Challenges in digitizing judicial systems and IT limitations

The legal and judicial system in the country has made significant advancements in the path of digitization. However, this has also led to certain challenges. Additionally, legal practitioners and lawyers are grappling with the repercussions of this digital transformation. There are limitations in the use of information technology in legal practice as well.

In the annex building of the Supreme Court, a huge activity is going on under 'Scanning and Digitization of Case Files'. The Government's ICT Division in Bangladesh is providing financial and technological support to the Supreme Court for this entire project. Each page of files sent from various branches of the Supreme Court is being meticulously cleaned. After cleaning, each file is labeled with a barcode that corresponds to the case number and the type of case, based on the year. Subsequently, these case files are sent to the scanning department.

After scanning in modern machines, quality control is conducted on these documents. Subsequently, the case files are bound and sent to the relevant branches of the Supreme Court. This is how the process of digitization is being completed. In the Supreme Court, the High Court's company and admiralty matters, appeals, and writ petitions are being filed electronically by lawyers, as e-filing procedures are now in effect.

However, according to legal experts, despite all these efforts, the use of information technology has not yet led to the establishment of an independent judicial system through a stable infrastructure. As a result, although virtual courts have been introduced in the past, they are limited to hearing only urgent cases in lower courts. While the legal system incorporates technology, it has not yet evolved into an entirely independent system. This is why the full benefits of technology in the legal field have not been realized.

On May 9 in 2020, the Information and Communication Technology Act was issued by the court. Under the purview of that act, on May 12 the same year, the proceedings of the virtual court began. Despite being hastily enacted into law, it has not been effectively implemented. As a result, access to justice for the people is limited, especially in remote areas.

However, many countries have embraced new methods in the use of information technology within their judicial systems. For instance, in the United Kingdom, during the early stages of the COVID-19 pandemic, physical court proceedings were suspended for a brief period. Subsequently, they developed a software called the Cloud Video Platform (CVP) for remote court hearings. Even with physical presence now possible, the CVP platform continues to be utilized for various judicial proceedings alongside traditional in-person court hearings. The tasks that require running between different branches of the judiciary in our country are accomplished through CVP in the United Kingdom.

On the other hand, currently, video or audio recordings are presented in court for various cases. To establish the authenticity and admissibility of such evidence, the court sends it to the forensic department of the Criminal Investigation Department (CID). The report from this examination may take anywhere from 15 days to two months to arrive. Despite the digitization efforts in the judicial department, the capability to extract information from various devices, including audio and video, is lacking in that context.

About 11 years ago, in the case of the abduction and murder of a child in Netrokona, videos, still images, records, and computer disks were taken as evidence in the lower court. However, due to their inability to establish the authenticity of these pieces of evidence, the High Court did not admit them as evidence in accordance with the Evidence Act. Following the verdict of the murder case, a senior bench of three judges led by Justice M. Shawkat Hossain recommended an amendment to the evidence law, stating that if digital documents are not accepted as evidence, it would render phone call lists or conversations of individuals of no value.

The law of evidence holds paramount importance in the judicial system, as the outcome of a case heavily relies on the quality and credibility of the evidence presented. In both civil and criminal cases, judgments are pronounced based on the evidence provided by witnesses. However, various challenges such as witness non-appearance, prolonged delays in evidence presentation, witness unavailability, changes in witness addresses, and various other issues can make the admission of evidence virtually impossible for the state. In such circumstances, recording the witness's testimony digitally and including it as part of the judicial proceedings would swiftly establish its role in the legal process. In the subcontinent, the British government effectively implemented evidence laws in 1872, recognizing the significance of maintaining reliable records of witness testimonies.

In India, the Evidence Act underwent significant amendments nearly two decades ago, making it adaptable to the modern era. However, in our country's Evidence Act, definitions for terms like 'audio-visual conference,' 'court premises,' 'electronic records,' 'electronic format,' 'exhibit,' 'party,' 'digital evidence,' 'document,' 'remote location,' 'visible or present,' and 'personal presence' are notably absent. The Evidence Act does not provide a clear provision for the acceptance or provision of evidence or presence from a remote location. This absence of specific guidelines for presenting evidence, establishing proof, or ensuring the personal presence of witnesses and parties from a remote location can be a significant time and cost burden, which is one of the primary reasons for delays in contemporary legal proceedings.

Senior lawyer Yusuf Hossain Humayun, in reference to the challenges and structural weaknesses in the digitalization of law and the judicial system, pointed out that in the High Court, certified copies of relevant documents are often required when filing cases.

If all the case-related documents were online-based, the judicial process would become more streamlined, and the parties involved would experience reduced inconvenience. Furthermore, orders or judgments issued by higher courts would now be sent in both digital and analog formats, ensuring accessibility and convenience for all stakeholders involved.

In this regard, Jyotirmoy Barua, a barrister of the Supreme Court, told Views Bangladesh that the digitization of Bangladesh's legal and judicial system has brought about some benefits, but it has also created significant challenges. He emphasized that there has been no substantial improvement in the infrastructure and framework for digitalization, which is urgently needed. Barua further stressed that while there are advantages to digitization, it has also led to a set of challenges within the country's legal and judicial system. Because the infrastructure for digitization has remained weak, it has created significant vulnerabilities. Furthermore, there are evident limitations in the application of information technology in legal practices.
Recently, the introduction of digital archiving and e-filing systems in the Supreme Court has allowed for a more streamlined process. Even during the COVID-19 pandemic, cases have been filed and heard digitally. As a result, litigants have benefited to some extent. However, despite the initiation of digitization in the judicial department, various challenges persist. For instance, it's worth noting that in certain instances, cases still need to be filed using analog methods in relevant local offices.

Supreme Court lawyer J.R. Khan Rabin told Views Bangladesh that in the era of global digitization, the government has initiated a mega-project in our country's judicial system for digitization. Through the project titled "E-Judiciary," numerous analog records will be transformed into digital archives nationwide, as revealed by the government's published statements, as reported in various news sources.
On the other hand, various steps in the legal process require a considerable workforce and technical support in different areas. However, in our country, the management of offices and technical support is lacking to handle the volume of cases effectively.

Furthermore, in the digital justice system, many individuals lack the necessary experience and expertise in their respective areas. During the COVID-19 pandemic, while attempting to manage virtual court proceedings, many of us have faced significant challenges. In essence, our legal system still struggles with structural weaknesses in digitization.

He further said that, "In our justice system, there are many limitations in the use of information technology. For example, several sections of the Evidence Act, such as sections 3, 17, 34, 35, 36, 39, 45, 45A, 47A, 65A, B, 67A, 73A, B, have been amended to include digital evidence in the Evidence Act."
Furthermore, in other laws, digital evidence has been included. However, the lack of multiple labs for verifying the authenticity or accuracy of digital evidence, coupled with delays in the investigative process, creates the possibility of wrongful accusations and victimization in certain cases."

Actually, when the judiciary department truly embraces digitization, it benefits everyone, including the litigants. However, in some cases, depending on whether digitization methods or analog methods are employed, there is a possibility of exacerbating the woes of those involved. Therefore, for the judiciary department to achieve complete digitization, the relevant authorities need to take comprehensive measures to ensure that all aspects are handled internally, which I firmly believe in."