Bangladesh ushered in a new era in its judicial system last week with the enactment of the 'Usage of Information and Communication Technology by Court Ordinance, 2020' (the Ordinance). Due to the COVID-19 pandemic forcing regular court activities to go on a hiatus for over a month since 24 March, the Ordinance finally paved the way for virtual operations of both tiers of our judiciary. The President exercised his ordinance making power provided in Article 93(1) of the Constitution of Bangladesh after receiving request from the Chief Justice (CJ) to the government to take steps to ensure the virtual operation of courts during the pandemic.
The preamble of the Ordinance says that the law has been enacted to ensure the virtual presence of the parties while holding trial or inquiry, or hearing application or appeal, or taking evidence, or hearing arguments, or issuing order or judgment by the courts. Section 2(1)(b) defines 'court' as both the Appellate Division (AD) and the High Court Division (HCD) of the Supreme Court (SC), as well as the subordinate courts and tribunals of Bangladesh. Moreover, section 2(1)(e) defines 'virtual presence' as the presence or participation of anybody in the trial procedure via audio-video or any other electronic media.
Section 3(1) says that despite anything contained in the Code of Civil Procedure (CPC), 1908, and the Code of Criminal Procedure (CrPC), 1898, any court under this Ordinance can commence any virtual court proceeding mentioned in the preamble on fulfilling two conditions: (a) the court must follow the practice directions (special or general) issued by the SC's AD or HCD; and (b) the court has to ensure the virtual presence of the parties, or their lawyers, or any concerned person, or the witnesses, via audio-video or any other electronic media. Section 3(2) says that except for ensuring the virtual presence of the abovementioned individuals, the courts must follow the procedures outlined in CrPC and in specific cases, CPC for all other court proceedings.
Section 4 says that ensuring someone's virtual presence during court proceeding will be equivalent to ensuring their physical presence in the court, if their physical presence is mandatory under the relevant provisions of CrPC, or CPC, or any other law. Lastly, section 5 empowers the AD, and in certain instances, the HCD to issue practice directions from time to time. This provision endorses SC's rule-making power under article 107 of the Constitution to regulate the practice and procedure of the AD and the HCD, as well as its subordinate courts.
After the enactment of the Ordinance, the CJ issued three separate notices on practice directions to the AD, the HCD, and the subordinate courts and tribunals of Bangladesh, respectively. The notices to AD and HCD contain 15 directives each, while the notice to the subordinate judiciary contains 21 directives. In a separate notice, the CJ nominated the AD's chamber judge to preside over the virtual court proceedings of the AD. The chamber judge will dispose of appeals as per the Ordinance and the AD's practice directions.
The CJ also constituted three HCD benches to virtually hear writ and civil matters, criminal and bail matters, and miscellaneous matters, respectively. The benches will dispose of cases virtually following the Ordinance and the HCD's practice directions. Lastly, the practice directions to the subordinate judiciary, as well as the subsequent notification clearly stated that the courts were empowered to hear only bail matters virtually.
Though it is a praiseworthy initiative, some crucial issues remain unattended. First and foremost, the practice directions contain remarkable provisions to submit all case documents, including the petition/application, supplementary documents, wakalatnama, etc. online by scanning. However, lawyers have complained that to procure all these and the required signatures, they have to go out of the confines of their homes. This makes a substantial part of the procedure physical and only the hearing virtual – something contrary to the aim of enacting the law. Secondly, the directions also state that each application/petition will be accompanied by a one-page urgency application. But the criteria to determine which cases are urgent have not been outlined and have been left to the subjective views of the respective judges.
Thirdly, the online portal (http://mycourt.judiciary.org.bd/) created for filing documents to commence any subordinate court proceeding virtually raises many privacy concerns. There is no disclaimer/notice on the protection of data provided by the lawyers. This puts lawyers, litigants, court officers, judges everyone at risk due to the confidential and sensitive nature of the information contained in case documents. Moreover, the practice directions state that virtual court proceedings will take place through Microsoft Teams, Zoom, Google Meet, or any other video conferencing applications. Data storing and mining can lead to grave instances of privacy breach. Thus, the SC, in consultation with the proper authority, must take measures to protect sensitive personal and case data.
Fourthly, the Ordinance and all the practice directions remain silent about pending matters in the courts: whether courts will hear those cases or bail petitions, and if so, what will be the procedure to get them on the cause-list. Lastly, the two most common problems – lack of uninterrupted power and internet connection, and lack of digital literacy has made it impossible for many lawyers, specially the ones in the remote districts to properly avail of this opportunity.
In conclusion, we must note that e-judiciary has its own shortcomings. This is an extraordinary measure taken during extraordinary circumstances. With the virtual operation of courts already underway, the authority must ensure proper infrastructure and training to everyone concerned in the coming days to sustain this. Media reports indicate that the first week of the virtual operation of courts has been a success. Therefore, the SC should address the abovementioned areas of concern by modifying the practice directions from time to time – something both the Constitution and the Ordinance empower them to do.
The writer is the Junior Legal Analyst, iProbono (Bangladesh).