Though the spread of Novel CORONA virus (Covid-19) has reduced and the curve has faltered by the grace of Almighty Allah and is reducing further day by day, it is not yet eliminated and the threat of a second wave still exists.
Nonetheless, the pandemic Covid-19, besides affecting the lives concerning the business, education, tourism, and social life, has brought a lot of new ideas to carry out different formal and informal activities of daily life. The work-from-the-home policy has been adopted by many organisations, whereas formal and informal online learning through Zoom, Skype, Google Meet and other applications is increasing.
The online mode of learning is adopted by educational institutions, even at a primary level, without prior experience. We can rather consider this as a compulsion to follow whether anyone prefers it. Many issues have surfaced during the execution of online learning like the absence of electricity, internet connectivity, slow internet services, etc. Likewise, a lot of people preferred shopping online instead of visiting markets. Even grocery items, fruits and vegetables are being made available online, due to complete and smart lockdowns in the cities, so that the public may not visit the markets to buy daily usage items and keep social distancing. Besides the availability of the things online and imparting education virtually and work from home policy, the option of online court proceedings was given, which was also at the initial stage and started by Honorable Supreme Court of Pakistan, even prior of pandemic Covid-19. Due to prevailing circumstances, it has become the need of the hour to decide court cases based on online court proceedings and written arguments. In this regard, Worthy Provincial High Courts of the country allowed court proceeding through video link even before District Courts. It is also observed that e-filing has also been introduced in many developed countries during the current Covid-19 crisis. Such ideas are being discussed among the stakeholders of the justice sector in our country as well. This mode of court proceedings needs to be regulated by the legislature with facilities to the stakeholders of the justice sector along-with awareness to litigants, court officials and lawyers.
Nevertheless, the practice of electronic hearing has been started even without formal legislation. Likewise, the decision on a paper or written arguments i.e. without oral arguments is also a modern way of placing arguments, before the court for the quick decision of the cases.
Since the e-filing practice has not started in Pakistan, but the practice of decisions on papers can easily be adopted in the courts even without formal legislation in civil, criminal and family matters at trial as well as at appellate stage to minimise the appearance of people to avoid the spread of virus vis-a-vis to save the time of the court, lawyers, and cost of litigation.
Another justification for deciding cases through this mode is that senior lawyers have to appear before various courts of law including Supreme Court, High Court, Special Courts and District courts, therefore litigants have to wait in the corridors of the Courts until the appearance of their counsel or take-up of their matter, which is not safe in these days and may increase the spread of the virus as well, therefore to follow government SOPs to reduce the spread of the virus and continue the daily business of life, the cases can be decided by applying modern techniques.
Though the term “Decision on paper” may be new, such practice is already prevailing in the world. In Australia, under part IV of the Supreme Uniform Civil Procedure Rules 1999 of the Supreme Court of Queensland Act 1991, wherein the exhaustive procedure envisaged regarding decisions of papers without oral hearing with the consent of the parties, particularly appeals in immigration matters urged to be decided accordingly. Henceforth, such procedure and practice need to be increased and regularised in Pakistan as well so that everyone may adopt such practice in the given circumstance. It is useful in normal days as well to save time and costs of litigation.
Since in one case at least two lawyers, parties, four to five Court officials including judge gathers and normally more than 50 cases being fixed in daily cause list before the District Courts or more and it will increase on the resumption of regular work in courts as a lot of cases have been piled up due to lockdown and everyone will rush towards courts for the quick decision of his case after lifting of smart lockdown completely.
Although lawyers and litigants appear before courts during the trial of cases, the physical appearance of the litigant is not required at various stages of the trial of cases.
Yet, they appear before the court just for their satisfaction.
Likewise, the physical appearance of counsel is also not required at various stages of the trial of cases, but they prefer to appear or their court clerk appears before the court failing which matter can be dismissed in non-prosecution. Whereas except for recording evidence in civil matters, the parties need not appear before the court, particularly at the stage of hearing of miscellaneous/interlocutory applications i.e stay application Under Order 39 Rule 1&2, Rejection of Plaint U/o VII Rule 11, Appointment of Local Commission, and hearing of final arguments under the Code of Civil Procedure 1908, after the conclusion of the evidence of the parties likewise, accused also does not appears before the court at the hearing of Bail application U/s 497 Cr.P.C, Application for Superdari (temporary custody of case property) U/s 550 Cr.P.C, etc., despite parties and lawyers, appears before the court, which increases the number of visiting people into Courts, with conventional system of proceedings a lot of time of court consumes in the hearing of arguments on interlocutory applications or final arguments after the conclusion of the evidence and it is also in practice before the courts that lawyers submit their written arguments after advancing oral arguments or submit skeleton arguments issues wise with case laws to elucidate their point of view in case of missing any point during oral arguments before Court. The procedure of submitting written arguments needs to be adopted and legislated to reduce the number of people appearing before a court. The practice of submission of written arguments can be carried out by submitting the same either through the post, dedicated e-mail or through the clerk of the council subject to the consent of parties for decision of their matters on papers qua written arguments without oral arguments. It can also be submitted in USBs through video recording or online video link, respectively. In case of any query of the court, counsels can only be heard on a particular point instead of hearing long arguments. Judicial officers may decide the same after going through the record and considering the written arguments of the parties, which will be saving time and costs.
The writer is serving as a senior civil judge in Islamabad