An effective access to justice is one of the fundamental conditions for the establishment of the Rule of Law- illustrates and explains.
The primary meaning of rule of law is that the ruler and the ruled must be subject to law and no one is above the law and hence accountable under the law. It implies the supremacy of law and the recognition that the law to be law cannot be capricious. Its simplest meaning is that everything must be done according to law, but in that sense it gives little comfort unless it also means that the law must not give the government too much power.
Rule of law
The rule of law is a legal maxim that provides that no person is above the law, that no one can be punished by the state except for a breach of the law, and that no one can be convicted of breaching the law except in the manner set forth by the law itself. One aspect of rule of law is the requirement of an existing set of good laws
Rule of law in Bangladesh
The rule of law is a basic feature of the constitution of Bangladesh. It has been pledged in the preamble to the constitution of Bangladesh that –
“It shall be fundamental aim of the state to realize through the democratic process a socialist society, free from exploitation – a society in which the rule of law, fundamental human rights and freedom, equality and justice, political economic and social, will be secured for all citizens.”
Article 27 guarantees that all citizens are equal before law and are entitled to equal protection of law. Article 31 guarantees that to enjoy the protection of the law, and to be treated in accordance with law, is the inalienable right of every citizen, wherever he may be and of every other person for the time being with in Bangladesh, and in particular no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with Law.
Laws, rules and procedures framed under them exist to cover every walk of our national life, though there may be parities in number and shortcomings in scope. Our constitution contain plethora of laws while institutions like courts, ministries and departments have been set up to dispense justice and decisions in accordance with the present state of the rule of law revels the riddle of having a body of law and at the same time not having it. Some aspects of the rule of law in our society and polity should be mentioned as access to law as well as equality before it, are reserved for only those who are privileged.
The principle of separation of judiciary from executive is being violated in two ways –
1. Magistrates are performing dual function of both executive and judiciary which is not desirable in the interest of justice.
2. The service of district and session judges, their transfer, promotion etc. are controlled not by the Supreme Court but by the law ministry.
Another aspect of rule of law relates to the limits of law making power of the parliament itself. Our constitution quite rightly declares the people as the repository of all power and they use it through their elected representatives.
One the other hand the government always with a view to avoiding debates make laws by ordinances and later gets them appointed under the sweeping power of article 70 of the constitution.Rule of law postulates intelligence without passion and reason free from desire in any decision regarding matters concerned with governance. In our society, the principle is being ignored on many grounds as quotas for political activists by the name of honor to freedom fighters, special provision for individual security etc.
Police is no doubt a very powerful institution for the endorsement of the rule of law. But in Bangladesh, the police have never been friendly withthe public. The police serve the government and enjoy, in exchanges, the freedom to act arbitrarily and in the material interests of its own members.
Ordinance making power can be supported only in emergency situation like national crisis, national calamity severe economic deflection etc.demanding for immediate legislative actions. But article 93 of the constitution allows the president to promulgate ordinances anytime during the recesses of parliament session.On the other hand Article 141(A) empowers the president to declare emergency whenever he wishes. By declaring emergency in peace time the government can suspend fundamental rights and suppress the opposition movement. This mounts to avowed arbitrary exercise of power on the part of the government which is contradictory to the concept of rule of law
Another disgusting aspect of our judicial system is that there is the charge of corruption against our judiciary. Moreover, justices costly commodity in our country. The poor people could not reach before the judges only because of mobility to meet the charge required for going through the complicated process of litigation. Thus, they prefer injustice than fatigue.In order to provide quick relief and avoid lengthy proceedings of litigation providing for the creation of Administrative Tribunal particularly for service matters which needs special treatment and experience is not undemocratic something.
The above discussion makes it clear that though there are some positive provisions for ensuring rule of law in Bangladesh Constitution, they are being outweighed by the negative provisions. Though our constitution provides for 18 fundamentals rights for citizens, these remain meaningless version to the masses because due to poverty and absence of proper legal aid the poor people cannot realize them .22 it also clear that the application of the principle of the rule of law is merely a farce in our country. However,
A prospect for establishing society purely based on the democratic principle of the rule of law is not totally absent from the polity. We have a constitutional government elected through a free and fair election. But what is needed for the very cause of the principle of democratic rule of law is-
· To separate the judiciary immediately from the executive ;
· To appoint an ombudsman for the sake of transparency and democratic accountability
· To make the parliament effective and to let the law making body to do its due business in cooperation with each other government and opposition;
· To reform the law enforcing agencies and police force to rid them out of corruption and to free them from political influence so that they could truly maintain the rule of law;
· To forge national unity and politics of consensus built around the basic values of the constitution, namely democracy, respect for each other’s human rights, tolerance, communal harmony etc.
