Home

E-Judiciary: A New Dawn to Justice System in Bangladesh?

1,517 Views

Digital court system has become a way which can give us a solution to the faster and effective judicial proceeding. It is reported that 3.6 million cases are pending from subordinate courts to the appellate division.[1] Not only for Bangladesh but for the whole world, virtual court system can be a solution to huge case backlog.

Very recently, Bangladesh has begun its journey of carrying legal procedures on through virtual courts. The honorable President promulgated Ordinance No. 1 of 2020 titled as Use of Information and Communication Technology by Courts Ordinance, 2020.[2]  The Supreme Court of Bangladesh gave practice orders for The Appellate Division, The High Court Division and the Subordinate Courts for conducting legal procedures through video conferencing.[3] From 11th May to 4th June, the courts have disposed of 33,287 applications and 27,480 bail petitions were granted.[4] It means in 18 working days, on average 1,849 applications were disposed and 1,526 bail petitions were granted every single working day.                       

Cutting Barriers for Litigants

Virtual courts can be a good option for litigants for easy access to justice by saving time, money and by reducing suffering. The distance to the district court building in any district would be hardly more than 50 km. But these 50 km. is often a very long due to traffic jam. Litigation expense and sloth of case proceeding initiate discouragement to most of the litigants. One simply has to be reasonably well-off and tenacious.[5] Distance to the courts, travelling hazards and expense, more money required in more hearings- have been a huge problem for the justice seekers, to which e-judiciary can be a good alternative.

Criticism of Virtual Court System

Digital court system is indeed a wonderful initiative taken by the Supreme Court of the People’s Republic of Bangladesh. However, recently a Supreme Court lawyer filed a writ petition to the High Court, challenging the chief justice’s decision to run virtual functions of courts across the country.[6]

He claimed the virtual court function to be unconstitutional and inconsistent with the Appellant and High Court rules because the petitioners have no scope to swear an affidavit for filing any petition to the Appellate and High Court Division, and therefore, the system is illegal and unconditional.

In another incident, some lawyers from Gaibandha got suspension from Gaibandha Bar Association for participating in the virtual court proceedings[7], the order which the High Court stayed later[8].

It is reported that most of the senior lawyers do not prefer such an initiative.[9] One of the core reasons are that virtual court is tech-operated, which is something, neither many senior lawyers are used to or willing to. Also, they think it will affect their income negatively.

These fears can be cut out, once the lawyers get used to the system. They will be able to serve more clients in less time which may increase their income as well as justice-seekers will also get legal remedies faster than before. Thus, this new opportunity can be seen as a win-win for everyone in a sense.

Though the system has its own shortcomings too- there can be legal vacuum or shortage of devices or internet speed can be slow and every other reason. But these are absolutely solvable by taking proper steps. If due care and caution is given, it can ensure the access to justice for the litigants well.

Conflict with the Concept of Open Court

Virtual courts use software which needs users to log-in to connect two sides of the video, there is no scope of public access, which to some extent is a contrast to the concept of open court. The ‘open court principle’ has long been recognized as a cornerstone of the common law. In the Scott v. Scott (1913), the House of Lords noted the right of public access to the courts as “the Courts of this country must, as between parties, administer justice in public”. [10]

The importance of open court was also discussed by the Supreme Court of Canada in A.G. Nova Scotia v. MacIntyre[11]

Where there is no publicity there is no justice.  Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial.

To discuss the idea of open court in the context of Bangladesh, we’ll have to have look at Article 35(3) of the Constitution of the People‌‌‍’s Republic of Bangladesh, which states,

Every person accused of a criminal offence shall have the right to a speedy and public trial by an independent and impartial Court or tribunal established by law.

If the idea of virtual court becomes a reality in the future, it will be important to allow public access to a trial to respect the concept of open court to avoid the scope of arbitrariness of the judges and it will ensure proper justice. It can be done by streaming links to a website or the government can procure new custom made software which can remove this legal vacuum.

To Make Virtual Court as a Sustainable Option

Countries around the world have been using video and audio enabled hearings for the past 15 to 20 years. For example, in England and Wales, the Access to Justice Act, 1999 allows Video Conferencing to be used for civil hearings.  As far as criminal cases are concerned, Section 28 of the Youth Justice and Criminal Evidence Act, 1999 of England and Wales allows pre-recorded cross-examination to be shown as evidence in trial. Video can be pre-recorded or live streamed; the goal is to use technology to overcome barriers. Bangladesh has just stepped in this concept with some gradual footmarks like hearing and granting petitions, but with hurdles enough as well.

From internet connection to old habits of senior lawyers and debate of legal vacuum- the system is surely not above limitations. But these problems are not insolvable either. If we want to reduce case backlogs and ensure access to justice to litigants, virtual courts can be a sustainable option in the future.

  • Not all cases can be disposed using digital technologies; in that case the High Court Division can provide a list of division of cases which can be tried by a virtual court at the first instance.
  • Judicial hearings must take place online, not only in the higher courts but also in subordinate courts. Judges and lawyers alike must upgrade their skills and learn new technologies, and ignore any inherent aversion to technology.
  • A successful digital hearing is not only a mere matter of being able to log into a Zoom or Google meet call. Effective advocacy will require lawyers to effortlessly use features such as ‘screen share’ – to draw a judge’s attention to evidence, or to precedents being cited etc., and to familiarize themselves with programs such as PowerPoint, for visual presentation.
  • Training must be arranged for lawyers to enhance their computer literacy which will allow them to use email, digital payments for paying court fees, troubleshoot basic problems of the computers.

We fear and oppose what we don’t know, same goes for some legal professionals, that’s why spreading the knowledge of computers among lawyers is important.

  • It is true that not all judges and lawyers will have access to high-speed internet (103.253 million users in Bangladesh)[12], or even computer systems or smart phones. This needs to be solved urgently, by increasing infrastructure and bandwidth in courts and in judges’ home offices, and by making adequate facilities available in various shared ‘digital centers’ for less privileged lawyers.
  • Training could be arranged by the bar associations to train the lawyers who are not used to using technologies.

Conclusion

In a digital era, technology is solving problems like never before. We should use the power of the internet to ensure justice faster to reduce sufferings of the citizens with gradual but reasonable steps to make the Bar and Bench ready, compatible as well as ensure safety of information of litigants and security of court proceedings. Virtual courts should be permanent if it helps even a little percentage of litigants. Sooner or later, Bangladesh will have to conduct court proceedings online, even after the time of COVID-19. If that is to happen, why not appreciate now? 

Writer: Saiful Bari, Student, Department of Law & Human Rights, University of Asia Pacific, Bangladesh. 
Endnote:

[1] The Daily Janakantha, Case Backlog – Decreasing & Increasing, published on August 27, 2019

[2]https://www.dhakatribune.com/bangladesh/court/2020/05/09/bangladesh-publishes-gazette-allowing-virtual-courts.

[3] https://www.dhakatribune.com/bangladesh/2020/05/10/3-hc-benches-formed-for-hearing-cases-virtually.

[4] https://www.bd-pratidin.com/city/2020/06/07/536480.

[5] Shahdeen Malik, Access to Justice: A Truncated View from Bangladesh, in Comprehensive Legal and Judicial Development: Towards an Agenda for a Just and Equitable Society in the 21st Century, R.V. Van Puymbroeck edition, World Bank, 2001

[6]  The Daily Star, Virtual court functions challenged, published on June 1, 2020, https://www.thedailystar.net/country/bangladesh-virtual-court-functions-challenged-1907269.

[7] NTV, The membership of 15 lawyers has been suspended due to a case filed in the virtual court, published on June 7, 2020

[8] The Daily Observer, Gaibandha Bar ban on 17 lawyers in virtual courts stayed by HC, published on June 8, 2020, https://www.observerbd.com/details.php?id=259377.

[9] Bangla Tribune, The reason why most of the country’s senior lawyers do not want virtual courts, published on May 14, 2020

[10]Scott & Anor vs. Scott [1913] UKHL 2 (5 May 1913), retrived from, https://www.bailii.org/uk/cases/UKHL/1913/2.html.

[11] A.G. (Nova Scotia) v. MacIntyre, 1982 CanLII 14 (SCC), [1982] 1 SCR 175, https://www.canlii.org/en/ca/scc/doc/1982/1982canlii14/1982canlii14.html.

[12] http://www.btrc.gov.bd/content/internet-subscribers-bangladesh-march-2020.

Leave a Reply

Your email address will not be published. Required fields are marked *