As if justice systems in Central Asia were not under enough strain, the COVID-19 pandemic, currently peaking throughout the region, is creating new and momentous challenges. Not just the crisis itself, but the legal and policy responses enacted by governments in the region, are having, and will continue to have, significant ramifications on the rule of law and access to justice for many years to come.
COVID-19 puts a strain on the justice systems.
Even before the current crisis, justice sector institutions in Central Asia were struggling with a lack of effectiveness, professionalism, and accountability, causing widespread public distrust in the accessibility, efficiency, and fairness of justice. Public distrust and a consequent lack of respect for and value placed in the judicial profession have led to an avoidance of the formal justice sector, and ultimately impunity and a fragile social contract.
The pandemic has now further exacerbated this situation, with widespread court closures, few to no possibilities to participate in court hearings remotely, poor communication with the public and questionable, and potentially legally contestable, case postponements and delays.
New challenges disrupting the already weak Central Asian justice sector.
The first is having to choose between public health and safety and access to justice. Courthouses in Central Asia are poorly prepared to deal with a pandemic. Converted former Soviet Buildings designed for other functions, such as apartments or kindergartens, existing court buildings are difficult to reorganize in accordance with COVID-19 physical distancing rules. With quarantines and lockdown measures enforced, courts are forced to close, and hearings are postponed indefinitely. In the most urgent of cases, even if judgments are made, executing them in light of movement restrictions becomes another challenge.
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Another related issue then becomes the expected avalanche of a backlog of cases—with most courts shutting down, when they reopen, the already heavy workload will be significantly more burdensome, with decisions needing to be made on how to handle the cases that were postponed during periods of lockdown. Justice systems, already struggling to process cases in a timely manner, are risking a significant prolongation of unresolved conflicts, and becoming even less accessible to the most disadvantaged members of the population. The justice sector is further likely to be burdened with disputes arising out of the lockdowns themselves (e.g. due process violations, improper law enforcement actions, income disputes, bankruptcies, etc.). The post-crisis recovery period is therefore likely to see a surge of disputes, putting additional strain on already struggling systems.
The above concerns risk intensifying corruption at individual, institutional, and national levels. Seeking means to ensure a hearing in court on a fast-track basis may create fertile soil for corrupt practices. At the same time, lack of access to courtrooms and hearings for civil society and observers, can decrease the pressure on the judges to adhere to human rights and due process standards, and an absence of a clear methodology for prioritizing cases may create temptation to offer bribes in exchange for expedited hearings.
What would be the ideal scenario? What is happening in other countries?
As people and systems around the world adapt to the “new normal,” a narrative of turning lessons learned rapidly into actions is emerging, alongside unique opportunities to accelerate reforms—especially those related to the use of technology in the courts—which have long languished. For example, in 2016, the UK government initiated an ambitious program to digitalize justice, but by 2020, little had changed, with failed pilots, complaints of software issues, and an inability to conduct complex cases online. Before the current COVID-19 crisis, only about 200 cases a day were being heard at least partially via conference calls or video-links. By March 31st of 2020, however, this had risen to around 1,800. The UK Supreme Court operated entirely online during the lockdown.
Nonetheless, a number of issues must be considered in order to switch on e-justice quickly, effectively and in line with international standards of access to justice. The UK, after all, had already made the investment in digital infrastructure, and as a common law country did not require legislative amendments to operationalize e-justice. The US included teleconferencing for federal judges in the COVID-19 stimulus package. Countries who have made no such investments, or are only at the beginning of the digitalization road, face steep uphill hurdles with financing (already under strain as a result of primary COVID-19 response measures), and the uptake capacity of institutions that may largely still operate only manually and offline is limited.
Furthermore, COVID-19 has exposed a wider societal truth, namely that without effective institutions, confronting complex challenges fairly is impossible, and that the key elements of SDG 16, such as the rule of law and strong justice institutions, are a prerequisite for the proper application of any new tools, including seemingly neutral IT solutions. As an example, automatic case allocation and prioritization require not just digital solutions, but an underlying methodology to identify and analyze, in light of legal, ethical and logistical considerations, the choices and justifications of legal professionals in making time-critical decisions on a case-specific degree of urgency. Such a methodology would need to be people-centred and rooted in the constitutional rights of justice seekers.
The focus in Central Asia has not, however, always been on ensuring that these systems are implemented in line with the requisite legal and due process foundations. National governments and their international partners should take this opportunity to invest in legislative and regulatory frameworks, and public legal information, to make sure that multi-platform technological capacities are not just technologically modern and sound, but fair and accessible. The human angle should not be lost as well for countries where many in society still have little knowledge of how to access and use such technology, with easy tutorials, buy-in from the legal profession and tailored solutions for customers of justice.
Easy, accessible options should include remote hearings, audio-video fixation of proceedings, and online streaming. Moreover, by applying algorithm-based case allocation, prioritization and emergency scoring, justice seekers, who are currently affected by the slowdown, will see immediate improved outcomes. Institutionally, law enforcement agencies and the judiciary will develop and apply improved preparedness and response procedures for emergencies. Finally, the strain on the civil justice system could be further reduced by increased use of alternative dispute resolution (ADR), in particular if mediators and other ADR professionals take proactive steps to offer solutions for post-COVID dispute resolution. In fact, the combination of the two would work the best, as countries with greater openness to ADR, are also more open to new technologies.
That all requires preparation, proper financing, commitment to the rule of law, a rapid (but quality) response, and a collaborative approach.
Is this happening in reality?
While significant efforts are being made by the justice systems in the region to adapt, by individual judges to provide services, and by court enforcers to continue operating, many objective and subjective challenges persist.
The first and most pressing challenge is safety and security of justice sector personnel, in particular lack of PPE and a consequent spread of infection among justice sector professionals and customers of justice. Here e-justice could be an alleviating tool, and just like in the UK, quick wins have included online court proceedings. For example, in Kyrgyzstan, online Constitutional Court hearings have been held. Remote access to legal information, advice and restorative justice services are also being expedited across the region.
The second challenge is the lack of funds, and the economic and fiscal downturns caused by COVID-19, further straining national governments’ budgets, as a result of sequestrations to compensate for the shrinking budgets. One possible approach would be to work with IFIs, such as the World Bank and the International Monetary Fund, to make sure that emergency loans safeguard support to the justice systems in exchange for conditionalities on improved transparency and accountability.
Finally, the justice sector in the former Soviet Union is overly formalistic and heavily reliant on legal and civic documentation, which has been increasingly hard to obtain with “non-essential” public services being closed. A long-overdue simplification of procedures would be a welcome respite.
Altogether, amidst the tragedy and fear of this unprecedented crisis, justice systems in Central Asia have a chance to drop its post-soviet “skin” and confront the opportunities that digitalization, optimization and customer-friendly, people-centred justice affords them.
Ideally, countries in Central Asia will use the current crisis as an opportunity to invest not just in the technology itself and the know-how, but in the transparency and accountability of justice sector institutions. As these innovations must be grounded in the rule of law, ultimately, this crisis is an opportunity to bring justice systems in the region closer the ideal of international norms, and the realization of SDG 16, with its vision for peace, justice and strong institutions.
EDITOR’S NOTE: The opinions expressed here by Impakter.com columnists are their own, not those of Impakter.com.