Bangladesh is officially known as the Peoples’ Republic of Bangladesh
It is a unitary country. It is a small in size having 143,999 kilometers. It stands 89th in the world by size and in respect of population it is 9th in number and 6th in Asia. Currently total population of Bangladesh is 150 million. It is most populous country in the world (population density is 756 persons per square kilometer. Muslims 88.3%, Hindus 10.5%, Buddhist 0.6%, Christians 0.3% and a few pagans). Administratively it is divided into divisions (6). Each division is divided into districts known as zilias (64). Each zila is divided into upazilas (sub districts ). Again each upazila is divided into unions (4401). Below the union there are wards. A ward consists of one or more villages (around 68,000 villages). (CIA, 2007)
Currently Judicial governance in Bangladesh is operated by two-tier system of courts– district court at the district level and Supreme Court at the center. The district court is headed by the District and Sessions Judge who is assisted by Additional District Judges, Subordinate Judges, Assistant Judges and Magistrates. The Supreme Court has two divisions—High Court Division and Appellate Division. Most cases trailed by the court system originate at the district level. The High Court Division hears appeals from the district court and also trails original cases. The Appellate Division of Supreme Court reviews the appeals of judgment from the High Court Division.
Corresponding to 64 districts there are currently 64 district courts in Bangladesh. Only 64 courts are quite insufficient for 150 million people of the country. As a result, the pending rate of cases is very high. The cases trailed by formal courts are also very expensive. A very few rich people have capacity to fund the case battle and the poor who are majority in the country cannot go to the district court and Supreme Court for justice. Moreover, a case either in the district court or in the Supreme Court is a lengthy process. There is an abnormal delay in litigations in Bangladesh. There are thousands of cases pending in the Supreme Court. There is no available data.
To remove the problems of judicial governance mentioned above and to make justice delivery system more efficient, speedy, effective, transparent, accessible and affordable to the people in general.The delay in Crime investigation in Bangladesh is a great problem. Crime investigation in Bangladesh is not a separate agency and it is very corrupt. Consequently many innocent people become victims of it. So, separate crime investigation agency should be established with proper training to its personnel. Reform in jail house is essential.The current judicial system in Bangladesh is hand-written one. The use of information technology will make it more speedy and efficient. So the entire court system should be computerized. The higher court should effectively monitor and supervise the works of lower courts.
Finally present conception of contempt of court should be changed keeping in mind that the judiciary is not out of criticism. There are rules for village court in Bangladesh. But it is not functioning. The government should revitalize village court, which will relieve the burden of the formal courts to a great extent. There may be two types of village courts viz. union court at union level and gram adalat (village court) at ward level. If the judicial reforms suggested above are implemented, justice delivery system may hopefully be more efficient, speedy, impartial, transparent and affordable to the people especially to the poor, disadvantaged and women.
In Bangladesh, justice and the rule of law are bound together as an integrated whole. The judges in Bangladesh are not involved in electoral politics; they are more willing than other body of the government to take unpopular decisions beneficial in the long run. With the expansion of the meaning of right to life to accommodate environmental protection, an expectation has been created that judiciary would take more prominent position in deciding cases.
Alternative Dispute Resolution
Alternative dispute resolution” (ADR) is a term generally used to refer to informal dispute resolution processes in which the parties meet with a professional third party who helps them resolve their dispute in a way that is less formal and often more consensual than is done in the courts. The problem of and the solution to poverty has been a key feature of development strategies of the developing countries for many years. However, the universal recognition of poverty as topmost priority problem, so far, could not stop it from turning into an endemic one. Instead, it is showing the symptoms of becoming the root of socio-political unrest. In developing countries, one significant factor behind the expansion of poverty is the “exclusion” of sections of the population including poor, marginalized and minorities both by the state and other development actors. In reality, they are forced to live in a different world, where lack of access to justice, property rights and legal business has limited their boundary of existence. Therefore, the problems related with poverty may always remain a contentious topic, but may not be solved, unless and until, these marginalized groups are “included” in the whole poverty alleviation process.
