Litigation in the Internet Age: The Use of Emerging Technologies in the Courtroom
59th UIA CONGRESS
Valencia / Spain
October 28 – November 1, 2015
UIA LITIGATION COMMISSION
Saturday, October 31, 2015
The legal system and its corollary, an effective court administration, like most things in life, cannot and should not remain static. A big impetus for change and improvement within the legal system is due to the problems of delay in the dispensation of justice. The phrase justice delayed is justice denied may have become a cliché but while being mindful of important safeguards the truth and essence of this maxim are irrefutable. Most countries have addressed these delays and are constantly striving to reform the legal system.
While there are myriad of ways through which technology can reform the legal system, the scope of this paper will be limited to the area of court administration. Effective court administration can involve multi-faceted tools and strategies and this paper will endeavor to throw light on how technology can be harnessed as a tool for improving court administration in Pakistan, looking at how the courts in Pakistan are slowly but surely awakening to the use of technology as an effective way to improve the administration of justice.
DELAYS- A HALLMARK OF PAKISTANI LITIGATION:
The administration of justice in Pakistan is most affected by delays in both criminal and civil litigation and causes immeasurable harm to society at large. It has resulted in effectively denying justice to countless people and thus eroded the public’s confidence in the judicial system. In some regards, the words of our neighboring Indian Supreme Court hold equally true for Pakistan where in a case decided in 1975 (after 25 years of litigation) the Supreme Court observed:
“At long last, the unfortunate and heroic saga of this litigation is coming to an end. It has witnessed a silver jubilee, thanks to our system of administration of justice and our callousness and indifference to any drastic reforms in it. Cases like this, which are not infrequent, should be sufficient to shock our social as well as judicial conscience and activate us to move swiftly in the direction of overhauling and restructuring the entire legal and judicial system. The Indian people are very patient, but despite their infinite patience, they cannot afford to wait for twenty-five years to get justice. There is a limit of tolerance beyond which it would be disastrous to push our people. This case and many other like it strongly emphasize the urgency of the need for legal and judicial reforms”. [i]
While India and Pakistan have since then progressed in reforming the judicial system, the position is still far from ideal and cases are known to linger on for years if not decades. Some of the factors contributing to these delays are;
- Lack of proper supervision;
- Unsatisfactory service of processes;
- lack of proper working conditions in the courts;
- lack of transport facility for process serving staff;
- lack of court/residential accommodation;
- lack of libraries;
- lack of record rooms in the courts;
- lack of training facilities for judicial officers;
- shortage of ministerial staff and necessary equipment in the courts;
- non-observance of the provisions of procedural laws;
- shortage of judicial officers;
- shortage of stationery and furniture;
- delay on the part of investigating agencies;
- non-attendance of witnesses;
- delay in writing and delivering judgments;
- frequent adjournments;
- dilatory tactics by the lawyers and the parties;
- frequent transfer of judicial officers and transfer of cases from one court to another;
- interlocutory orders and stay of proceedings; and
- Un-attractive service conditions of subordinate judicial officers.
Most of these causes of delay can be managed and minimized through better courtroom administration. It should, therefore, be dealt with on a priority basis so that the public confidence in the legal system may be restored. Article 37 (d) of the Constitution of the Islamic Republic of Pakistan, 1973 it is mandated that the State ensure inexpensive and expeditious justice to its people. Moreover, the absence of public confidence in the justice system leads to dire consequences, many of which the Pakistani society endures in the form of mob justice, parallel informal justice dispensations such as the Jirga, etc.
TECHNOLOGY & COURT ADMINISTRATION:
We do not conduct our personal or professional lives in the same way as we did ten years ago. Smartphones, computers, tablets, the internet, email have all drastically changed our lives. This change has inevitably crept up into the legal domain as well. While lawyers and firms have been quick to jump on to the technology bandwagon, courts have been a bit slow in adapting to this change.
Pakistan’s Information Technology industry is one of its most successful economic sectors but so far technology has not made significant inroads in courtroom administration. In fact, since after the partition of the Indian sub-continent (1947), there has been no noteworthy movement for the modernization of courtrooms and the administration of justice. Technology can offer courts practical help with ever-increasing caseloads and decreasing financial resources. Through the use of appropriate technology, a court can expedite trials, improve the quality of justice and lower the costs for both litigants and courts alike.
