The Conception of e.Justice ; Helping In Backlog Reduction. Part 1

The conception of e.Justice(e-Governance) - Pros and Cons.

Abstract

This article is meant to bring the notion of Information Technology; its pros and cons, to solve the problem of accumulations of cases in the courts. Although there is dire need of more research in this field, but implementation of IT in justice sector have bought mixed results. It has been explored that only the implementation of I.T will not solve the problems confronting by the courts but there are other factors which affects its proper implementation. Courts are the entities which are not same in nature as other sectors like banks, but other factors can affect the implementation of modern technologies, which may even result to its failure. This article will examine the notion of e.Justice and factors which influence its implementation and other concepts like electronic court and e.Court , which are still not understandable phrases within judiciaries. Both have different nature and meaning. Taking the examples from the International Criminal Court and Indian judiciary in particular, this article will examine to what extend the implementation of modern technology i.e. e.governance will bring positive changes in different world judiciaries by reducing delays and backlogs, and what are the factors which are vital for the proper and positive application of modern technologies in the courts.

Key terms:- e.Court, e.Justice, Court Culture, e.governance, Backlog.

Introduction.

In this age world judiciaries are facing a big problem and that is the problem of backlog and delays. Day by day the cases are piling up and justice is not done in timely manner. One of the major factors is increase in the ratio of cases: judges. Cases are increasing day by day by urbanization, globalization, increase in literacy rate, more population, and open markets for investors and businessmen.

 Now a day’s modern technology has been used to reduce this backlog and reduce the menace of delays in the courts by implementing different projects like introduction of Electronic Case Management System (ECMS), Electronic Data Management System (EDMS) and so on. For example, Provincial case tracking system (FRANK) was developed to address management information and operational needs of Ontario's courts and to provide extensive data about case processing. In international Criminal Court cutting edge technology is used both in court rooms and other divisions to receive massive information and then converting it into electronic format, or the statute of ICC permits filing cases, documents, evidences through online and electronic medium. For example, Ringtail is used as evidence management soft ware, ICC customized TRIM is used as EDMS. Same other international tribunals in the Hague uses different form of modern technologies inside the court. In Indian judiciary there was starting of e.court Project during 2007 which is still to be implemented on full scale.

A:- The notion of e.Justice.

"Ego simili possum admiracione dicere quod in curia sum, et de curia loquor, et nescio, Deus scit, quid sit curia."

("In a like spirit of perplexity I may say that in the court I exist and of the court I speak, but what the court is, God knows, I know not.")

These are the words of Walter Map (11th century AD); a functionary in the court of Henry II shifts our sixth sense towards a major subject which needs attention while working or dealing within courts. After 800 years, there has not been changed much and still we are not able to find what exactly is the meaning of court or a place where justice is delivered. The success of the judicial system is measured by its ability to resolve disputes in a fair and timely manner and the delay in justice delivery has awful effects on the socio-political and even macro-economy of the country. The concept of speedy justice is very old, which backs to the time since man started its logic and reasoning to control the matters of his society. He adopted norms and rules to marginalize himself from other creations of the God, which do not use the intellectual power in their life cycle. Man is not a creature whose whole meditation has been focused towards his stomach, but his creator has equipped him with all those qualities which he has not bestowed to other creation on the earth. He has emotions, feelings and greatest gadget is his intellect which has drove him on the path of invention and discoveries, and above all those are his moral and humanist values which even controls his inventions and discoveries to large extent.

   With the advent of technology judiciary has also tried to change with the change. Courts have been usually very conservative traditionally and still there are countries which have not well information and communication technology in the courts. Trend has changed, world judiciaries have felt that they are lagging in the run, the case can be solved within months’ period which used years for disposal. Courts are not immune to the information and communication technology, as they are “highly informative intensive, and based on the exchange of enormous amount of information.

