LEGAL DRAFTING-II

COURTS METHODS TO PLEAD IN COURT DURING PANDEMIC

SUBMITTED BY:

Muhammad Amjid Afaq

01-177162-015

Anique Ali Abid

01-177162-041

SUBMITTED TO:

Sir Ghulam Abbass

DEPARTMENT OF LAW

BAHRIA UNIVERSITY, ISLAMABAD

 TABLE OF CONTENT

TOPIC.........................................................................................................................PAGE NO

1. INTRODUCTION..................................................................................................1

2. PREVENTIVE MEASURES TAKEN BY COURTS........................................1

3. METHOD 1: PHYSICAL APPEARANCE IN COURTS......................................2

4. METHOD 2: ONLINE COURTS...........................................................................3

5. CONCLUSION:........................................................................................................3

CRITICALLY ANALYZING METHODS OF PLEAD IN COURT DURING A

LOCKDOWN
 1. INTRODUCTION:

Courts are fundamental pillars of a society for enabling justice. If the functioning of courts
comes to a halt and that too for an extensive period of time. It will affect the law and order of
states massively. Therefore, many judicial systems of different states are trying to come up
with new methods for courts to keep functioning during this pandemic. Pakistan National
Judicial Committee on 4th April 2020 had a meeting and concluded that "they will not
compromise on the judicial system and will not get it derailed and the apex court will take

[1]
preventive measures for the safety of judges and lawyers . E-courts were proposed in KPK
by a senior lawyer through mobile software and apps that would be connected with NADRA
in order to get scanned and verified documents as it would be beneficial for everyone. The
creation of a video link facility will also help a lot. In this way, nobody’s rights, earnings
and health would be declined and the proceedings would continue without any further delay. 1
However the Supreme Court in Pakistan took a suo moto in legal terms in order to keep a
check on government’s strategies to cop up with COVID-19. For example, the Sindh high
court rejected the petition on lifting the band from Friday prayers all over the country.2

Many other courts of other states have also done the same and are functional and working
despite lockdowns. But their workload has reduced and in most countries, they have
established e-courts which will hear cases virtually. India has established e-courts to hear
urgent cases during lockdown and e-filling will be enabled in all courts including trial court

[2]
and the video recording of proceedings will be hosted on the court website.

2. PREVENTIVE MEASURES TAKEN BY COURTS:

1
Bureau Report, E-courts proposed in KP during Covid-19 outbreak, DAWN NEWS, Published on April
08,2020 and Accessed on April 18,2020, https://www.dawn.com/news/1547297/e-courts-proposed-in-kp-
during-covid-19-outbreak
2
Aamir Latif, Pakistan: Top court questions state's COVID-19 strategy, ANADOLU AGENCY, Published
on April 10,2020 and Accessed on April 18,2020, https://www.aa.com.tr/en/asia-pacific/pakistan-top-
court-questions-states-covid-19-strategy/1800065
According to a study by Clyde & Co., that focuses on the key measures being taken across
the world, generally and more specifically to legal proceedings. It covers most of European
countries along with the US, UK, India and so on.

