ISLAMABAD:

By the end of March this year, the backlog of cases in the Supreme Court of Pakistan hit a record of 48,594 cases. The pandemic is the main cause for this massive pendency in the apex court as providing justice has become a massive challenge during a time when social distance is the need of the hour.

More than six thousand cases were added to the total pendency during the last 15 months. In January last year, the total number of pending cases was around 42,000 , with a total of 6,594 added by the end of March.

Former Chief Justice of Pakistan Asif Saeed Khosa had previously focused on clearing criminal cases and he remained successful in his strategy. However, it has now been witnessed that the backlog of criminal cases is also increasing day by day. No special bench is working to decide jail petitions. A total of 2,436 jail petitions were pending until 31 March.

A state law officer who represents convicts in criminal cases and requested anonymity revealed that due to the non fixation of jail petitions or criminal appeals, relatives of prisoners have been contacting them to know status of their cases. “There is a dire need for a special bench to consistently work to clear the backlog of criminal cases in the apex court. Likewise, around 30,000 cases of civil nature are pending in the apex court,” he said.

 

There are many factors responsible for this huge pendency. The prime reason is that the court work has been badly affected due to the Covid-19 pandemic. On the other hand, it is a fact that Supreme Court could not expand the use of technology to ensure justice during this critical time. During the hearing of Justice Qazi Faez Isa application for live broadcast of his case, another Judge Justice Syed Mansoor Ali Shah rightly pointed out that science and technology should be welcomed as they hugely help improve and bring more transparency to the system of justice.

Although, having said that, it is important to note that the Supreme Court has taken some significant initiatives recently to use technology for speedy and inexpensive justice. In May 2019, for the first time in the judicial history of the country, the Supreme Court used the e-court system under which its registries in the provinces would be connected through latest technology to its principal seat in the federal capital.

The advocates in Karachi, Lahore, Peshawar and Quetta whose cases are fixed at the court’s principal seat in Islamabad may argue their cases from their cities through a video link. The system is benefiting the lawyers as well as the litigants and rendering the judicial system more responsive to the needs of the people approaching courts to redress their grievances. However, this option is only being used limitedly. The current infrastructure of the court system does not permit the use of technology in a majority of cases.

In view of the current situation of Covid-19, there is a need to expand this technology by allowing lawyers to argue from their home or their office.

In December last year, in view of the deadly coronavirus, the Supreme Court of Pakistan allowed a senior lawyer to represent his client from home using a video-link facility.

 

Similarly, the Islamabad High Court is already permitting counsels to plead their cases remotely. Situation is same in other superior courts wherein judges could not work with full efficiency. It is pertinent also to mention here that several of the high court judges were affected due to the coronavirus. Even the Chief Justice Peshawar High Court Waqar Ahmad Seth died due after contracting Covid-19. Thus since a majority of the lawyers are above the age of 60, virtual hearing are most certainly the need of the hour.

Justice Isa’s proposal

In April last year, a division bench of the apex court led by Justice Qazi Faez Isa, in its order, as a solution, proposed a mechanism for hearing cases through a video link. The bench suggested that each courtroom or bench be provided with a WiFi-connected cell phone while the number of cellular devices to be mentioned in the cause list and on the website of the apex court.

The proposal also suggested that applications such as Skype, WhatsApp, Telegram or any other suitable video conferencing platform be installed in the said Supreme Court cell phone and the counsel should also be asked to install the same application in their devices.

 

After the identity of the counsel is verified, cases may be heard by the use of the said video-conferencing application. The proposal further suggested maintaining transparency and openness during the proceedings and that the screen of the court cell phone may be mirrored on television sets which are already installed in every courtroom.

“The possibility of preserving the recording of the court proceedings (six months) be explored,” the proposal stated. The divisional bench also recommended that this task be assigned to the apex court's information and technology department. However, before using the proposed system, the IT wing should ensure successful trial runs.

 

The Pakistan Bar Council (PBC) and Supreme Court Bar Association (SCBA), offices of Attorney General for Pakistan and advocate generals and prosecutor generals to be given a demonstration of the workability of the proposed system and consider their suggestion, stipulated the proposal.

