Meaningful access to justice has always been a cornerstone of the rule of law. The idea of this is that simply having access to justice is not enough, it must be accessed with substance. That is to say, people must be allowed to bring their grievances, within a system, to a forum that is a neutral arbiter of disputes.
Access, in and of itself is also to be subject to debate. The central idea of access to justice is, therefore, such that access must be equally provided to all members of the system. Failing to provide equal access to all is failure of the principle.
We are more than two months into this new world of pandemic-induced panic. In the time that Covid-19 has existed, we have seen the Bangladesh government restructure itself in different ways, attempting to meet up with the challenges of trying to keep its citizenry safe and the nation functioning.
While much can be said about a number of these measures, not enough is ever said. In many ways, many of our people have foregone access to amenities and services that we had for long been used to. The three branches of government have in many ways tried to find ways to cope with these times.
The judiciary has suffered
However, not all of their measures have been adequate. In particular, I believe much can be said about the recent panic that the judiciary has suffered. Since the lockdown began on March 25, 2020, Bangladesh’s Supreme Court (both divisions) has shut down.
The hon’ble justices along with the many staff members of the Supreme Court have been away from their functions. Similarly, advocates have been absent from the grand hallways of our court premises.
However, the most adverse impact of the decision to shut down the court is felt, not by the hon’ble justices, nor by the advocates who depend on the court for their livelihoods, but by those who seek the Supreme Court in hopes of having due justice rendered to them.
To respond to this adversity, on April 23, 2020, the Supreme Court had announced that it would reopen in a limited capacity to ensure that people were able to approach the court with their most urgent concerns, keeping in mind social distancing policies.
In addition to this step, the court also announced its new initiative to allow for certain urgent hearings to be also heard via an online forum. Necessity being the mother of all invention, I am largely in favour of this new direction that the courts have taken. It improves access to justice and does so in a manner that more than meets with the current social distancing requirements.
With rumours of a new act currently under process with the Ministry of Law of Justice, it only benefits the people to have this measure in place. With these announcements, the courts were once again providing the ever-important access to their forum.
However, this victory was somewhat short-lived. Soon after, on April 25, 2020, pursuant to a Full Court meeting, the Supreme Court once again limited access to its forum, shutting down all forms of access barring the opportunities online.
While I do applaud the efforts of the Supreme Court in trying to uphold their duties in such difficult times, the fact that this particular set of decisions has and will lead to the alienation and the unequal treatment of advocates and clients across the board, is an inconvenient truth.
As we stand today, there happens to be a myriad of different advocates and clients who require access to the forum of the Supreme Court, a large number of whom are yet unfamiliar with the online systems.
As such, keeping only one forum available for approach unfairly disenfranchises the significantly larger number of those who are unable to effectively engage on such a platform. It is imperative that both forms of access be available.
A significant number of advocates in the Supreme Court are yet unfamiliar with the systems that would allow them to access the Supreme Court’s online forum. Many of them do not have the chamber set-up or the resources available to them to be able to take advantage of the new systems set up by the Supreme Court.
No effective access to the system
While it is true that it would be ideal if they were so empowered, it is also equally true that such a requirement from them would be an unfair request, given that at the moment these individuals are also unable to seek assistance to help familiarize themselves with the forum under current circumstances.
As such, they will have no effective access to the system. This places them in a difficult situation, whereby they are unable to service their clients to the same degree as their counterparts who are otherwise empowered to do so. This is problematic on two fronts; first, this creates a disparity between those who are able to access and those who are not.
Second, this allows the delivery of justice to only benefit one half of the legal community. This is also problematic for the clients of such advocates, in that they will be denied access to justice while their counterparts with advocates who are otherwise empowered will be given access.
This creates the possibility that many advocates will be choosing to capitalize on the situation and in many cases, advocates might have no options but to encourage their clients to seek help from those who are technologically empowered.
Even where this is true, it is unfair to fathom a situation where clients would have to change trusted counsel simply on the basis of their access to technology.
This fundamentally offends the principles of meaningful access to justice. Article 31 of our Constitution enshrines an inalienable right to access the forum of the courts.
It is argued that this disparity is an affront to that very right. Barring the creation of a law that actively prevents those technologically handicapped from accessing the courts, the words of the Article of the Constitution falls foul.
By keeping the court forum only online, allowing only some to be able to access while those unable are left to flounder in their own inabilities, whether it be of their own creation or due to their circumstances -- it is fundamentally unconstitutional and unfair.
Similar to the Supreme Court, functions of other judicial importance are also halted by measures taken by the state in this regard. Articles 33 and 35(3) both require immediate response from the judiciary where someone is detained or is being accused of criminal activity.
