Should court hearings go online?
Salma El-Nashar, , Tuesday 19 May 2020
Courts across the region are stepping up their use of online technology to keep the wheels of justice turning during the Covid-19 crisis with lessons for the Egyptian judicial system, writes Salma El-Nashar

As a result of the coronavirus crisis that has hit the world causing a humanitarian disaster and the death of thousands every day and negatively affected the global economy, the World Health Organisation (WHO) has issued temporary recommendations to avoid the further spread of the disease.

It has recommended avoiding travel to affected areas, restricting the movement of people and goods, reducing gatherings and following social-distancing measures. Many private and public-sector companies have decided to work remotely, while others have decided temporarily to suspend their work.

In some countries, including Egypt, the judiciary has also decided to postpone court hearings. The Egyptian Council of State and the Supreme Judicial Council issued decisions to suspend all hearings, for example, and this suspension was extended for several weeks in line with the government’s precautionary measures to prevent the spread of the coronavirus with the exception of legacy notifications, family expense claims and other family disputes.

Recently, and after the suspension period had ended, the Cairo Court of Appeal issued Decision 154/2020 to proceed again with hearings related to civil, commercial and criminal disputes while taking certain precautionary measures. Some hearings will be held for two days instead of six, for example, and members of the public will not be able to attend hearings of criminal cases.

Some other judicial systems, including in the United States and India, have decided to hold hearings online in order to avoid building up a backlog of pending cases and to protect judges, lawyers and litigants from possible contagion. On 4 May, the US Supreme Court held its first online hearing in an intellectual property dispute, for example.

In the same way, the government of Dubai in the UAE has issued Decision 33/2020, stipulating that all cases shall be prepared remotely, and hearings shall be held online through videoconferencing or videocall applications in all cases whether before the Court of First Instance, the Court of Appeal or the Court of Cassation. The same thing is true of the examination of witnesses, and all litigants will need to submit all documents and memorandums online.

For matters before the courts and under litigation, several international and regional arbitration institutions, particularly those dealing with international commercial arbitration cases, have also decided to hold their hearings online via videoconferencing, according to the terms and provisions determined by the Seoul Protocol on Video Conferencing in International Arbitration issued in March this year, which defined witness examination rules, videoconferencing venue criteria and technical specifications and requirements.

But litigation differs from arbitration in that the parties to an arbitration case are free to choose whether to hold their hearings online via videoconferencing or to postpone them. This is in contrast with litigation, where the decision is ultimately taken by the judicial system, over which the litigants have no control in this regard.

In this context, the following question arises during the present pandemic: would it be possible for the Egyptian judicial system and judges to hold hearings online more permanently instead of going physically to the courts?

I understand that this is not an easy option, but another one would be for the courts to start working normally again with fewer people involved. In this case, with fewer judges and some delays causing an increase in the number of cases, questions would arise as to how the judiciary would deal with the large number of lawyers, litigants, experts and administrative staff who ordinarily go to the courts every day.

Under normal circumstances, hundreds of thousands of people visit the courts every day to file lawsuits, attend hearings, meet with experts and carry out administrative work. There are questions as to how this can continue when we need to put in place measures to control contagion according to the WHO and health experts until the end of this year. Again, holding court hearings online may not be easy, but obviously it is worth thinking about.

Furthermore, if some services like filing lawsuits and submitting memorandums and relevant case documents could be provided online through the website of each competent court, this would undoubtedly reduce congestion. This is already being done at the Cairo Economic Court after the issuing of Law 146 of 2019 amending some provisions of the Economic Courts Law, which allows litigants to file lawsuits and submit memorandums and case documents through the Economic Court website and to notify parties to disputes by e-mail, telephone and other technological means. These amendments were the first of their kind in Egypt, but they have precedents in several other Arab and foreign countries.

As a result of the current crisis, courts across the region are stepping up their use of technology to keep the wheels of justice turning. The Egyptian courts also need to adapt quickly to the use of this technology.

The writer is an attorney at law.

*A version of this article appears in print in the 21 May, 2020 edition ofAl-Ahram Weekly