Our Courts were at a particular disadvantage: a decade of underinvestment in court buildings meant that almost none of them are able to provide such basic necessities as soap and water, let alone hand sanitiser or a clean toilet. Whilst these basic necessities lacked in our Courts, we would have hoped that the investment was directed to other equally important aspects of our Courts, for example: working online, conduct hearings and to deliver decisions remotely, without any of the participants having to leave home.
Concern of Lawyers
The growing concern of lawyers across Mauritius, reflect the risks to legal services posed by the spread of Covid-19 in Mauritius. Whilst office-based lawyers, mostly from law firms, have been able to work from home (and some with a minimal staff on the ground to attend urgent court applications), the coronavirus outbreak has already impacted on the conduct of legal business in our jurisdiction. A look at the number of law firms that have closed down offices around the world shows the numbers are growing and Mauritius will not be spared by this trend.
Traditional Courts
Our Courts have traditionally required the attendance of litigants or, at the very least, their legal advisers. Often other parties such as witnesses are required to attend, as well as court staff and, of course, the Judge. Whilst in recent years in the United Kingdom, an increasing number of hearings, particularly at an interim or preliminary stage, have been conducted wholly or partly via telephone or video links, and it has been possible to conduct even substantive hearings by video-conferencing technology without anyone being present in an actual court room, in Mauritius, we have only gone as far as operating an e-judiciary for the commercial division of the Supreme Court. Our next move only looked as far as extending this service to the whole of the Supreme Court but not beyond, at least for the short term.
The present Covid 19 situation in our courts
The present situation for our courts can be summarised as follows:
District Courts
All the courts are closed and only urgent services are being provided via technological communication and this is the consequence of a contamination of an auxiliary member of the judicial staff. By order of the Chief Justice, all courts will remain closed during the lockdown period and until further notice.
Magistrates for District Courts remain available via technological communication in all District courts for any urgent matters such as request for release on bail for any person newly arrested or already in detention, protection orders for children and victims of domestic violence and cancellation of arrest warrants. For urgent applications in District Courts, the public and the legal profession are asked to either contact the prosecutor’s office directly or through the local police station. The Prosecutor’s Office will then contact the Magistrate concerned.
Intermediate and Industrial Courts
For the Intermediate and Industrial courts, they may also be seized by technological communication for any urgent matter through members of the legal profession who will direct their requests through the Secretary of the Bar Council and the Secretary of the Law Society, as appropriate.
Supreme Court
Only urgent applications and motions are being entertained; the Secretary to the Puisne Judge or the Acting Master and Registrar or the Acting Deputy Master and Registrar of the Supreme Court can be contacted. For the Family Division, the secretary of the presiding Judge is to be contacted.
The Commercial Division
The Commercial Division of the Supreme Court has provided a Skeleton Staff on a daily basis and the e-filing system will be accessible as usual. In case of technical issues relating to the system or for any other urgent matters, the Court Manager or the System Administrator can be contacted by phone or via e-mail. Furthermore, practitioners have been informed that the applicable milestones for filing of pleadings and deadlines, for cases before the commercial/bankruptcy division, are waived until further notice and are further reminded that only urgent applications should be lodged. Normal business will resume as soon as the lockdown period ends.
Issues arising
The arrangement for the District Courts gives rise to two issues, namely:
- Should lawyers rely on the Prosecutor’s Office or a Police Officer to contact a Magistrate?
- How is confidentiality addressed in this kind of situation where lawyers are dependent on a third party and sometimes an adverse third party?
Conduct of litigation: Problematic
While office staff can work from home by adopting ‘smart working’ procedures and teaching can be conducted remotely, the conduct of litigation may be more problematic. Our justice system and our Courts are totally unprepared, in the event of a prolonged period of lockdown, to conduct most if not all civil or criminal litigation by remote hearings rather than physical hearings during the coronavirus epidemic.
Backlog of cases
The aftermath of the coronavirus pandemic leaves our courts with a major concern, the backlog of cases. How will our courts manage the inevitable backlog of cases that has been created with the closure of all the courts during this unprecedented situation? All the stakeholders will necessarily need to work together to ensure that this backlog is cleared and one potential solution would be for the Courts to work during the summer vacation in August.