 In the UK, The building of the Supreme Court has been closed while judgments and cases
will be conducted through video conferencing. They have also introduced “Three New
Practice Directions” under which hearings shall be conducted during the foreseeable
future. PD 51Y which provides for hearings to be conducted remotely. [3] Most courts
are working remotely. If there is any case that requires physical appearance occurs, the
hearing would occur only under suitable arrangements with all the safety measures.
Crowns courts are not allowed to proceed to any new trials. The High Court, Court of
Appeal and Magistrate courts are required to work on urgent basis.
 In the US, The Supreme Court is open for official business, but all oral arguments were
postponed for a few weeks until May. Courts in most states have cancelled jury trials.
Urgent cases are being held through video conferencing and they have also made a
website available to the public, through which the latest information regarding the
judiciary is updated every day. [4]
 In European Union, the staff of the courts is working from home and the building is
closed for any proceedings. The physical hearings are adjourned till further notice.
 In Australia, The Federal Courts are putting in place the technology needed to hear trials
via video-calling/conferencing. Although most do not have the online system yet and rely
mostly on physical hearings, they are encouraging more to be done on paper and through
use of video links.
 In China, they have established virtual courts that will handle cases during lockdown, On
Feb 21, the Beijing court released the country’ first protocol of an online court with 26
procedures, stipulating from online identity authentication to dress code of all parties in a
video courtroom.[5]
 In Singapore a lot of preventive measures are taken by the courts which includes business
continuity matters (division between the members of the courts in two teams, tele-
communication, maintenance of safe distance at the workplace and regular screening for
symptoms), the cleanliness of the court premises and building is ensured by the
 authorities, any individual with any health issue or travelling history would not be
granted entry in the court premises, the timings of the hearings are staggered in order to
avoid a queue of people. Measures are taken to increase more and more remote hearings.
Apart from all these steps, different detailed measures for different courts like Supreme
Court, Family Justice Courts and State Courts are issued.3
 The international court of arbitration have also issues certain guidelines about the
working of the court during COVID-19. Mr Mourre said: “In these exceptional times, it is
of great importance that, parties and arbitrators get together to revisit our established
practices in order to ensure the continued efficiency and fairness of ICC Arbitration. I
would like to thank our working party for preparing the detailed and balanced guidance
that we are releasing today.” Secretary General of the Court Alexander G. Fessas
said: “ICC has been quick to respond to the global emergency that is the COVID-19
pandemic. It is our hope that the Guidance Note, released by the ICC Court today, will
assist parties, counsel and arbitrators in tackling possible procedural and administrative
disruptions in the context of efficient and fair arbitral proceedings.” The court would
remain open. The staff should try their best to deal with the hearings in efficient ways
instead of delaying them un-necessarily. Article 24(3) of the Rules provides that the
tribunal may adopt appropriate procedural measures or modify the procedural timetable
by means of a further case management conference or otherwise. They have also
provided a list of protocols to be kept in mind related to virtual hearings which includes
cyber protocol in order to ensure confidentiality, privacy and security, pre-hearing
logistics, plans and scope, technical limitations and support staff, online etiquettes,
presentation of evidence and examination of witnesses and experts.4

3. METHOD 1: PHYSICAL APPEARANCE WITH PREVENTIVE MEASURES:

3
K.C. Vijayan, Coronavirus: Chief Justice Menon announces measures to safeguard health of court
users, officers, THE STRAITS TIMES, Published on march 26,2020 and Accessed on April 18,2020,
http://www.straitstimes.com/singapore/chief-justice-sundaresh-menons-speech-in-response-to-covid-19
4
ICC Guidance Note on Possible Measures Aimed at Mitigating the Effects of the COVID-19 Pandemic,
ICC, Published on April 09,2020 and Accessed on April 18,2020,
https://iccwbo.org/content/uploads/sites/3/2020/04/guidance-note-possible-measures-mitigating-effects-
covid-19-english.pdf
 Lawyers and judges should wear masks as well as gloves and judges to be separated from
lawyers at a good distance. Every court should sit with 25 cases each. On hearing days there
should be 5 cases and 5 final disposals. Employees can also be divided into two groups; each
group should work for a week. Before going into court, they should be tested and sanitized.
Cases should also be divided hourly basis, 5 cases per hour. So few personnel are in the court
at once.

For every case only essential personnel should be permitted entry and no client should be
allowed in the court unless necessary. Lawyers must also leave the court once their case is
over. Filing can be done by the internet only. No non-essential personnel like interns, clerks
etc. should be allowed. Also looking at the latest updates, the courts should also cancel
summer vacations of courts and treat it as a working period in the interest of litigants and
should take proactive measures to work effectively during the lockdown. Further cases
should be dealt on an urgent basis first, so the law and order remains stable throughout the
lockdown.

4. METHOD 2: ONLINE COURTS SYSTEM:

Although this concept has been introduced before the lockdown and pandemic, most judicial
systems are just now implementing and passing rules of practice in an online court. India has
established virtual courts, UK has established virtual courts based on web-based video
conferences. All of the judges, lawyers and parties to the case can proceed their hearings
from wherever they are. The recordings of the hearings will be available on the court’s
websites. Lord Justice Fulford (Investigatory Powers Commissioner, UK) has said: “In an era
in which many people conduct a large part of their lives using some kind of an electronic
device, the judiciary has got to enable how we conduct cases to match the expectations of the
public.” 5 UK’s official judiciary website provides complete guidance related to Cross-
jurisdictional guidance, civil guidance, crime guidance, family guidance, magistracy
guidance, tribunals guidance etc. during COVID-19.6

5
Zia Ullah Ranjah, Covid-19 and virtual courts, DAILY TIMES, Published on March 30,2020 and
Accessed on April 18,2020, https://dailytimes.com.pk/585398/covid-19-and-virtual-courts/
6
Coronavirus (COVID-19) advice and guidance, Courts and Tribunals Judiciary, Accessed on April
18,2020, https://www.judiciary.uk/coronavirus-covid-19-advice-and-guidance/
 Pakistan launched E-courts last year in July. [6] Now while we are technologically
advanced, there are certain cases which cannot be decided without the actual appearance of a
witness, accused. But there are still low-key cases which do not require much intervention
and can be decided. So every court other than the actual should establish extended courts,
where they should resolve matters through virtual courts. A human judge should be able to
listen, argue, give response and receive from the litigants. The Supreme Court of Pakistan
preferred essential cases to be heard only. Some of the other preventive measure were that
only lawyers should be there during hearing and no public was allowed until and unless there
presence mattered with the hearing. There would be certain screening doors the entrance of
Supreme Court.7

