Nguyen Thanh Tung, LL.M.
Institute of State and Law Vietnam Academy of Social Sciences
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| A video hearing held by the Hanoi People’s Court on August 28, 2024__Photo: VNA |
Introduction
Technology, from the development of computers and the Internet to the recent innovations such as big data, blockchain and artificial intelligence (AI), has been bringing about changes to the human society. As part of human society, the judicial system and associated court proceedings have also been experiencing numerous changes due to impacts of emerging technologies. Most recently, more and more online hearings have been held in Vietnam than those in developed jurisdictions such as the United States (US), the United Kingdom (UK), Canada, and Australia, which in part aimed to respond to challenges posed by the COVID-19 pandemic to the justice system. Moreover, beyond the initial idea about online hearings and e-courts, countries have proceeded with building “smart courts” as a solution to facilitate easier access to justice and faster and cost-efficient dispute resolution, etc. In that context, the building of smart courts constitutes one of the important tasks set forth in the Strategy for judicial reform in Vietnam’s court system.
Definition of smart court
The concept of “smart court” was officially introduced in 2016 in the Supreme People’s Court of China’s work report, which enumerated functions of a smart court, including: “…ensuring the fairness and efficiency of the judiciary and improving judicial credibility, making the most use of technologies like the Internet, cloud computing, big data and AI, promoting the modernization of China’s testing system and capacity, and achieving the highly intelligent functioning and management of courts.”
Smart courts will use modern technologies to modernize the entire court system and adjudicating process, improving functions and management of courts, and, at the same time, effectively promoting the system’s consistency, fairness, accuracy and justice accessibility. Smart courts go beyond the initial idea about e-courts or online courts in three aspects: sophistication, comprehensiveness, and automation. Sophistication refers to advances of integrated technologies, including not only sound-recording digital technology and conventional information and communication technology but also next-generation technologies such as face recognition, cloud computing, big data, blockchain and AI. Comprehensiveness is understood as integration of technologies into the entire judicial ecosystem and transformation of all court procedures into digital and online forms, including those for personal identification, file submission, procedural service provision, evidence exchange, hearing, and judgment pronouncement and enforcement. Finally, automation means reduction of human jobs in proceedings at court based on algorithms which help speed up the procedural process and provide advices regarding court judgments.
Pros and cons of smart courts
Advantages
Smart courts require readiness and online performance of court services, attaching importance to online information processing, online judgment making and online judgment enforcement as the three most important platforms. Online provision of information about the adjudicating process aims to provide disputing parties and lawyers with opportunities to receive updated information on their own cases or matters by allowing the parties to log in with such information as names, cell phone numbers, identity card numbers or port number cards and verification codes. Pronounced online judgments are those made by courts at all levels, except documents that are not allowed under law to be disclosed, and therefore treated as a source of big data on laws and judicial practices of the country. Especially, online platforms also facilitate experimental legal research and promote a “transparent” judicial system. Such platforms serve as an important database for all judges when they examine cases with circumstances similar to those of previously tried cases so as to ensure the consistency of their judgments and rulings. Information and data obtained from judgments and rulings on online platforms have been used by some courts and embedded AI systems may be used to serve adjudicating activities of local courts.
There have been positive reports on application of modern technologies to courts and the “smart court” system shows that such application might help increase justice accessibility, facilitate faster and cost-efficient dispute resolution thanks to online adjudicating process, and secure the enforcement of judgments. In addition, it is said that judges will benefit from technological innovations which can help them do research and prepare judgments, and thereby raising their productivity. Regarding the judicial system, the use of technologies is also believed to help improve the transparency and publicity of the system and build the people’s trust and confidence in judicial bodies.
Limitations
Although it is declared that there will be common benefits for the public, involved parties, judges and the court system, some judges and lawyers have raised their concern about technical problems related to the connection and technical failures in the course of online trial which might delay hearing sessions.
Some experts have also voiced their worry about technical issues whereas involved parties encounter problems in shifting to online litigation platforms or have limited knowledge about smart phones and judicial applications. This is likely to increase the workload of judges because they might have to instruct people on how to use online adjudication platforms.
Regarding supporting technologies that help facilitate virtual or online hearings, numerous researches have been conducted around the world, focusing on virtual/remote hearings. For example, in 2018, the UK experimented and later assessed its first “video hearing” at the tax tribunal in which appellants and the tax authority’s representatives participated from their homes or offices. Noteworthily, in order to better assess the quality of online hearing sessions, the UK’s Civil Justice Council has recently implemented an assessment project to inquire into advantages and challenges brought about by the online hearing method[1]. Especially, researches point to the fact that, though video hearings can probably help save cost and time, thereby improving justice accessibility, the question about “appropriateness” of cases and involved parties in such virtual approach should be prudentially considered by courts. In this regard, researches suggest that in criminal justice, people appearing in distance from incarceration facilities or prisons are more likely to receive sentences heavier than those personally appearing at courtrooms.