In light of the court’s collective dispositions to remain shut, this poses problems for the same reasons of unequal dispositions as mentioned above. Pragmatically speaking, in a vast majority of the cases in districts outside of our more developed metropolitan bubbles, there are many who would require the courts for an immediate response to their predicaments.
Otherwise, they will remain subject to undue punishment, not necessarily sanctioned by the courts and hence, not in accordance with the law. To make matters worse, there remains no forum for challenge for many who due to their circumstances continue to be disadvantaged by their inability to access favourable infrastructure to support their advances to the court’s fora.
Article 44 of the Constitution similarly enshrines a right to move the High Court division of the Supreme Court. While understandably, this right is subject to reasonable restrictions, I advance two arguments to this regard.
First, due to the nature of these unprecedented times requiring unprecedented decisions, the reasonableness of any restriction is deemed as rather arbitrary. The extent of the reasonableness of such restrictions, hence, is to be scrutinized.
Considering that it has always been the courts that had been the final arbiter on such scrutiny, inability to access the courts themselves thus creates a paradoxical conundrum. For those unable to access the courts, they are unable to challenge the reasonableness of the restriction itself, and without ensuring that such restrictions are reasonable, to deny a fundamental right, is likely to create intolerable harm.
Second, I return to the disparity; this restriction becomes arbitrary by nature when it is evident that it only applies to a section of the population (typically those who are deprived of certain infrastructural support or simply the knowledge of such things). It is understandable, the courts and the hon’ble justices would be reserved to the idea that during such times, it would be difficult to facilitate all cases.
Naturally, we are used to seeing crowded courtrooms and busy balconies of the court buildings. Of course, given present circumstances, one cannot advance the arguments that all cases are equally urgent and thus require immediate access to the forum.
The initial proposition to operate courts on a limited basis, having a limited number of benches presiding over only the most urgent matters, seemed to be able to deal with the gaps and problems as addressed above. This would mean that advocates and litigants would have to file (online or physically) their cases ahead of time, and based on a prima-facie assumption of the urgency of the matter, the courts may decide to hear it during this pandemic.
Assuming something fails to meet predetermined criteria for such urgency, the courts would then be in a position to impose costs on the filing party and further enunciate the criteria for such urgency. At least, under this mechanism, it does not disenfranchise those who do not have the necessary abilities to deal with the matters online.
A responsibility to uphold fairness
I do not propose to argue that the creation of an online forum is bad. In fact, many judiciaries across the world have adopted such measures. The United Kingdom and Canada, among the developed nations, have begun using online forums to dispose of their duties.
However, their court structures, although similar, are still more evolved than our own. Furthermore, they enjoy technological advancements and significantly better access to such technologies than most developing nations.
Malaysia, has also adapted to online fora, but has taken the step to allow High Courts and subordinate courts to entertain urgent matters in person, albeit, maintaining social distancing measures as per state policy.
Malaysia’s ICT infrastructure is one that has assisted the court’s functions through e-filing and e-review mechanisms for nearly a decade now, and even still it was deemed that the courts’ physical forum be available to the people. This system exists despite the fact that unlike New Zealand and certain other commonwealths, Malaysia does not view the court as an “essential service.”
Additionally, one can take note of the situation in India, where in response to the decision to move entirely on to an online forum, the Chairman of the Bar Council of India wrote an open letter to the Hon’ble Chief Justice of India, reminding him of the ways in which this disadvantages many lawyers within the legal framework.
In the absence of workable structures that facilitate the state’s many functions in such times of emergency, it is important that the arbiter of disputes is equally accessible to all. In truth, it is the duty of the courts to act as the guardians of the constitution and as the arbiter of all disputes.
These troubling times are likely to bring about more urgent disputes to be dealt with. Failing to provide equal access to the forum to all members of society is a failure of the courts’ constitutional duties. It is understandable, that the contagiousness of Covid-19 is something to be feared, and as such, measures must be taken.
When the courts were afforded an opportunity to rise to the occasion to make good on such duties, their choice to only do so for the better-equipped half of society, is an unfortunate decision altogether. Following the example of Malaysia and keeping both forums accessible within limited means is still better.
It does not discriminate between those advantaged by infrastructure and those who are not, clients and advocates alike. While the courts took a step forward with their online forum, they also took half a step back, by choosing to shut down physical appearances.
Ahmed Shafquat Hassan, is Bar-at-law, The Honourable Society of the Inner Temple. He has an LLM (International Law and Governance), Durham University, and LLB, University of the West of England.