It must be kept in mind, however, that like all innovations, technology is also a double-edged sword and if implemented properly can have great benefits but it also has the potential to increase costs, waste time and confuse all the stakeholders in the judicial proceedings if implemented improperly.
“Technology, including courtroom technology, does not exist in a vacuum. A comprehensive discussion of the potential value of courtroom technology requires consideration of the technology itself, its method of employment, its human effects, current legal and practical constraints, and the technology’s potential specific and systemic advantages and disadvantages, particularly if any applicable legal restrictions were to be varied” [ii].
One must be mindful of the fact that courtroom technology cannot be assessed or discussed in isolation as being an independent factor towards effective dispensation of justice. Illiteracy, cultural considerations, resource, and budgetary constraints are some of the factors that must be taken into account when considering the implementation of technologies in the courtroom to ensure that these changes are productive and improve the overall functioning of the justice system.
Due to paucity of time and space, we cannot address the various factors influencing courtroom technology in-depth but we can identify that it is an issue impacted by various factors and hope that the readers do not take a simplistic view that ushering in courtroom technology would necessarily mean speedy and effective dispensation of justice.
Some of the ways in which technology is being incorporated in courts in Pakistan, and the lacunas where the implementation of technology can prove beneficial to the administration of justice in Pakistan, keeping in view the local realities, are discussed below:
AUTOMATION OF CASE MANAGEMENT:
At the Supreme Court and High Court level, the use of computer and information technology has been made for quite a few years but so far it is restricted to internet research, typing of judgments, the database of cases, cause lists and some basic case management. The superior courts have also recently started maintaining relatively up to date websites, which have cause lists, the roster of judges, online case status and important judgments available on them free of cost, making access to information for both lawyers and litigants easy.[iii]
A welcome change introduced recently, which is still in its nascent phase and limited to the superior courts is that of “Online Case Proceedings” which has been launched as part of a new Case Management System. Through this system, the current case status of a case being heard in court is displayed on monitors in court buildings as well as on the court’s website. This program is still being tested and all the courts are not online yet and court readers are still being trained.
At the subordinate level, however, computers are usually the decade-old desktop model used for typing work only. For effective administration of justice, such automation must descend to all levels of court hierarchy and the management system must be sustained in the long run not just for a limited time.
Efficient information access, a welcome consequence of case management automation, is a method of self-accountability in many ways. If information about a case is easily available to the superior and apex court management then the whole process is made transparent and self-governing. If the stakeholders have transparent access to information via modern means without even coming to court then we have achieved a milestone ineffective judicial dispensation. It would mean that justice would be reached at a faster pace, monitoring to be on the fly for all stakeholders and information access would not be constrained by dictates of time and geography.
COMPUTERIZATION OF COURT RECORDS & PROCEEDINGS:
In Pakistan the courts do not have the facility to record transcripts of the oral arguments made by the counsels, nor are there any official records of remarks made by judges inside the courtroom. The only source of these oral conversations is media reports, which are often not reliable. Technology can easily be harnessed to solve this problematic area by employing audio aids and recording devices. This would not only expedite appeals but also ensure that the court record is free of error.
ELECTRONIC FILING & RECORDING OF EVIDENCE THROUGH MODERN MEANS:
Recently in August 2015, the Law and Justice Commission of Pakistan deliberated upon allowing overseas Pakistanis to record evidence through video links. It was decided in this meeting that existing laws will be amended allowing overseas Pakistanis to record their statements through video conferencing in court proceedings and to electronically file their cases. The Law and Justice Commission of Pakistan was considering different issues relating to the dispensation of justice in the country and also stressed the automation of the justice sector to improve the quality of justice delivery and strengthen the monitoring mechanism.[iv]
There are a number of sensitive cases in Pakistan in which the desire for speedy justice has to be balanced with security concerns. Such cases can benefit greatly from modern technology by rendering the old methods of the recording of evidence, and indictment of accused obsolete and by providing safety to at-risk witnesses and a generally more efficient dispensation of justice. For terrorism cases in 2014, an amendment was made to the Anti Terrorist Act 1997 whereby in Section 21 a new subsection was inserted allowing trials to be held in jail premises or through video links.
