Law alter views
The judiciary and its importance
Justice Latifur Rahman
At the outset I must say that an independent, impartial and efficient judiciary is the very foundation for democratic development. In a democratic polity like ours, the judiciary plays a vital role. The integrity of the judicial system is central to the maintenance of a democratic society. Through the judicial system, the rule of law is applied. Without an impartial judiciary democratic character of Bangladesh will be destroyed. However, judicial system of Bangladesh by its very nature, has become excruciatingly slow and inefficient. I must honestly say that judicial reforms in Bangladesh has become imperative on various grounds to make the judiciary more dynamic, speedy, efficient and people oriented.
At the present moment there is an abnormal delay in litigations in Bangladesh, both in civil and criminal cases. Justice system is manifesting abnormal delays in litigation and huge pendency of cases in all courts from the subordinate judiciary to the Supreme Court of Bangladesh. The problem of delay in disposal of case in Bangladesh is a highly complex problem for which many factors are involved which need to be addressed in phases. The effect of delayed justice has tremendous adverse effect on economic growth as well.
Recently some steps have been taken to dispose of serious and sensational criminal cases by setting up Speedy Tribunals in Bangladesh. But the appeal procedures of those cases are taking long time and as such effective steps must be taken to dispose of those cases in the appellate stage by the Supreme Court. I can suggest that separate Criminal Division Benches may be step up for disposal of those cases. The government may request the Chief Justice to constitute such Benches for quick disposal of those criminal appeals.
From British time, the printing of paper book in 'Death Reference' case was in practice in all superior courts of India. Apart from printing in press, the FIR, evidence etc. in a criminal case were being translated from Bengali to English. Printing and translation were done primarily for the British Judges who did not know Bengali. Now that we have no British Judges, I do not think that there is any necessity to print paper book. In place of printing of paper book, the High Court Rules may be amended to computer typing. This will quicken the process of preparation of paper-book thereby help in quick disposal of cases.
Criminal justice system and prison reforms
The delay in criminal investigation is a great problem in Bangladesh. In Bangladesh, crime investigation has not yet been made separate, thereby the investigation has not been done efficiently and properly. The police commission headed by Justice Aminur Rahman Khan, in its report suggested for separate investigating agency with proper and adequate training of police. We need honest and well trained person for efficient investigation. Our Investigating Agency is very corrupt and as such people suffer to a great extent. Unless a separate investigating agency is established with proper training and knowledge, then it is difficult to get improvement in criminal justice system.
The Jail Reform Commission headed by Chief Justice Fazle Munim suggested many reforms in the prison houses. But no adequate tangible steps has yet been taken. The number of under-trial prisoners will be about 70% of the convicted persons in jail. The recommendations of the Jail Commission need to be implemented by phases. Unless the judiciary is separated we will not get full time magistrates for judicial work. The magistrates of today are performing both administrative and judicial works and thereby the criminal cases remain pending for a long time. The judgement of 'Mazdar Hossain' case need to be implemented soon.
Number of judges
The number of Judges ought to be increased in the district level for quick disposal of criminal and civil cases. I feel that we have inadequacy in the strength of Judges and there should be adequate court room facilities. I have no idea as to court-room facilities at present, but during my time while I was the Chief Justice of Bangladesh, there was insufficient court-room facilities for which the Assistant and Subordinate Judges (now Joint District Judges) could not render full time court work. I will urge the government to improve the logistic support and court-room facilities for proper functioning of the Courts in Bangladesh. For efficient and effective functioning of the judiciary we need adequate facilities and proper atmosphere.
I understand that some judicial reforms have been undertaken by us individually and some are in the process with the help of the World Bank and other International Agencies, from the District Court to the Supreme Court.
Alternate dispute resolution, mediation and conciliation
Non-formal settlement of legal and judicial disputes outside formal court system is very old in this sub-continent. Alternative dispute resolution by way of mediation, arbitration or conciliation is an alternative route to a more speedy and less expensive mode of settlement of disputes.
Family Courts Ordinance had given jurisdiction to trial Judges to effect reconciliation between parties both before and after trial. This Ordinance dealt with divorce, restitution of conjugal rights, dower, maintenance and custody of children. At first three pilot family courts were setup at Dhaka to exclusively effect reconciliation between parties. Soon there were 16 Pilot Family Courts in 14 Districts of Bangladesh. The success is tremendous. Then it was extended to other jurisdictions. The amendment of Sections 89A and 89B of the Civil Procedure Code has opened the door for Alternate dispute Resolution in all other matters where the parties are willing to dispose of their disputes. The Civil Courts started mediation in non-family disputes since 1 July, 2003. In Money Loan Recovery cases, the Loan Courts had disposed of a large number of cases. Courts should refer relatively simple cases first to the mediators. Complex Cases involving complicated questions of facts and law should not be placed for mediation at this new stage.
