Inaccessibility of Legal Remedy Cured by Technology
Amartya Sen’s idea of human well-being revolves around intangible, as well as tangible factors. According to Sen, the very basis of human liberty is a human being’s ability to achieve true potential. Knitting the two expositions together, one learns that both the aforementioned factors must be fully utilized to exploit human potential which in turn will ensure well-being.
There are plenty of examples regarding both tangible and intangible factors. Starting with the intangible factors, we know that a system of democracy can function effectively when its citizens have enlightened consciousness, an intangible factor, which ensures well-being. Similarly, justice is also an intangible factor which goes into guaranteeing an equitable distribution of economic and social resources.
On the other side, tangible factors are equally important in ensuring the goal of human well-being, e.g. the intangible factor of justice cannot be made available on ground without tangible means, such as through legislation addressing specific issues, creating specialized tribunals and devising means to ease access to justice when the breach of an obligation takes place.
Rights are entitlements that an individual has for the reason of his or her humanity. These substantive rights require an effective procedure to become enforceable. An individual, along with his or her entitlements, requires the capacity to enjoy these legal entitlements. ‘Capacity’ encompasses both the legal and personal ability of a citizen. In the legal sense, such a capacity to get one’s rights enforced must be recognized by law. In the personal sense, it means the ability to access those means of enforcement. The use of modern technology, in due process of law, ensures and facilitates that personal capacity.
The rights that a citizen has as per law will be a dead letter if citizens lack the resources and means to enjoy them. For instance, ‘freedom of expression’ has no use for the one who cannot read or write or the one who lives hand to mouth. A certain level of socio-economic well-being is essential for a citizen to enjoy legal entitlements. Similarly, for substantive law to be enforceable, it has to be backed by an effective procedural framework to render the legal remedy accessible. Modern technology can instill efficacy in the workings of bodies involved in the business of substantive and procedural law.
Unfortunately, Pakistan’s legal system is notorious for its chronic delays and complicated procedures caused primarily by corruption and human inefficiency at every stage of the process. Intervention by modern technology can help neutralize the situation. Let us discuss a few examples which render legal remedy inaccessible, along with potential remedies through the use of technology.
The procedure in court, from the filing of a claim/complaint to the resolution of a case, is marred with delay and corrupt practices. In the United States, many courts allow litigants to electronically file documents with the court. Some courts even use a third-party intermediary called an ‘Electronic Filing Service Provider’ (EFSP), while other courts have built web-portals to facilitate ‘e-filing’ transactions directly. By contrast, the courts in Pakistan have no such technologically equipped setup and consequently, the whole system is suffering.
Online Legal Aid Platforms
In addition, courts in Pakistan are clogged with frivolous litigation. Aggrieved parties are often unaware of the line of action they should pursue, rendering them susceptible to exploitation. Groundless applications have held the courts hostage, costing both the national exchequer and personal budgets. To address these issues, websites can be designed to provide aggrieved parties with free legal-aid. The content of such websites must be optimized for search engines, rendering it easily searchable. Lawyers and legal researchers can be assigned to answer legal queries in multiple languages. This will allow aggrieved parties to pursue a more relevant and cost-effective path. Mobile applications can deliver information to litigants’ smartphones and other mobile devices, informing them about the progress of their case in court. A framework should be designed to regularly update these applications, which will increase their usability and make the information they provide more relevant. In Western democracies, in addition to legal aid websites, a number of legal aid organizations also maintain presence on commercial social media sites, such as Facebook, Twitter and YouTube.
As mentioned above, we also face the issue of delay in proceedings. This issue is the single most depressing thing in our legal system for the litigator, pleader and even for the court. ‘E-courts’ can effectively prevent unnecessary adjournments (the main cause of delay) and create an enabling environment for speedy disposal of cases. It will facilitate lawyers in their pursuit of cases before higher courts whilst remaining within the same city as the court’s registry. It will also benefit litigants who otherwise have to travel to other cities for the purpose of their pleadings.
Digitalization of Land Revenue System
The lethargic court procedure is not the only impediment to justice in Pakistan. The tentacles of ineptitude have spawned in every nook and corner of public machinery. For instance, the antiquated system of land revenue has rendered the proprietary rights of citizens inaccessible. The system designed by the British had been for the system of landholdings when the population pressure on land had not been overwhelming, which had made it possible to maintain land records then. The capacity of Revenue Department has deteriorated over time due to overpopulation, archaic training regime of departmental personnel, unchanged qualification criteria and absence of accountability. Due to outdated paper records, lack of transparency and the personalized nature of land revenue procedure, the officers involved (patwari, tehsildar, etc.) become enabled to exploit right-holders. Digitalization of the land revenue system will allow right-holders direct access to their rights in property, efficient and transparent storage and correct and timely update of the record. Most significantly, it will eliminate human intervention in maintenance and access to land records.
Centralized Database for Union Councils
Another example of inaccessible and inefficient legal machinery is the system of Union Councils and issues pertaining to family law. A spouse or former spouse searching for relevant documents which may be essential to establish certain legal rights in a court of law will have to suffer unnecessary inconvenience and hassle just to get what rightfully belongs to them in the first place. Due to the absence of a centralized digital database, citizens find it extremely difficult to sort out even the location of their relevant Union Council. Once they do, there is no guarantee that the current Union Council office will facilitate them with their problem.
Centralized Database for Legal Research
Technology can also improve accessibility in the field of legal research by ensuring better databases. Existing law sites only provide access to case-law on the basis of relevant statutory provisions. A more proficient law database would provide access to all kinds of research material such as case-law, statutes, commentaries, research articles, books, etc. depending on the subject matter. It is imperative that there be a centralized database making it easier to access legal material.
Moral poverty has crept into our psychological and social framework to the utmost extent. Intervention by modern technology is necessary in order to take legal rights to a joyful destination and put an absolute end to bureaucratic red-tape. Inaccessibility of legal remedy impedes the rule of law while technology democratizes the legal system as it allows citizens the power to enforce their legal entitlements. Technology can also remove intervention by corrupt elements and ensure due process of law. Greater awareness of one’s rights as well as efficacious procedures for the enforcement of those rights will ensure access to legal remedy and strengthen the rule of law.
Bhutta, A. R. (n.d.). Retrieved July 25, 2019, from www.sbp.org.pk: http://www.sbp.org.pk/sbp_bsc/BSC/DFSD/Workshop/Land-Records-Automation-Punjab.pdf
Cavicchia, M. (2017, June). What role can technology play in access to justicre—and should bar foundations help? Retrieved August 2019, from Americanbar.org: https://www.americanbar.org/groups/bar_services/publications/bar_leader/2014-15/september-october/what-role-can-technology-play-access-justice-should-bar-foundations-help/
Editorial. (2019, May 29). Improving access to justice. DAWN
James E. Cabral, Abhijeet Chavan, Thomas M. Clarke, John Greacen, Bonnie Rose Hough, Linda Rexer, Jane Ribadeneyra & Richard Zorza. (2012). Using Technology to Enhance Access to Justice. Harvard Journal of Law & Technology, 243-324
Jane Baily, Jacquelyn Burkel, Graham Reynolds. (2013). Access to Justice for All: Towards an Expanisve view of Justice and Technology. Windsor Yearbook of Access to Justice
Sen, A. (2009). The Idea of Justice. Allen Lane & Harvard University Press
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which he might be associated.