Recording of evidence through a video link is also particularly valuable when the witness faces security threats in attempting to visit the court for his or her testimony. Of significance is the judicial inquiry by three Chief Justices of the High Courts in 2012 to verify claims of Mansoor Ijaz into the memo written by Hussain Haqqani (the then Pakistani Ambassador to the US) to Mike Mullen. Mr. Mansoor Ijaz the solitary witness in the inquiry did not intend to travel to Pakistan as he had received overt and covert security threats. The court after summoning him a few times was caught between either sending a local commission abroad to record his testimony which would require considerable time and expense or to record his testimony through a video link, a hitherto unprecedented act in such cases. The court sided with the latter option by relying on the case of Aijazur Rehman v State[v] in which the court had observed that technology had advanced and now evidence can be recorded through video conferencing and the same is “almost like being there”. The court further observed:
“It is not out of place to mention here that the proceedings of the case, through video conferences are being conducted in the developed countries such as USA, UK, Canada, etc and our neighboring country India where virtually the Code of Criminal Procedure is same as that of our Code of Criminal Procedure. Videoconferencing is an interactive tool that incorporates audio, video computing and communication technology to allow people in different locations to electronically collaborate face to face, in real-time, share and communicate all types of information including data, document, sound, and picture. … Videoconferencing in the last few years has become very realistic. The jerky movements of early videoconferencing systems is a thing of the past, the audio has also greatly improved by which echoing is practically non-existent. During videoconferencing one can see the facial expression and body language of the conference participants. Both these important aspects of communication are not available in basic telephone talk and call. Thus a videoconference session, today is almost like being there.”…
“because of modern devices and technologies, the trials through video conferences are growing fast which are not only advancing the cause of justice but catering to various problems such as the production of accused in Court, recording of evidence of witnesses from far a place, so on and so forth. The evidence of witnesses can also be recorded through video conference while the accused remains in jail”…
Henceforth, the courts have been more accepting of video link testimony. In 2014, the Supreme Court made an observation regarding the intended testimony of Imran Munir who had sought asylum in Sri Lanka in the Missing Persons case that video link facility should be provided to him for his testimony[vi]. In another high profile case concerning the former Prime Minister Benazir Bhutto’s assassination, Mark Seigel agreed to record his testimony from America via video link and did not wish to travel to Pakistan for security reasons[vii]. In a country like Pakistan, where security is often a concern, such a facility is invaluable in providing access to justice in sensitive matters.
Technology can play an important role in complex cases, breaking down the complexities and making them more easily understood. For this reason, major trials should ideally use the full array of presentation technologies. This technology is usually referred to as “evidence presentation” technology. Many courts across the world have permanently installed such technology, or have a portable technology (often on a mobile cart that can be moved into the courtroom for the trial), or both. When counsel wishes to use technology not owned by the court, they customarily request permission to obtain it and install it temporarily in the courtroom.
At present, there are no courtrooms in Pakistan that have permanently installed technology and on a case to case basis, portable technology is used but is often resisted by the judiciary who are inherently in favour of more conservative presentation techniques. However, this hurdle could be overcome by training and familiarity. It would be crucial to keep in view the potential for the exploitation of such a facility and any inequalities it may generate between those with varying levels of technological skills.
Technology in the courtroom can only be effective when judges, lawyers, and litigants are willing to embrace changes and to let go of old conventions and habits that no longer serve the administration of justice. While literate litigants may be the most amenable to embracing such changes, judges and lawyers are notoriously old fashioned and traditionalist. A change in attitude will be more easily seen when adequate training facilities are provided to the judges and their staff. Litigants not familiar with technology are also likely to find such changes confusing.
Technology is a powerful enabler that can empower courts to meet core purposes and responsibilities. To harness technology for this purpose courts must plan to (a) migrate from document to content management and (b) initiate customer relations management to improve the quality of justice, access to justice, and public trust and confidence in courts as an institution.
Resource and budgetary constraints must be kept in mind when considering the implementation of such technologies. The change will undoubtedly be slow in Pakistan but we are moving in the right direction.
[i] India, AIR 1976 S.C. 1734
[ii]The Potential Use of Courtroom Technology in Major Terrorism Cases, Fredric I.Lederer, William & Mary Bill of Rights Journal, Volume 12, Issue 3
[v] Pakistan, PLD 2006 Karachi 629