Legal Recognition of Electronic Evidence and Electronic Trial

LEGAL RECOGNITION OF ELECTRONIC LEGAL RECOGNITION OF ELECTRONIC EVIDENCE AND ELECTRONIC TRIAL By Kamran Adil ABSTRACT Living in an era of technology and setting our goals to achieve compatibility between the manmade laws and technologies is a difficult task. Although both are manmade but synchronizing them is never an easy task. Similar to this proposition efforts are made to conduct trials using technology as a medium for legal recognition. Before these efforts the only recognized medium was direct evidence recorded in physical presence of the witness and documents exhibited in physical form in the trial court. There were very few exceptions which were ever recognized ignoring the principle of hearsay which were practiced scarcely and appreciated rarely by the courts. "ELECTRONIC", "EVIDENCE", "TRIAL" Before proceeding with the legal recognition, we need to thrash out the law for available definitions. First of all taking the definition of the word Electronic from the ETO which defines the term under section 2(1) i.e. "Electronic" includes electrical, digital, magnetic, optical, biometric, electrochemical, wireless or electromagnetic technology;". Secondly the other term which is found in the legal books is "Evidence" which is defined in Qs which defines evidence to be of either oral form or documentary form but it needs to be submitted before the court and accordingly appreciated in the trial by the court as per law and circumstances. Lastly the word Trial not directly defined but can be defined as when a court is following procedures laid down by the legislators for concluding a case whether civil or criminal, it is said to conducting a trial. However the term "Trial" as defined in the dictionary, "A formal judicial examination of evidence and determination of legal claims in an adversary proceeding." ELECTRONIC EVIDENCE AND ELECTRONIC TRIAL Electronic evidence can be either oral or documentary evidence in electronic form. However the electronic evidence can be classified in the following manner: -- Oral Evidence -- Documentary Evidence -- Video Evidence -- Pictorial Evidence -- Data Evidence Whereas the electronic trial is a broader term. While conducting an electronic trial, all the basic formalities and procedures required to be fulfilled are completed through electronic means. However it is always a question mark especially while talking about criminal trial that whether an electronic trial can replace physical trial because when we talk about criminal trial, a lot of facts are supposed to be observed. Therefore we consider our forum to be pre-mature to discuss the pros and cons for conducting electronic trial. BASIC LAW FOR LEGAL RECOGNITION Among these efforts the very first and major effort was in form of promulgation of law namely Electronic Transaction Ordinance which was the first step taken by the Pakistan Government to recognize the electronic medium legally. Preamble and section 3 of the said Act reproduced Preamble: An Ordinance to recognize and facilitate documents, records, information, communications and transactions in electronic form, and to provide for the accreditation of certification service providers. 3. Legal Recognition of Electronic forms.-No document, record, information, communication or transaction shall be denied legal recognition, admissibility, effect, validity, proof or enforceability on the ground that it is in electronic form and has not been attested by any witness. A very wide statement given in the preamble and section with comparatively narrow scope. However the law is there to support the big step needed to be taken for legal recognition of anything in electronic form. Even the communication is said to be legally recognized by the law. Further extending the support, the next big step taken was introducing amendments in the objective law which is considered as the compendium of rules of procedure/ practices according to which the courts are bound to record evidence of the parties i.e. Qanoon-e-Shahadat, 1984. RELEVANT LAWS Although there is an Article 164 in the QS5 which supports the electronic evidence production as it states 164. Production of evidence that has become available because of modern devices, etc. 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. Article 164 was there to support modern devices production but still needed further clarification w.r.t a lot of matters which went un-addressed. For this purpose QSO 1984 was amended which are mentioned in schedule of the ETO. Some of the amendments6 highlighted as 1. "46-A. Relevance of information generated, received or recorded by automated information system .-Statements in the form of electronic documents generated, received or recorded by an automated information system while it is in working order, are relevant facts. 2. Adding explanation to Article 73 of the QSO which deals with primary evidence i.e. "Explanation 3.-A printout or other form of output of an automated information system shall not be denied the status of primary evidence solely for the reason that it was generated, sent, received or stored in electronic form if the automated information system was in working order at all material times and, for the purposes hereof, in the absence of evidence to the contrary, it shall be presumed that the automated information system was in working order at all material times." "78-A. Proof of electronic signature and electronic document.-If an electronic document is alleged to be signed or to have been generated wholly or in part by any person through the use of an information system, and where such allegation is denied, the application of a security procedure to the signature or the electronic document must be proved." From the laws mentioned, it is safe to say that we are legally protected to record electronic evidence and the courts are legally bound to appreciate them as primary evidence provided they fulfill the basic requirements laid down by the procedural laws. PROCEDURES AND PRACTICES Since 2002, the promulgation of ETO, we had hardly seen any such moment where electronic trial was conducted or electronic evidence was recorded and appreciated. However in the last year we have seen efforts in the name of "e-courts" especially from Punjab judiciary. The concept was same and simple, to establish courts which can conduct electronic trial including recording of evidence through electronic means. These electronic trials are basically an effort by the judiciary to comply with the Article 37(d) of the Constitution of Islamic Republic of Pakistan 1973 which states, " The state shall ensure inexpensive and speedy justice." Conducting Electronic trials is one of the best efforts which can be fruitful while trying to give inexpensive and speedy justice to the public. In this regard efforts of