Reviewing the views
Case Management in the Judiciary
Pre-condition for a pro-people judiciary is proper enforcement of legislations maintaining peace, order and effective justice serving forums. Citizens' perception of rule of law largely depends on how it serves the interest of common people in an impartial manner. In the civil and criminal justice system, the case management processes have been excruciatingly slow, costly and time consuming, which restricts access to justice for the poor and the marginalized groups of the society. Another critical problem is the delay in disposal of cases which is highly detrimental to the common citizens. Weaknesses in procedural law, prevalence of vested interest groups, poor training and physical facilities for judges and lawyers, lack of inspection and supervision, intrusion of political considerations, all contribute to such undesirable outcomes.
The judiciary has been separated from the executive wing of the state with effect from November 2007. After the separation of the judiciary from the executive and with the introduction of judicial magistracy, the rate of disposal of criminal cases especially in the courts of magistrates accelerated. However, given the volume of cases pending, such acceleration is not enough. Thus, the second national poverty reduction strategy emphasizes the need for the government to focus on effective service delivery and preparedness for emerging pressure and challenges. There are efforts underway to review judicial reform thoroughly to undertake necessary changes so that it can effectively perform its role as an independent body to safeguard the constitution and protect the individual's rights and liberties.
ICT can play an important role for socio-economic development and in view of that, short, mid and long term propositions have been incorporated by the government in the ICT Policy 2009. To create an equitable society easy access to judicial information and services is important. Eliminating pending cases through digitalisation of cases and court management process, and finally improving legal enforcement system through integration of ICTs in all stages of legal process are significant facets in this journey.
The process of integration of ICTs in the judicial system has started and some of the actions brought positive results with high potential. While there are a huge number of cases pending and the rate of filing cases is greater than the rate of disposal indicating increase of caseload every year, it is certain that judiciary will have to bear the huge backlog of cases on its shoulder for an uncertain period of time unless special measures are undertaken to deal with the situation. Backlog of cases does not only delay the disposal of cases and impose huge cost on the justice seeker but also perpetuates tensions among litigants.
The government took up a project known as the “Legal and Judicial Capacity Building Project” to improve the quality and pace of the civil justice delivery system incorporating ICT to reduce backlog; make the system more accessible to the users, particularly, the marginalised and institutionalise the resolution of disputes out of court. These reform initiatives have so far been limited to the Supreme Court and pilot district courts. The pilot districts have developed a case management and court administration (CMCA) model using ICTs. All complaints and applications are now filed in a single location of the court house to a Judicial Administrative Officer (JAO) and recorded in the computerized modern ICT-based case management system. The pilot Courts have made some progress in creating a climate where people get speedy justice at minimum cost. These reform programmes are expected to be implemented in other districts gradually.
The current court case procedure management system does not comply with the requirement of 21st century. Manual procedural record keeping and storage of case records limit its access and make the overall process slower. It also creates opportunities of misappropriation and rent seeking. There is also scope for exploitation with the cause list, leaving people vulnerable to unpredictable delays with date of hearing. In the lower courts things are more complex and level of disorder is higher since the issues are more widespread with higher number of court officials and clerks.
Since 2000, several pilot efforts have been undertaken, one of which resulted in creating web sites of the concerned ministry and the Supreme Court. In the Supreme Court's web page options like updated cause list, judgment and relevant laws are incorporated. Some features have not yet been launched. Legislative and Parliamentary Affairs Division of the Ministry of Law, Justice and Parliamentary Affairs provides e-Content on Law, Acts & ordinance on their website. However, these efforts will need regular and proper maintenance along with updated information - otherwise these will not be very useful.
The present court environment is not well acquainted with modern technologies. People engaged with the process are not equipped with tools and do not possess the mindset to apply even if those are available. ICTs are mainly used by a handful of legal practitioners and chambers up to the extent of legal research. The overall process and people engaged still remain largely unaware of the benefits of the incorporation of ICTs. Few selected judges use and maintain their judgments in PCs, but not in any systematic manner and neither are they accessible by others. Paper-based system, one the one hand, requires more storage space and large number of human resource, and on the other, it is not efficient and eco-friendly. Digital Display Board of cases updated on a daily basis in all district courts and divisions of the Supreme Court is soon to come into effect. They are planning to add features like case management and content management systems through a web-based application.
