotely. Similarly, countries like UAE have embraced technology and are using video conferencing tools to continue their hearings, while the USA, Turkey, and France temporarily suspended hearings, conducting only essential or urgent litigation. The court system of Singapore also has pre-covid-19 protocols for participation in court hearings, which have been extended owing to the pandemic.

Qurat ul Ain Naseer suggests that if such a system is put into place, the software will create the need for faster internet, and eventually, this demand will lead the internet service providers to fill the gap.

Criminal proceedings

At present, the Civil Procedure Court doesn’t provide guidelines for the procedure of a virtual hearing. For the system to work, it becomes paramount to devise new rules or make amendments to existing regulations specific to virtual courts. An inability to do so could cause manifold irregularities in the courtroom.

Meanwhile, the cybersecurity issues faced by Pakistan, in general, are like a canary in the coalmine for a virtual court system. With an electronic filing system and remote connectivity to the courtroom, the confidentiality and privacy of documents and hearings remain a loose end, which must be secured if a virtual system is going to be implemented at all.

On the other hand, if people can file cases and follow proceedings through secure online portals, it will eliminate many security risks such as bringing criminals or vulnerable victims to the court. It has also been underlined that this will provide a safe environment for women who want to file or argue cases. A report published by the UN Women and other entities states that due to the impact of covid-19 pandemic, women will be forced to face increased challenges to access justice. Rising domestic violence, economic challenges, and risks to frontline workers will also cause a surge of cases that need to be addressed. A remote hearing system can provide a safe space for women to raise concerns, without the risk of harassment, or exploitation.

While a virtual court system can force litigants to be more reliant on lawyers for submission of documents and proceeding of their lawsuits due to lack of computer literacy and education, it can also prove to be less costly and secure.

Submission of documents and tracking cases will be electronic, minimizing the need for administrative staff and often illegitimate fees that litigants have to pay to clerical staff in order to access the justice system. Naseer reiterates that the two main objectives of the software proposed to LHC are to speed up the process of justice and maintain a low cost at the same time.

The training of judges, lawyers, and administrative staff in courtrooms will become necessary if a virtual system is implemented. Without the key knowledge and technical skills to use the system, it may cause more mayhem for the stakeholders rather than make the process easier.

Cross-examination

The training of judges, lawyers, and administrative staff in courtrooms will become necessary if a virtual system is implemented. Without the key knowledge and technical skills to use the system, it may cause more mayhem for the stakeholders rather than make the process easier.

Khatana’s Law Chamber has already commenced training courses for lawyers to cater to remote training in times of covid-19. Being the first of its kind in Pakistan, they train lawyers in the skills necessary for legal practice. Naseer maintains that if a virtual court system is implemented, lawyers should be trained for that as well.

Another aspect of virtual courts questioned by the lawyers was the cross-examination of evidence and witnesses. It is a lawyer’s right to cross-examine the evidence brought to court by the other party; however, this can prove to be difficult during a virtual court proceeding.

Kalanauri argues that owing to this difficulty, a virtual system cannot be implemented across the board immediately. He points out that even in countries with functioning virtual courts, it took many years to perfect the system and learn with experiences. Pakistan should follow a similar trajectory and begin by using the system in selective cases and then expanding the implementation, he says.

At the same time, Abdul Nasir Jasra expresses his doubts, saying that the permanent implementation of such a system will be a hurdle in the practical experience of new lawyers. Not only will no one other than those involved in the lawsuit see them argue the case, but it will also be quite a different experience from the one that lawyers gain by arguing cases in an actual courtroom. However, he says that some things are necessary for the current time period and the court system must adapt accordingly.

If most of the aforementioned issues are taken into account, while implementing the virtual court system, then it could be a development that most stakeholders can get behind. “We cannot know how effective it is going to be until it is implemented,” says Abdul Nasir Jasra.

According to Jasra and many other advocates, cooperation between various departments, and a holistic consideration of the impact of a virtual system is paramount for its functional implementation. However, a remote hearing system or similar use of technology cannot suffice to fix the justice system in Pakistan. The courts must take steps to address the backlog of cases, slow, extended resolutions, and access of all communities to justice. Without addressing these major concerns, the justice system might not be able to fulfill its foremost objective: the provision of swift justice.


Arooj Khalid is a freelance reporter based in Lahore.

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