Virtual court system in Bangladesh
On May 9, 2020, the President of Bangladesh, while the Parliament was not in session, by exercising jurisdiction under Article 93(1) of the Constitution of Bangladesh promulgated Adalat Kartrik Tottho-Projukti Bebohar Ordinance, 2020 (Use of Information communication technology by court Ordinance, 2020). During the enactment of the Ordinance, it was perceived that Bangladesh has no procedural law that empowers the courts to conduct virtual hearing by using technologies. After being empowered with the provisions of the Ordinance, the Supreme Court of Bangladesh issued practice directions for the Appellate Division, High Court Division, and the subordinate courts and tribunals for hearing cases virtually amid the Covid-19 pandemic vide Notification No. 213 dated May 10, 2020. Later on, the Parliament decided to adopt the provisions of the said Ordinance and accordingly, without any significant change of the provisions under the Ordinance, enacted the Adalat Kartrik Tottho-Projukti Bebohar Ain, 2020 Use of Information communication technology by court Ordinance, 2020 as Act No. 11 of 2020.
The said Act of 2020 is a procedural law and is applicable all over the country in the dispensation of judicial functions. The courts and tribunals in Bangladesh run under the provisions of the various statutes but by promulgating this Act, the legislature has given the courts additional powers to adjudicate cases using information-technology. During the pandemic situation, as a response to the guidelines and the directions of the Supreme Court as issued from time to time, the courts and tribunals of the country are/were operating judicial functions virtually, albeit mostly of important applications/petitions, subject to some procedural limitations that do not allow the courts to dispense with few matters virtually; for instance, taking witnesses in the civil and criminal courts, attending surrender application of the accused persons, filing of criminal complaint cases in the criminal courts and tribunals requires physical presence.
A litigant who wishes to file an application or a petition before a virtual court or tribunal may file it through the concerned section of the court with the help of his/her appointed lawyer. The court's assistant providing a case number publishes the same in the register book that maintains filing information or in the daily cause list (for information, the Supreme Court's website publishes the cause lists of High Court and Appellate Divisions' cases). In exercising some jurisdiction in the lower judiciary, the tribunal or court informs the lawyer about the detailed information of the case and the date and time of hearing together with a video conference link (usually it is a Zoom link/meeting ID/passcode) by sending an email. A true copy of the application/petition and the supporting documents are handed over to the concerned judge. The judges of the virtual courts also require that the scanned copy of the said application and the documents must be served to them via email. In case of necessity, that is to ensure the filing appropriately, the concerned lawyer makes contacts with the bench officer or sherestadaar/peshkar of the concerned court, as their numbers are made publicly available. The court then, in applicable cases, sends a notice or issues summon to the concerned party(s) together with the copy of the application/petition informing about the virtual hearing. In dispensing all these formalities, the court clerks of the lawyers, however, need to visit the courts physically for obtaining the filing information, submitting hardcopies of the necessary documents, collecting hearing date and timing, paying court fees, obtaining video conferencing links etc.
The courts use online video conferencing platforms, such as web-apps like Zoom, imo, Google Meet or WhatsApp. Presently, Zoom has become the most popular among the said platforms. It may be stated here that these are third party Apps and the courts of the country cannot rely on these apps for all time. The virtual court system has to provide adequate cyber security measures, which will ensure fairness, privacy, and data protection, by building its own platform. A central software/app needs to be built to control and regulate the whole virtual judiciary from a single platform.
Courts in many countries are issuing detailed virtual court procedures and guidelines. Courts are even holding the virtual trials, taking evidences and the witnesses through video conferencing, which the virtual courts of Bangladesh could not do due to the existing procedural laws, as stated above. In the last remark of the Virtual Bench Trial: Protocols and Procedures as issued by District Administrative Judge of 10th Judicial District-Nassau County, New York stated that "Overall a Virtual Bench Trial is no different in sum or substance than an In-Person Courtroom Bench Trial. The challenges, as indicated above, relate to the presentation of witness testimony, documentary, and physical evidence. With careful attention, consideration, and discussion, these challenges can be effectively overcome." The procedural laws and the laws relating to the evidence need amendments and updating to adopt the virtual courts in the regular judicial system of the country.
The promulgation of the Act of 2020 and the advent of virtual court under the said Act mark a turning point in the country's legal history. It is a new chapter in the country's judiciary and requires support from all concerns, including the judges, the lawyers and the litigants as the virtual courts can continue alongside the regular physical courts even after the pandemic.
The writers are Head of the Chambers of MCLaw Services and Advocate of Supreme Court of Bangladesh, respectively.