Falana supports virtual proceedings for court cases, says its constitutional

A Lagos based human rights lawyer, Femi Falana (SAN) has said there was nothing wrong with virtual proceedings for court matters.

Following the outbreak of COVID-19 pandemic, courts have resorted to virtual proceedings for cases.

However, some lawyers have been expressing fears that the Supreme Court may quash virtual proceedings.

But in a statement on Tuesday, Falana said that virtual proceedings were neither illegal nor unconstitutional.

According to him, there was no basis to entertain fears about the legality of the process because even the National Judicial Council (NJC) headed by the Chief Justice of Nigeria (CJN), Justice Tanko Muhammad has enjoined Nigerian courts to conduct proceedings by zoom or skype.

He added that aside the directive, that the Supreme Courts of other common law countries were also hearing appeals via video conferencing.

Further noting that the NJC has also endorsed the decision of courts to resort to virtual conduct of cases in line with the current practice in all common law countries, Falana argued:

“The proceedings of a court cannot be impugned if litigants and their counsel as well as members of the public are allowed to participate in them via zoom or skype.”

He went further to note that to prevent the quashing of cases conducted via zoom or skype, that the Chairman of the Senate Committee on Judiciary, Human Rights and Legal Matters, Senator Opeyemi Bamidele, has introduced a constitutional amendment to the Senate to empower judges to conduct virtual proceedings.

To further prove his position, the human rights lawyer made referrece to a statement credited to Justice Okoro of the Supreme Court of Nigeria, where he observed Nigerian courts could but take cognisance of the fact that we are in an “age of prevalence of information technology”.

He also gave statistics of cases decided in countries that have adopted the technology successfully due to COVID-19.

“As of May 1, 2020, the Supreme Court of India has recorded a total of 22 days of hearing with 116 benches sitting to hear cases. There were 43 benches for main matters and 73 benches for review petitions. While addressing criticism levelled against the possible extension of virtual hearings beyond the lockdown the apex court issued a note stating that public access to an open court system cannot be “unlimited and unregulated.

“On May 12, 2020 the United States Supreme Court heard arguments of counsel on telephone for three hours and 22 minutes over the subpoena of President Donald Trump’s financial records,” he said.

Falana recalled that some heads of courts had issued practice directions authorising judges to attend to urgent cases via zoom or skype following the total or partial lockdown recently imposed on all states of the federation and the federal capital territory by the federal and state governments to contain the spread of the coronavirus pandemic.

He noted that apart from one state high court that has conducted a criminal trial via zoom, others have limited virtual proceedings to motions and cases that can be determined on the basis of affidavit evidence.

“But not a few judges and lawyers have challenged the constitutional validity of virtual proceedings. In particular, it has been contended that judicial proceedings by zoom or skype violate section 36 (3) and (4) of the 1999 Constitution which provides for public trial in civil and criminal proceedings.

“With respect, section 36 (4) (a) of the Constitution provides that the right to public hearing may be waived in the interest of defence, public safety, public order, public morality, the interest of the welfare of a child under 18 years of age, the protection of the private lives of the parties or to such extent as may be necessary by reason of special circumstances in which publicity would be contrary to the interest of justice. Section 36 (4) (b) thereof also states that a minister of the federal government or commissioner of a state government may apply to a court giving reasons while public trial should be waived,” Falana said.

He also recalled that before the coronavirus pandemic, the rules of procedure and practice directions issued by heads of courts have provided for e-filing and e-service of processes as a result of which it became mandatory for counsel to furnish the courts with their emails and telephone numbers. Thus, hearing notices are served on lawyers and parties by emails or whatsapp.

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He noted that such service was given judicial endorsement in C.M.& E.S LTD v. PAZAN SERVICES NIG LTD (2020) 1 NWLR (Pt 1704) 70 @ 95 where the Supreme Court (per Okoro JSC) held that “In the instant appeal, there is evidence that a text message was sent by the registry of the Court to the GSM numbers provided by counsel to both parties informing them that the matter had been adjourned to 15th March, 2016. I hold the view that at this age of prevalence of information technology, the service of hearing notice through text message by the registrar of Court is good and sufficient.”

According to him, “judges and lawyers who have said that public trials are a sine qua non condition cannot feign ignorance of section 34 (a) of the Terrorism (Prevention) Amendment Act 2013 which states that “An application to protect a witness may be made by the court court suo motu or by the Attorney-General of the Federation or other relevant law enforcement or security agencies.”

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