Due to the advancement in AI, working remotely and communicating through digital
platforms could also be a normal phenomenon in Pakistan. But we still need to up our game
in this matter. Certain up gradations are mandatory in order to let the system of e-courts work
during the pandemic. In this regard, the two areas may be prioritized. First, all procedures
and hearings must be digitized. Second, courts processes and procedures should be
simplified; there should be a uniform procedural code for civil cases and a common
procedural regime for criminal cases. The Code of Civil Procedure, 1908, and the Code of
Criminal Procedure, 1898, should be amended to move towards digital justice. Subject-
specific procedures may also be developed for special courts and tribunals such as family
courts, commercial courts and tax tribunals, etc. [7]

5. CONCLUSION:

In the view of this currently ongoing pandemic situation, almost the whole world is badly
affected. Different states and taking different measures to deal with COVID-19 in the best way
possible by keeping in mind to ensure the safety as well as not putting a brake on all the matters
of all. The situation of a lockdown is being observed throughout the countries affected by this
virus. The imposition of lockdown is the best way to bop up with this situation but certain
advancements are still required. One of such advancement was the proposition of e-court system
in order to ensure e-justice and to ensure the rights of the citizens in this time of stress. Many

7
Zia Ullah Ranjah, Covid-19 and virtual courts, DAILY TIMES, Published on March 30,2020 and
Accessed on April 18,2020, https://dailytimes.com.pk/585398/covid-19-and-virtual-courts/
countries around the world have adopted this system of e-courts in one way or the other. In
South-Africa, India, China, Australia, Qatar, Italy, EU, US and UK video conferencing and
telecommunication is basically the method used by the courts to proceed the hearings. While
Mexico, Hong Kong, Chile, Canada, Brazil, Argentina, Israel, Spain and France are working on
the basis of urgent work with preventive measures.8

In my opinion, an online court system is a good method to plead cases in court during a
pandemic since the courts can never stop working. It has to evolve and come up with different
ways to work during any emergency situation. There have been many instances where online
courts are already working including the practices of the UK. Although there are some problems
that the courts will face, whether what will be the authenticity of evidence provided through
video calling and in cases where it is necessary for the witness or defendant to appear before the
court. But with the modern technological advancement, this does not seem like a big problem.
Until the situation turns back to normal, the courts should use preventive measures and at the
same time work effectively. Because justice delayed is just not served.

8
BEN KNOWLES AND MAURICE KENTON, COVID-19 Global: Arbitration and court impacts, CLYDE &
CO., Published on April 17,2020 and Accessed on April 18,2020,
https://www.clydeco.com/insight/article/covid-19-impact-on-courts-and-arbitration
BIBLIOGRAPHY:

1.
The Nation, Courts to stay open, 4th April, 2020, https://nation.com.pk/20-Mar-2020/courts-to-stay-open,
Accessed on 15th April, 2020

[2]
Time of India, Virtual Courts to Hear cases, Dhananjay Mahapatra,
https://timesofindia.indiatimes.com/india/virtual-courts-to-hear-urgent-cases/articleshow/74988557.cms,
Accessed on 15th April, 2020

[3] Justice, Practice Direction 51Y, http://www.justice.gov.uk/courts/procedure-

rules/civil/rules/part51/practice-direction-51y-video-or-audio-hearings-during-coronavirus-
pandemic, Accessed on 15th April, 2020

[4] United States Courts, Judiciary Preparedness for Coronavirus ( COVID-19), March 12 th,
2020, https://www.uscourts.gov/news/2020/03/12/judiciary-preparedness-coronavirus-covid-19,
Accessed 15th April 2020

[5] The SC of China, 11th March, 2020, http://english.court.gov.cn/2020-

03/11/content_37534291.htm, Accessed on 15th April 2020

[6] Supreme Court of Pakistan, E-court system launched, July 24, 2019,
https://www.supremecourt.gov.pk/e-court-system-successfully-launched-in-supreme-court/,
Accessed on 15th April, 2020

[7] Daily times, Covid 19 and Virtual Courts, Zia Ullah Ranjah, March 30, 2020,
https://dailytimes.com.pk/585398/covid-19-and-virtual-courts/, Accessed on 15th April, 2020