The High Court has called the online court proceedings ‘open court hearing’ in the full judgement on a writ petition that challenged the Use of InformationTechnology by Court Act, 2020.
The online bench of Justice Jahangir Hossain and Justice Md Badruzzaman on November 4 summarily rejected the writ petition filed by Supreme Court lawyer AKM Asiful Haque while the full judgement was posted on the Supreme Court’s website on Thursday.
One of the five grounds on which the lawyer challenged the act was that the online court proceedings were not a ‘public trial’ as stipulated under Article 35(3) of the constitution.
The judgement says, ‘The Article 35(3) of the Constitution mandates that the criminal proceeding of a court or tribunal shall be held in public.’
It continues, ‘Public means, for the use of everyone without discrimination. Anything, gathering or audience which is not private is public.’
It continues, ‘With all due respect, if the Judge granted unrestricted access to his chamber to the parties and their Counsel and any interested member of the public, the chamber would move from a ‘private’ place to a ‘public place’.’
The judgement further says, ‘Same conditions when available in a remote hearing i.e access being granted to and available to Judicial Officers, the parties and their Counsel and any interested member of the public will make the venue of such remote/virtual hearing be it zoom, skype, whatsApp etc. a public place in line with the provisions of Article 35(3) of the Constitution.’
‘Whether the Virtual hearing under the Act is hit by Article 35(3) of the Constitution,’ the court goes on, ‘It is our opinion, therefore, that the apprehension whether remote hearings are inconformity with the constitutional requirement that the proceeding be in public, the answer would be that the Constitution did not say that such proceedings must be in a physical structure called a Courtroom.’
‘Once the proceedings in a remote/Virtual hearing is made accessible to everyone involved and any interested member of the public, then the condition as provided by Article 35(3) would be complied with’ says the court in the judgement.
The court said that since there was no procedural law empowering the courts to conduct virtual hearing by using information technology, the president in exercising his jurisdiction under Article 93(1) of the constitution promulgated the Use of Information Technology by Court Ordinance on May 9, 2020 when the Jatiya Sangsad was not in session, empowering the courts to continue with the trial of the cases, judicial inquiries, application or appeal hearings, taking evidence, argument hearings or pronouncement of judgements or order through audio-video devices or using any other electronic device with virtual presence of the litigant parties or their advocates or any other person concerned or the witnesses.
The JS later, on July 9, enacted the Use of Information Technology by Court bill.
The judgement further said that the law was enacted as measures to conduct virtual courts to dispense justice for the litigant public as the government declared a 66-day general holiday from March 26 for all private and public sectors to combat COVID-19.
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