The COVID-19 pandemic has challenged and changed the manner in which the court of law operates and although lawyers have been listed as essential workers in the gazette restriction orders, they have responsibly transitioned to remote working arrangements. Judges, Magistrates and Commissioners of Title have also embraced this new form.
Guyana’s Supreme Court of Judicature live-streamed the hearing of the case filed by an APNU/AFC supporter who failed in her bid to invalidate the votes tabulated during the recount of all ballots
President of the Guyana Bar Association, Attorney-at-Law Teni Housty during a recent interview with Guyana Times said that there have been mixed reactions at the level of the Bar with regards to the use of technology to conduct court proceedings.
According to Housty, the reactions are a mixture of the “good, the bad and the ugly.” He also said that the implementation of technological platforms has allowed for matters to be advanced even in the time of the COVID-19 pandemic. He highlighted that for certain types of cases, remote hearings are working well.
Those technological platforms approved by the Chancellor of the Judiciary include Zoom Business, Skype, Teleconferencing, Whatsapp, Email and Microsoft Teams. As far as possible, the courts are using video-links to ensure prisoners attend court.
Difficulties
But the Bar Association President disclosed that there are disagreements with the process for remotely hearing complicated civil matters.
“One of the things that would be hampered in civil proceedings is what traditional courtroom practice would desire as the act of advocacy. There is a certain element of law that is practiced from the Bar to the Bench. For example, like raising objections. These would be difficult to do on a technological platform,” he explained.
The Caribbean Court of Justice (CCJ) live-streamed via its YouTube page the video conference of the hearing of the case filed by the PPP/C in relation to the Mach 2, General and Regional Elections
According to Housty, from his observation, the use of technology is posing some difficulty at the level of the Magistrates’ Courts. He underscored that there needs to be advancement of work at the Magistrates’ Courts, as he has noticed some courts have gone back to in-person hearings. This, he pointed out, has raised concerns for lawyers who are a party to such hearings. In light of the foregoing, he related that the Bar Association has put measures in place to ensure the safety of all its members.
“We [Bar Association] developed face shields the other day. They [Magistrates] have glass [cubicles] separating them from the witnesses. But there is nothing for lawyers at the Bar table. This issue is being addressed by the Magistrates’ Courts and measures are being put in place. We [Bar Association] hope there will be greater adoption and utilisation of technology. [The Magistrates’ Courts] have been trying, but matters have to go on.”
Public access
At a June 11, 2020, virtual court hearing in which journalists were invited, Chief Justice Roxane George said that the court recognises the constitutional requirement of open court. The Chief Justice committed that she will allow the media to access cases conducted remotely as the Judiciary adapts to the new norm of virtual hearings given restrictions posed by the COVID-19 pandemic. And on July 15, 2020, Guyana’s Supreme Court of Judicature, which comprises the High Court and the Court of Appeal, for the first time facilitated the live streaming of proceedings before Justice Roxane.
The Supreme Court of Judicature, the Magistrates’ Courts and the Caribbean Court of Justice (CCJ) have embraced the use of technology, and have in some instances live-streamed cases of national interest like those relating to the recently concluded March 2, 2020 General and Regional Elections. This was done via the court’s website and YouTube pages. Journalists are sometimes allowed access to the virtual hearings. Just like in physical courtrooms, the rules against recording or photographing proceedings without permission still apply.
In relation to public access, Housty disclosed that there are ways to get around this hurdle, adding that there is a great level of flexibility among the platforms being used to facilitate remote hearings. “The courts have adapted. You get notices for Zoom hearings and other instructions. They [the courts] have even gone as far as developing remote hearings for mediation like using Zoom and Whatsapp.”
Post-COVID-19
While these programmes were available before COVID-19, they were rarely ever used. In this regard, Housty is adamant that utilising them to dispense justice should be the norm even after COVID-19. He underscored that there are many challenges faced and lessons to be learnt in ensuring the efficient administration of justice by employing the use of technological platforms.
“Even after COVID-19, we should continue to use technology in the dispensation of justice. It should be adapted and modified for the future. Technology is an opportunity and should not be seen as a patch or quick fix. And that is what we need at the level of the Bar.”
The long-standing lawyer disclosed that the Bar Association has put together a sub-committee in this regard. “That is how serious we find it. I must compliment the committee in supporting the Bar at this time. Bar Committee meetings are being held by Zoom. We have held two webinars and people from all over the region have been attending. This is something we have embraced.”
He, however, cautioned that this should, in no way, replace traditional means, since it is recognised that some persons do not have access to technology, and it would be on the onus of the court to ensure that their needs are met, so as to not deny them access to justice.
The Supreme Court of Judicature, in its Remote Practice Directions, has advised lawyers to upgrade their computers or digital equipment and acquire scanning hardware and software. In the interest of efficiency, parties to remote hearings are also advised to familiarise themselves with the technology being used to conduct video conferences prior to the hearing such as camera, microphone and sound settings.
Confidentiality assured
Of course, concerns relating to maintaining confidentiality during remote hearings are outlined in the court’s practice directions. For instance, it mandates that there shall be no private communication Judges, Magistrates and any of the parties or their lawyers regarding any hearing or in relation to a matter in which a decision or judgement is to be delivered, before, during or after the decision of delivery of the judgement.
Among other things, the directions stipulate that the registrar or clerk of court to the judicial officer must be physically or remotely present during all hearings. Trials by jury have been suspended across the three criminal assizes. Only guilty pleas are being accepted from accused persons with respect to their charges. The court registries remain operational to facilitate the filing and retrieval of court documents. Urgent matters can be filed via the court’s website https://supremecourt.gy/ or via email.
Safety
The courts have put systems in place to ensure persons, who must be at court, are screened before entering courtrooms. For instance, persons are not allowed to enter the court compound without a mask. Upon entry, persons are required to sanitise their hands, this is followed by their temperature being checked by health officials and maintaining social distancing. In addition, the courts have placed restrictions on its entries.
In the meantime, most face-to-face and in-person operations remain suspended according to the Supreme Court of Judicature Practice Directions. Where physical hearings are necessary, the courts have demanded strict adherence to the World Health Organisation (WHO) guidelines.
“The adaptation and implementation of technology has stopped the wheels of justice from grinding to a halt,” the Bar Association President emphasised in closing. Notwithstanding the pandemic, courts in all three counties have been working painstakingly to clear case backlogs, as well as to dispatch new cases.