Claire Warwick’s lecture at University of Sheffield depicts that how first century BC poet Catullus who expressed ‘an anxiety in many ways caused by a changing medium’ and demanding a new ‘delivery mechanism’ for the information which is almost too copious for a conventional publication to cope with’. Claire wants to provide effects of ‘electronic publication’ in this new age where most of the people are now using and dependant on the electronic medium to very large extend. And she evaluate the revolution brought about by ‘electronic publication’ to that caused by the discovery of printing where the poet feels painful and anxious by the publishing revolution, which was actually a technological change at that time. 

Claire views that two types of cultures were co-existent in the first century BC when the poet felt anxious about the future of printing publication; ‘He was also living in an age where two cultures of information provision were coexistent. Only those with appropriate information skills could use the new technology of reading and writing.’ And the printing technology became profitable till now. And the book of the poet remained for more than 2000 years for which the poet was anxious.     

The justice sector is not immune to these changes as they are highly "information intensive"

The notion behind the establishment of the e.Justice, which is an integral part of e-Governance, is stated in article 117 of the Spain's constitution of year 1978, "the principle of judicial immunity is the basis of courts organisation and operation", and the ICT has most important role to keep the "principle of judicial unity". It is not mere introduction of modern equipment in administration of justice, but to integrate and spread of its use which can be done by "low wish and in the organisation, changing the law and the introduction of rules and procedures for better implementation in administration of justice. It is directory stipulates that the need for establishment of a "committee for administration of Justice" comprising both judges and staff clerks for implementation to provide the efficiency of Justice and finally contribute to improve the quality of Justice.

It is encouraging here to differentiate between e-Court and electronic court. Electronic court can be defined as the court where, generally, documents which can be evidence paper, witness statement, judgements, judicial proceedings, archiving etc or in the form of digital format" oils or held in modern in electronic form. Whereas the E court means the "electronic court room" where trials are being held in modern electronic court room, where high-tech gadgets like smart board is used to draw marking own documents, evidences or maps and saving them electronically database, evidence cameras, computers, video cameras and other electronic equipments to record witnesses and examining electronic evidences.

In e.Court with all equipments needed to take the place of traditional methods for example we have stenographers to note down the court proceedings or judgements or court reader to record the statements of witnesses, which is now done by the real-time machine special kind of software like "transcend". Evidences were produced with informal paper document, but now we have different software like "ringtail" by which we can present evidence in digital format on computers or smart board screens. Indeed we have Internet facility which helps in the video conferencing from the detention centre to courtroom, or if a judge for lawyer wishes to find any particular judgement from other sources (legal database) and present in courtroom via computer screens he can easily do it by Internet.

In summary electronic court and e-Court or two different terms which may not be mingled to each other. Every E court is electronic court but every electronic courts is not e-Court.

Vision and strategy

louraine c Arkfeld writes in his article about court technology (life as a wired judge, reflection on the use of technology the courts), "it but I'm sure the were to come forward from 16th century, there could be only two places that he or she would find comfortable and family – the Church and the court room". With the advent of technology since past two decades the court have done much less to embrace the technology in their day-to-day life. Indeed technology can increase the pace of delivering justice. As per common proverb – ‘Justice delayed is justice denied’. One must know that technology is not an end in itself it is just a tool to make efficient Justice that is to increase productivity and decrease costs, and to reduce the time period of judicial procedures. The institution will lag behind if the court administrators failed to the above ‘strategic vision’. This era being the era of changes need the modification in handling and dealing of cases otherwise the ramification will not be favourable for the justice sector. The judicial administrators should have the knowledge of modern technology, and should have vision and strategy how to deal with the future problems and those with strategic thinking skills will be in position to solve future problems emerging by new technologies and unprecedented changes.