The situation in China
China is leading the world not only in the draconian measures it is taking to control the spread of the virus, but in the technological solutions it is applying to the ongoing administration of justice.
As cities have gone into lockdown and new hospitals have been built in a week, the Chinese courts have also had to adapt rapidly to the need to conduct their business online. They already had the necessary technology in place. China set up its first Internet court in the eastern city of Hangzhou in August 2017, followed by the establishment of similar courts in Beijing and Guangzhou in September 2018.
Last month the Supreme People’s Court of China announced[2],
“Considering that the epidemic may last for some time, the Supreme People’s Court, the country’s top court, ordered courts at all levels to guide litigants to file cases or mediate disputes online, encouraging judges to make full use of online systems for litigation, including those for case filing and ruling delivery, to ensure litigants and their lawyers get better legal services and protection.”
Subsequent announcements have provided examples of the process in action. In one case a local court judge, ‘Dressed in a robe and facing the screen’, heard a criminal case without any of the parties being physically present. The case concerned a violation of epidemic prevention and control regulations. ‘With legal procedures completed, the defendant was sentenced to nine months in prison,’ the report concludes.
In another case described on the Supreme People’s Court website, a Judge with Beijing No 1 Intermediate People’s Court used an online video communication system app called ‘Yunshenpan’, which literally means ‘trial in the cloud’, to complete a hearing about a private loan dispute. Judge Chen Shi said that the use of the app ‘not only met the litigation demands of the two parties, but also ensured their health and safety during the epidemic period’.
The Supreme People’s Court of China has also promoted the use of ‘mobile micro court’ on the social media platform ‘WeChat’ in twelve provinces and cities to help courts conduct trials on the Internet.
The situation in the United Kingdom
In the United Kingdom, The Civil Justice Protocol Regarding Remote Hearings in England and Wales (“the Protocol”)[3], was issued on the 20th March 2020 so as to deal with remote hearing,
“The current pandemic necessitates the use of remote hearings wherever possible. This Protocol applies to hearings of all kinds, including trials, applications and those in which litigants in person are involved in the County Court, High Court and Court of Appeal (Civil Division), including the Business and Property Courts. It should be applied flexibly”.
Flexibility is the key word and the UK is trying to cope and adapt with the current situation as much as practicable.
The Coronavirus Act 2020 became law at 5.30pm on 25 March 2020. Sitting in the Commercial Court the following morning, Mr Justice Teare made an order under the act allowing anyone with an internet connection to observe the case he was about to hear – a claim brought by the Republic of Kazakhstan and its central bank against a Moldovan businessman, Anatolie Stati, and the Bank of New York Mellon over frozen assets valued at USD530m. This was the first High Court trial to be broadcast, which meant we could see witnesses being cross-examined by leading counsel in real time. [4] The judge went on to say ‘remote hearings have their disadvantages but putting the case off until the autumn would have been in nobody’s interests.’
In the UK, the public is becoming used to watching appeal courts online. Even the UK Supreme Court had live streamed its first remote hearing, with all justices and counsel taking part from home. Last month, the special educational needs and disability tribunal became the first part of the courts and tribunal service to hear all its appeals using video conferencing.[5]
In an article[6] dated April 2020 in Counsel Magazine, two leading practitioners state,
“As a profession the Bar is not known for its rapid adoption of new technology, but on this occasion the profession will need to embrace it quickly. It is often said that necessity is the mother of invention, or perhaps here, the mother of implementation. In meeting that challenge, the Civil Justice Protocol states that ‘it is inevitable that undertaking numerous hearings remotely will cause teething troubles. All parties are urged to be sympathetic to the technological and other difficulties experienced by others.’”
The Protocol itself provides,
“10. In the present circumstances, the court and the parties and their representatives will need to be more proactive in relation to all forthcoming hearings.”
Hence, not only it is important to adapt to this current situation, but it is equally important to have a pro active approach from all stakeholders.
