The outlandish judicial pendency of Bangladesh has crossed the red-line mark exceeding 4.5 million pending cases in the judiciary system, which is undergoing an ambitious digital revolution. Recent modernisation efforts have seen key structural reforms implemented in an effort to curb procedural delays, including the e-Bail Bond system being expanded nationwide and the use of automated case-tracking platforms at district courts.
The technology of filing documents digitally, algorithms to automatically index cases as they are filed, and trials conducted remotely should revolutionise the administration of justice. However, there is a constitutional challenge with regard to the speed of the algorithm and the automation of case processing in Bangladesh, How can the constitutional right to a fair trial be preserved in this algorithmic speed and automated case processing?
The Code of Criminal Procedure, 1898, and the recent Digital Service frameworks have modernised the administrative filing and the verification of bail, but the statutory framework does not say much about the legal status of automated judicial management. The law remains predicated on the assumption that all procedures are assessed, all trials are scheduled, and all evidentiary priority checks are made by human judicial officers using their own conscious and deliberate judgment.
The concept of judicial administration in modern legal procedure is based on the premise that it mirrors human judgment, procedural fairness and individual case evaluation. Citizens are entitled to due process, equal protection of the law and a fair public hearing before an impartial tribunal in accordance with international human rights instruments and also in terms of Articles 31 and 32 of the Constitution of Bangladesh. These principles clearly safeguard people against arbitrary arrest and machinery that abstracts citizens from the procedural process, treating them as mass data entries.
In the analysis of court automation by legal scholars, they say that assessing judicial efficiency only by numbers (disposal time of cases or the number of documents processed by computer) is impossible. Central jurisprudence principles state that justice in procedure must be assessed qualitatively, because judges must take into account the socio-economic environment, the sensitivity of individuals and nuances of the evidence. Automated systems, in contrast, use fixed statistical models, pre-programmed prioritisation algorithms, and risk metrics that are standard across the board, which can be detrimental to systemic bias. The court’s traditional case allocation and algorithmic scheduling have the potential to disrupt. Decisions to automatically award trial priorities, to undertake bail risk assessments based on historical police information or to dispose of cases summarily move off open courtrooms and into software that is not transparent and not necessarily decided by a judge. But the worry has grown beyond clerical delays to the possibility that algorithms can influence judicial decisions even before a judge sits on the bench.
Further, digital judicial infrastructure imposes structural inequities in a socio-economically unequal population. Middle-class litigants and traditional corporate firms are easily able to access electronic portals, smartphone-based bail bond applications and virtual hearings conducted remotely, but marginalised undertrial prisoners, who make up a large proportion of the prison population in Bangladesh, often lack legal literacy, stable internet access and legal representation. Vulnerable undertrials can be trapped in pretrial detention because the automated system drops or delays cases for technical reasons or because their cases are not completed in the system.
However, a recent court digitisation case study on the developing judiciary identifies that procedural software frequently acts as a ‘black box’ obscuring administrative shortcomings behind the veneer of automation. The use of automated tools in Bangladesh is highly problematic in the absence of adequate procedural protections, especially in a system that is still grappling with equal access to justice. The potential for court automation to supplant human bureaucratic delay by automated procedural exclusion is a risk when there is no statutory right to inspection, challenge, and appeal of the procedural decisions that are automated. This means that the recent moves toward using technology in the courtroom raise an important issue: what is the legal system being protected by if the speed of the process is sacrificed in exchange for less individualised judicial scrutiny?
But what Bangladesh require is not the rejection of digitisation of the court, which has undeniable advantages in both reducing the case backlog of decades and reducing administrative corruption. Rather, it calls for a judiciary that is balanced and human-centred, putting the technologies to the test of natural justice and constitutional rights. Do not let software algorithms make decisions on dockets, assess risk and/or control procedural flows on their own, but instead, have an ‘Automated Justice Oversight Code’ set by the judiciary. This must include the requirement that all automated tools are used as administrative assistants and not as decision-makers. The legal emphasis must be on the need to have human judges independently review all the algorithmic recommendations, and retain full control over the scheduling of trials, bail conditions, and evaluations of the evidence. This would maintain the freedom in the procedures and protect the constitutional rights of the litigant. Digital review offices could be created in higher courts to audit judicial software periodically and evaluate if the algorithms contain any demographic bias, technical error rates, or unfair prioritisation models.
The digital era is driving a change in the dynamics between speed and substantive justice in Bangladesh. The nation currently has a crucial chance to establish a contemporary judicial system with advanced technological tools that can improve the speed of case processing and preserve the core values of fairness in the administration of justice that have long been the foundation of the Nation.
The views expressed in this article are solely those of the author
The writer is an LL.B. Student, Department Of Law, World University of Bangladesh