Despite the lack of experimental researches into impacts of online hearings on the making of judgments and rulings, some experts argue that certain criminal cases are inappropriate to “cloud platform-based” hearings, particularly cases involving defendants who have hearing or speech impairments or involving multiple defendants. Moreover, the distance approach might make it difficult for involved parties to find their representatives and other supporting forms, since they are separated from physical courtrooms. In addition to the issue of appropriateness, there remain concerns about the capacity of online hearings related to unspecific regulations. For instance, in case plaintiffs have agreed to participate in online hearings but later fail to show up on time as agreed or fail to participate in online hearings without the consent of judges, unless they can give plausible reasons (connection loss, power outage or other force majeure events), judges “may” rule such failure to be a “refusal to show up” which will be handled under relevant regulations[2]. The automated judging function of smart courts is probably useful in reducing the workload for the courts as draft judicial decisions can be created and bring about the same results in similar cases. However, this might lead to the situation that judges depend too much on AI’s recommendations and hesitate to follow or even deviate from such recommendations. Such situation raises questions about fair judiciary and whether judges have been “effectively instrumentalized”.
Moreover, it should be noted that the application of technologies in trial or, in other words, the designing of the automated judicial decision-making process is also likely to affect the independence of a judge. In case of a difference between the judge’s viewpoint and the automated ruling, what is the next step to take? Given that automated rulings are probably designed to serve the making of final rulings by judges, but obviously, automated rulings will probably put more or less pressure on trial activities and psychology of judges and therefore arouse concerns about impartiality and independence of judges.
Another concern is that legal technology companies would have the right to access a dominating proportion of judicial data when designing products for courts, which might pose an information confidentiality challenge as well as a risk that data collected by system developers might be easily accessed and misused by third parties.
Recommendations on building smart courts in Vietnam
On June 24, 2024, the National Assembly passed the Law on Organization of People’s Courts, which takes effect on January 1 this year. Worthy of note, Article 136 provides the method of online trial, which is expected to create a major change in trial activities of courts in the coming time. However, this Article stops short at defining an online court hearing, while having no specific provisions on procedures for filing and acceptance of initiation petitions, assignment of judges to settle cases and process case files, organization of trial, and making and enforcement of court judgments. Therefore, if determined to build and operate smart courts, it is a must for the country to specifically provide those procedures for use as grounds for the subsequent steps of transformation.
In addition, it is suggested to revise relevant codes and laws, such as the Criminal Procedure Code, the Civil Procedure Code, and the Administrative Procedure Law, toward allowing the application of technological advances in the entire judicial process, ensuring their consistency with the newly passed Law on Organization of People’s Courts.
Regarding the roadmap to build smart courts, in the coming time, greater attention should be paid to the digitalization of all documents of the people’s court system in order to lay a foundation for courts to shift to perform all their judicial activities online. Step by step, Internet-based court hearings may enable courts to settle cases more flexibly as if parties cannot show up at courtrooms. Courts should comprehensively apply more technological innovations, focusing on interactions with users and the public, thereby forming a “single-window” court platform that can assist parties at all stages, from submission of case files, delivery of court documents, evidence exchange and examination, to trial and judgment enforcement.
Importantly, in the building of the smart court model in Vietnam, it is recommended to study experience of foreign countries in addressing issues related to automated judgment making, digital divide, independence of trial, the model’s appropriateness to cases, particularly criminal cases, as well as concerns about privacy and data protection.
Conclusion
With the smart court model, judges will benefit from technological innovations while reforms of smart courts will bring opportunities for all people to get better access to justice and help speed up the settlement of cases. Despite concerns about the use of technologies in the smart court model, this model is still considered a positive option aiming to provide “quick” and “fair” judicial services to most of the population. Hence, the building and application of smart courts in Vietnam constitute one of important tasks to meet judicial reform and international integration requirements in the time ahead.-
[1] It is noteworthy that, in response to the pandemic outbreak, a considerable number of courts around the world urgently switched to the online mode by using the Internet and other digital platforms in their justice systems, raising interesting questions about impacts on the people’s right to justice access, right to fair trial and justice enforcement in a broader sense.
[2] The word “may” can be understood as empowering the court to rule under local regulations which might lead to different trial practices among localities throughout the country.