If the fundamental rights of the poor are ensured, that does not necessarily mean that these rights will not be violated again. Thus, access to justice is very important in order to find a way out of poverty. For instance, let us consider a situation, in which, the poor, working in the informal sector, have been granted the essential legal tools. However, if they are still exploited, are still deprived, they need to go to the legal system and if the access is denied, the entire process will come to a halt. In Bangladesh, the legal system can be broadly categorized into two sectors- the formal and the informal. Access to justice in case of formal sector has become a daunting task for the poor. Legal complexities, cost, delayed justice, corruption, too much emphasis on the normative aspect of law have caused the poor to rely heavily on informal sector. However, a number of problems in informal justice sector like bias, corruption, change in rural social structure, which is resulting in declining status of authority and power of the shalishkars, are depriving the poor from getting justice. Anderson pointed out five stages of access to justice- naming, blaming, claiming, winning and enforcing. In Bangladesh, the problem is, both in formal and informal legal system, in case of access to justice, the poor have to face a number of problems in almost all stages. Henceforth, an integrated approach, consisting both the formal and informal sectors, should be developed to ensure the access to justice.
The shalish is an informal, community-based process of dispute resolution that has been in place for centuries. It is typically a public event, led by a panel of influential local figures. There is international pressure on the Bangladesh government to improve its justice system, as well as the overall governance situation in the country.
An effective access to justice is one of the fundamental conditions for the establishment of the Rule of Law. One of the requirements of rule of law is to establish a mechanism which will provide judicial services efficiently and fairly for all citizens. In particular, measures developed to solve disputes concerning disadvantaged persons (children, women, disabled, elderly and poor) are important elements of access to justice. Effective access to justice has increasingly been accepted as a basic social right in modern societies. There are some barriers to effective access to justice; however, within the access to justice movement these barriers have been gradually overcome. Moreover, access to justice is not just access to judicial system, but it includes access to adequate dispute resolution process for people.
Thus, there is a special place for alternative dispute resolution processes in access to justice. Because, the establishment of alternative means of dispute resolution could serve to significantly reduce the number of minor disputes before the civil courts and thereby lead to an increase in overall efficiency. So, effective implementation of alternative means of dispute resolution explicitly eases the citizens’ access to justice
Alternative dispute resolution (ADR) describes those dispute resolution processes which exist as alternatives to traditional litigation. ADR is designed to be a less formal and less complex means of resolving disputes flexible, quickly and more cheaply than via court proceedings. ADR can take various forms but in essence it generally involves the use of a mediator to encourage open communications by helping the disputants identify the specific areas of dispute and agreement with the aim of ultimately reaching a negotiated settlement of their differences. The negotiated settlement may be placed before a judge so as to give it the form of a judicial settlement that is readily enforceable or it may be left merely as an agreement between the parties which is not readily enforceable and which would thus require a regular judgment from a court after examination on the merits to be enforced. Either way, however, the important point remains the same, namely that the parties in dispute are required to submit to conciliation before adjudicating the matter before a court.
ADR processes are not necessarily confined to reduction of the number of pending trials, but are used as an instrument of social reconciliation as well, by operating on the reconstruction of relations. ADR can enhance public satisfaction with justice system and reduce the negative effects of the adversarial system.
· CONSTITUTION OF THE PEOPLE’S REPUBLIC OF BANGLADESH
· Unitary state. (n.d.). Retrieved November 14, 2011, from http://en.wikipedia.org/wiki/Unitary_state
· ADR access to justice, Retrieve from http://www.adrcenter.com/international/cms/?page_id=23
· CIA World Factbook 2007
· http://www.arabulucu.com/adr-alternatif-uyusmazlik-cozumu/report-on- alternative-dispute-rezolution-within-the-context-of-better-access-to-justice
· Sayed Javed Ahmad( July 23, 2010) The BLiTZ Justice in Bangladesh ,
VOLUME # 6, ISSUE # 44, DHAKA, NOVEMBER 09, 2011,
· Shalish. (n.d.). Retrieved November 14, 2011, fromhttp://www.banglapedia.org/httpdocs/HT/S_0281.HTM
· Fundamentals rights. (n.d.). Retrieved November 14, 2011, fromhttp://www.banglapedia.org/httpdocs/HT/F_0190.HTM
CONSTITUTION OF THE PEOPLE’S REPUBLIC OF BANGLADESH