COVID-19 and Online Hearings

Introduction

A profession that takes pride in its traditional practices and has upheld them for centuries is in turmoil under the current COVID-19 pandemic. With courts being shut due to lockdowns and given the disregard for protective measures in courts in some parts of the world, lawyers, judges and other legal actors have been forced into a conundrum where it has become absolutely essential to adapt to the present conditions. In this regard, legal practice can continue by introducing remote hearings.

A solid framework for implementing remote hearings, especially in a country like Pakistan – where more than 1.8 million cases^[1] currently remain in the courts’ backlog nationwide – seems difficult, given the additional lurking uncertainty brought about by the pandemic. However, some thought and effort on behalf of the country’s legal minds should be able to make the experiment, or rather, goal more achievable.

Access to Justice in Pakistan

The motivation to attain such a massive change will most certainly have to be driven from the recognition of Pakistan’s problems, where a lack of access to justice persists due to a patriarchal, pluralistic and underfunded judicial system.

Where the Civil Procedure Code 1908 remains silent on a court’s case management powers, such as those encouraging alternative dispute resolution (ADR) before commencing proceedings or furthering the use of technology in order to expedite procedures to ensure fair and just results, customary practices have often stepped in with panchayats and jirgas. Not only are such systems often unfair towards different actors of the society, especially women and children, they also tend to yield disproportionate and unsatisfactory outcomes.

Going to court or obtaining legal help of any sort is still considered a taboo in most communities in Pakistan. This is due to a low literacy rate, a lack of understanding of legal rights and their enforceability, limited funding and a prevalent mindset that the law “punishes”. Resultantly, justice is accessible to only the smallest percentage of the country’s population (as compared to 46% of the world that has access to a judicial system).^[2]

Proposed Procedure

The term “remote hearing” could possibly include the following:

• Method 1: An online judging system whereby disputes are resolved electronically without an actual hearing. Documents and evidence may be exchanged via email – a concept similar to paper hearings and not alien to arbitration. In fact, it would be a form of swift ADR. Non-lawyers could take cases forward and court officers could resolve disputes instead of judges.
• Method 2: An extensive court process whereby forms are filled online, documents are filed and checked by court clerks, evidence is disclosed online and applications are submitted online as well. Testimony then takes place virtually and a face-to-face trial is only available as a last resort before the verdict is announced.

Benefits of Remote Hearings

Apart from the obvious benefits of remote hearings, such as effective time management and significantly reduced costs and effort, a major benefit that must be emphasized is the gap bridged between the population that understands its rights and enforces them and the population that only does so when sanctioned by the state. An increase in self-representation in small claims, most of which are never formally resolved, may also be observed. With the implementation of Method 1, non-lawyers would be more actively involved and judges would be relieved of their burden to entertain small claims such as housing and business disputes that drown the Pakistani District Courts and contribute to the aforementioned backlog of cases. Hence, the initiative towards self-representation through Method 1 could also battle the persisting issue of funding and legal aid.

Both the above-mentioned methods of remote hearing would increase inclusivity. Moreover, the instance of attracting ‘default judgments’ in cases where one of the parties had not been present for reasons such as childcare or lack of knowledge or some other urgent impediment, would significantly decrease. It would further increase fairness in court cases, especially those involving sensitive matters such as child custody and other family law issues. Adjournments that are generously granted in the Pakistani judicial system and further add to the backlog may also be curtailed.

In the years preceding the COVID-19 crisis, groundwork had already been laid, albeit not at such a large scale, for the use of supportive technologies that could further the objective of remote hearings and other procedures. During the tenure of the former Chief Justice of Pakistan, Mr. Asif Saeed Khosa, technological advancements such as a mobile application for the Supreme Court of Pakistan, a call center, video-link facilities in five courts and website enhancements were encouraged to improve the disposal of cases and reduce backlog.^[3] Regulatory bodies, namely the Securities and Exchange Commission of Pakistan (SECP) and the Competition Commission of Pakistan (CCP), have also introduced various electronic filing and hearing procedures that are already in operation. In the case Naimullah Khan Advocate & Others vs. Federation of Pakistan (2020) SCMR 513,^[4] Mr. Ali Zafar of Mandviwalla & Zafar Legal Advocates also assisted the court via video-link.^[5] It is now time to expand this initiative in Pakistan so that even High Courts, lower courts and ADR procedures are directed more towards remote hearings.

Criticism of Remote Hearings

Criticisms of online hearings shall be discussed by dividing them into two categories, the first being ‘user’ criticisms and the second being ‘lawyer’ criticisms. User criticisms will cover issues such as the user-friendliness of the system, the language used, considering proceedings take place in English whereas the native language is Urdu (not to mention the existence of regional languages), writing proficiency of individuals when making arguments, payments methods, security of hearings and concerns regarding information leaks,^[6] and last but not least, the technological divide in the country where only a few may be able to truly conduct remote hearings will also need to be factored in.

In addition, lawyers will question the scope of the hearings, i.e. whether all areas of expertise can realistically be covered, whether human interaction which comprises an integral element of cross examination of witnesses and evidence (especially during criminal trials) is necessary, whether the initiative will give rise to frivolous claims, whether adequate training will be available for all legal actors to ensure fair and just outcomes, and, finally, whether the hearings would be mandatory or voluntary.^[7] Moreover, from a philosophical perspective, it has been highlighted that an overall change in the common law system may be observed when an adversarial system shifts to an inquisitorial one.

