Evidence of a witness in a civil case by using the modern technology of video conferencing
Meera Shafi (Meeshah Shafi) v. Ali Zafar
Mr. Justice Syed Mansoor Ali Shah
Whether the evidence of a witness who is not physically present in court can be recorded in a civil case by using the modern technology of video conferencing, within the existing legal framework.?
Rule 4 of Order 18 of the CPC (“Rule 4”), provides that the evidence of the witnesses in attendance shall be taken orally in open court in the presence and under the personal direction and superintendence of the judge. Although the expression “witnesses in attendance” used in Rule 4 is not followed by the words “in court”, the reading of the Rule as a whole leaves little room to doubt that the attendance of the witnesses referred to therein means the attendance of the witnesses in court. However, what is unclear is whether this “attendance” means only “physical attendance” or may include “virtual attendance” by video conferencing. Can the word “attendance” used in Rule 4 be extended to “virtual attendance”?
In order to answer the above question it is important to highlight the conceptual role of a court in a constitutional democracy. The role of a judge is to understand the purpose of law in the society and to help the law achieve its purpose. Law is a living organism and must respond to the changing social realities of the time. Indeed when social reality changes, the law must change too. Just as the change in social reality is the law of life, responsiveness to change in social reality is the life of the law. Legislative intent must be viewed in its changing environment by treating the statute as a living organism. The court cannot be insensitive to the system in which the statute operates. If the statute or the legislative intent is to be viewed as at the time of its origin, it freezes the meaning of the statute at the historical moment of its legislation, which may no longer be relevant to the meaning of the statute in modern times. To limit the meaning of the statute to its original legislative intent only reduces the judge into a historian and an archaeologist whereby he looks backward instead of forward. Sterility and stagnation defeat the purpose of law and defy its organic character. The best way forward to assess the legislative intent of a law is to examine its purpose today by considering its objectives, the goals, the interests, the values, the policy, and the function that the statute is designed to actualize. Change in social reality today also depends on the rapid development of technology to which the law cannot shut its eyes. While law develops gradually and technology is often far ahead of the legislature and the judicature, both these institutions must move forward and ackownledge the technological advances in developing the law, which cannot stand still and must adapt to the changes in society. In the process of interpreting laws, judges must endeavor to bridge the gap between law and society. The intersection of law and technology not only requires the law to regulate technology but also to employ technology to make laws more at home with the technology-savvy society.
When we examine the question as to extending the word “attendance” used in Rule 4 to “virtual attendance” in light of the above principle of updating construction, there remains no difficulty to find the right answer. What we need to do is to see: what are the legislative purpose and policy in requiring the attendance of a witness in court for recording his evidence, and whether extending the word “attendance” used in Rule 4 to “virtual attendance” would fulfill or defeat that purpose and policy. The legislative purpose, in this regard, is evident from Rule 4 itself, that is, the evidence of the witness is to be recorded: (i) in open court, and (ii) under the personal superintendence of the judge. It is also not hard to discern the legislative policy. The recording of evidence of a witness in an open court under the personal superintendence of the judge ensures that the witness may give the evidence, of his free will as per his conscience without being under the influence of any other person.
The “virtual attendance” of a witness in court through the medium of video conferencing enables the judge and other persons present in court to see the witness and hear what he says, and vice versa. Such an attendance is thus, in effect, in open court, and his evidence is also recorded under the personal superintendence of the judge. The judge under whose superintendence the evidence through video conferencing is recorded can satisfy himself about the free will of the witness present on screen as he does about the witness present physically in court by questioning him in this regard and ensuring that he is not under the immediate influence of any other person. Needless to say that a court can ensure the independence of a witness only from the immediate influence, not from any covert influence, of any other person in both situations whether he is physically present or virtually present in court. In the latter situation, the court can ensure that there is no other person in the room where the witness is sitting, while his evidence is being recorded, by asking him to provide a full view of that room on the screen. The identity of the witness, if disputed, can also be verified by the judge through appropriate means. The witness can be confronted on screen with documents produced or sought to be produced in court by any of the parties or, if needed, the scanned copies of such documents can be sent to him through modern means of communication. In all such necessary matters as to the recording of evidence, the physical attendance and the virtual attendance of a witness in court do not differ.The virtual attendance of a witness in court, thus, appears to be the species of the genus of “attendance” required under Rule 4 and fulfills the legislative purpose and policy in requiring the attendance of a witness in court for recording his evidence. Therefore, we can legitimately conclude that the word “attendance” used in Rule 4 can be extended to “virtual attendance”, and the word “attendance” mentioned in this Rule does not mean only “physical attendance” but includes “virtual attendance” made possible by the modern technology of video conferencing.