Punjab Judiciary were applauded by the legal fraternity and considered as a step forward towards rule of law coupled with technology. All the available laws make it very simple for recording electronic evidence but do the procedures and practices allow the courts to appreciate the electronic evidence in the same manner as the physical and conventional evidence is recorded and appreciated. For this purpose we need to further thrash the law beyond the simple interpretation of statutes in form of legal precedents of superior courts. Before discussing the Local precedents we take a slight taste of our neighbor's law and precedents. INTERNATIONAL PERSPECTIVE Before getting into nitti gritty of electronic evidence, the basic idea is to justify the exceptions to hearsay rule or the circumstances why a person cannot appear in person to record his evidence. The exclusion of hearsay evidence from law is because it is difficult or impossible to determine its truth and accuracy, which is further justified through cross-examination. Since the person who made the statement and the person to whom it was said cannot be cross-examined, a third person's account of it is excluded. In this regard, the Indian law has already taken its course and the law had developed in form of precedents and healthy discussions. Before getting into details, the foremost thing is whether the Indian law supports the electronic evidence in the same manner as our law. The answer is yes as the main revolution started in form of Information Technology Act 2000 (IT Act 2000) where the term "electronic record" was defined under section 2(1)(t) of the Act. Further the same was acknowledged in Evidence Act in form of amendments as sections 59, 65-A and 65-B of the Evidence Act. Out of these sections 65-A and 65-B are reproduced here for comparison: "65A. Special provisions as to evidence relating to electronic record: The contents of electronic records may be proved in accordance with the provisions of section 65B." "65B. Admissibility of electronic records:7 (2) The conditions referred to in subsection (1) in respect of a computer output shall be the following, namely: (a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer; (b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities; (c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and (d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities. (4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say, - (a) identifying the electronic record containing the statement and describing the manner in which it was produced; (b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer; (c) dealing with any of the matters to which the conditions mentioned in subsection (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this subsection it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it. Firstly I appreciate the level of detail discussed and given in the amendments which was necessary and lacks in our basic laws for electronic evidence. Interestingly as in our judicial system, mere amendments are not appreciated or implemented unless some legal precedents support the same. Therefore Indian case-law of the august Supreme Court of India which comes in form of Anvar v. P. K. Basheer8 (Civil Appeal 4226 of 2012) the honorable Justice Kurian Joseph, speaking for a bench that included Chief Justice Rajendra M. Lodha and Justice Rohinton F. Nariman, overruled an earlier Supreme Court judgment in the 1995 case of State (NCT of Delhi) v. Navjot Sandhu alias Afsan Guru (2005) 11 SCC 6009, popularly known as the Parliament Attacks case. It was held in paragraph No. 22 which is reproduced as under: "22. The evidence relating to electronic record, as noted herein before, being a special provision, the general law on secondary evidence under Section 63 read with Section 65 of the Evidence Act shall yield to the same. Generalia specialibus non derogant, special law will always prevail over the general law. It appears, the court omitted to take note of Sections 59(sic) 17 Page 18 and 65A dealing with the admissibility of electronic record. Sections 63 and 65 have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by Sections 65A and 65B. To that extent, the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by this court in Navjot Sandhu case (supra), does not lay down the correct legal position. It requires to be overruled and we do so. An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible." It is needless to mention here that Anvar case was given in the same manner as in 2007, the United States District Court for Maryland handed down a landmark decision in Lorraine v. Markel American Insurance Company 241 FRD 534 (D. Md. 2007). Rules regarding the discovery of electronically stored information were mentioned. In American federal courts, the law of evidence is set out in the Federal Rules of Evidence. Lorraine held when electronically stored information is offered as evidence, the following tests need to be affirmed for it to be admissible: (i) is the information relevant; (ii) is it authentic; (iii) is it hearsay; (iv) is it original or, if it is a duplicate, is there admissible secondary evidence to support it; and (v) does its probative value survive the test of unfair prejudice? As per international perspective, it is admitted that we lack the level of legislation as found in our neighboring country and similarly we need to rely more on the precedents which are also hard to find in the present scenario but still efforts by our judicial system are in progress. PAKISTAN JUDICIAL SYSTEM (w.r.t electronic evidence) Pakistan judicial system has warmly welcome the electronic evidence with its own interpretation but in a recent case law (PLD 2016 LHR 570) titled Rehana Anjum v. ASJ etc. authored by honorable Justice Shahid Hameed Dar, curiously the amendments introduced through ETO 2000 were discussed and interestingly highlighted something not in discussion. The honorable Justice had opined through his judgment that contents of an electronic document need to be proved after going through the litmus test of cross-examination whereas the international perspective as discussed is that electronic document attached some sanctity which itself grant presumption of truth to the contents of an electronic document especially generated through automated system as in the case discussed above. CONCLUSION Not possible to conclude something which has just taken birth however an effort must be done to address the issues which needed to be highlighted for making recording of electronic evidence possible and for the trial courts to appreciate the same without any hesitation and to rely on evidence with confidence. It is also need of the time that issues under discussion be addressed timely before decisions like Parliament Attack's case of Indian Supreme Court come into field.