Not least of all, it is pertinent to consider that most litigators prefer the courtroom structure simply because of the handsome remuneration that is attached to the practice. In essence, such circles of legal practitioners may resist the automation of law given the inadequate incentive to promote a digital revolution.

International Models and Guidance for Implementation

Pre COVID-19, the UK had directions incorporated in its Civil Procedure Rules whereby courts had been given active case management powers to ensure the use of technology and ADR in and before proceedings to further the overriding objective under Rule 1.4 to deal with cases justly and at proportionate cost.

Post COVID-19, a swift incorporation of pandemic-related laws into the Civil Procedure Rules/White Book (Practice Direction 51Y, 51Z and 51R introduced as pilot schemes pursuant to the Coronavirus Bill) had been noted alongside the surge in digitalization of UK’s courts. On March 24^th, 2020, Fowler v Commissioner for Her Majesty’s Revenue and Customs [2020] UKSC 22^[8] made history as the first ever Supreme Court case to be heard entirely virtually.^[9] The Civil Justice Council conducted a survey between May 1, 2020 and May 15, 2020 to review and understand the impact of measures taken for the use of video-links for hearings on the justice system.^[10]

The example of India, where the High Court of Delhi used technological measures in judicial proceedings, must also be studied closely. The High Court of Delhi introduced rules for judicial proceedings on June 1, 2016 dealing with all aspects of civil procedure in light of online video proceedings. It has now prescribed forms which are to be submitted as applications to the court, after which the court shall allow video conferencing for the parties involved, including the witnesses. Bangladesh too has taken the plunge and issued an Ordinance for online hearings on May 7, 2020. Both examples illustrate that it is not impossible to implement remote hearings in emerging countries as they can provide a solution to increase the efficiency of court procedures not only during COVID-19 but also in the future.

Surveys and reviews should also be conducted by the Pakistan Bar Council and local bar councils to steadily industrialize a change this vast by engaging both retired and practising judges, law firms, arbitrators, the Attorney General’s Office and other legal bodies. The following list of considerations may prove to be vital for any surveys and reviews conducted in order to effectively implement an electronic court system keeping in mind the legal system of Pakistan:

• The technological gap in Pakistan, access to electronic devices for lawyers and instances when analogous modes such as telephone hearings should be reverted to.
• The firms that prefer physical filings as opposed to those that will opt for electronic filings.
• Whether electronic notices and summons will be efficient or whether a change in civil procedure law regarding the service of summons and form content will be required.
• The recording method of cross examination and evidence to ensure fair and just decisions.
• Balancing of costs and benefits to achieve efficiency and ensure smooth business as usual.
• Willingness of lawyers to hire staff specialized in remote hearings and helping them implement the electronic system in their offices.
• Whether the digital court system should be mandatory for everyone or whether it should be an option. How will it be administered?

Conclusion

With COVID-19 acting as a catalyst, the legal community is now faced with the task of implementing remote hearings impromptu and without much precedence of its success on such a large scale. However, the concept is promising due to its potential to increase accessibility to legal recourse in Pakistan. Where issues pertaining to technological gaps persist, administering the relevant changes now could at least provide digitalized access to a few today with the assurance of amplification tomorrow, as remote hearings are here to stay, even beyond COVID-19. With that said, traditional courtroom hearings will not be done away with either. An amalgamation of face-to-face trials and online hearings seems to be the way forward in order to promote justice in the name of reform.

---

References

^[1] Femi Ogunlende (The Express Tribune, September 6, 2019) <https://tribune.com.pk/story/2050177/6-efficacy-backlogs-court-system/> accessed June 1, 2020

^[2] Richard Susskind, Online Courts and the Future of Justice (OUP, 2019)

^[3] < https://www.supremecourt.gov.pk/sc-launches-it-driven-facilities-for-general-public-litigants-lawyers-media-and-academicia/> accessed June 2, 2020.

^[4] Naimullah Khan Advocate & Others vs. Federation of Pakistan (2020) SCMR 513.

^[5] Ishaq Tanoli, ‘SC declares allotment of land for KPT housing society illegal’ (Dawn, February 8, 2020)<https://www.dawn.com/news/1533055> accessed June 1, 2020

^[6] Doron Menashe, ‘A Critical Analysis of the Online Court’ (2018) Vol.39 UPaJIntl  <https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=1967&context=jil> accessed June 2, 2020

^[7] Ibid.

^[8] Fowler v Commissioner for Her Majesty’s Revenue and Customs [2020] UKSC 22.

^[9] Violet O’Gorman, ‘Digitisation of the Courts: Could Covid019 be the catalyst needed for change?’ (LexisNexis, May 5, 2020) < https://www.lexisnexis.co.uk/blog/future-of-law/digitisation-of-the-courts-could-covid-19-be-the-catalyst-needed-for-change> accessed May 30, 2020

^[10] ‘Update: Rapid Consultation – The impact of COVID-19 measures on the civil justice system’ (Courts and Tribunals Judiciary, May 1, 2020) < https://www.judiciary.uk/announcements/rapid-consultation-the-impact-of-covid-19-measures-on-the-civil-justice-system/> accessed May 30, 2020

---

The views expressed in this article are those of the authors and do not necessarily represent the views of CourtingTheLaw.com or any organization with which they might be associated.