E-Court leaders should be aware of things which they are dealing with. Larry Webster argues about the vision and strategy by providing very nice examples. He states that during 1880, of Thomas Elva Edison to his assistant Sam Insull, regarding his invention, "the phonograph – is not of any commercial value". In 1980's Xerox first aid of a graphical user interface for computers which allows users to interact with electronic devices with images for example MP3 players, portable gaming devices. They developed networking, book size computers but the technology leaders in that business sector had no vision what could have been done with this technology and Microsoft made billions of dollars of the invention. Chairman of IBM Thomas J Watson said, "I think there is a world market for about five computers". Bill Gates CEO of Microsoft said in 1981, "640 K ought to be enough for anybody". Once President of "Digital Equipment Corporation" Ken Olsen said, "there is no reason for any individual to have computer".

How these smart people can make such a big mistakes in their vision. We are at receiving end, changes occur which causes the paradigms shift and change "the rule of game". The ICT revolution is growing so quickly that it cannot wait for people to die and retire, and then new generation will make changes.

The last two decades have seen dramatic changes. There has been jurisdictional increase and a "paradigms shift in sentencing". Also the various modes of dealing with the cases has bought new system of justice and in some areas the focus has shifted from "in – court solution". In different parts of the world were electronic criminal justice system has made good hold, have changed the crime dealing e.g. routine motor vehicle offences and less street crimes, and other forums of offences are processed electronically in computer courts. New form of laws because of globalisation has bought over all change on the society at large efficiency, effectiveness and transparency being important part of due process or directly on judicial management and vision. With the formation in every sector, judiciary also needs to be reformed in administration as well as in management field to implement technology. To make the changes in the traditional models of management in judicial system needs to know first on what grounds or judicial powers stand. Implementers should have strategy and vision to understand for system wide effects and consequences of situation and actions. They should have vision and no what will be their limitations and capabilities of implementing the new technologies in the Court System, as it can make them in a better position to manage changes and harness emerging technology tools. Courts should take advantage of technology to reach the benefits and develop innovative means to meet the need of users. The strategy should make best use of "tested technologies" to improve and enhance access to Justice.

Adoption of pilot project in lower judiciary is important for long-term process. Pilot project in higher judiciary is different and concentration should be given on lower judiciary because of the different nature of cases and processes. One factor which has put a real dream of e.court system of India between lines of the court documents is because of fade view of E-courts committee on pilot project implementation in lower judiciary. E-Court authorities are yet to implement the project after six years of consideration. Pilot projects are much needed, it is just a rehearsal or ‘walking before you run’. A person who needs to run on different tracks as to rehearsal on both tracks so it is imperative that pilot project in higher judiciary should not be mingled and misled with lower judiciary. The E court pilot project should have been restricted to a particular field which could have served as a way to "educate" management and build support for project, and have verified cost and benefits. Also it could have allowed to evaluate hardware and software design.

Edward Tenner in his book “why Things Bite Back” , discusses the localising power and its effects, "that professionalism has changed a last from last 150 years as its concentration has been changed from whole system to localized one, "a focused attack on the site of a problem.” Because curing a person as a whole has catastrophic results. To treat in a localised way is the legacy of modern age and it is imperative for e-Court leaders to differentiate how and where to act and in what way. higher judiciary for images different than lower judiciary climbing and different from tribunal type. Edward further discusses regarding the action of medicine, "dosage depended not only on the drugs usual effects but owned the patients Constitution and even the local climbing." And same happens in any system instruments (software) all different defeatist investment (place) is different. Technology has changed and advances from vast one century towards this kind of localisation and in terms the emergency of this localisation has evolved the need of an expert.

E-Justice and e-Court

E-Justice is the using of information and complication technologies with a wide variety of technology instruments and channels, in administration of justice, so that it can provide benefits in its operation by saving: first time and work, second, obtaining more information and transparency, third, effective and efficient Justice, for and bringing Justice more close to public or to the development of ICT in judicial domain such as access to courts, management of cases, legal information retrieval, and trial procedures or judgements and to have speedy justice. In developing countries like india where the e-administration is less than 1% there is dire need of e-governance because of its vast population and rural localities.

e-Governance

E-Justice comes under the heading of e-Governance. e-Governance is in essence, the application of Information and Communications Technology to government functioning in order to create ‘Simple, Moral, Accountable, Responsive and Transparent (SMART) governance. It is the use of a variety of contemporary Information and Communication Technologies e.g. Internet etc. by Government to revolutionize the effectiveness, efficiency, service delivery and to uphold democracy, and governance is be based on the transactions in virtual space. The notion behind the e-Governance policy is to replace the existing system of governance with new one where governance is central, cheaper, quicker, and innovative. It not only includes e.business but it is something more than that. It increases e-Administration, connecting citizens, improving public service and ‘building interaction with and within societies’. The purpose is to maintain collective security, administering justice, providing the institutional infrastructure of the economy and ensuring that vital social capital is enhanced through improvements in health and education and through strong families and communities. For example Singapore has an e-Governance system which presents wide-ranging services to its citizens. Once a child is born, the data base keeps track of this child during its schooling days, graduation degree, employment, marriage, housing loans, passport, business, court case, etc.

The goals of e-Governance are:

a. Better service delivery to citizens

b. Ushering in transparency and accountability

c. Empowering people through information

d. Improved efficiency within Governments

       e. Improve interface with business and industry.

There are different definition of e-Governance. The world Bank defines it as, 

“E-Government refers to the use by government agencies of information technologies (such as Wide Area Networks, the Internet, and mobile computing) that have the ability to transform relations with citizens, businesses, and other arms of government. These technologies can serve a variety of different ends: better delivery of government services to citizens, improved interactions with business and industry, citizen empowerment through access to information, or more efficient government management. The resulting benefits can be less corruption, increased transparency, greater convenience, revenue growth, and/or cost reductions.”

UNESCO defines it as

“Governance refers to the exercise of political, economic and administrative authority in the management of a country’s affairs, including citizen’s articulation of their interests and exercise of their legal rights and obligations. E-Governance may be understood as the performance of this governance via the electronic medium in order to facilitate an efficient, speedy and transparent process of disseminating information to the public, and other agencies, and for performing government administration activities.”

And the former President of India Dr. APJ Abdul Kalam, former President of India, has identified it as:

“A transparent smart e-Governance with seamless access, secure and authentic flow of information crossing the interdepartmental barrier and providing a fair and unbiased service to the citizen.”

In e-Governance there are prmiraly four types of interaction among stakeholders. These types of interaction are:-

1- G2G- This is knows as Government to Government interaction or ‘e-administration’. This involves data sharing, intra or inter, of data only among the government branches and agencies. Main objectives are to increase output and efficiency. It involves networking of all government departments, ‘International cooperation in regional and global level for data, knowledge and technology transfer.'

             e-Court project comes under this type of interaction where the intention is to connect all criminal justice departments, to lower costs, increase performance and push for e-administration, which will impact the performance of justice delivery and decrease of case backlogs. Some part of the project also comes under the heading of G2C interaction.

2- G2C- This is known as Government to Citizens. The name by itself denotes that it is between government and citizens, i.e. data sharing is between government and people of the country. It increases the ‘availability and accessibility of public service’. It includes paying taxes, renewing licence, online fee payment and providing public access to thematic information such as boundaries, roads, emergency etc. It main purpose is to make government ‘citizen friendly’. Providing a structure for free of charge access to statistical and administrative information. 

3- G2B- It is known as Government to Business. It is for the business community. The government provides online facilities for business community to help in their business. It involves ‘improved and efficient procurement of goods and services by the government from business entities’. The main purpose is to perform business more efficiently, and increase interaction between government and business sector more easy way. E-Taxation comes under the canopy of G2B heading. Make available a countrywide structure for electronic shopping from geo-spatial data providers and dealers.

4- G2E-This is known as Government to Employees. It includes information regarding employment, work guidelines, pay etc because government is considered as the biggest employer in the whole sectors. It increases the interaction fast and easily.

5- Other two important interactions in e-Governance are G2N and C2G. C2G constitutes interaction between citizens and government for example at the time of election when in voting citizens ballot votes for making of government (e-Democracy). G2N includes interaction between government and NGOs which involves works for the betterment of society.  