Insofar as the conduct of the remote hearing is concerned the Protocol provides that,
“16. Judges, clerks, and/or officials will, in each case, wherever possible, propose to the parties one of three solutions:- (i) a stated appropriate remote communication method (BT conference call, Skype for Business, court video link, BT MeetMe, Zoom, ordinary telephone call or another method) for the hearing; (ii) that the case will proceed in court with appropriate precautions to prevent the transmission of Covid-19; or (iii) that the case will need to be adjourned, because a remote hearing is not possible and the length of the hearing combined with the number of parties or overseas parties, representatives and/or witnesses make it undesirable to go ahead with a hearing in court at the current time.”
In addressing whether the principle of “Not only must Justice be done; it must also be seen to be done” is concerned, the Protocol provides,
“22. The hearing can be made open to the public, if technically possible, either by the judge(s) or the clerk logging in to the hearing in a public court room and making the hearing audible in that court room, or by other methods (see [8] above). But in the exceptional circumstances presented by the current pandemic, the impossibility of public access should not normally prevent a remote hearing taking place (see [6]-[7] above). If any party submits that it should do so in the circumstances of the specific case, they should make submissions to that effect to the judge.”
Whilst drawbacks are inevitable, the Protocol tries to address the various situations that may arise during this pandemic.
Can we do the same in Mauritius?
It is evident from the reports above that the courts in China and in the UK are using online hearings to deal with both criminal and civil matters during the coronavirus epidemic.
But the emergency planning of the government in the face of the coronavirus epidemic does not appear to contemplate sufficiently bold initiatives, as well as some rather desperate sounding measures. Should these not include the rapid development and expansion of online hearings to a far wider range of cases?
We could have expected our Parliament to urgently pass new legislation but unfortunately the existing resources and technological facilities in most of our courts are not sufficiently established to ensure its implementation in practice. We will further need time to train both members of the judiciary and the court staff to adapt to the use of new technologies.
Wake up call
True it is, the time is not for criticism but let this be a wake up call to allocate and use resources for judiciary in a manner which provides this sector with the necessary technological tools to protect the public and maintain confidence in the justice system in times of crisis like this present coronavirus pandemic.
The inauguration of the state-of-the-art Building for the Supreme Court and all its divisions is imminent and would have already happened had it not been for the lockdown of the country and this pandemic.
However, in the February 2020 Report of the Director of Audit, some necessary adjustments seemed to have been suggested,
‘3.2 E-Judiciary Project – Nugatory Expenditure of Rs 204.9 million The e-Judiciary System was designed to restructure the Court process and to reduce the paper based operations and reducing the need for physical storage and security to leverage the benefits of electronic storage within the Courts. Total payments for the implementation of the project as of 30 September 2016 amounted to some Rs 98.8 million, of which the Investment Climate Facility contributed Rs 74.1 million. As of 30 June 2019, payments for maintenance contracts totalled Rs 106.1 million. Due to high maintenance charges amounting to some Rs 28 million annually, to service the Commercial Division only, the e-Judiciary System is being revamped.