I may incidentally mention that in the United States 40/45 years back there were huge congestion of cases and the same has been substantially reduced by adopting conciliation and mediation procedures to while I was the Chief Justice of Bangladesh, I attended such conciliation proceedings in Washington, DC, USA. I am hopeful that if we adopt this method seriously and effectively, in all Jurisdictions, this will bring good results in our country.
From my experience as former Chief Justice, I can vouchsafe that old pending cases numbering about ten lacs in all courts in Bangladesh would never be disposed of as a large number of new cases are being filed every day.
In Bangladesh, the Bankruptcy Act, 1997 has been re-enacted in place of Insolvency Act of 1909 and 1920. As it was felt that re-enactment of law was necessary for economic development to realise debts from the bank loan defaulters and debtors. This new law is designed to handle problems relating to financial matters in a more effective and extensive manner, where company, association, partnership firm and their directors and owners are brought within the fold of the new law. Further, Money Realisation Loan Courts, the Banks and financial institutions are collecting loans/debts which is helping in formation of capital and in the growth of industries, commerce, trade, agriculture etc. by providing loans and advances to various companies.
In Bangladesh, environmental cases are very few. India being a vast and industrially developing country, the increase in environmental awareness since 1980 has triggered a large number of cases in various courts. In India, every provincial High Court has a bench dealing with environmental cases, luckily, I sat in one such court along with the Chief Justice of Madras in 1995. During late 1987, Indian Supreme Court played a vigorous role in preventing environmental degradation.
In the case of 'Dr. Mohiuddin Farooque-Vs-Bangladesh and others', the apex court interpreted articles 31 and 32 of our Constitution and expanded the jurisdiction in environmental cases. I must put on record may deep appreciation for BELA for bringing this case to the Supreme Court of Bangladesh.
Amendments of civil procedure code
The Bangladesh Civil Justice system is based on British model and continue to operate under the 1908 Civil Procedure Code. This Code prescribes various stages in litigation process. Some amendments have been incorporated to quicken the process to avoid long and unnecessary delay. Those amendments must be effectively followed and implemented. The Law Commission ought to ponder whether further amendment is necessary.
Computerisation of all courts is a must in Bangladesh. Extensive use of Information Technology will make the judicial system more prompt and efficient. The judicial system is essentially a hand-written one, with some use of type writers. Oral testimony in subordinate Court is taken down by hand. Case load management techniques is to be introduced in Courts at all levels with a Computerised Management Information System (MIS) and upgrade office technology. The computer based case load management is expected to significantly reduce the case back-log and improve transparency in the system. To my knowledge, Computerised Management Information System has been set up in the Supreme Court of India. While visiting Supreme Court of India, I inspected all the Computer and Internet facilities in the Supreme Court of India.
Judicial administration training institution
Judicial education in Western Countries has been institutionalised systematically and has become an integral part of the judicial process. Further more, many countries have continuing legal education programs which have become popular with the Judges themselves. This Judicial Administration Training Institute is imparting training to Judges, at all tires of the subordinate judiciary, ministerial staffs of the courts and lawyers. This project was being finance by the World Bank and DANIDA.
The Law Commission is functioning from 1996. Bangladesh has a Law Commission headed by a retired Chief Justice. The main function of the commission is to amend both substantive and procedural laws in keeping with the need of our time. To my knowledge, the law commission has updated Admiralty Act, Companies Act, Securities and Exchange Ordinance, 1969 and Arbitration Act, 2000. In Bangladesh, I understand, that law commission sends it report when asked for. But in India, the law commission, suo motto gives its opinion an any legal matter to the Government for consideration, which the commission thinks necessary. The commission should review all existing laws and take opinion of the Legal Community and civil society to update laws to the need of the country.
Bar Council of Bangladesh
This is the highest legal body of lawyers in Bangladesh. The Bar Council is also imparting continuous legal training to the lawyers on various modern issues, like Human Rights, Environment, Jail reforms etc.
We have the Village Court Ordinance, 1976, but Village Courts are not functioning effectively. As large number of people live in villages, practical reform should be undertaken for the Constitution of Rural Courts for speedy justice.
The availability of legal aid is an important determinant of access to justice. We have a Legal Aid Law. Besides, a couple of NGOs are offering some legal aid services to helpless women, children and marginal poor people.
New legislative drafting wing
I understand that the legislative and drafting wing of the Ministry of Law of Bangladesh was being funded by CIDA. Proper drafting standard ought to be developed for ensuring quality. The drafting wing has been provided with suitable computer network system, good library facilities, improved physical facilities and the like.
Finally, the solution lies in bringing some substantive and procedural changes in the Legal System of Bangladesh. We need honest and dedicated people to reform and manned the judiciary of Bangladesh. Ultimately, the man behind any system is of great importance.
The author is Former Chief Justice and Head of the immediate past Care-Taker Government.