Case studies

1. Bhoomi Project (India):- This project comes under ‘improving delivery services to citizens’ to improve efficiency, transparency and accountability between government and citizens (G2C) in the State of Karnataka, India. Under this project the Govt. of Karnataka has taken up this project to promote e-Governance and help out its people to computerize the land record of more than 20 million of 6.7 million farmers, so that they can get record of their land easily to obtain facilities like bank loan. The beneficiaries of this project are rural people and this project was started in year 2001. This project is sponsored jointly by Ministry of Rural Development, Government of India and State Government of Karnataka. After implementation of this project fee of Rs 15 (Nearly $0.30) has to be paid and a farmer can get Record of Right, Tenancy, and Crop (RTC) within seconds without any involvement and bribe at computerized land record kiosks (Bhoomi centers) in 177 taluk offices.

Lesson for Judiciary- “Implementation of Land record computerization has been difficult in India. Bhoomi succeeded because there was a champion who worked a 15-hour day for over 12 months, devoting 80% of his time to the project. Minimizing resistance from staff by harnessing political support was an important contributory factor. Extensive training coupled with a participatory style also helped to diminish resistance.” And this project has taught us that we should be aware of middle man and touters because This has also led to the appearance of touts and agents in the Taluk office who promise to get the work done faster for a fee. And there is need for employment of the SWOT (Strengths, Weaknesses, Opportunities and Threats) analysis and PEST (Political, Economic, Social and Technological) determinants to evaluate the current state of e-Government in the country.

2. “Iran Development and Use of Information Technology Plan” (TAKFA) I.R Iran:- The first project which was made in Islamic Republic of Iran for the implementation of ICT and e-Governance in public sector in the country was started in the beginning of year May 2000 by legislating the “Iran Development and Use of Information Technology Plan” (TAKFA) by Management and Planning Organization (MPO) and approved by Supreme Administrative Counsel (SAC), and seven areas of information technology strategic plan were considered including e-Governance. Finally the ‘e-Government Plan’ was approved in July 2000 for automation of government engagements. According to this Plan the nine fields of activities were established. First ‘Government Virtual Private Network (VPN), automation of planning and budgeting system, automation of income system, traffic and driving and execution affairs, creating web portals for government organizations and delivering databases of government services delivered to people, providing the draft of laws and plans related to management entities in digital space at national level, creating suitable information infrastructures and information highways required for the country, creating national governmental portals, master plan of information and communication technology.  In March 2001 the Iranian Parliament passed a budget nearly 160 million USD for the purpose of executing and developing of information and communication technologies in the government sector of Islamic Republic of Iran and this program incorporated projects such as e-government, e-commerce, e-banking, e-learning and e-health. Unlike other Middle Eastern states, such as Saudi Arabia and the United Arab Emirates, Iran has encouraged the expansion of the Internet, and the state has actively participated in its development. The Internet infrastructure expanded very rapidly in Iran as the country aims to implement ICT fully in public sector to improve information and services delivery to citizens and business.TAKFA Plan was divided in different phases and view is to create Iran as “powerful Iran in 21ist century”

Disadvantages of e-Governance.

