EXAMINING THE CONSTITUTIONALITY OF VIRTUAL COURT HEARING
A Shakespearean quote that readily comes to mind in the wake of the Covid-19 pandemic is “desperate times breeds desperate measures”
In the wake of the Covid 19 pandemic, the world was made to painstakingly and witnessed one of those “desperate times” in the global sphere that needed a desperate measure.
The Covid-19 pandemic grounded the world and challenged the orthodox ways of doing things in every area of life including the law and justice system. One of those desperate measures was the need to find a solution to the crippling of the justice system which inevitably birthed the endorsement of the introduction of virtual court hearings which was much needed at a time when physical gathering highly restricted.
A virtual court hearing is when all relevant parties to a lawsuit appear over video or audiovisual devices or through teleconferencing platform for the conduct (hearing of the issues) of the suit other than the usual formal courtroom sitting. The introduction of virtual court hearing however has raised the legal and academic question that borders on the constitutionality of virtual court hearing especially in Nigeria.
The key provision of the law that questions the constitutionality of virtual court hearing is Section 36 (1), (3) and (4) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
The purport of Section 36 (1), (3) and (4) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) is to the effect that every person shall be entitled to a fair hearing within a reasonable time for the purpose of determining a right and obligation accruing to any such person, and that such hearing must be held in public.
“The question that naturally distills from this provision is whether cyber space is a public place within the intendment of the constitution?”
It is important to note that the term “public” as contemplated by the constitution transcends only formal courtroom settings; but rather it is determined by easy accessibility of the proceedings to the member of the public. Public hearing has been described by the Black’s Law Dictionary as a hearing that is open to anybody who wishes to access or observe it Although the constitution is silent on the definition of the term“public”, the first rule of interpretation would mean the literal or plain ordinary meaning of the word should be interpreted where there is no absurdity and ambiguity. It is on this understanding of the interpretation and the provision of section 274 of the 1999 constitution of the Federal Republic of Nigeria that the NJC guidelines and practice directions on virtual court hearing was made and it is on this premise that the heads of court have thought it wise to implement practice directions on virtual court sittings to see to it that justice is not unduly delayed.
Although, virtual court hearing was amplified by the Covid-19, the justice system has always found ways to make the administration of justice easier through the use of technology, in the United States prior to the Covid -19 pandemic, lawyers have used communication technology to reduce the inconvenience and expenses of trial like remote deposition practice in litigation. Virtual court hearing is however not only peculiar to Nigeria, other legal systems also embraced the alternative to physical gathering in the administration of justice, the recent UK case of National Bank of Kazakhstan v. The Bank of New York Mellon & Ors. proceeded as a fully virtual trial, with parties, experts and witnesses from England, Kazakhstan, the United States, and Belgium. The Judge commented that “the hearing was conducted without any technical hitch”. One could not agree more with one of the counsel who concluded that the case “led the way in ensuring the continued administration of justice and demonstrating that many perceived technological or other difficulties in holding a virtual trial are not insurmountable.”
The National Assembly and Supreme Court have swung towards the acceptance of virtual court hearing as steps have been taken to enshrine virtual court proceeding in the constitution by the National Assembly and the Supreme Court has been seen to strike out suits by Lagos and Ekiti Attorney-Generals challenging the constitutionality of virtual court hearing for being preemptive. The Supreme Court in Attorney General of Bendel State v. Attorney General of the Federation and others, explained some of the principles which guide it in the interpretation of the Constitution. They include:
i. force or impact should be conferred to each word,
ii. an interpretation which cancels a particular stipulation will not be assumed unless required by the surrounding circumstances,
iii. the power to interpret the Constitution cannot be used to attain a result that is unconstitutional,
iv. once the words in any of its provisions are clear, plain meaning should be given to them,
v. it must be interpreted wholly and a specific provision cannot be severed from the rest in interpretation,
vi. changes in society will add new and fuller meaning to words used,
vii. a provision will not be interpreted to overthrow or overcome the purpose,
viii. where a provision confers a particular power, such power must be conferred otherwise such power cannot be exercised,
ix. power of the National Assembly (legislature) to delegate its important function is prohibited by the Constitution,
x. once the words of a provision are plain there is no time for any alternative interpretation,
xi. the idea for which the Constitution was made rather than exact sense of the words weighs the objective and extent of its provisions,
xii. provisions of the Constitution are not to be interpreted to frustrate or narrow its purpose.
In conclusion, it is safe to hold that virtual court hearing in Nigeria is a progressive move in the administration of justice and a path towards promoting technological advancement in legal profession. There is nothing in the constitution against virtual court hearing, it is therefore not unconstitutional.
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