Introduction of technologies at whatever level available are still inaccessible to majority of the citizenry. Although there are some initiatives from the non-government agencies, both non-government and government agencies are failing to improve peoples' access to legal remedies. Legal services can be taken to the grassroots through online and other ICTs. Pleaders can start the preliminary process online. Agencies can maintain liaison with the local government institutions (LGI) to use their information access points (e.g. union information and services centre, UISC or one stop service point at the Upazilla headquarters) as their first face for filing any plea.
It is well understood that change management in the judiciary system will take time due to lack of confidence and 'fear of unknown' among the relevant stakeholders. Thus, the strategic priorities should aim actions, which are relatively easier to implement as well as will bring confidence among the stakeholders.
Case process management
One of the strategic priorities should be to introduce ICT-based system of case procedure management, which will make its functions more efficient and increase transparency and accountability. For example, gradual transformation to audio-visual evidence, which can be easily captured, will make the process faster and authentic. Day to day case management system may be transformed into digital system, starting from filing, recording of presence (hazira) to witness and evidence production. Following the case filing system, as foreseen and planned in the higher court, the lower judiciary will also start to record online the presence of the accused, which will be displayed in the board outside the court room.
This will automatically generate cause list of the day in the respective court with specified time. All proceedings as recorded digitally may be displayed during the argumentation. At the end of every case hearing process, updates and judgment may be recorded digitally. This will save a huge amount of man hour and will make the overall process transparent. Data interoperability between higher and lower courts may be established. Redeployment of existing human resource may create scope for processing more cases and facilitate reducing number of pending cases.
Court and other process fees may be paid online after online payment mechanisms are set in place. In the long run, preparation of e-case filing (e.g. using portfolio format) may be made possible. Other services like summons, notice, warrant may be communicated through e-mails or SMS along with existing communication methods. In places where connectivity will take time, the local post office will serve as the point to receive and deliver these messages. In the courtroom, through a gradual step-by-step process, technologies may be made available to judges, clerks and arguing lawyers with facilities of audio-visuals or oral evidence. Oral depositions may be recorded on audio-video devices supplemented by digital transcription and authenticated by witness and the judge using digital signatures.
Digital record keeping
Introducing modern record keeping, filing and keeping case proceedings using ICT based management system will strengthen the judiciary governance mechanism. Digitisation of current files and introduction of e-filing may be done at the same time. At the initial stage, proceedings can be kept in softcopy form. Simultaneously older records may be scanned and preserved. Once introduced, all suits can be encouraged to file with soft copies of necessary legal documents. Indexation of digitised record may be completed for easy retrieval. An authentication process may be designed to authenticate digitised records and simultaneous weeding out of paper records. For Judges, e-Case files will lessen their handling of bulk of paper-documents.
At present, cause lists are generally developed and maintained in hard copies, which leaves scope for manipulation. Gradual shift of online publication and management of cause-lists will decrease level of external interference in the higher court and will help secure clients' interest by keeping the process transparent and fair. A computerized court case recording and tracking system, that makes the information accessible to people through the website, will improve court governance. Digital display board of cases on a daily basis will support legal practitioners to perform their jobs more efficiently. Orders and judgments dictated in the courts/ chambers should be signed using digital signature and need to be automatically added to the respective e-Case file.
The court website should ideally provide information on- general court information, cause lists, roster, court fees, case status, orders and judgments in PDF/digitally signed, online forms for application for urgent listing, inspection, process fee, information about certified copies, online filing, web casts and live streaming of certain cases, archived court cases, court functions, swearing in of judges and full court references. Bangladesh Supreme Court Records (BSCR) which contains all noteworthy judgments should be published online by leveraging a search enabled online database. Gradual streamlining of the current administrative procedure will deter arbitrary decision making by court staff. All judgments, some of which are stored in respective Justice's computers, should be put online in a systematic manner.
The writer is an Advocate and Legal Analyst working with UNDP's Access to Information (A2I) Programme at the PMO.