Covid-19 and virtual courts: Are we ready?

The right to protection of law and access to justice are fundamental rights, which are enshrined in the Constitution of Bangladesh. However, the Covid-19 pandemic has, in effect, suspended the execution of these fundamental rights. The direct effect of the pandemic has caused courts across Bangladesh to be closed for the next few weeks (at least until April 25, 2020) with the result that the cases pending in those courts have been adjourned until that time. This is rightly so since mass gatherings at the courts will inevitably lead to the spread of the virus. As a result, to deal with this problem, courts all over the world are increasingly conducting their cases through virtual courts using remote smart technology.

It can be seen that the courts in Australia, Canada, India and UK (to name a few) are already leaving their footprints in the digital space. Their judicial system allows court proceedings to be carried out through videoconferencing. We, too, are moving ahead with such methods. In this country, the Supreme Court of Bangladesh is spearheading this change. Recently, the Special Committee for Children's Rights has come forward with the proposal of digitisation of the judiciary for the Children's Court. During this crisis, the said Committee has conducted an urgent meeting, through video conferencing, and has decided that, with the approval of the Chief Justice of Bangladesh, emergency hearings at the Children's Court would be held via videoconference - thereby dispensing the need for a child's physical presence in court and eliminating his/her chance of exposure to Covid-19.

This initiative of setting-up a virtual court is a timely and welcome move by the Supreme Court. To list a few benefits, conducting cases through video conferencing in such a crisis would certainly mitigate the spread of the toxic Covid-19 in courts, ease the functionality of judges and may even give shape to the true meaning of access to justice by making access to courts cheaper and more efficient. Although the concept of virtual courts in Bangladesh is at its nascent stage, such measures can be easily adopted through the powers given to the  Chief Justice of Bangladesh under the Supreme Court of Bangladesh (High Court Division) Rules 1973 (the "HCD Rules") or, even, by a suo moto (on its own) initiative of the Supreme Court. Under the HCD Rules, the  Chief Justice of Bangladesh is empowered to issue practice directions for the smooth and efficient discharge of judicial functions of the court. The powers conferred are wide and may be used to include hearings through a virtual set-up. In India, the Supreme Court has directly issued a number of directions, on a suo moto basis, to ensure the smooth functioning of courts through videoconferencing amidst the nationwide lockdown because of the Covid-19 outbreak. Under the HCD Rules, the  Chief Justice may issue practice directions which may include general administration and practice procedures such as administering oaths, affirmation of affidavits, adopting e-filings, and so forth. The practice directions may also deal with and determine the 'court points' where the judges will be sitting and also the 'remote points', which can be one or more designated place(s), where the lawyers and/or witnesses will be present for the purpose of conducting the case. If there is any inconsistency between the practice directions and the other provisions of the HCD Rules, then there are sufficient powers available to temporarily suspend one or more existing Rules of the HCD Rules.

However, as easy or practical as it may sound, setting up virtual courts has its own challenges and "one size fits all" approach may not be suitable in this case. Not all countries are fortunate to have the required infrastructure for the easy use of video conferencing technology, and therefore, will not be able to take advantage of the same until and unless such technology is seamlessly embedded in its physical infrastructure. For example, apart from issuing practice directions, the relevant stakeholders will need to check whether such video-conferencing technologies are available to the relevant litigants at the said 'remote points'. Otherwise, any efforts taken by the Supreme Court may prove to be futile. The foremost challenge, in this regard, is the high costs surrounding the set-up and use of sophisticated and advanced video conferencing technology. In this connection, the support of the Government of Bangladesh and strategic development by the relevant stakeholders is going to be critical.

Also, special care needs to be given to confidentiality. There will always be a high chance that confidential information disclosed during virtual proceedings may be recorded by any of the litigants in their personal devices and used in other situations to the advantage of an unscrupulous litigant and/or made viral on the internet to the disadvantage of the innocent litigant. Another potential difficulty may arise out of the absence of any special agreement with the software provider which will supply the video conferencing technology. The question that needs to be asked is whether the Supreme Court  should use a software application without having any special agreement or engagement with the software provider. Are the general terms and conditions of a software provider sufficient enough to protect the sanctity of the proceedings which may involve fundamental rights of the individual litigants concerned? Most of the small print 'terms and conditions' of the software providers give extensive authority to these providers to deal with data in such manner as they deem fit. In fact, the terms may be changed unilaterally, at any time, which would be binding on the users. For example, Zoom's privacy policy clearly states, inter alia, that 'We may transfer your data to the U.S., or to third parties acting on our behalf, for the purposes of processing or storage.' This may not be appropriate for conducting cases where the litigants may not feel comfortable or wish that their data be stored by third parties and used at their own will - especially in this day and age where technology and information are closely interlinked. The problem is more serious since Bangladesh (presently) does not have a data protection framework which can hold parties accountable for data privacy infringements except that every action of the Government will have to stand the scrutiny of 'right to privacy', which is a fundamental right. Data privacy is integral to any democratic country and has always been sensitive as it is associated with a citizen's fundamental right to privacy.

No doubt that the justice system will surely benefit with the introduction of virtual courtrooms. There is no doubt that the need of the hour is to go for a virtual set-up. By introducing such technology, in a phased and timely manner, video conferencing will surely assist in the administration of justice during the Covid-19 crisis. If implemented properly, this will certainly also increase the efficiency of the whole justice system in the country. However, the above challenges must be borne in mind and addressed before any steps are taken for virtual proceedings. Otherwise, the whole initiative may backfire. Virtual proceedings will only be successful if the practical situation of the litigants and the overall technological infrastructure are synced in a proper manner. A virtual court is not a single window solution; rather it requires that a number of disparate individual components are carefully integrated to create a seamless operating environment. The question that needs to be asked is whether Bangladesh is ready and, if not, how can we take steps to make it ready for such situations in the future.

Md. Sameer Sattar and Md. Khademul Islam Choyon are the Head of Firm and Associate of Sattar & Co. A former Director (Foreign Investment), Dhaka Chamber of Commerce and Industry, Md. Sameer Sattar, Barrister (Lincoln's Inn), is an Advocate, Bangladesh Supreme Court

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