Musings of a lawyer

We are already over two months into the extended holiday which is coming to an end soon. It feels as if we time travelled to a new reality after March 25, 2020 which I still cannot fathom. The greatest anxiety comes from the uncertainty. Shall we ever go back to where we left off in March? As a supreme court lawyer my usual day started with me travelling to my workplace early in the morning, arguing cases before the court, dealing with clients personally and further client dealings in the evenings and weekends.  

The profession is very interpersonal and adversarial, at times, requiring relationship building, gaining clients' trust, making convincing arguments to the courts, among others. However, the past usual seems so unusual now! My wife is among the fortunate 10 percent who continues to work from home for a global non-profit organisation. I also wondered if digital engagement was a possibility for us. Meanwhile, England, many States in the US and India adopted the practice of virtual court as an emergency measure. At a time like this, the ordinance on the introduction of virtual courts caused a swirl in the stagnant pool.

Initiated by the supreme court, the decision on the "virtual court"was quickly approved by the Cabinet Division and later formalised through the promulgation of the "Adalat Kartrik Tathya Prajukti Byabohar Adhyadesh 2020". It is commendable how quickly the thought leaders in the supreme court, guided by the chief justice, responded to the pandemic and formulated the plan for working remotely. Already many practice directions and circulars have been issued for both the divisions of the supreme court, which have been uploaded on the supreme court's website.

In summary, this is how a virtual court works: The interested lawyer emails his/her application with enclosures (soft copy) supported by a one-page justification on the urgency of the matter to be heard to a designated email address, probably of the bench officer of the concerned court. The bench officer, in turn, prints out a hard copy of the application for record and forwards the soft copy to the concerned judge, who examines the urgency and approves the prayer if convinced by emailing the lawyer with information about the date/time and other details. It is also the responsibility of the court to inform the schedule to the opposing party. The matter is heard on the approved date through video conferencing in the presence of both sides before the order is passed and finally communicated via email. As an enabler, the practice directions, issued so far, only require the signature of the lawyer and the concerned party dismissing the earlier requirement of authentication by court officials. These are clearly designed to hear "urgent" matters without physical presence. We have already seen the first writ petition in a virtual court, challenging the hunting of dolphins in the Halda river followed by several bail applications.

However, I can write volumes about the technical and practical challenges of operationalising and scaling this nature of court in our context; until recently, every citizen of our country had the fundamental right to approach the court, but suddenly they have to cross the hurdle of "establishing urgency" to get their matters heard. On the other hand, as a member of the bar, I cannot entirely physically isolate myself from a client while preparing for the case. Nonetheless, my argument for this piece would be to keep an open mind and will to embrace something new with a lens on inclusion.

A panel is working hard to untangle the protocols or the modus operandi of participating in a virtual court by lawyers in many tiers of judiciary. Also, the team is adjusting several formal procedures to adapt to the virtual courts, e.g. temporarily dispensing with the role of commissioner of affidavits, relying on lawyer's authentication, allowing payment of court fees at a later date, hearing based on only soft version of the pleading and enclosures. I would advise lawyers to visit the website regularly to see the new uploads on instructions and developments. I can see confusion and inhibition among many lawyers to take advantage of the facility due to digital inertia or a mental block. Similarly, the authorities should also become more innovative in reaching out to the lawyers across the spectrum to assist them to overcome the block, one example can be texting the links of the website or a mock YouTube video through mobile sms service.

Although temporary in nature, the virtual court and use of automation and technology have a huge potential for the next normal times. For example, routine work like "extension" of bail and other orders and "fixing" dates for hearing cases can be permanently brought under the purview of automation with a scope for raising objections by the other side. Moreover, arbitration of disputes can be easily conducted through this procedure, encouraging corporate and private persons to settle their differences more effectively. In hearing matters a provision for emailing "written arguments" to judges in advance can brief them about the bone of contention in a particular matter reducing the time of the main hearing. Post-pandemic this will also help address the backlog of cases freeing the time of judges for quick dispensation of complex cases. COVID-19 has hastened the pace of digitalisation of work. This shift calls for substantial training in new skills, that too delivered using digital tools.

Until a vaccine is invented and its effectiveness proven, we must practice caution in our workplace. While a virtual court has its advantages, we might have to consider reopening the courts gradually when lockdown is lifted. The Open Court principle finds its origins in the much-revered MagnaCarta of 1215 which states that it is not only the right of litigants to have their cases resolved by court, but also the right of the public to attend legal proceedings.

Therefore, I am also urging the authorities to enforce strict rules on social distancing and cleanliness when they reopen the courts. What kind of a post-pandemic court premise do I envision? A premise that has automated safety checks using biometric tools such as automatic sensors checking people's body temperatures on entry, beeping systems to enforce six-feet separation system and installing disinfection chambers. Following the example of Bangladesh Secretariat, another easier way could be to streamline entry of people into court premises—each courtroom can be given a list of limited number of cases each day, allowing only the concerned lawyers to enter and the clients may enter only with prior written pass from the concerned authority. Are discipline and efficiency too much to ask? I am aware, compliance by fellow lawyers might also prove difficult but in the end, I am sure the choice for life would triumph.

Barrister Rehan Husain is a practicing lawyer at the Bangladesh Supreme Court.