By: Osama Zafar
While I write this piece, the world is struck by a pandemic. Covid-19, which was first detected in Wuhan, China, and which has spread across the globe, wreaking havoc in Europe, USA and many other countries and is now peaking, especially in the Subcontinent. Pakistan has just officially surpassed China in terms of the total number of cases and is on track to surpass many more. Most of the countries have resorted to complete lockdowns while with countries like Pakistan and Sweden, the policy seems to be in line with achieving herd immunity. Most of the industries and businesses in Pakistan have been reopened after a brief lockdown, with instructions and SOPs from the government. Inevitably, litigation before the Court is also gaining normality as if there was no pandemic. While some of the businesses have gone completely online, with employees working from home and minimal presence in offices, the question arises, can we achieve the same with litigation?
Countries such as the United Kingdom, India, Australia and UAE have shifted most of the Courts operations online to protect the lives of the litigants, lawyers and the judiciary. In Pakistan however, the lockdown has been lifted and Courts operate with preventive measures. On my recent visit to the Lahore High Court, I observed how crowded some of the Courts were, while some people wore masks, and some did not care to. Some of the judges, I observed, were very strict in keeping their Courts observant of SOPs while some were helpless. They had a handful of cases, litigants and lawyers to attend to and were too committed to their duty and could not be bothered by the pandemic at hand. One cannot really blame the judges, litigants or lawyers at this time, the Courts have never invested in, or planned, an alternate system. One has always been expected to physically go to Courts, whether litigant, lawyer or judge.
In tough times such as we are in, smart nations learn, improvise, adapt and overcome. It seems we have not quite reached the smart nation status yet; some might even suggest that we are quite far off. In a world where covid-19 is expected to stay among us for at least two years; and with no vaccine; maybe even longer; businesses and industries are adapting. It is now imperative that the third pillar of the state makes an effort to uphold the rule of law and ensure access to justice without putting people’s lives at risk.
E-Courts seem to be the only solution. But what are E-Courts? And will they successfully work in Pakistan? Firstly, E-Court is an electronic-Court through which Judges can adjudicate upon matters. The Lawyers can join and present their arguments; however, the execution will be a bit complex. There are different procedures in place for civil and criminal matters in Pakistan. Civil matters, which predominantly concern disputes regarding commercial, taxation, property, tort, family, employment matters, could be dealt with through E-Courts in the High Courts and Supreme Court but in civil and session Courts, where lawyers and litigants have to conduct evidence through examination-in-chief and cross-examination, the same would prove to be a grave task. Making technology accessible to the witnesses would prove very difficult and allocating resources for the same would realistically be impossible. Everyone does not have access to technology in Pakistan and the masses cannot be expected to appear for examinations online; this is furthered by the uncertainty internet connectivity issues bring to the table. However, for witnesses who have access to technology, an option may be provided for online examination. If the Judges are available online, some E-Systems such as PCs or tablets can be installed in Civil and Sessions Courts which may only be used practicing strict social distancing measures.
For criminal matters, evidence proceedings can possibly be made online. For execution, police and other law enforcement agencies such as NAB can make available the technology within prisons and police stations, and the witnesses may join the online room where lawyers and judge are present. This is very much a possibility, but effort is required on part of law enforcement agencies and courts.
The main challenge lies for the judges and lawyers to be brought on the same platform with regards to E-Courts. Many of the judges are old-fashioned and it would be difficult for them to be equipped with latest technology. The same can be said for lawyers. Some of the lawyers might not be able to afford such technology, but in these testing times an investment in a decent laptop and an internet connection would be worthwhile their practice. Also, I am of the view the number of lawyers who would not have access to a PC or smartphone with an internet would be minimal.
I recommend that the judiciary uses their invaluable institution of Judicial Academies all across Pakistan to educate the judiciary on E-Courts. They may conduct workshops on the use of software. Microsoft Teams for instance is a reliable and secure software which allows several members to join an online room for a video conference and allows people to share documents and even screen-share. They can even come up with their own software, but this would be time consuming and costly. The Bar Councils and Bar Associations can also arrange for online workshops for lawyers to train them in this manner as well.
Internet connectivity may also be assured, Courts can contract with different service providers to provide free or subsidised internet to the lawyers for making E-Courts effective.
Filing is still being done physically. Lawyers or clerks have to submit papers in filing branches of courts for effecting filing. It is suggested that an effective and secure e-filing system may be established on the court websites. This would not only curb the environmental detriment of paper filing but will make the system efficient, and free from human error. I would urge that even when the world returns to normality, and approaching public places such as courts becomes possible, the e-filing system remains intact for its efficiency.
These are difficult times and require extraordinary measures. We cannot sit idle and risk our lives. Justice is important but if we do not change our ways, obtaining Justice will cost valuable lives. E-Courts are the necessity of the time and immediate measures must be taken to make it a reality in Pakistan.
The writer can be reached at [email protected]
And tweets @Osama_Zafarr
