“If we don’t do what has never been done before, the world will go on while the law stands still” — Lord Denning
WITH Covid-19 catapulting us to reimagine the world we inhabit, borders and physical distances may have become less relevant, if not entirely redundant, as people across the world increasingly work for employers they may never have met beyond their laptop’s screen. As the world embraces modern technology, questions emerge about the interaction of the law and technology. Should the law merely regulate technology and address the various challenges concomitant with the proliferation of technology? Or should the law also embrace modern technology to improve access to justice and defeat delays in adjudication?
While courts may legitimately be critiqued for being resistant to change and being prisoners to archaic practices, the recent judgement rendered by Justice Syed Mansoor Ali Shah in Meesha Shafi’s case is groundbreaking in terms of elucidating how courts can employ modern technology.
The question before the Supreme Court was whether Meesha Shafi, who faced a defamation case after making allegations regarding sexual harassment, was entitled to give her evidence virtually, or would she have to leave her life in Canada and physically attend proceedings, thus, exacerbating her agony? More specifically, did Rule 4, Order 18 of the Code of Civil Procedure, which provides that a witness shall be examined in open court, in the presence and superintendence of a judge, require a witness to appear in court physically, or would virtual attendance fulfil the criteria laid down in the said rule?
No meaningful justice-sector reform can be envisaged without reforming the manner in which cases are filed.
Observing that courts cannot be insensitive to the system in which a statute operates, Justice Shah holds that sterility and stagnation defeat the purpose of the law. He then dilates on the principle of ‘updated construction’ which postulates that since each generation lives under laws that it inherits, the legislature is presumed to have intended that the laws enacted by it should ordinarily be applied at any future time in such a way that gives effect to its intention in the changed circumstances that have occurred since the enactment of the law.
Cognisant of the court’s recent jurisprudence where the words of the Constitution have been given short shrift by holding that the distinction between interpreting, reading in, and rewriting the Constitution was only illusory, the court cautions that the principle of update construction may only be applied where its application is consistent with the legislative intent.
Keeping these principles in view, the judgement concludes that the intent behind requiring a witness to give their evidence in open court and in the presence of a judge was to ensure that the evidence was being given on their own volition and without any extraneous pressure and that such concerns could also be addressed during a virtual hearing.
Nonetheless, while the judgement rendered in Meesha Shafi’s case should also engender a larger debate about the role of technology in dispensing justice, how can technology facilitate improved access to justice and defeat delays, a dream which has eluded successive chief justices?
Given that a majority of justice-sector reform projects in Pakistan have been driven by international donor agencies, such projects have unsurprisingly borne little fruit given their fixation with achieving ‘deliverables’ that appease donors and in view of their sole focus on ‘efficiency plus’ approaches. Nonetheless, no meaningful justice-sector reform can be envisaged without reforming the manner in which cases are filed. Given significant advancements in technology, courts across Pakistan ought to move towards electronic filing where lawyers could be given the option of applying for a unique username and password to log into a portal where pleadings may be filed.
Electronic filing would also automatically alert litigants and their counsel to the filing of fresh applications, thus, obviating the possibility of parties exchanging copies in court and ensuring better utilisation of the court’s time. This is particularly true for the Sindh High Court, which also enjoys original jurisdiction and where judges hearing civil suits spend the bulk of their time hearing interlocutory applications. Judges like Justice Zulfiqar Ahmed Khan, for instance, who previously founded the Pakistan Legal Automation Foundation can spearhead such a project in consultation with all stakeholders including and especially members of the bar.
Similarly, while the Supreme Court has employed video conferencing since the tenure of chief justice Khosa, the facility can be extended to allowvulnerable citizens, including victims of gender-based violence, to give their testimony and be subjected to cross-examination in a safe environment. The recent virtual hearing conducted by Justice Faisal Kamal in a case concerning a former court employee from Umerkot manifests the potential benefits of virtual hearings, particularly for senior citizens and those with disabilities.
Another aspect that can not only address delays and backlogs but also improve the quality of decision-making is audio/video recording that allows transcripts of proceedings to be produced for every hearing. This measure would obviate the need for judges to take notes, and instead, concentrate on the proceedings. Additionally, the transcript for cases which involve public interest can also be available on the websites of the Supreme Court and high courts to engender more informed debate, subject the court to greater scrutiny, and bridge the gap between law and society.
With rapid advancements in technology characterising the world we inhabit, will the law only continue to regulate technology or will the law embrace technology? Indeed, when social reality changes, the law must change too. To quote from the judgement itself, “Just as the change in social reality is the law of life, responsiveness to change in social reality is the life of the law.”
The writer is a lawyer.
Published in Dawn, December 1st, 2022