Surviving a lockdown: Setting Up Alternative Virtual Court System Vital
By Faadhila Thassim
Courts systems around the world have been immensely impacted by the COVID-19 pandemic, leaving several litigants having their cases prolonged and the judges having to deal with a backlog. The issue is that several court systems have not been instituted with an infrastructure to survive through a lockdown or a situation where operations does not take place in an ordinary manner.
Post pandemic has made the need for the establishment of an alternative virtual court system inevitable in a manner that the legal system will smoothly operate in the event there could not be physical court presence. In Sri Lanka too, although court procedures have recommenced, there has been a backlog imposing pressure on the system.
Is Sri Lanka ready to ensure that the court system doesn’t break down the way it did during the COVID-19 Pandemic?
Attorney-at-Law, Mahela Liyanage said when the court system breaks down, it is not just Lawyers and Judges who are affected, it is the litigant who ultimately suffers adding that therefore this has formed a catalyst to create a different approach, to adopt a system where at least certain important cases can be heard without delay.
Liyanage noted that considering the widespread nature of the virus, and the belief that there would be a second wave, it is important to ensure that there is no further breakdown in the system as there are already a vast number of pending cases that have to be taken up.
He said, an online system has to be established to dispose minor cases and disputes, as even if the country will have to face a future lockdown, or given any unforeseen event the system will still be in place adding that there will be limited difficulties in adopting such system considering the technological development and the increased use of smart phones, access to internet so it is not impossible.
‘’The first step would be addressing the possibility of establishing such system and the potential pitfalls that may arise in trying to implement it,’’ Liyanage added addressing a webinar titled ‘Challenges faced in the Legal profession in post COVID-19 Sri Lanka organised by the Royal Institute of Colombo.
Attorney-at-Law, Amila Siriwardena added that we as a country should not ignore the need to revamp the system by believing everything has returned to normalcy.
How should the online system operate?
Siriwardena added that preliminaries including that of summons returnable, replications and issues and admissions could be carried out in online platforms without the necessary presence of the witnesses but merely as a process to get the preliminary stages of a case out of the way.
‘’The Commercial High Court in Sri Lanka has already commenced video conferencing for cases, which is a huge step and this should be further developed to a process by which documents could also be submitted online and there is a possibility of obtaining relevant certified copies’’,he said adding that this will be cheaper, quicker and efficient.
He further added that the United Kingdom has established an online dispute resolution software named Salvator which could be downloaded onto mobile phones, or tablets following which the users will be updated on the progress of the case.
Following the preliminaries, pleadings can be submitted and certified copies can be obtained and the litigant will also get notifications when the pleadings have been filed. “If this process is introduced in Colombo and sufficient training is provided, the practice could then be developed in the suburbs as well’’ he added.
The Ceylon Chamber of Commerce as well as the British High Commission is also looking at the possibility of aiding Sri Lanka in this context for at least the Colombo courts but it all depends on how the Judges react to this and if they will be comfortable in adopting the change he added.
Siriwardena noted that the Supreme Court could make a huge contribution by adopting a management system and deploying the rules and regulations that the courts need to follow, from the lowest to the highest.
How practical is online case proceedings?
Liyanage said the online process is nothing new to Sri Lanka as the Supreme Court has already adopted such approach for Fundamental Rights cases but that streamlining is what needs to be done as a further step.
‘’It is a mere attitude change and the establishment of a virtual courtroom whereby the proceedings could take place under any circumstance is what needs to be achieved’’ he added stating that each online platform should be in isolation to each court and there should be different administrators for different courts and on a jurisdictional basis as well.
Siriwardena adding to this said a model software platform should be established prior to it been implemented with a number of features including that of case management, where the judges are aware of the number of pending cases, the number of years of each case and the number of years it has been going on for.
The system should also ensure secured file sharing and establish a manner in which certified copies could be given to a particular client.
What process should be adopted for those who do not have access to online platforms?
Cases in which the litigant has no access to an online platform should be considered as exceptional cases and be heard in court rooms or facilities should be provided within the court premises for such individuals said Liyanage adding that the online platform should only be an option to those who has access.
He added that the government could also get involved to set up an online system in every village, town or every post office can have computers with internet connection to assist such individuals and it will be an useful investment.
Security of having online proceedings
Liyanage said although cyber security in general could not be guaranteed, this could be tackled as Sri Lanka is a country with a well established IT industry and the possible risk could be mitigated.
Thus the importance of having an alternative court system in which neither the litigants nor the judges or lawyers will face any difficulties in an event where physical presence in a court room is impossible, is vital.