The mishandling of the Covid-19 crisis by the Government is now apparent to all, as the number of infected cases continues to rise. What is even more troubling is that our legislators are entirely oblivious of the latest developments that are taking place in terms of courts around the world. While other countries- in particular UK, US, China and even India- have made wide-ranging changes (both temporary and permanent) to their procedural rules, legislators in Pakistan remain entirely unconcerned. As is Pakistan’s judicial system suffers from inordinate delays but Covid-19 has brought it to its knees. Lawyers, particularly defence lawyers, lawyers for respondents and lawyers who have already gotten stay orders, are having a field day with having regular matters being adjourned time and again.
What was needed, as I recommended in my article of 23 March, was a wide-ranging Covid-19 Act covering all walks of life including the courts. We should have provided for audio and video hearings for all miscellaneous applications from the beginning particularly in the lower courts and that too if these applications cannot be dealt with in written form. Obviously trial work would have to be postponed under the circumstances but in criminal matters this should have been subject to immediate bails in all matters that do not fall under the prohibitory clause of Section 497 of the Criminal Procedure Code. Bails should also have been granted in all matters other than those where the accused poses a threat to society. Secondly for matters other than those that require personal appearance in court, especially civil matters, the introduction of modern technology is must.
Failing to take measures to ensure that the courts are digitized allowing for analytics to ensure efficiency also means that litigants are inevitably forced to courts (especially lower courts) which in turn means spread of infection
We do have the necessary technology required to undertake such an exercise. The small and dingy court rooms at district level are far more susceptible to the spread of the Coronavirus and that is why the introduction of these technologies, including simply conference calling by Zoom, Blue Jeans, Google Talk and Skype. All court proceedings should be recorded across platforms. Public hearings can also be held, as has been the case with the US Supreme Court. It is incredible that none of this has been put in place. Clyde & Co, a UK Law Firm, did an analysis of the global changes and strangely while even the smallest countries were covered there was no section on Pakistan. This is because Pakistan has failed to take any meaningful steps to meet the challenge of the pandemic.
We all know the Churchill’s famous quote during the German Blitz. He asked if the courts were functioning and when informed that the justices were still delivering justice, he replied that all is well. Quaid-e-Azam Jinnah in his 11 August speech had put it as the foremost responsibility of the state to protect the life, property and religious belief of a citizen. This can only be done if the courts are functioning. We now live in 21st Century that affords us much greater flexibility in ensuring that justice is being done. Without delivery of justice a state is likely to fall apart. The state’s pillars i.e. the legislature, the judiciary and the executive must continue to work simultaneously or else we might suffer from executive overreach or even legislative acts that suffer on grounds of constitutional infirmity.
This latter part is particularly worrisome because taking advantage of the Covid-19 situation, the government is trying to rush through two extremely flawed laws when it comes to privacy and internet freedom which will undo a decade of progress. First is the Data Protection Bill. Pakistan needs a data protection law more than ever before given the tracking but it should be data protection law that does not leave loopholes that powers that be can exploit to assert greater control over citizens and encroach on the constitutional rights of minorities. Second is the Citizen Protection (Against Online Harm) Rules which were contested bitterly by the civil society before Covid-19. Having faced challenges in courts, the government is attempting bulldoze the law through using the pandemic as an excuse. The greatest shield a Pakistani citizen has against such overreach is Article 199 of the Constitution. Here too the petitions face inordinate delays with registrars of the High Courts often refusing to fix these matters as not being urgent and are deemed as unimportant. Meanwhile the government continues to do its work and plan its next steps. The government – being a respondent in many of these cases – is happy to allow these delays and refuse an overriding Covid-19 Act that could rectify the situation. Of course we should approach the entire matter with great caution because technology can be a double edged sword. The last Pakistan needs is an E-legal systems that carries with it the common place biases against minorities and women. It is also an opportunity – E-Courts can provide relief in the long run from the mobs who often ransack justice. I digress.
Failing to take measures to ensure that the courts are digitized allowing for analytics to ensure efficiency also means that litigants are inevitably forced to courts (especially lower courts) which in turn means spread of infection. The same callousness with which the government approached the question of mosques earlier (while closing down places of worship of the minorities who are less than 4 percent of the country) is being displayed when it comes to tackling the question of online justice delivery. In any event this pandemic gives us the opportunity to modernize our legal system but we will do nothing of the sort. I am sorry to say that even in the legal fraternity there are those who oppose the adoption of modern technologies. These include those lawyers who would rather adopt dilly-dallying and delaying tactics to ensure that dispute resolution is not taken to its logical conclusion. Thus the entire system suffers from a strange confluence of government’s own interests and those within the legal fraternity who want to use the pandemic to delay matters. Again an overriding Covid-19 Act could have resolved this matter. Statesmanship is too much to ask however from the current cabal in power that still thinks Coronavirus is a joke. As a friend of mine put it recently – history will record that Pakistanis were the nation that considered coronavirus a work of fiction but Turkish TV dramas genuine unvarnished historical truth. We are sadly a nation of Covidiots and that is reflected in our leadership too.
The writer is an Advocate of the High Courts of Pakistan