Next, we proceed to examine under which provision of the CPC can a court make an order for the virtual attendance of a witness as there is no such provision in Order XVI of the CPC, which relates to ‘Summoning and Attendance of Witnesses’. Whether a court can make such an order, in the exercise of its inherent powers under Section 151 of the CPC.
Admittedly, the CPC is silent on the matter of evidence recording through video conferencing: there is no express provision either allowing or prohibiting such procedure of recording evidence. And regarding the procedural law, it is a well-settled principle that the ‘courts are not to act upon the principle that every procedure is to be taken to be prohibited unless it is expressly provided for by the Code [of Civil Procedure], but on the converse principle that every procedure is to be understood as permissible till it is shown to be prohibited by law. As a matter of general principle, prohibition cannot be presumed.The provisions of Section 151, which empowers the civil courts to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court, are intended to preclude the possibility of the civil courts being stuck in a situation for any omission in the CPC. The inherent powers of the civil courts saved by Section 151 are thus supplementary to their powers stated expressly in the CPC and are to be exercised where the situation is not covered by any provision of the CPC. It hardly needs lengthy arguments to establish that when in the circumstances of a case, requiring physical attendance of a witness in court will incur an unnecessary amount of delay, expense or inconvenience, the order of the court allowing virtual attendance of a witness through video conferencing is for the ends of justice, and the rejection of an unjustifiable insistence of the opposing party on securing physical attendance of such witness in court is to prevent abuse of the process of the court. An order allowing virtual attendance of the witness in such circumstances thus squarely falls within the scope of Section 151 of the CPC.
Article 164 of the QSO provides that in such cases as the court may consider appropriate, the court may allow to be produced any evidence that may have become available because of modern devices or techniques. The QSO is mainly a procedural law; its provisions are therefore to be construed liberally, not restrictively, to advance the remedy. As per Article 2(1)(c) of the QSO, unless there is anything repugnant in the subject or context, the term "evidence" used in the QSO is to include: (i) all statements which the Court permits or requires be made before it by witnesses, in relation to matters of fact under inquiry - such statements are called oral evidence; and (ii) all documents produced for the inspection of the Court - such documents are called documentary evidence.
The oral evidence of a witness that may become available because of the modern technique of video conferencing, does fall within the scope of the provisions of Article 164 of the QSO. Article 164 of the QSO is actually our gateway to allowing modern science and technology to come into our courtrooms. ‘If justice is to be done, then law must not become stagnant or archaic while society moves forward. It must be accessible, intelligible and must change with the time, responding to the realities of modern life.’ In the present age of information technology, no one can dispute the advantages of the use of this technology in courts for improving the efficiency of the judicial process and reducing the delay in the dispensation of justice. As the ultimate objective of the law is to serve society, the courts need to embrace and use technological developments with a pragmatic and dynamic approach in case management and court proceedings, for dispensing justice more efficiently and expeditiously. The above interpretation of the various provisions of law allowing modern technology of video conferencing to be read into the exiting enactments enhances access to justice, promotes fair trial and introduces inexpensive and expeditious justice thereby advancing the fundamental rights under articles 9 and 10A and principle of policy under article 37(d) of the Constitution of the Islamic Republic of Pakistan, 1973.
We find it necessary to underline here that although the powers conferred by Section 151 of the CPC and Article 164 of the QSO are discretionary, the courts are to exercise them judiciously, not arbitrarily or mechanically, on the filing of an application in this regard by a party to the proceedings. This discretion, like all other discretions, is to be exercised judiciously for valid reasons by considering the circumstances of the case. In exercising the discretion, the courts are to see: (i) whether the evidence of the witness appears essential to the just decision of the case, and (ii) whether requiring physical attendance of the witness in court would incur unreasonable delay, expense or inconvenience. We have inferred the standard of “unreasonable delay, expense or inconvenience” from the legislature’s wisdom. The standard of unreasonable “delay or expense” for relaxing adherence to certain general rules of the law of evidence has been provided in Articles 46, 47 and 71 of the QSO, while Sections 503 and 512 of the Code of Criminal Procedure 1898 add the ground of unreasonable “inconvenience” to the said two grounds for creating exceptions to some general rules of recording the evidence of witnesses.
A regrettable practice to use the tool of prolonged cross-examination for the purpose of leading the witness into some error by exhausting him through unnecessary and irrelevant questioning. This practice is designed not for the disclosure of truth but for the manipulation of error. In such a situation the presiding officer of the court, the judge, should not remain a silent spectator but should act as a vigilant supervisor, for the right of cross-examination is neither unlimited nor unbridled. When the judge observes that the right of cross-examination is being abused by asking questions which are irrelevant and intended to prolong the cross-examination with the object of manipulating error, or to scandalize, insult or annoy the witness, he should intervene and disallow such questions.Tags: