Delay In The Disposal of Civil Suits: Bangladesh Perspective
INTRODUCTION
Delay is a very harmful matter for civil suits in Bangladesh. Time consumed for the final disposal of cases from the date of its institution is too long. 10-15 years in many instances. This delay has been causing serious harassment to the litigant public. It has come to many mind that the present system of administration of justice, a foreign transplant, is unsuited to the genius of our people, its procedures<href=”#_ftn1″ name=”_ftnref1″ title=””>[1] are dilatory and cumbersome, not advancing the cause of substantial and quick justice.
The situation is serious indeed and calls for careful consideration of the reasons for this delay. The system of administration of justice as obtaining in Bangladesh, both as regards the hierarchy of courts and the procedures followed by them, is the result of an evolutionary process the present system coming down from hundred years back and the people including the unlettered villagers have become used to its formalities and technicalities. Why then the people are losing confidence in the system is the question of the day. The answer is not far to seek.
The procedure delay in disposal of cases, may account for much of the erosion of confidence in the system. But no particular point in the administration of justice alone can be said to be the source of delay. It starts right from the beginning and endorse of the end. In decree of execution the uncertainty looms unending to the woe and worry of litigants- winners or losers. Through the agony of trial and tribulations emerge some causes which were common to the courts of all levels and which are peculiar to the court of different tiers. In every step of trial, however, there are some defects accounting for delay which are though inherent have yet become part of the system.
The justice delivery system in our country is time consuming and unaffordable to the poor people to some extent. The existing regime of civil suits in Bangladesh is governed by the Code of Civil Procedure enacted in 1908. Since then little change has taken place. The legal system may very well be described as admirable but at the same time slow and costly and entails an immense sacrifice of time, money and talent. The causes of backlog and delay of disposal of cases are systematic and profound. The legal system’s failure to impose the necessary discipline at different stages of trial of cases allows dilatory practice to protect the case life.
A case usually takes about ten to twenty years to disposed of. It is learnt that nearly one million cases are now pending in different courts of the country. The break-up of this backlog is: 4,946 cases in the Appellate Division of the supreme court; 1,27,244 cases in the High court Division, 3,44,518 civil cases and 95,689 criminal case in the judges court and 2,96,862 cases with Magistrate courts and 99,004 cases with Metropolitan Magistrate courts. After years of controversy and frustration of the problem of administration of justice system, a new device needs to be chalked out. A great deal of delay occurs in summon service, processes filed by the parties are not promptly sent to the nazir for service; unduly long adjournments are frequently granted as a matter of course for filing deficit court fees on plaints, process-fees, cost, commissions etc. Tardy practices are made in filing written statement; amendment of pleading even at belated stage; substitution of parties also causes delay of disposal of suits. Want of skilled lawyer and indifferent court is also a contributing device for causing delay of disposal of suits. Absence of witnesses in the criminal cases even after repeated issuance of summons and warrants; driving out of the witnesses of the criminal case by the defense side in a collusive venture and connivance; absence of prosecutor and defiance lawyer; non-production of accused persons by the jail authority are the key component hindering speedy disposal of cases.
Failure of producing the accused persons by the jail authority outside the districts on grounds of their involvement and being wanted in other criminals of the said districts for shortage of police escorts; ascendance of the accused persons and their voluntary surrender before the court in the middle of trial seeking for recalling of the witnesses already examined which cause the delay. Splitting up of the criminal records for simultaneous trial of the adult as well as juvenile offenders at two separate court; frequent hearing to the bail matters for the same accused persons; non-appearance of the magistrate recording the confessional statements of the accused persons even after repeated issuance of summons and processes; non-arrival of the Investigation officer even after exhaustion of all the process; non-compliance of warrants by the police personnel; non-appearance of the expert witnesses for proof of the expert reports and dilatory tactics of the defense lawyer etc are the usual components of delay in the disposal of criminal cases. These are the common causes of delay, which are generally faced by the Sessions, Special and Tribunal Judges during the trial of criminal cases.
Delay in civil suits is a very big problem in our country. The main cause of delay is outdated laws, corruption, political cause, separation of judiciary, low quality of judges and court staff, lack of indignation, ineffective law enforcement authority, shortage of manpower, lack of legal awareness, social acceptance of justice delivered, influence of money and power etc. We must recover from this problem law commission in Bangladesh can make report for avoid delay in civil suits. ADR can doing a great role to avoid delay in Bangladesh. ADR can make a great role to avoid delay in civil suits. ADR means is a system of shalish or arbitration by which delay in civil suits can be removed.
SOURCES OF DELAY
In any literature on the legal system of Bangladesh, delay in dispensing justice is considered as the number one problem that hinders the access to justice. “There are some civil cases which were filed during the Pakistani regime and are still under trial,”
Lamented one bureaucrat in an interview. Too much time often results into too much money. There are many reasons for this delay. First, leakage of civil and criminal procedure codes allows the cases to be lengthy. Lawyers in some cases also play their part in delay because more delay will ensure more earning for them<href=”#_ftn2″ name=”_ftnref2″ title=””>[2].
Second, the lack of a sufficient number of judges and courts force a judge to deal with five to six thousand cases in a year. Thirdly, even after justice is delivered, it cannot been forced until the confrontational parties receive a written copy of the judgment. Are searcher found out, “in some cases, the judges ordered immediate issuance of the court order and signed it at once but in most cases, this whole process took a lot of time”<href=”#_ftn3″ name=”_ftnref3″ title=””>[3].
Fourthly, criminal cases are delayed due to two reasons: the delay in submission of police report and the delay in court. Police takes long to submit an investigation report due to shortage of manpower and excessive workload as well as corruption in a police station.
