Courts around the world are trying to unravel ways in which they may continue with their duties in the face of the novel coronavirus pandemic. The honourable Chief Justice of Pakistan categorically remarked in a hearing regarding PIA chairman’s appointment that the courts of law in Pakistan would not be shut down no matter what the circumstances are. In line with what he had remarked,the National Judicial Policy Making Committee (NJPMC) meeting this week unequivocally decided that the courts would continue to hear matters as per routine. The honourable Chief Justice, who also heads the NJPMC,stated that dispensation of justice should not stop at any time. This approach is, however, problematic for far too many reasons.
The courts of law, world over, are acting fast in the face of the threat of the novel coronavirus pandemic. The United States Justice Department, for example, has proposed to extend the statute of limitations (time limit within which cases must be filed) during the ongoing emergency for one year following the end of the emergency. Merits of whether the one-year extension is too excessive aside, it is necessary to deal with the situation ina serious manner; otherwise, judges, lawyers, litigants and staff members of court are all at risk of being affected by the pandemic disease.
The Supreme Court in New Delhi has also acted swiftly in this regard by invoking its plenary powers under Article 142 of the Constitution of India to extend limitation period of appeals from high courts or tribunals on account of the pandemic risk. The Court tooksuomotu cognizance of the situation arising out of the challenge faced by the country because of COVID-19. The limitation period in India therefore stands extended with effect from 15th March 2020 till further order/s to be passed by the Supreme Court of India.
The Supreme Court of the United States issued several rulings this week from a virtual bench in the face of the threat posed by COVID-19 pandemic. The Supreme Court decided on very important questions of the constitutional law including the verdict that states may eliminate a widely accepted form of the insanity defence for criminal defendants. This virtual benchcame into existence because of concerns over coronavirus. There is no doubt that novel problems require novel solutions.
On the other hand, the NJPMChas completely misread the situation at hand. There is no doubt that if the courts stop working it would have huge ramifications for all stakeholders, including judges, lawyers and litigants. The suggestion has never been to completely stop the courts from working, especially since it would affect the general public that will not be able to knock the doors of the court when their fundamental rights are trampled on. However, the risk of the pandemic spreading in court rooms cannot be pushed aside. Courts in Pakistan have been ordered to keep working despite objections by the bar associations, even when there have been effective lockdowns ordered by the provincial governments in many cities.
The novel coronavirus may have a silver lining; technological reforms that never took place in Pakistan’s judiciary can now be introduced
This is a clear example of the different branches of the government not adopting an identical national policy and courts not deferring to the views of the executive in cases of policy matters.This cannot be termed as judicial independence but rather as judicial rebellion.
In Karachi, for example, courts were asked to keep hearing matters with the exception that no adverse orders may be passed in case of absence of one of the parties.One may then ask if orders cannot be passed why are courts even hearing matters?
This was the position despite the strong representations made by the bar associations of the country who at the end of the day anticipating no redress had to issue an advisory for its members, asking lawyers to stay away from courts for their own protection.
The NJMPC also severely misjudged its own mandate when it specially invited the Special Assistant to Prime Minister on Healthfor apprising the committee regarding various measures taken by the federal government to curb the virus. Clearly, this was not the job of the NJMPC, butrather of the federal cabinet or parliament. These measureshave been effectively taken for three long weeks before another review is possible.
In the United States, the Chief Justice of the Supreme Court presides over the Judicial Conference of the U.S., which like the NJPMC in Pakistan is the federal court’s policy-making body and has the authority to issue sweeping mandates to all federal courts, but so far has allowed each to make its own decisions on operations. The constitutional position in Pakistan also dictates the same position. Article 203 states: “Each High Court shall supervise and control all courts subordinate to it.” Just like in the US therefore, the high courts should have been allowed to take their own decisions with an independent mind rather than toeing the line of the NJPMC as happened in Sindh.
With all the provinces and the federal government calling the armed forces in aid of civil power under Article 245 of the constitution, no high court can exercise constitutional jurisdiction in relation to any area in which the armed forces are acting in aid of civil power in accordance with Article 245(3). This prohibition, however, does not apply to matters that have already been instituted.
Yet the novel coronavirus may have a silver lining; technological reforms that never took place in Pakistan’s judiciary can now be introduced. This pandemic should change how courts transact business from now onwards. Some decisions must be taken; the NJPMCrather than taking decisions that cannot be implemented and are in direct confrontation with the decisions of the executive branch and put the life of lawyers and litigants alike in peril should rethink the parttechnology can play in court proceedings.
Hearings over video conferencing, while a reality in other parts of the world, remains a dream within Pakistan’s judicial system and video equipment, which is now being used in courtrooms of the world replacing physical documents by being put up on a video screen should be utilised.Limitation periods should also be extended, not counting the period within which the government of any of the province has ordered a lockdown.
If, however, the NJPMC is unable to reform the court system and protect itself from the threat of the coronavirus by the use of technology, perhaps the prime minister needs to be reminded of his promised reforms within 100 days of his coming into power. It has now been over 500 days.
The writer is a barrister