A review of the project revealed the following: (a) The e-Judiciary computerised system was implemented only at the Commercial Division though it was also expected at the Mediation Division, Master’s Court and Supreme Court. The whole contract sum was paid by September 2016. Some Rs 15.2 million were paid, under the contract, for a Business Process Reengineering but the system has never been rolled out to other Courts of the Judiciary. Value for money has thus not been obtained for expenditure totalling some Rs 204.9 million; (b) No business case and feasibility report were available; (c) The annual maintenance cost of the e-Judiciary System of Rs 28 million to service some 1600 cases for the Commercial Court for the year 2016 was unreasonably high, that is an average of Rs 17,500 per case; (d) There was no detailed pricing of each item in the Bill of Materials of the contract. No details of a payment of US$ 590,544, that is some Rs 20 million, for Third Party hardware and software, were available as at 14 January 2020; and (e) A balance of US $91,347 as of 30 September 2016 could not be traced in the Annual Statement of Deposit as per “USD Account-Accountant General’s Investment Climate Facility-Modernisation of the Supreme Court Account”. The Judiciary informed NAO that: The e-Judiciary system was implemented for the Commercial Division and the management decided not to roll over to the other Divisions/Courts. The Judiciary is coming up with the revamping of the e-Judiciary which will considerably reduce costs. The Supplier, a private firm, has been requested to submit the detailed pricing of each item of the Bill of Materials but same has not yet been received. As regards the balance of $91,347, the Finance Section of the Judiciary has been asked to look into the matter with the office of the Accountant General. Funding of the Project – Phase 1 In February 2010, an agreement was signed between the Government of Mauritius (GOM) and the Investment Climate Facility for Africa Trust (ICF) in respect of the modernisation of the Supreme Court of Mauritius. The estimated cost of the project was US$ 3.6 million, that is, some Rs 108 million, of which GOM and ICF would contribute US$ 0.9 million and US$ 2.7 million respectively. In March 2010 a contract was signed for US$ 3 million, excluding VAT, between the Judiciary and a private firm for Phase 1 of the Project. The supplier had thus to computerize all the Divisions or Courts dealing with civil cases and falling under the Supreme Court other than the Family Division. The contract, for Phase 1, was meant to deliver an e-filing and case management system for the Supreme Court, restricted to civil cases only, within a period of 18 months.’[7]
Revamping of Existing facilities
The Judiciary is continuously revamping the existing Digital Court Recording System by extending such facilities to all Courts of Mauritius which will contribute to improve the quality and accuracy of court records at all levels and speeding up transmission of court files to Judges and Magistrate after hearings for determination. We now have to go the extra steps of starting to use technological tools which would then allow us to speak and use terms such as ‘cyber judges’ and ‘transparency of virtual justice’ without it being taken as joke.
Video conferencing
The Bail and Remand Court (BRC) at the New Court House, Port Louis has a video conferencing System (VCS) which has been in operation since 1999 and enables most accused persons on remand and witnesses, particular the “vulnerable” ones to be heard without the need to be physically present in the courtroom. The VCS obviates the need to incur time and expense of transporting accused persons to the Court and the associated risks thereto. In order to function properly the VCS has been upgraded recently to a support IP network. This has cut down the operating costs by communicating with the Remand Prisons through IP, using the Government Intranet System (GINS) and provide for a more secure communication between the Prisons and the BRC.[8]
Extending the VCS facility
Extending the permission to ordinary witnesses would cut the risk of transmission within the courtroom. Courtrooms are always packed and there is no possibility to practice social distancing.
We need also address those cases whereby an detainee is on remand whilst awaiting trial.[9] With such a prevailing situation, we run the risk that such detainee may end up serving more time on remand than what he would have been sentenced for should he be found guilty.
Additionally, prison visits may be reduced to prevent infections getting in to protect detainees from infected visitors without preventing those detainees access to their legal advisers (for matters which necessitate urgent and necessary consultation), with all the necessary confidentiality aspects being catered for. Some may think it’s a dream but the reality is, if we do not take bold steps going now, we will never be prepared enough to face another set back, which will inevitably happen. A pro-active approach needs to be implemented as from now.
In a period where the whole country is paralysed by the invasion of an invisible enemy for an indeterminate period of time, business will not be as usual for some time- until a vaccine is found- and we should brace ourselves for new ways of doing things and we should direct our resources swiftly for that purpose.
Controversy with Lawyers
However, some moves and new measures could prove controversial with lawyers who say, for example, that it undermines their ability to cross-examine people and makes it harder to decide if someone is telling the truth. That controversy will have to be weighed, amongst other considerations, against the daunting prospect of having no work and receiving no funds at the end of the month.
‘Necessity is the mother of invention’ and in this instance, may also be the father of better funding. We cannot realistically do all this overnight but we should adopt the ‘can-do’ spirit of the Chinese Government and the steps taken in the UK.
True Revolution
The true revolution would be in the simplification of the process where every case would be:
- Initiated;
- Progressed;
- Case managed and
- Decided online.