When a final charge sheet is submitted to the court, it becomes the place where justice is stuck. “In one year, 40% to 60% of the cases are charge sheeted but only 25% of these cases are put on trial. Following this rate every year cases are accumulated causing a huge backlog”, informed a police official<href=”#_ftn4″ name=”_ftnref4″ title=””>[4] . Fifthly, dissolution of a bench stops the procedure of the cases of that bench. Later, when that particular bench gains its jurisdiction again, the suspended cases are re-opened from the very first stage.
As a result, justice is not delivered in time and a backlog is created. Up to 2003, 3,500 petitions for leave to appeal and 700 appeals were pending at the appellate division<href=”#_ftn5″ name=”_ftnref5″ title=””>[5]. In high court division, 150,000 cases are pending<href=”#_ftn6″ name=”_ftnref6″ title=””>[6] .The situation is even more severe in lower courts. Every day, a judge has to deal with 100 to 150 bail prayers. The result is, in civil courts the number of pending cases are 473,000 whereas in criminal courts the number is even greater- 569,017.
2.1 Outdated Laws:
In the case of criminal court, some of the primary legislations are almost 150 years old. The British heritage still plays an important role and the judiciary still follows some penal statute “…the sole purpose of which is to restrict the movement of the poor”<href=”#_ftn7″ name=”_ftnref7″ title=””>[7] Ignoring the dynamicity of law is placing it in a static position where laws are not keeping pace with the changing pattern of crime.
2.1.2 Politicization of the Legal Sector
Legal sector has usually been considered as the utmost source of accountability. However, in recent years, the particular phenomenon- politicization has touched this very sector. There is little doubt in the fact that the lower courts are often politicized<href=”#_ftn8″ name=”_ftnref8″ title=””>[8]. “We know a magistrate who sits in court only once a week and the rest of the week, he stays in Dhaka,” commented a lawyer. Lack of accountability is paying its price. Bribery is quite common, even certain documents can be “lost”, if proper amount of money is spent. Also, the High Court and the Appellate Divisions are not beyond its reach. In its “State of Governance Report 2006”, Center for Governance Studies has described the recent incident in which the decision taken by the chief justice regarding writ petitions filed challenging the president’s assumption of the head of caretaker government and resulting violence as “unnecessary entanglement of the judiciary in political controversy”. It seems that the very concept of the Caretaker Government has opened a floodgate for politicization where the ruling parties are playing their part to ensure that the last retired chief justice is someone who can be termed as politically employed<href=”#_ftn9″ name=”_ftnref9″ title=””>[9].
2.1.3 Case Management
In Bangladesh, a judge has to perform both the administrative duties and the normal work of justice. Lack of a systematic delegation of authority in court management makes the judges overburdened. There is no database about the number and status of cases dealt by a court. Though IRIS prepared a central database to monitor the number of pending cases/function of judges in five districts, it has not yet been implemented.
2.1.4 Low Quality of Judges and Court Staff
For adversarial system to work, efficient and qualified lawyers are an essential precondition. During the British period, there was a provision that to practice law, a person had to be on one year probation in court and in the chamber of a senior lawyer.
To enroll in the high court, a lawyer had to practice five years in lower courts. However, in 1962, President Ayub Khan simplified this provision that after two years of practicing in lower courts, a lawyer could enroll in high court. Besides, we have observed that judges are sometimes appointed on political consideration without considering their educational background and training received. However, “political appointments of public prosecutors are unavoidable, but such appointment will not work if the appointees don’t know the law,” opined a public prosecutor<href=”#_ftn10″ name=”_ftnref10″ title=””>[10]. In addition, renowned lawyers are reluctant in taking up the job of judges, as it would limit their income.
2.1.5 Shortage of Manpower
With the increase of the population of the country, the number of litigations has increased as well. However, the number of courts and judges and other personnel involved in the system has not been increased sufficiently. It is found that almost about10, 000 cases are filed every day. Under the circumstance, it necessitates to enhance the number of court and judges for speedy disposal of the cases filed every day.
2.1.6 Ineffective Law Enforcement Authority
There are many flaws in the law enforcement mechanism of both criminal and civil justice system. In the criminal cases, police reports are the foundation of criminal justice. The police arrests, frames the case, investigates and submits charge sheet to the court inspector. Police does all the preliminary work of justice, based on which judgment is delivered from the court. As the police are the framer, investigator and reporter of the case, there is huge scope for manipulation.<href=”#_ftn11″ name=”_ftnref11″ title=””>[11]
In some cases, charge sheet depends on the amount of the bribe. Sometimes they even manipulate the murder case by tampering evidence. “Justice is affected due to corrupt practices of police. They make weak charge sheets with an attempt to weaken the case they get bribes from the offenders”, a journalist added<href=”#_ftn12″ name=”_ftnref12″ title=””>[12]. Moreover, police personnel are often used by the ruling political party. The ruling party also appoints police personnel from the party cadre. As such, police normally cannot work independently. Corruption in police seriously affects criminal justice Police is not accountable to any immediate authority for their deeds.
The Superintendent of Police (SP) is not accountable to the District Commissioner as it was before. In terms of capacity, police has many limitations too. Geographical area of a police station/thana is too big compared to its manpower. “…the average police people ratio is 1:1400. In suburban areas, it is far greater like1:14000 while in Singapore it is1:250”, informed a police office.
2.1.7 Separation of Judiciary:
Judiciary suffers from a lack of operational independence as the appointment, posting, promotion to the higher court remains under the control of the executive. Failing to separate the judiciary from the executive forces a judge, while dealing with a case, consciously or unconsciously to think about his appointing authority, which ultimately affect the judgment?
2.1.8 Corruption
After securing the first position as being the most corrupt country of the world, finally this year Bangladesh moved to the third position. The judicial sector, the hope for combating corruption, most ironically “…comes second only to the police as the most corrupt institution in the country.”
2.1.9 Lack of Indigenization
We have so far failed to indigenize the judiciary. Instead, it is still operating on the basis of British laws and systems. For instance, given the huge backlogs of cases mainly due to shortage of judges, three months vacation in the high court is quite ridiculous.“In fact, during the colonial days, judges coming from European countries needed three months’ yearly holiday to visit home, but in the present scenario these long holidays are quite unnecessary and it only undercuts the performance of justice sector further”, observed a politician. During these three months vacation witnesses may forget the case, evidence may be distorted, judges may die or many other unpredictable things may happen.
The philosophical, psychological, systemic and procedural barriers together create a negative attitude and reservations towards formal courts for the poor. The suspicion and distrust about the formal legal system is colossal. This negative attitude has been translated through the cultural system, and it is now a matter of disgrace to go to court. As a saying goes, only those people go to court who are bad and dangerous.
Another says; in shalish you have no other way but truth, and in court you have no other way butto tell lies. Therefore, it is a matter of shame and dishonor, which a few are prepared to embrace. In some extreme cases, the same attitude goes even further and to protect the honor of the village, all the villagers are prohibited or even barred from going to court.
2.2 DEPENDENCE OF THE POOR ON INFORMAL JUSTICE SYSTEMS
We have observed that the poor face problems in accessing formal justice systems and tend to use informal systems. Apart from serious crimes like murder, rape and acid violence, which are less frequent, majority of the problems that the poor experience consist of family matters, petty disputes, petty theft, sexual abuse etc. Usually a formal court does not consider these cases because of the insignificance of their nature and the enormity of their amount of more serious cases. Often, these petty cases, if filed in a formal court, are redirected to the Village Court (VC). However, a particular characteristic of these apparently insignificant problems is that from being insignificant they can gain significance and may potentially cause probable injury to the people involved. If resolved earlier through village court or informal systems then the bigger problems (severe injury, violence etc.) could have been averted if they were nipped in the bud.
The opinion of the rural people is unanimous here- problems should be forestalled at the first sign of it, not after the damage is done. According to them, court only considers problems when they reach the extreme, whereas the extreme stage can be prevented if addressed properly in the primary stages through local level institutions<href=”#_ftn13″ name=”_ftnref13″ title=””>[13]. However, the local level informal justice institutions and processes are not free of problems. The next section describes the constraints that the poor face when they try to access justice through informal institutions.
2.2.1Problems of Informal Justice Sector
As stated earlier, the informal legal system consists of mainly two institutions traditional shalish and NGO-sponsored mediation and shalish. Whereas in the past, traditional shalish had been considered as the most effective means to resolve disputes, in recent times, the significance, importance and effectiveness of shalish are declining. There are many reasons behind this lowered status of shalish.
The problems faced by the informal systems are: Bias: Traditional shalish emphasizes heavily on the existing social structure and this unequal power structure creates an impediment to ensure justice for the poor. People who belong to the upper strata of the society can easily exercise their economic influence in traditional shalish and if their confronting side is poor, justice may be easily denied. Besides, many a times, the shalishkers help the rich or the elites to receive something in return.
Political consideration is also reflected in shalish. Political affiliation of the person seeking justice has become an important point of consideration and the just resolution is not delivered as the shalishkers have started to consider them consequence of their resolution on their vote bank<href=”#_ftn14″ name=”_ftnref14″ title=””>[14]. Shalish is also a subject to manipulation by corrupt touts and local musclemen who are hired to intimidate the entire process<href=”#_ftn15″ name=”_ftnref15″ title=””>[15] . Hashmi, in this case presented a model of “member-matbar-mulla’ triumvirate that takes control over the traditional shalish-
“The members of the Union Parishad (the lowest electoral unit) are elected officials, in charge of the disbursement of public goods and relief materials among the poor villagers, are the most powerful in the triumvirate. They are often connected with the ruling political party of other influential power brokers in the neighboring towns or groups of villages. The matbars (matabbars) or village elders, who also sit on the shalish are next in the hierarchy, having vested interests in the village economy as reinters and moneylenders.
They often get shares in misappropriated relief goods along with government officials and members-chairmen of the Union Parishad. The mulla, associated with the local mosques and maktabs (elementary religious schools) are sometimes quite influential as they endorse the activities of village elders albeit in the name of Islamic or Sharia law. They often sit on the shalish and issue fatwa in support of their patrons, the village elders<href=”#_ftn16″ name=”_ftnref16″ title=””>[16] NGOs are trying hard to ensure access to justice for the poor and people generally tend to rely more on NGO-organized mediation. To one villager- “justice can be ensured only through NGOs as biasness is completely absent there. However, in some cases, they failed to stand beside the poor.
2.2.2 Corruption
The wide spread corruption has found its place even in the traditional shalish system. Until the ‘80s, shalish was conducted by the elders or people who were accepted by all. However, the late‘80s witnessed a change in rural power structure and the authority to conduct shalish was transferred to the UP Chairman. Often, the UP elected representatives adopt unfair means and align with the rich and justice is denied to the poor.
In case of combating corruption, NGOs are playing a significant role. In a number of cases, they have succeeded to force the shalishkers to make a just judgment. In a particular case, when the shalishkers took Tk. 10,000 out of 15,000 as compensation for conducting shalish saying that “I have spent the whole night ensuring that you will get justice, now give me my share”, the NGOs stood beside the poor and for their constant pressure; the shalishkers were forced to give back the money.
One of the main reasons behind the success of traditional shalish is its support towards traditional values, customs and power structure. On the other hand, this traditional outlook supports patriarchy and thus prevents women from getting justice. Women cannot enjoy the opportunity to participate or express opinion in a traditional shalish. The women are not considered even as witnesses.
For instance, an Asia Foundation report describes a case in which a victim’s husband’s dowry demands led to beating her and casting out of the home. She asked for help from shalish but it was quite fruitless as “…I could not speak up…I didn’t have the chance to say anything”<href=”#_ftn17″ name=”_ftnref17″ title=””>[17]
2.2.3 Lack of Legal Awareness
Still today, most people of rural Bangladesh are unaware of their legal rights. Dowry is a common phenomenon in village and the villagers just do not know that giving or receiving dowry is prohibited by the law. Every now and then, the women come to the NGO legal aid offices to file charge against her husband for battering. In almost all cases, the reason is, failure to pay dowry.
The actual meaning of “Denmohor” (dower) is not yet understood by women and most of them failed to collect it in time. For its patriarchal nature, traditional shalish fails to provide justice in these cases and NGOs cannot provide legal help in case of dowry related incidents until they renamed it as “Bhoronposhon” (maintenance)<href=”#_ftn18″ name=”_ftnref18″ title=””>[18]. Thus, with a case of different nature, legal aid is provided but the problem of dowry does not end.
2.2.4 Social Acceptance of Justice Delivered
The acceptance of the outcome of shalish is declining as we observe a declining trend in terms of social values which is ultimately loosening the social fabric. The social norms, customs and context that helped to endure shalish as an effective dispute resolution mechanism for long, has started to fall apart. In the past, one of the main reasons behind the effectiveness of shalish was the social importance the elders/shalishkers carried and the overwhelming acceptability of them.
However, this norm is becoming non-functional day by day. Time has changed and many citizens now belong to a new generation. Unlike their predecessors, they do not show the same respect or obedience towards elderly and the social acceptance of shalish is thus declining.
2.2.5 Influence of Money and Power
In this era of capitalism, money has become the most important instrument to consider when it comes to justice. Those who have this particular instrument consider themselves above any shalish. Moreover, money brings power and moneyed citizens conduct shalish in many instances. In most cases these shalishes are biased.
2.2.6 Declining Status and authority of Shalish
There was a time when the word ‘shalish’ was almost synonymous to “law” and everyone was bound to follow it. But, at present, the formal law of the country has made a distinction between “shalishable” and “non shalishable” crimes and disputes. As a result, unlike the past, people are reluctant to seek the help of shalish. ‘Boycott’ was an effective instrument of shalish but now the strictest penalty that a shalish can offer is a fine of certain amount of money. So, at present the traditional shalish has to deal with petty cases. In major cases like murder or rape, people have to go to the formal legal systems. With the present status of the legal system, they fail to get proper justice there.
2.2.7 Changing Social Norms
The social norms that regulated shalish as a dispute resolution mechanism have been changed. In the past, shalishkers were selected according to their reputation, age, personality, status and lineage. Now political leaders and influential persons conduct shalish where their age, personality or character is less important than their money and political influence. Besides, the practice of taking money did not exist in past.
Those who conducted shalish did not do it for themselves; rather they did it for people. Now shalish is conducted by political leaders for whom earning money is more important than serving people. Moreover, when political leaders are taking control of the shalish before giving their verdict they tend to consider the effect of this particular decision on his vote banks. In a number of cases, these political leaders took decisions only to make sure that they can get vote of a particular group of people.<href=”#_ftn19″ name=”_ftnref19″ title=””>[19] Finally, the spread of education is creating an impact on the quality of shalishkers. In the past, when the number of educated people was quite limited, their judgment was accepted by all.
However, in recent days, the light of education has put everyone in the same height and no one is likely to consider another one as a well-educated person who can be trusted in case of shalish. The common comment is, “you think he is learned, so what are we Mofij(Fool). Also in a number of cases, the UP Chairman and members fail to provide justice and creates impediment in case of going to the NGO to seek legal aid. They motivate poor and say , “Why we should go to BRAC with our home affair?”
However, the last two problems mentioned above about declining status of traditional shalish and changing social norms are to us the key to legal empowerment and access to justice for the poor. In the past, shalish was the only institution and people did not have any alternatives to choose from. But, at present, formal law and legal system, which in the previous era was somewhat alien to the rural people, is not beyond their reach now.
Even the rural Bangladesh is not keeping itself away from the flow of information. The formal laws, which were unknown to most of the villagers in the past, are now known to most of them. Besides, a number of organizations are working in the villages to provide legal aid to the people. Access to media has also been a positive phenomenon for the poor.
As a result, shalish is losing its importance. But, this low status of traditional shalish does not necessarily legally empower the poor as formal systems have numerous problems. Despite, problems with shalish, a large number of rural people still consider shalish as the most effective way of getting justice. According to rural people, justice can only be delivered by people who live in that particular village. “How can someone who does not know us deliver justice? A judge should be some one whom both the confronting parties know. As he lives with us, he can realize what actually happened”.
This idea goes directly against the idea of justice present in the formal legal system, where to ensure objectivity and fair trial the judge should be an anonymous person to both the parties. But according to rural people it is impossible to give a fair verdict by an anonymous person based only on the narratives of the incident and without knowing the personalities of the parties involved, and who is telling lies and who is not.
When asked about the biasness of the adjudicator of he/she knows the parties, the rural poor suggest that there is a very little possibility of being biased in a village shalish because the status of the shalishkers (mediators/adjudicators) in the present context is unlike the past. Now, their status as good shaliskers has to be achieved not to be ascribed as happened in the past. Being biased will not help them in the long run to maintain it. Therefore, not only do they have to gain the faith of the villagers but also have to maintain their objectivity throughout their lives because villagers have the liberty to choose shalishkers. Therefore, villagers feel that they have more control here in comparison with the formal court where they have to obey the orders of a judge whom they did not have the right to choose. But, as mentioned above, the existing literature and our field-level research do not exactly depict this all-so-good picture of the shalish.
Another reason responsible for people not being at ease with the formal legal system is the lack of control they have on the procedures and processes of the court. In Bangladesh, the legal system is adversarial, i.e., it requires victims to prove the offence with all evidence instead of offenders.
A victim has to present the witnesses in front of court, which is arduous and expensive<href=”#_ftn20″ name=”_ftnref20″ title=””>[20]. On the other hand, in a shalish, a complainant has no such pressure. One of the main issues that create an impediment in case of engagement of the people with the formal legal system is the amount of time needed to deliver justice. People believe that the first and foremost concern of trial should be to finish it immediately. To them that is the key sign of justice<href=”#_ftn21″ name=”_ftnref21″ title=””>[21]. Another area of the processes of court that shove people’s mind away from it is in court they do not have the opportunity to speak for themselves rather lawyers will represent them in court. But rural people consider speaking as the most important means to settle a dispute, because through speaking up their minds, their anger will be subdued. However, according to them the procedures in court block this vent.
Witness plays an important part in the formal legal system. In formal legal systems, a witness is under the oath to speak the truth and perjured him or herself when truth is not spoken. But the very idea of taking an oath is quite meaningless to the rural people as they do not consider it as effective. To them, the setting or arrangements in a traditional shalish is far more efficient because they think that it is not possible for one to lie in front of all villagers. Moreover, in most of the cases those who are present in shalish are themselves eyewitnesses of the disputed incident. These types of differences coupled with the problems of language, settings and norms led people to drift further away from the formal legal systems.
Moreover, when a verdict is delivered in a formal court, there is no scope to take the opinions of the parties about the solution to be given. But in the local system, parties are generally asked about the best possible solution according to their views. The very idea of “justice” is similar with “mutual understanding’ to most rural people. One male mediator puts it this way- “justice means to deliver a resolution after taking consent of both the confronting parties”<href=”#_ftn22″ name=”_ftnref22″ title=””>[22] .To them, it should be a participatory process where everyone involved will reach into a consensus.
In the eye of the law or to be specific, the formal legal system, all citizens are equal. But living in a stratified society, where social status plays an important role, this concept of ‘equality’ is unacceptable to the rural people. Therefore, whereas in a formal court the degree of punishment will depend on only the crime itself, in shalish the resolution will be different for different people based on their social background or status. For instance- “if a problem arises between a father and a son and if it turns out that the fault lies with the father, still, the shalish will rebuke the son for his misconduct. Behind the scene, the father will be told, ‘look, its your fault don’t let it happen again.’ Thus, both parties will go home happily”.
These particular issues are beyond the understanding of the formal court. Undoubtedly, for its elitist outlook and negligence to the norms or values deeply rooted in rural areas, in distant future, even if it is possible to eradicate other barriers such as the economic or political ones, these psychological barriers will remain as significant obstacles, keeping the access to justice through formal system as an elusive dream. All in all, these common problems regarding formal justice sector, getting mixed with the inertia or apathy on the part of the rural poor have started to withdraw them towards the informal system, where too, they have to face a lot of problems but at least the meaning of justice at informal system does not contradict their idea.
The NGOs have come forward to solve the problems that a traditional shalish faces. The role of NGOs in this case is quite praiseworthy. They have effectively campaigned for women’s empowerment. However, their success is limited but they are achieving success in a slow but steady pace. So far, their success is two folds.
First of all, through providing financial aid, they are giving the women a voice and in NGO-sponsored shalish, they are allowing participation of women (Ongoing Research, BRAC). However, what they lack is the acceptability of their action. In a particular case, after getting legal aid from BRAC, a woman was named “BRACer Beti” (BRAC’s daughter). In some cases, getting legal aid from NGOs is considered rather insulting. The next section specifically pinpoints the problems of formal justice systems as well as the informal shalish based on five stages provided by Anderson. It then recommends an integrated approach to access to justice for the poor.
2.3 CONSEQUENCES OF THE BARRIERS IN JUSTICE AND SOCIAL SYSTEMS AND ACCESS TO JUSTICE:
As defined earlier, access to justice includes certain stages, which starts with the right to bring the grievances before the court and end up with enforcement of the remedy achieved. Anderson (2003) suggests five stages of access to justice and they are- naming, blaming, claiming, winning and enforcing.
1: Stages of access to justice <href=”#_ftn23″ name=”_ftnref23″ title=””>[23]
Naming Identifying a grievance as a legal problem
Blaming Identifying a culprit
Claiming Staking a formal legal claim
Winning Getting rights and legitimate interests recognized
Enforcing Translating rights into reality
The barriers of the formal legal system that have been identified before play its part to make sure that access to justice is denied at every stage. As shown in stage 1 demands the identification of a grievance and the filing of it as a legal problem. Two things create problem in Bangladesh in doing so. First, certain grievances of rural poor are not even recognized by the court. For instance, laws related to marital rape, domestic violence are non-existent. The Children and Women Repression (Prevention) Act is also faulty. In most cases, instead of favoring women, it is abused by the husband’s families. Second, technicality of law is another problem. Language of law is not understandable and thus access to justice is denied.
Even when the problems related to the first stage is overcome; it only paves the way to the problems related to the second stage. It demands the identification of the criminal. The ineffectiveness of law enforcement bodies and unbridled corruption create hindrance in this stage and thus to access to justice.
If fortunately, someone becomes successful to overcome this hurdle, he has to deal with staking a legal claim. However, the anti-poor laws in the formal legal systems, negative attitude to the poor among many engaged in legal process and excessive bureaucracy create unwanted delay in processing a legal claim<href=”#_ftn24″ name=”_ftnref24″ title=””>[24]. Conquering those particular problems does not always present a success story. In case of the next step, which demands the recognition of legitimate interest, problems like delayed and derailed justice procedure, failure of the poor in countering the fake witnesses often does not bring the desired outcome.
The luckiest of the poor can reach up to final stage, which requires translating his/her right into a reality. However, barriers like corruption, lack of judicial independence and ‘abuse of political authority vis-à-vis law enforcing agencies’ can undermine the surety of implementation of justice delivered<href=”#_ftn25″ name=”_ftnref25″ title=””>[25].
Thus, following Anderson’s stages, the access to justice for the poor is denied in Bangladesh as mentioned below:
2: Access to Justice through Formal Legal System:
Bangladesh Scenario Stages Problems faced in Bangladesh Identifying a grievance as a legal problem Inadequate laws, too much technicality Identifying a culprit Ineffective law enforcement bodies, corruption Staking a formal legal claim Ant-poor laws, negative attitude, excessive bureaucracy Getting rights and legitimate interests recognized Delayed justice procedure, corruption Translating rights into reality Corruption, abuse of political power For rural poor, the formal legal systems, from 100-meter sprint, turns into a 100 meter hurdles.
The poor are not expected to finish the race without injuring themselves. This injury or fear of injury denies access to justice and forces them to move to the informal legal system. Until pretty recently and in some cases, still today, to the rural poor, in informal legal system, the most important dispute resolution center is the Traditional Shalish (TS).
However, the aforementioned barriers concerning informal legal system are basically due to change in mode of production. The control over TS has changed hand and so has its acceptability. In the past, a council of elders played the role of moral arbiters and settled dispute through shalish<href=”#_ftn26″ name=”_ftnref26″ title=””>[26].
As land was the only source of production, until some thirty years ago, the landowners were the most powerful and influential people and they constituted this council of elders. Societal relationships were patron-client based, in which, enjoying the higher socio-economic status; the landowners provided general support and assistance to people of lower socio-economic status<href=”#_ftn27″ name=”_ftnref27″ title=””>[27]. They were few in number and enjoyed landslide respect and command. The class structure was simpler and land based, consisting of only four- rich peasants, middle peasants, small peasants and landless<href=”#_ftn28″ name=”_ftnref28″ title=””>[28].
However, the post-80’s villages of Bangladesh had to gone through changes. The upgrading of Thana resulted in an “…emergent service sector, including trade and transportation”<href=”#_ftn29″ name=”_ftnref29″ title=””>[29]. By the 90s, due to capitalist investment, land has become more insignificant as a means of production. The number and nature of both the patrons and the clients have changed. The new power lords, now in one way or another, are involved in either local legislation or trade<href=”#_ftn30″ name=”_ftnref30″ title=””>[30] .
Now, the rural power holders are:
“1. Matbars (village headmen) controlling the informal institutions like Samaj (society), Salish and owning most of the land.
2. Union Parishad leaders controlling formal administrative institutions at local level.
3. Rural political elites representing different political parties at the grassroots level.
4. Government employees at the rural levels.
5. Economic elites controlling economic organizations like cooperatives, deep tube well management committees, shallow tube-wells, ration shops, fertilizer shops, etc.” <href=”#_ftn31″ name=”_ftnref31″ title=””>[31]
As a result, vested interests of both patron and client have changed. The “post” of shalishkers now can be achieved through money, political affiliation or involvement with the government. This trend has increased the factionalism between the villagers and decreased the acceptability of the patrons. Westergaard and Hussain in an analysis of rural power structure pointed out that in a particular village, whereas pre independence period saw only one “Samaj” and one acceptable leader, the number of “Samaj” and leaders have increased to ten in the 90s<href=”#_ftn32″ name=”_ftnref32″ title=””>[32].
This is affecting the access to justice through TS in two ways. First, as the number of influential person is increasing, the universal acceptability that they enjoyed previously is declining. Second, each influential person or a patron now has certain groups to please and certain interests to preserve- be it political or economic.
The stages of access to justice can look like this:
3: Access to Justice through TS: Bangladesh Scenario Stages Problems faced in Bangladesh
Identifying a grievance
None Identifying a culprit None
Staking a formal claim None
Getting rights and legitimate
interests recognized
Biasness, corruption, declining
acceptability of the patrons
Translating rights into reality Acceptability of decision taken
Here informality plays its part in first three stages but last two stages again are locking the door to justice for the poor. In this situation, we argue that if we can develop an integrated approach to access to justice many of the problems mentioned above may be eradicated or at least may be minimized.
JUSTICE DELAYED & JUSTICE DENIED
‘Justice delayed is justice denied’ is a very common adage in the judicial domain. It is one of the most burning problems in the administration of justice. This system of justice is so ambiguous and miserable for the mass people that it cannot be explained in a word. There are many instances that poor people who went to court to address their grievances after selling off their lands and property to meet the expenses of the court, but did not get justice in their lifetime. At present, the only demand of mass people is the speedy approach to justice.
Certainly ‘speedy approach to justice’ is gradually getting the status of an important human right which is also denied by some administrators in justice and the underprivileged people continue to be dominated by them. This day, the judiciary organ is an independent organ in our country from the executive. So, it is high time to adopt effective steps to dispense our justice as early as possible.
How much pain the delay process of justice involves need not be explained. This picture of justice is very much dreadful for our poor citizens. It is generally seen that a case is still hanging in court, which began more than one decade ago. There are many victims who don’t easily think of going to court seeking justice because they know it will take years to prove a clearly visible wrongdoer is the actual criminal.
Moreover, the impact of this unusual delay in disposal of cases falls on the victims. Due to delay in litigation, people become annoyed to obtain proper justice at any stage and also develop a negative outlook in their mind about the total judiciary schemes including judges, lawyers, associates and the administration of justice etc.
The process of delay in litigation is equally known to all and nevertheless it may sound inconsistent with due process of law. The fact remains that the very cases are misused and abused in order to delay cases for an indefinite period and ultimate success in the cause often proves false.
Now, law is an effective weapon in the hands of the state to mitigate the social needs by ensuring proper justice in time. Such effort of law is liable if justice fails to mitigate the misery of the mass people due to delay in litigation only and the faith in justice can never be instilled in the mass people if the state doesn’t ensure the speedy process of justice.
In the field of justice, delay in litigation is traditionally practiced in our country as like at the same time as denying due process of law. The result is that cases are piled up in all the courts hugely day by day.
Basically, the delay in litigation is incredibly practiced in civil courts. Our civil courts are governed by the Civil Procedure Code 1908 which was enacted during the British reign. But, after the independence, the government of Bangladesh had taken an attempt to accelerate the civil procedure system. The problem of delay in litigation including arrears of cases has been engaging the attention of the Law Commission for a long time and as a result of its recommendations made from time to time, reasonably wide changes have been made in the provisions of the Code in 1983 by making an Ordinance with a view to removing the causes of delay. Before such amendment Ordinance, there was no limitation to submit the court-fees and other relevant documents. But, by this Ordinance, the parties to a suit have to submit the proper court-fees with all relevant documents within 21 days after issue of summons and the plaintiffs have to submit all documents at the time of institution of the suit to focus on the cause of action.
On the other hand, there was no specific time for examination of the defendants/witnesses and in framing of issues before such amendment. But, after promulgation of the Ordinance, no time is be allowed for examination of the defendants/witnesses after 2(two) months and the court is bound to frame the issues within 15 days after examination of the defendants/witness. However, by the blessing of this Ordinance, the court is also bound to give the judgment of a case within 127 days from the framing of issues. While 120 days is fixed for hearing and after hearing, rest 7 days is fixed for giving the judgment. But, these changes seem to have had little impact.
Actually, delay in litigation is still prevailing in the field of civil justice. On the other hand in criminal area, it is usually seen that a person, from the date of arrest, is in custody without any trial for many days though it is not proved whether he is an offender or not. Crime increases only when the justice is delayed or do not take place. So, it is obviously a vital issue to change the present scheme of our legal procedure.
A number of causes seem to be responsible for creating this crippling situation in the way of our justice. An attempt has been made here to pinpoint some of the causes and suggest measures to remove them. It appears that the main causes of delay-Lack of good lawyers.
· The attitude of some of the lawyers is also to some extent responsible for delay.
· Accumulation of cases.
· Insufficient number of judges.
· Lack of proper observation of the provisions of the Codes.
· A large number of cases that come before the Supreme Court cannot be concluded hastily due to interpretation of legislative enactment in question.
· Delay in proper investigation or inquiry in a litigation.
· Variety of laws on a particular issue.
· Inadequate office equipment and machinery.
· Unreasonable absence of witnesses.
· Cumbersome execution procedure of decrees in civil cases.
· Lack of utilization of modern technology in keeping records and documents.
Actually, delay in litigation is practiced in our judicial domain for many days. So, it can’t be removed in a day. But, it is as much crucial an issue that our Government has to take immediate steps to diminish this problem. However, from my view, following steps can be adopted to change the current character of administration of justice: The atmosphere of justice must be corruption free. Adequate number of judges should be ensured. Justice administration system should be easy and not much expensive. Although the Constitution guaranteed equal rights.
WAYS TO AVOID DELAY
| The justice delivery system in our country is time consuming and unaffordable to the poor people to some extent. The existing regime of civil suits in Bangladesh is governed by the Code of Civil Procedure enacted in 1908. Since then little change has taken place. The legal system may very well be described as admirable but at the same time slow and costly and entails an immense sacrifice of time, money and talent.
The causes of backlog and delay of disposal of cases are systematic and profound. The legal system’s failure to impose the necessary discipline at different stages of trial of cases allows dilatory practice to protect the case life. A case usually takes about ten to twenty years to disposed of. It is learnt that nearly one million cases are now pending in different courts of the country. The break-up of this backlog is: 4,946 cases in the Appellate Division of the supreme court; 1,27,244 cases in the High court Division, 3,44,518 civil cases and 95,689 criminal case in the judges court and 2,96,862 cases with Magistrate courts and 99,004 cases with Metropolitan Magistrate courts. After years of controversy and frustration of the problem of administration of justice system, a new device needs to be chalked out. 4.1 Components of delay in civil cases: A great deal of delay occurs in summon service, processes filed by the parties are not promptly sent to the Nazi for service; unduly long adjournments are frequently granted as a matter of course for filing deficit court fees on plaints, process-fees, cost, commissions etc. Tardy practices are made in filing written statement; amendment of pleading even at belated stage; substitution of parties also causes delay of disposal of suits. Want of skilled lawyer and indifferent court is also a contributing device for causing delay of disposal of suits. 4.2 Components of delay in criminal cases: Absence of witnesses in the criminal cases even after repeated issuance of summons and warrants; driving out of the witnesses of the criminal case by the defense side in a collusive venture and connivance; absence of prosecutor and defiance lawyer; non-production of accused persons by the jail authority are the key component hindering speedy disposal of cases. Failure of producing the accused persons by the jail authority outside the districts on grounds of their involvement and being wanted in other criminals of the said districts for shortage of police escorts; ascendance of the accused persons and their voluntary surrender before the court in the middle of trial seeking for recalling of the witnesses already examined which cause the delay. Splitting up of the criminal records for simultaneous trial of the adult as well as juvenile offenders at two separate court; frequent hearing to the bail matters for the same accused persons; non-appearance of the magistrate recording the confessional statements of the accused persons even after repeated issuance of summons and processes; non-arrival of the Investigation officer even after exhaustion of all the process; non-compliance of warrants by the police personnel; non-appearance of the expert witnesses for proof of the expert reports and dilatory tactics of the defense lawyer etc are the usual components of delay in the disposal of criminal cases. These are the common causes of delay, which are generally faced by the Sessions, Special and Tribunal Judges during the trial of criminal cases. Court supervision and monitoring A consensus has emerged that a docket can be current only when a judge supervises the scheduling and progress of all steps of the case with systematic case management. Once a litigant invokes the jurisdiction of the court, the court has the responsibility of pressing the lawyers and litigants to prepare the case for adjudication without delay. The court’s loss of control over the litigation invariably leads to procedural inactivity.In reality, each case is to be supervised throughout its life with no unreasonable interruption in its procedural development. Monitoring can play the pivotal role for improved court administration and case management. In terms of monitoring, the District & Sessions Judges may hold the key position in the lower judiciary and as such their responsibility to enhance improved court management is a must. 4.3 Quarterly sitting arrangement: Interaction with Bar in respect of related matters; Co-ordination with the Judges of Subordinate court; Monitoring in terms of providing logistic support. Here logistic support includes skilled staff, necessary Stenographer/Typist, accommodation of office and residence and transport facility of the judges. 4.4 Time saving device: By applying the time saving devices we can save more time. As it is seen in the different stages of the suits/cases there are some time killing matters. Those stages can be avoided or minimized by the presiding Judges by applying the appropriate means. 4.5 Introduction of informal justice system: Alternative dispute resolution system can be strongly recommended to overcome those setbacks and delays beside the formal justice system in order to eliminate the endless sufferings of the poor litigants. This new device can be developed by practicing dispensation of justice in traditional methods like mediation, conciliation and arbitration. For the first time in our legal system the provisions with regard to ADR has been introduced by amending the code of civil procedure. In chapter V of Artha Rin Adalat Ain, the provisions of ADR have also been incorporated. Certainly, this concept is denovo in our Civil Justice Delivery System. Case categorization system For the purpose of filing and record, cases will be classified according to subject matter/type and possibly also value and age. This could help with the consolidation of similar types of cases for hearing and disposal by the judge at the same time and assist the case tracking and case flow management finally resulting in expeditious disposal of suits and cases. 4.6 Effective legal aid system: The main objective of legal aid system is to promote access to justice and ensure justice for all without any discrimination. By providing legal aid system a good number suits and cases can be disposed of at it’s earliest. A large section of justice seeking people is being hindered to proceed with their cases for financial constraints. In this circumstance, the effective legal aid system can play a vital role to minimizing the number of suits/cases pending before the court of law. 4.7 Comprehensive legal reforms: The government has already introduced Alternative Dispute Resolution (ADR) in judicial system by amending the civil procedure code. ADR introduced earlier in family courts of 15 district, as pilot project has been proved successful. Another reform as to formation of monitoring cell to discuss and highly sensational cases for quick disposal has also proved effective. The government is the major litigant in this country, either as plaintiff or dependent. Under PO No. 142 of 1972, the government is a necessary party in all title suits for specific performance of contract and so on. In many cases the government does not make any appearance. The government is thus responsible in many cases to prolong the litigation. To shorten the case life and to stop hesitation on the part of government PO 142 of 1972 should be amended. Major reforms in our legal system are necessary for ensuring speedy justice. The fundamental aim or motto of the judiciary is to ensure justice within shortest possible time. Judiciary plays a co-ordination role between other two organs of the state. It’s role is not limited therefore merely in settling disputes within the four walls of the court room in between two disputants. The judiciary cannot be oblivious of the social consequence that may follow from what it decides and how it decides. Finally, it may be pointed out that no solution of the problems will ever be effective unless and until the parties including their advocates and also the judges come forward with all sincerity to end litigation in due time. Only then the maxim of equity which goes to say that justice should not only be done but must be shown to have been done will come into reality. |
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ADR IN BANGLADESH:
Alternative Dispute Resolution, mostly applied to civil cases. When a civil case is instituted in a court of competent jurisdiction, the scenario usually is, that a long time is taken to serve the process, the defendants beat the law and submit their written statement/s after a long delay beyond the permissible statutory period of two months, lawyers and judges do not take any interest in screening out a false and frivolous case at the first hearing of the case under Order X CPC (in fact no such first hearing takes place), they seldom try to shorten the disputed questions of fact and law by application of Orders XI and XII of the CPC and mostly ignore the elaborate procedure of discovery, interrogatories, notice to produce etc. contained in those Orders, the issues of a case are seldom framed following the Code of Civil Procedure, the case takes several years to reach a settlement date and on the date of positive hearing half a dozen or more ready cases are fixed for hearing, resulting in the hearing of none.
In the meantime years roll by, presiding judge of a single case is transferred a number of times, witnesses of a single case may be heard by more than one presiding judge, arguments are listened to may be by another presiding judge and judgment may be delivered by a presiding judge who had had no connection with the case ever before. Our legal system has thus been rendered uncaring, non-accountable and formalistic. It delivers formal justice and it is oblivious of the sufferings and woos of litigants, of their waste of money, time and energy and of their engagement in unproductive activities, sometimes for decades.
When they win a case the result is much worse than winning it. When they lose a case they lose not only the subject matter of the dispute, but also a good part of their fortune. If interlocutory matters are dragged up to the appellate or revisional courts, their woos know no bounds and their agonies are prolonged for an indefinite period. Appeals from trial court decrees may reach unto the Appellate Division by which time the parties are thoroughly drenched in misery. When a decree is thus obtained after protracted litigation, it does not end there. Execution proceedings then re-starts a fresh litigation between the parties or even their su