Access to Justice plead for Technology
(The Covid-19 Spark)
Covid-19 spread had an important positive impact on courts of the third world countries as well as on courts of developed countries. Indeed, these courts were in a sine qua non position to transit their proceedings and hearings to the online means. Well, this could be an easy and logical step for the courts in developed countries, where automation and technology are already in place and operational, mainly in terms of judicial notifications, remote pleas and motions filing and online deliberation of the judiciary.
In fact, courts in third world countries during Covid-19 pandemic had two solutions, whether to stop hearings and investigations or to seek online tools as long as it is compliant with related legal procedures. In most of the cases, the judicial authority or the department supervising the judiciary did not take an explicit decision or recommendations toward the usage of online means and that could be for various reasons.
The first important argument is related directly to insufficient funding and the lack of equipment. This is normal in countries where corruption is widely spread. The second reason is related to untrained staffing, usually habited to old bureaucratic work based on material offline processes. While the main sustainable reason relies on the old legislations, rules and procedural codes enclosing statutes holding back the usage of technology.
Professor Richard Susskind considers that « in light of the experience during the crisis, there is certainly greater acceptance now than in February 2020—amongst lawyers, judges, officials, and court users—that judicial and court work might be undertaken very differently in years to come » (1). In this reasoning, lots of courts in various countries have opted for video-conferencing in penal hearings and investigations. Some took individual initiatives depending on each judge presiding a well-defined court, and some followed institutional decisions taken by high authorities to use technology during the pandemic in order to facilitate and to expedite the rule of law.
In the most general terms, Professor Susskind calls this the “access to justice” problem. He considers that « We can choose to blame the widespread reduction in public legal funding, we can argue that the current judicial and court machinery is disproportionate in many cases, we can claim that sometimes lawyers are the problem because they can inflame disputes, we can regret how little data is available to help us even to understand the dilemma, we can condemn the system for being antiquated and arcane, and more. But whatever explanation is preferred, the unvarnished reality is that most people on our planet cannot afford to enforce their legal entitlements in public courts » (2).
Despite that fact, we can quote here an example of a courageous judge in Lebanon, President Fayssal makki, who decided with a heart of steel, in civil matters, to hold total/partial hearings for lawyers in the execution circuit court of Beirut. He found that there are no legal boundaries that prohibit the court from holding online proceedings, adopting a simple analogy interpretation in the absence of an explicit disposition in the civil procedure law. Indeed, if both lawyers where duly notified, and pleas exchange is fully consummated, he would note the parties approval on the case’s minutes and hold the online hearing using video-conferencing tool, prior to verdict pronunciation action. It is an individual, brave and transparent initiative of one judge in a well reputed corrupted political country system.
Such instances, if encouraged can create a snow ball, especially in countries where the judiciary is eager for transparency and corruption’s fighting. I believe that such initiatives are more significant and substantial that an ornamental order taken by the highest authority in a country.
Some argued that « one promising answer to the access-to-justice problem is to use technology to transform court service. Simply carrying on with the automation of our courts (the strategy of almost all governments) would simply yield “mess for less.” This would be to optimize a process that is no longer fit for purpose, no matter how well it is polished (3).
However, if you believe it or not, Coronavirus Pandemic was a spark for the transformation in the classical courts proceedings. For instance, does anyone of us expected to call the court’s phone number and to have clerk assistance remotely? Whether to ask for a specific judgment issuance or for procedural papers remittance? This never happens in normal days. From another angle, in Third world countries, people do not have access to justice for granted, in equitable and transparent ways. Now, lots of judges are accepting motions and lawsuits via email, especially in urgent affairs, which is an advanced modus operandi without any doubt.
Above and beyond, we are not talking about innovation here, which is a wide range of online services that could be rendered in today’s courts. We are just trying to insure the sustainability of the people’s right to access to justice, especially during crucial times like the Covid-19 era. For this end, Professor Susskind describes an exhaustive list of remote hearing. First, « there are audio hearings, when proceedings are conducted by telephone or by audio-only systems. There are two subtypes here: partly audio, when there is a physical hearing into which some participants are connected by audio, and fully audio, when there is no physical hearing and all participants are therefore connected by audio. Second, there are video hearings, when proceedings are conducted using Zoom, Microsoft Teams, or the like. Again, there are two subtypes: partly video, when there is a physical hearing into which some participants are connected by video, and fully video, when there is no physical hearing and all participants are therefore connected by video » (4).
In conclusion, it is true that Covid-19 pandemic triggered both bar and bench personal at the court to seek remote tools to insure the access to justice rights. Though lawyers are more and more strengthening their technology practices in terms of remote clients assistance and artificial intelligence legal systems aids; Judges and related judiciary personal are just warming up for the inevitable future of online justice.