This books deals with technology in courts so author will present examples from judiciary (G2G e-Governance) which are the parts of e-Governance in judiciary. Data from e-government projects in developing countries across the globe implies that most of these projects either fail totally or succeed only to a degree in meeting their objectives. This system requires all citizens or at least the huge majority to have access to the Internet. Complete operation of E-governance includes building technical Hardware and Software infrastructure. Both public and private sector needs to invest large money for building basic infrastructure. It also includes IT training of Government employees, appointment of experts and other treacherous processes. It mostly needs dependent on vendors which makes it bound to external agencies. This system always requires up to date with latest technology and threats. New viruses create new problems. Shortage of regularly updated substance and interactivity led to the failure of a community-based e-government in different parts of the world. Protection of citizens' personal data, e-governance websites are still likely to attack from hackers. Personal data can range from name, surname and home address to credit card and bank account numbers. numerous countries are made up of a range of ethnical groups, for that reason concern has to be given to the selection of languages provided within the e-government service. Organizations and departments need to equip themselves with hi-technology and has also to setup special investigating agency. New laws and standards are important basis for implementation of new regime, so large amount of money and time needs to be spending on making necessary and relevant laws. To convert all paper data into digital format and that format always needs to be upto date with latest technology. People lose face to face contact and in countries like India and Pakistan we need access to inter to large population where people are living mostly a poor life and have no access to internet. Even in developed countries like UK where according to National Statistics Online 57% of UK households have access to the interne Tele Video-conferencing is also the part of e-governance. There should be standards set by court when it should be done and when not be done. Most of times accused, witnesses or victim needs to confront face to face at the time of cross examination during trial, or face value has its own impact for the fact findings. Scholars like Gail S. Goodman, et al, Gene D. Fowler & Marilyn E. Wackerbarth have found after through research and studies that people weigh up those with whom they work face-to-face more well than those with whom they work over a video connection, and fact-finders understand more with live witnesses and that decision makers are less likely to be sensitive to the impact of negative decisions on physically remote persons.

              But sometimes it is “necessary to protect a child witness from trauma that would be caused by testifying in the physical presence of the defendant, at least where such trauma would impair the child's ability to communicate and the technology ensures the reliability of the evidence by subjecting it to rigorous adversarial testing and thereby preserves the essence of effective confrontation.”

Sustainability Failure of e-governance projects

Concentrating on technology excluding realizing that e-Governance is basically about accompanying reforms in governance has led to collapse in numerous projects throughout the globe. Researchers have proposed different theoretical frameworks for understanding the reasons for success or failure of e-governance projects, which have been introduced by the governments especially in developing countries. Gil-García and Pardo and other scholars have made an broad study of key success strategies of government Information System Development initiatives. Success factors mentioned includes ‘top management commitment, linkage to business, technical alignment, knowledgeable personnel, and user involvement’ (Pardo & Ho, 2004, p. 2). Gil-García and Pardo report that critical success factors and challenges to e-government initiatives are cross disciplinary and can be grouped into five categories: (1) information and data, which includes overall plan (2) IT, which includes usefulness of of IT (3) organizational and managerial, which includes planning, team skills etc(4) legal and regulatory, which includes policies and standards (5) institutional and environmental which indludes legislative support, public private partnership. 

                  The theoretical frameworks include ‘The Critical Success Factor’ (CSF) and critical failure factor (CFF) models (Heeks & Bhatnagar,1999); scenario analysis for long-term sustainability problems (Aichholzer, 2004);); and political and institutional models that underline the lack of commitment on the part of political leaders and public managers (Bhatnagar, 2000); economic and Financial sustainability models (Best & Maclay, 2002; the “design-reality” gaps (Heeks, 2003); sustainability failure model proposed by Kumar & Best (2006). different investigations have indicated that the majority of e-government projects have failed and there is a gap in Information Systems literature regarding a mechanism to assure their success and sustainability. Gil-Garcia and pardo (2005) have worked out different critical factors which affect success and failure of e-Government project. Author would only like to comment on Sustainability Failure Model (Kumar and Best 2006) because it depicts the main reasons for failure of the e-governance projects. The model consists of five principals modes of sustainability failure: 

(i) Financial/economic sustainability failure: For example, a donor supported program loses its funding after some time.

(ii) Cultural/social sustainability failure: For example, some stakeholders gain from the project but some others are hurt. This tension over time leads to sustainability failure. 

(iii) Technological sustainability failure: For example, the field hardware and software become obsolete and are no longer compatible with the equipment within the central offices. This also examines the relevance of the content provided. 

(iv) Political/institutional failure: For example, the local champions leave and without larger institutional structures in place the project fails. 

(v) Environmental sustainability failure: For example, a project that does not have plans for disposing of or reusing equipment when they become obsolete or lose their usefulness.