By Ali Mashraf & Shyikh Mahdi

While the ‘stay home, stay safe’ closure and lockdown is being observed worldwide as the safety response to the COVID-19 global pandemic, the unprecedented closure of the courts across the countries is stirring a predicament between public safety concerns and the administration of justice. In these trying times, judicial authorities around the world are coming up with innovative disruptions such as virtual hearing, among others.

Virtual hearings in courts worldwide

Amidst the nationwide lockdown in India, the Gujrat High Court (HC) started hearing petitions online. A video clip of the Gujarat High Court conducting the hearing of a public interest litigation is available online, where the bench of the Gujrat HC extended the time period of all the interim orders by the state courts till 15 June 2020.

In the United Kingdom (UK), the pandemic has forced judges to hear trials through video conferencing via popular platforms, such as Skype. In addition to that, the Judicial Office in the UK urged not to hold any jury trial in the Crown Courts of England and Wales if they were expected to last longer than three days. Such trials have been adjourned and kept under review, as reported by BBC.

The Supreme Court of the United States of America (USA) issued an emergency order recommending how to hold trial proceedings via online video conferencing platforms, e.g. Zoom.

The courts in Ireland are going to pilot a remote hearing process for the Court of Appeal, High Court as well as Circuit and District Courts.

The Courts in Australia have initiated a number of cautionary measures to address the situations which includes, inter alia, hearing, and processing via AV links.

ADR to the rescue?

With the rise of alternate dispute resolution, innovative mechanisms such as Online Dispute Resolution may be effective in this context. One such process is elaborated as ‘electronic arbitration’ in the UNCTAD Guidelines on International Commercial Arbitration. The aspects of virtual hearing are aided by soft laws such as the CIArb’s Guidelines for Witness Conferencing in International Arbitration, or the 2019 Hague Conference Draft Guide to Good Practice on the Use of Video-Link under the Evidence Convention among others. It is, therefore, evident that arbitrators are quick to adapt to the new normal.

As the courts are about to open soon after the ‘vacation’, the rules of social distancing and health measures will be very difficult to implement in the court premises as thousands of people seeking justice will rush to the tiny corridors again.

Response to COVID-19: Closure of Courts in Bangladesh

Given that all the courts in Bangladesh remain closed till 9 April 2020 (factoring in the weekend, till 11 April 2020) due to the nationwide lockdown, lawyers have raised concerns about the expiration of bails granted to accused persons in criminal cases during this time. Consequently, the Supreme Court Registrar General Md. Ali Akbar declared that the bail periods would be extended up to two weeks after the courts resume hearing following the closure.

What to do next for Bangladesh?

However, if we can leverage technology, our courts (at least the High Court or the Appellate Division) can continue hearing these emergency petitions and dispose of these cases to ensure justice to the victims/concerned individuals even during the current (or future) national crisis of this magnitude. The question that remains though is whether our court is well equipped to do so, and most importantly, whether our legal fraternity is willing to do so.

The functionality of the judicial system of the country is entirely dependent on the health and well-being of the people working around it – the judges, lawyers, court officials as well as the thousands of litigants and helpless mass who visit the courts every day. Given the unprecedented situation we are facing where the existing legal framework may fall short of answers to all the challenges posed by COVID-19, it is high time for our judiciary to incorporate innovative solutions for keeping up with the advancements in technology in the 21st century.

Understandably, it is neither possible to miraculously transform our courts into fully-equipped virtual hearing hubs overnight, nor to keep the courts closed for an indefinite time for public health concerns (especially in the face of mountainous backlogs of cases). We need to find the middle ground somewhere, where realistic and scalable changes can take place. In this regard, it is pertinent to note that before the full closure of the courts on 26 March, a vacation bench of the Supreme Court of Bangladesh reportedly asked the lawyers not to attend the court in person but to conduct the hearing (if necessary) via telephone. It, at least, shows the intent within the limited resources we currently have. Furthermore, the judges of the Supreme Court along with the court’s Child Rights Committee reportedly held a virtual meeting on granting bail and releasing the child detainees kept at various children development centers across Bangladesh.

As times are changing, the disruptions we see today will soon become the norm. The wheels of justice must go on and a variety of techs are there for the push.