The mechanism was subject to the approval of Chief Justice of Pakistan (CJP) Gulzar Ahmed.

Lawyers opinion

In support of virtual hearings, Barrister Asad Rahim Khan believes that this is very much required in view of how the third wave is exploding. "The technologies developed over this time can also assist the courts in enabling remote hearings for counsel based in other cities," he said.

Another lawyer Haris Azmat says that virtual hearings are a great initiative. “It saves cost and time of both lawyers and litigants. It also reduces the cost of litigation. To reduce the work load of cases especially in the pendamic, virtual hearing should also be introduced in High Courts,” he said. “However, in complex and hotly contested cases I always prefer in person hearing as one gets more attention of the judges if one is present in court,” he adds.

 

Advocate Khurram Chughtai believes that almost all jurisdictions including small countries and countries with unrest like Iraq have introduced detained legal, administrative and digital framework for virtual hearings. “We in Pakistan have introduced it only in the Supreme Court and that too is actually from Supreme Court registries provincial capitals only,” he said.

Chughtai also said that restrictions to argue through video link at the registry won’t serve the real purpose of social distancing and remote working. He noted that there is no such arrangement in high courts and lower courts. "So, linking a restricted video link hearing from registry with Covid-19 pandemic is actually a flawed notion, the same was operation was there even before the pandemic," he said.

He said that in India, during this Covid-19 pandemic, courts have rapidly adopted digital technologies. Break up of digital hearing of cases done by the courts with Supreme Court hearing 7,800 cases, high courts hearing 1,750,000 cases and subordinate courts hearing 7,340,000 cases. Following the surge in Covid-19 cases, the Jammu and Kashmir High Court, along with lower courts, has again switched over to virtual hearing, he adds.

Lawyer Atira Ikarm says that coronavirus changed the world in some ways for the worst and in others for the much better. “Virtual hearings are a long over due step in the positive use of technology to overhaul the legal system. It will help overcome the unnecessary delay in the administration of justice, provide convenience for lawyers and litigants alike and positively impact the environment as well,” she says.

A 10-judge larger bench of the apex court led by Justice Umar Ata Bandial has already reserved judgment on Justice Isa application for live broadcast of his review petition against the court June 19, 2020 order wherein matter related to undeclared properties of his family members were referred to Federal Board of Revenue (FBR) for conducting inquiry.

The judgment will be significant as its case of first impression wherein the court is adjudicating a question regarding live broadcast of case hearing. Interestingly, the federal government has opposed live broadcast of court proceedings.

Across the globe

All over the world, including India, lawyers are being allowed to plead cases from home due to the pandemic.

It has been reported that in February that the Indian judiciary achieved a record of conducting 6,685,000 case hearings through video conferencing during the lockdown. The Supreme Court, according to the law ministry, has become a global leader with 52,353 virtual hearings during this period.

The law ministry, in its performance audit of courts, has found that the district courts have heard 4,573,000 cases over video conferencing till December 2020, while the high courts have heard 2,060,000 cases. The Supreme Court heard 52,353 cases till January 31, making it a global leader in virtual hearings.

 

Similarly, United States of America Supreme Court is also hearing lawyers arguments through phone. Its also reported that several countries courts too, are likely to emerge from the tumult closer to modern times. According to data published by the government, there were 550 hearings in the United Kingdom using audio or video technology on 23 March - the day Britain announced its social distancing lockdown. By 6 April, the last day of the study, that figure had surged to nearly 3,000, or 85 per cent of hearings. In Germany, where a judge in Berlin last month told a packed courtroom that one attendee with coronavirus could infect them all in 15 minutes, the shock of the pandemic may finally sink in enough to make some changes too.

Likewise, a lawyer who appeared before international legal forums confirmed that all international tribunals are conducting their proceedings through video link during pandemic.

Its an undisputable fact that modern technology is useful for ensuring transparency and efficiency in the justice system. Virtual hearings are also going to be useful for the implementation of Article 37-d of the constitution which says that the state shall ensure inexpensive and expeditious justice.