In the context of coronavirus pandemic, Bangladesh has started its journey of conducting judicial proceedings through virtual courts on 12 May 2020. The Supreme Court of Bangladesh has already issued practice directives for the Appellate Division, the High Court Division and the subordinate Courts for conducting judicial proceedings through video conferencing. In its first virtual hearing over a writ petition, the High Court Division has issued directives to stop the killing of dolphins in Halda River. The Judicial Magistracy throughout the country has enlarged a number of accused individuals on bail through virtual hearings. These hearings are the beginning of a long journey towards a sustainable e-judiciary. This writeup, hence, highlights the need for concrete national policy and action plan for implementing e-judiciary, making a sound technological base and legal framework for virtually managing judicial functions in light of examples of other developed countries.
Just after the outbreak of the coronavirus, many countries having e-readiness have taken immediate steps to conduct judicial proceedings online. For example, in the Wales and England of the UK, civil courts are conducting the proceedings through remote hearing based on the "Protocol Regarding Remote Hearings" issued on 20 March 2020. Nowadays, the civil courts only hear those matters physically in case remote hearing is not possible. On 24 March 2020, the Supreme Court of the UK conducted its first-ever remote hearing, and it decided to hear all cases and delivering judgment through video conferencing until further notice.
In India, on 6 May 2020, the Delhi High Court has pronounced its first judgment through videoconferencing. It disposed of a writ petition that arose out of the fact of violation of a compliance advisory of the Central Government to wear musk in Covid-19 situation. The petitioners filed the writ petition under article 226 of the Constitution of India for quashing the criminal proceedings against them under section 482 of the Code of Criminal Procedure. The Court dismissed the petition with directions that the judgment to be uploaded on the website of the Court within 24 hours and also to be forwarded to the counsels of the parties via email.
India started its Journey towards an e-judiciary in 2005 by a National Policy and Action Plan for Implementation of Information and Communication Technology in the Indian Judiciary prepared by the E-Committee of the Supreme Court of India. The Action Plan stated three phases to consider for implementation, i.e., Phase I - Initiation of ICT Implementation in the judicial system, Phase II - Coordination of ICT infrastructure for Judicial System and Phase III - ICT Coverage of Judicial process from filing to execution and all administrative activities. Indian e-courts project revealed encouraging information about the use of Free and Open Source Software (FOSS), which saved Rs. 340 crores to the Exchequer, excluding the enormous recurrent cost of the license fee and maintenance, simultaneously providing the freedom to customise and use the system software.
With our limited financial and technical resources, we may consider how to customise FOSS in developing our software for e-courts or virtual courts. We may think about the resources available under Ministry of Information and Communication Technology, A2I Project under the Prime Minister's Office, Bangladesh Computer Council, and Bangladesh Association of Software and Information Services and available databases under other government agencies, including Police Department. There should be coordination between the government agencies and the Supreme Court Special Committee for Judicial Reforms. The Supreme Court may also come up with a short-term, mid-term, and long-term action plan to make our virtual courts sustainable.
Apart from e-readiness, Bangladesh also needs to focus on making a viable legislative framework for introducing virtual courts or e-courts successfully. On 9 May2020, the honourable President promulgated Ordinance No. 1 of 2020 titled as "Use of Information and Communication Technology by Courts Ordinance, 2020". The government has remarkably taken a quick decision in promulgating the Ordinance based on a prior request of the Supreme Court to the President for facilitating virtual trials of judicial proceedings. The Ordinance is a very brief law which enables both the Divisions of the Supreme Court to promulgate practice directives (special and general) for trial or inquiry of any case, hearing of an application or appeal or recoding evidence, or taking arguments, or making order or pronouncement of judgment in any case by any court through ensuring the virtual presence of litigating parties, their respective lawyers or any other concerned person or witnesses by audio-video or any other electronic process. This law supersedes all other existing laws, including the Code of Criminal Procedure and the Code of Civil Procedure. Ensuring the virtual presence of any person is deemed to comply with the mandatory provision of the physical presence of that person under the Code of Criminal Procedure or the Code of Civil Procedure or any other law.
The High Court Division and the Appellate Division of the Supreme Court are the constitutional courts having both civil and criminal jurisdictions. Apart from the Constitution, the High Court Division follows the Supreme Court (High Court Division) Rules, 1973, and the Appellate Division follows the Supreme Court (Appellate Division) Rules, 1988. These Rules are framed under article 107 of the Constitution. Therefore, the Supreme Court has taken the initiative to make necessary amendments to these Rules for conducting judicial proceedings in the virtual courts. The Evidence Act, 1872, applies in both civil and criminal matters. The civil procedural laws and criminal procedural laws, along with the Court Fees Act, need to be carefully examined. Hence, it is crucial to consider the entire gamut of law in conducting the virtual courts in Bangladesh.
In considering a legal framework for virtual courts, we will need to incorporate provisions for easing filing of softcopies of the plaint or petition, FIR, complaint, charge sheet, etc., in the court instead of the present provisions of filing hard copies, introducing e-cause list, e-payment of court fees, swearing virtual affidavits, e-service of summons/notices, virtual appearance of the parties to the litigations including accused, witnesses and lawyers before courts, digital signature or e-signature of lawyers, parties, judges, and court-officials, trial through video conferencing, online pronouncement of judgments and judicial orders, issuing certified digital copies of the judgments and judicial orders, e-record management, etc.
Since access to justice is fundamental for ensuring the rule of law, therefore, the initiative of introducing virtual courts in Bangladesh is praiseworthy. The Supreme Court of Bangladesh has taken a great challenge with the limited resources and digital infrastructures for implementing virtual courts during this Covid-19 pandemic. The success of this noble initiative would largely depend upon ensuring technological and legal requirements for e-courts and framing and implementing sound national policy and action plan for e-Judiciary.
The writer is an Advocate, Supreme Court of Bangladesh.