Opportunities and Challenges
Continuous lockdown imposed throughout the nation to control haphazard spread of COVID 19 has exposed courts to real challenges in delivering justice effectively. On 10 April 2020, the Supreme Court of Nepal, realizing urgency in justice delivery and current necessity of physical distancing, issued directives to be observed by the courts while regulating the cases in the time of lockdown. To ensure undisrupted and continued dispensation of justice amidst the lockdown, the Supreme Court of Nepal has provisioned for pleading through video conferencing in the directives. A much needed relief in itself, this provision indeed helps the courts to function even in absence of the physical presence of the lawyers and which shall be in consonance with the social distancing guidelines of the government of Nepal. This is a very pragmatic approach by the Supreme Court, however, lawyers still await further directives regarding the procedure for pragmatic realization of the decision. So many other countries like India, Singapore, Australia have issued detailed guidelines or procedures for online court procedures. Nepal still awaits one. Amidst all this, there are many unanswered questions and uncertainties regarding availability of well equipped and sufficient systems and infrastructure to conduct online court proceedings across Nepal.
How are pleadings conducted online via video conferencing?
Video conferences connect two or more participants at different places via computer networks through transmission of audio and video. So, lawyers may now plead before the court via court approved video call sites and by staying in their homes or offices. Court will decide the site and provide access to the concerned in the video conference and require participants to follow certain rules and procedures. However, the Supreme Court of Nepal is yet to announce the sites and necessary procedures or guidelines and cyber safety protocols.
Other jurisdictions in similar positions like ours such as India, Australia, Singapore, United Kingdom and United States of America have also opted for video conferencing for pleadings and other court proceedings amidst the threat of spread of COVID 19 and lockdown. Unlike ours, they were earlier to start and have come up with specific guidelines regarding video conferencing.
Arrangement in Australia
The Federal Court of Australia has issued the National Practitioners/ Litigants Guide to Virtual Hearings and Microsoft Teams.
The guide has provided with various details like:
- The platform to be used: Microsoft Teams
- Virtual Hearing Invitations: requirement of providing the court with the email address by each participant, receiving of the link to join the meetings.
- Guide regarding how to join the hearing: enter names (first name and surname) and details (such name will be displayed for all the participants to see).
- After ‘joining’ the Virtual Hearing, participants will enter a virtual lobby and will remain there until admitted into the Virtual Hearing.
- Participants are to join the Virtual Hearing at least 15 minutes prior to the listing time to allow sufficient time to address any technical issues.
- Virtual Hearings are being recorded by the Court’s recording and transcription services contractor, Auscript, and through Teams directly. Participation in a Virtual Hearing indicates your consent to being recorded.
- What is expected of participants like: the same formal etiquette and protocol of physical court, participants are to join a virtual hearing from a quiet, secure location, microphones and cameras are to be tested and working prior to joining a virtual hearing etc.
- Oath or affirmation of witnesses
- Preservation of principle of open justice: the court may require a member of public who wishes to view a Virtual Hearing to provide with email address, those public permitted by the court to join a virtual hearing shall remain silent (mute their microphone) and hidden (turn off their camera) and not to record the proceeding.
- Document management: Digital Court Book, arrangement of handling up f the documents through email, OneDrive, utilization of ‘sharing screen’
Such a guide is further facilitated by using images regarding how to use ‘Microsoft Teams’.
Arrangement in Singapore
The Supreme Court of Singapore has issued a guide on the use of video conferencing and telephone conferencing. The guide familiarizes with the platform to be used and other the details regarding the video conference. They are as follows:
- The platform to be used: zoom
- Getting started with zoom: downloading down, requirements to use zoom,
- Joining a zoom meeting, entering the meeting ID or personal link name
- Entering details to join the conference: as the name displays, state in the following order: 1) the case number (if any); 2) your law firm (if any) and 3) your first and last name
- Court dress and etiquette: one must observe court dress and etiquette as if they are appearing before court physically in person. All court rules and practices on dress and etiquette will continue to apply. However not necessary to stand and/or bow to the court at the start or end of the hearing.
- Strict prohibition of unauthorized audio or visual recording of hearing, contempt of court if recorded without authorization
- Referring to documents in the course of the video conference: Parties are requested to as far as possible, file and serve all written submissions, and tender all hard copy bundles to the court at least 3 days before the hearing and in any case no later than 1 clear day before the hearing
- Encountering problems during zoom hearing: call Registry at the given number if you have encountered problems with zoom hearing, if one is experiencing poor connections or is expecting a disruption to the connection, inform court which will decide whether to proceed or not with the hearing
- Adjournment of the hearing
- Waiting room: you will be placed in waiting room once you successfully joined in the zoom hearing,
Arrangement in United Kingdom
The UK has issued Remote Access to the Court of Protection established Mental Capacity Act, 2005, Guidance. The guideline provides:
- No hearings which require people to attend are to take place in any Country or Family Court until further notice, unless there is a genuine urgency and no remote hearing is possible
- Remote hearing may be conducted: by way of an email exchange between courts and the parties, telephone using conference calling facilities, court’s video-link system, if available, use of Skype for Business App installed on judicial laptops, and others like BT MeetMe, Zoom or Facetime.
