As the world enters a period of uncertainty with the coronavirus outbreak, Pakistan’s justice system will be under a considerable strain. Despite the contagious nature of the disease, the National Judicial Policy Making Committee (NJPMC) has decided that the courts would continue to hear essential cases adopting certain precautionary including that the lawyers would appear before the court, but the public would avoid visiting courts unless their attendance required by the courts.
Of course, the delivery of justice is the constitutional duty of the judiciary and the commitment of our judiciary in this regard is highly commendable. However, there could be different approaches to perform judicial duty. Considering the nature of the epidemic and global trends in the justice sector to handle this crisis, NJPMC’s approach appears flawed. The WHO has declared the coronavirus outbreak a Public Health Emergency of International Concern. The surge of the disease in Pakistan may also be alarming for the judicial policymakers. Therefore, with respect, the NJPMC is urged to revisit its approach and focus on the provision of virtual justice. Otherwise, the legal fraternity may be exposed to high health risks.
Covid-19 is testing the capacity and resilience of all institutions. The justice systems like ours which are suffering from lack of resources and innovation are under serious challenge. However, it presents the legal fraternity with an opportunity. There are two options. The first is to continue working conventionally and suffer the consequences. The second is to learn from the crisis and adopt technology to promote access to justice. I favour the second option.
We need to upgrade our justice system with intensive education and training in legal information technology. We have to move, as quickly as possible, from paper-based to digital processes to save time and cost whilst maintaining access in the new context we are facing.
Professor Richard Susskind (Professor at the University of Oxford) says online dispute resolution is no longer a matter of science fiction: it is the need of the modern age and, in many contexts, already a reality. Amidst the coronavirus crisis, the UK Supreme Court goes virtual. A new Practice Direction has been issued for hearings to be conducted remotely via video or audio during the crisis. In the US, all cases fixed for arguments in appellate courts such as the Federal Circuit Court of Appeals will be conducted remotely. In Italy, the justice minister has recommended videoconferences for urgent matters. The Federal Court in Australia is providing videoconferencing facilities to conduct proceedings.
China has established the ‘Smart Courts’ framework to develop advanced technological infrastructure allowing online filing and hearing of cases. Chinese courts are widely using Al and other novel technologies such as distributed ledgers, blockchain and smart contracts solutions across both civil and criminal case management and adjudication processes. The ‘Internet Courts’ in China can conduct the entire proceedings online. Moreover, the litigants can download a ‘mobile court’ app build on facial recognition technology to file cases, to upload evidence, and to communicate directly to the judge via text or audio message. The parties and the judge can log onto this app at the same time to conduct the proceedings.
These worldwide improvements in e-dispute resolution provide examples for improvements in our justice system. In this regard, the two areas may be prioritized. First, all procedures and hearings can be digitized. Second, courts processes and procedures should be simplified; there should be a uniform procedural code for civil cases and a common procedural regime for criminal cases. The Code of Civil Procedure, 1908, and the Code of Criminal Procedure, 1898, should be amended to move toward digital justice. Subject-specific procedures may also be developed for special courts and tribunals such as family courts, commercial courts and tax tribunals.
With increasing access to technology and a higher level of literacy (as well as digital skills training), alongside adequate legal advice and support, Pakistan should move in the direction of virtual justice. Our justice system should be accessible, convenient, inclusive, transparent, and non-discriminatory, especially for the marginalized sections of the society such as women, children, and minorities. Improving both traditional and digital literacy goes hand-in-hand with improving e-justice.
The NJPMC should establish an advisory board of leading experts in legal information technology and IT. This board should keep our justice system under constant review and advise on how it should be improved, particularly regarding online dispute resolution in civil and criminal cases. To facilitate buy-in from Pakistan’s legal fraternity, Section 3 of the National Judicial (Policy Making) Committee Ordinance, 2002 should be amended to provide representation to national and provincial bar councils.
A pilot internet-based court service (‘Online Court’) should also be established to encourage digital justice. The lessons from this pilot project could be applied in other courts and tribunals such as civil courts, family courts, and tax tribunals. The impact of such projects should, of course, be assessed, periodically, to upgrade our online processes and procedures. For example, the private data of citizens collected through online systems must be strongly protected.
In a nutshell, justice-sector reforms should provide increased access to e-justice, enabling citizens to get their disputes resolved more conveniently and quickly. Litigants should engage with online proceedings that ensure, first and foremost, procedural fairness. To do this, online procedures must integrate the role of judges and lawyers in a meaningful way. The government should provide adequate funds enabling the judiciary to introduce such reforms. This will strengthen our justice sector and enhance the capacity of our country to meet the global crisis, including, in the first instance, the crisis growing out of our encounter with the Covid-19 virus.