All papers would be electronically filed. Information would only need to be keyed in once, and then re-used and passed onward in digital format. Hearings in court would take place only when necessary and proportionate. Otherwise they should be conducted online, which could include video conference style hearings.
Pupillage
How are we dealing with our next generation of lawyers is another issue that raises questions. Losing a one month period out of a 12-month period of pupillage is substantial. Whilst some pupils may have taken this lockdown period at their advantage to enhance their knowledge in many different ways, others may not have. It will be difficult to assess. It looks set for the pupillage period to be extended for the amount of time the lockdown period will last, for the benefit of those undertaking same.
The Institute of Judicial and Legal Studies
Additionally, whilst in pupillage the prospective barristers must attend compulsory courses with the Institute of Judicial and Legal Studies- these are suspended during the lockdown period.
Here again, the use of technology to dispense those courses online would have provided these prospective barristers with means to continue their learning process without disruption. As soon as the report of 3 existing cases was made on 19 March 2020, the Board of the IJLS resolved to suspend lectures at the Institute and announced that possibilities of online courses are being examined. The decision was made public on the IJLS website.
Courses for prospective barristers are scheduled for the current month but as soon as the lockdown is over, the Institute has resolved to take measures to have these courses online. In the past, the Institute has relayed lectures from abroad for example from the University of Central Lancashire.
People suffering from a disability
As at date, it cannot be stressed enough that the infrastructure as well as the logistics in place in our courtrooms are fully compliant with the norms and standards for people suffering from a disability. The implementation of the remote hearing will definitely be a step forward in this quest for better treatment for people with a disability.
Concluding remarks
In a moment of crisis, minds too can change quickly. The coronavirus crisis has encouraged courts around the world to find innovative ways of delivering justice. Courts and their users must ‘seize the moment’.
Whilst the Judiciary can be proud of having at the very least achieved that much with the limited resources it is allocated every year, other key institutions are waking up now to smell the coffee. Too late for many but never too late for many more; the reality is that our economy is going to take the hit bang on the head and it will be painful.
We can only work towards the future to prevent a similar recurrence by being better prepared. The legislative underpinning of the courts modernisation should begin boldly and immediately. The online court is one of a number of related justice modernisation needs. It may cost several billions and look a massive sum to commit at a time of austerity, but if it succeeds it will save several more billions over the years by eliminating many of the costs of running a paper-based system using rented premises which look more like shop windows and craft workshops than actual court rooms.
As Rozenburg puts it,
“When this crisis ends – as it surely will – most courts will resume face-to-face hearings. In lengthy, complicated or demanding cases, these are likely to be less stressful for judges, lawyers as well as ordinary court users. But, as recent events have shown, remote working can be a much more efficient way of delivering justice. Some things will never be quite the same again.”[10]
We urgently need a set of new laws and procedural rules for the online courts. Should the online courts not live up to expectations, although there is no reason for this to happen, we would have at least tried and be proud to have tried.
REFERENCES
[1] Financial Times 20 March 2020- Yuval Noah Harari: the world after coronavirus. This storm will pass. But the choices we make now could change our lives for years to come
[2] http://english.court.gov.cn/2020-02/13/content_37533572.htm
[3] https://www.judiciary.uk/wp-content/uploads/2020/03/Remote-hearings.Protocol.Civil_.GenerallyApplicableVersion.f-amend-24_03_20-1.pdf
[4] ‘On the outside looking in’ by Joshua Rozenburg dated 06 April 2020, Commentary and Opinion at https://www.lawgazette.co.uk/commentary-and-opinion/on-the-outside-looking-in/5103764.article
[5] See below at page 11
[6] The Bar in the time of coronavirus by Melanie Tether and Nadia Motraghi are leading practitioners in employment and equality law at Old Square Chambers featured in Counsel Magazine UK; https://www.counselmagazine.co.uk/articles/the-bar-in-the-time-of-coronavirus
[7] Page 31 of the Report
[8] One bail hearing was recently heard via Whatsapp for a matter set before the District Court of Black River
[9] Section 10(2) of the Constitution
[10] See note 4 above