- There may be some cases that will need to be adjourned because (i) a remote hearing is not possible, and (ii) an in-person hearing would not be safe or possible.
- When an advocate or participant is not speaking, their microphone shot be muted and unmute when they speak.
- The judge will set out his/her preference for dealing interruptions.
- Advocates and participants should be alone, in a secure room, with the doors closed.
- be considerate to the other participants and the judge when setting up your physical environment from which to conduct a remote hearing. Background noises should be reduced to a minimum and avoided where at all possible.
- Testing of the video and audio feed of each party and advocates should take place before the allotted hearing time and before the judge joins the hearing. (g) Hearings will start promptly at the scheduled time and the judge will aim to be present from that time. The advocates and parties should be ready and any conferences with clients and meetings between advocates should have already taken place.
- And others
There is also HMCTS (Her Majesty’s Courts and Tribunals Service) telephone and video hearings during coronavirus outbreak Guidance. It has also provided for details necessary for conducting telephone and video hearings smoothly and also about media accesses to proceedings.
Arrangement in India
The Supreme Court of India has issued Guidelines for Court Functioning Through Video Conferencing During COVID 19 Pandemic. It directs as follows:
- It has authorized every high court to determine the modalities which are suitable to the temporary transition to the use of video conferencing technologies.
- The concerned courts shall maintain a helpline to ensure that any complaint in regard to the quality or audibility of feed shall be communicated during the proceeding.
- The District Courts in each State shall adopt the mode of Video Conferencing prescribed by the concerned High Court.
- The Court shall duly notify and make available the facilities for video conferencing for such litigants who do not have the means or access to video conferencing facilities.
- Until appropriate rules are framed by the High Courts, video conferencing shall be mainly employed for hearing arguments whether at the trial stage or at the appellate stage. In no case shall evidence be recorded without the mutual consent of both the parties by video conferencing.
Arrangement in United States of America
United States Court of Federal Claims has made a guidance on Use of Video conferencing in the court. It provides:
- Permission from the presiding judge or special master is required.
- The court uses enterprise-level videoconferencing, such as Polycom, Cisco and Lifesize.
- The court generally requires at least one month’s advance notice for video conferencing for schedule and testing purpose.
- To ensure a seamless experience on the day of the event, it is important that the room is free of clutter and noise.
- The court will connect the videoconference at least 15 minutes before the start of the scheduled proceeding to allow time to work through any unexpected connection problems. The court will also test all microphones and camera angles. It is important that technical staff at the remote conference site be present at this time.
Arrangement in Malaysia
In Malaysia, Sabah Law Society have made arrangements to conduct video conferencing in the wake of COVID 19 pandemic.
All of these jurisdictions have issued specific and detailed guidelines to run court procedures smoothly via video conferencing during lock down and at the same time maintaining the decorum of court. They have anticipated possible problems and technical issues that may arise while the proceedings are in session on the video conference; and have provided guides for the same.
However, with the number of days gone by after the issue of the directives, the Supreme Court of Nepal has not yet issued any guidelines for conducting video conference hearings. Apart from these directives, Nepal has provision for video conferencing only for witness examination and recording statements of the accused in the Criminal Procedure Code, 2017. Witness examination through video conferencing is allowed if application for the same is filed, and only if the witness could not be presented to the court owing to their physical inability, security or if they are children, or if they are outside Nepal. Presiding judge is required to authenticate the record of such conferences. However, there are no proper guidelines as for such video conferencing as well. The Supreme Court of Nepal should also issue a proper guidance covering every aspects of the video conferencing, including but not limited to platform to be used, the way of applying for video conference, court etiquette, dress code to be maintained, steps to be followed to join the conference, the available helpline in case of any problems during the conference hearing, way of referring to the documents to the court, the cases that would be heard through video conferencing, ways to deal if the participants do not have equipment or internet services, access of the media, access of the general public, recording of the virtual hearing and others that are necessary to successfully conduct virtual hearing. The Supreme Court of Nepal may also conduct orientation as required to deal with matters regarding the virtual hearing.
Courts might face various challenges or problems in conducting court procedures via video conferences, such as: some advocates, parties or even judges might not be technology friendly; there might be issue of availability of necessary equipment, good internet facility leading to disruption in hearing; there might be unauthorized recording of the hearing; unwillingness of some government attorneys or advocates or parties, problems in referring evidences, case citation etc. Most challenging threat however would be to maintain cyber security in all these proceedings and their records. With so much news of hacking of meetings and unauthorised access to data and their publication, will there be enough security measures and protocols taken and followed in these proceedings?
The suspension of court proceedings would entail a huge case load and put pressure on courts and lawyers in the aftermath of the lockdown. Thus, the provision of virtual hearing is much appreciated and welcome as there will be no more obstruction to the delivery of justice. But the directives only mentioned about the provision of presenting the points of pleading through email or if possible, through video conferencing.
Proper practice of effective virtual hearings could be continued even in the normal times if its practice proves to be successful in this hard time. If effectively implemented it would make better work efficiency, whereby the advocates, parties can complete other tasks instead of waiting for turns in the court. It would save the travel time and travel expenses. So, the Supreme Court of Nepal could think about the video conference hearing even after the situation of COVID 19 where possible. However, for now, it should issue proper guidelines and safety protocols for practical realization of the directives.