Supreme Judiciary must take bold steps to get rid of backlog of cases. Explain & Illustrate
Introduction
Once in a rainy evening Mobbat Ali and Kumkum Begum was drinking tea in front of their veranda. Suddenly, Salam came in their house. Salam was previous lover of Kumkum. Without any warning Salam allegedly shot Mobbat, Mobbat died on the spot. After that Kumkum submitted a case in Police station. As time passed way but the herring of the case did not occurred in court. After 10 years Kumkum died in a road accident and the case file of Mobbat Ali closed. Kumkum was unable get the justice from the court because the court is already dealing with so many cases. The named this problem is called Backlog Case.
In short form “Backlog cases are those cases which are ready for trial but yet to be disposed of and without any definite time for disposal.” [1]This problem is increasing very rapidly. At this moment, Victim needs to wait more than a year to get justice from our judicial system. More and more cases are submitted then the clearance rate of the cases. This is one of bad problem that our judicial system is facing.
The backlog case is a barrier to prevent general person to getting any support from legal system of Bangladesh. Now a day the situation becomes so bad that most of the people in the society do not have any faith on legal system. Most of the people think that law is for rich people not for poor people. As a result crime, corruption and illegal activity of unethical person has increased so rapidly that beyond imagination.[2]
In this research paper I will try to found out the way by which our supreme judicial can take bold step to resolve this backlog of cases from our judicial system.
History of Judicial System of Bangladesh
This history of judicial system of Bangladesh is approximately two hundred year old. Judicial system of Bangladesh mainly first established by British East India Company. It passed through various stage of Development. “The legal system of the present day emanates from a mixed system which has structure, legal principles and concepts modeled on both Indo-Mughal and English law.[3]
Existing judiciary system was created by Part VI Chapter I of the Constitution of Bangladesh adopted in 1972.[4] “The Constitution establishes the judiciary as a separate branch of government composed of a Supreme Court and subordinate courts. The Supreme Court consists of an Appellate Division and a High Court Division, which are separate in their composition and functions. The Supreme Court is headed by the Chief Justice; with judges[5] appointed by the President as members[6]. They are independent in the exercise of their judicial functions. Tenure of office[7], procedure for removal from office, independence in the performance of judicial functions, and compensation are all guaranteed and assured by the Constitution.
Current Situation of Backlog Cases
Current situation of Backlog is too bad. The pending rate of the cases is higher than the clearance rate of case from the judicial system. As a result the problem is getting bad day by day. In total daily our judicial system can resolve 150 Cases daily and currently in total daily 250 cases submitted to the court.[8]
Why Supreme Judiciary must take bold step
Due to the following reason our Supreme Judiciary must take bold step:
1) People Confidence: Supreme Judiciary must take bold step so that people will have a confident on our judicial system.[9]
2) Control corruption: To control the rate of corruption supreme judicial must take bold step to resolve backlog case problem.[10]
3) Political Leader accountability: Supreme Judiciary must take the bold step to resolve this issue so that political leader will accountable for their work.[11]
Reason of the problem
Reasons of the problem are following:
1) Infrastructure support[12]: Currently. There were not enough infrastructure support and expertise at district levels to submit forensic evidence. Due to absence of this type of support rate of backlog cases increased.
2) Absence of Proper Witness Parties: Currently, Most of the time witnesses that were presented in court are not proper witness for the case. As a result, the court takes time to resolve a particular case.[13]
3) Transfer of Judge: This type problem in which the judge of the case got transferred without solving the case.[14]
4) Absence of Lawyer & client accountability: Currently, most the time lawyer and client are not accountable to their job. Client sometimes provide false information and lawyer sometimes tries to make hearing time longer to earn more money from the client.[15]
5) Political Influence: Currently, In Bangladesh most of the time it has been seen that political government always tries to use the legal system against it opponent party. This kind of activity also increased the rate of backlog cases in our judicial system.[16]
6) Discrimination in Legal System: The researcher identified various forms of discrimination, one being discrimination of indigenous people and minorities, and another being gender discrimination.[17]
7) Weakness in Criminal Justice system: Two major weakness of our judicial system is the investigation of case and disintegrated public prosecution system. As the investigation system too slow and public prosecution system is not effective, for this reason the problem of backlog cases increased.[18]
Bold Steps of Supreme Judiciary are following:
v Effective case management by Judges and Magistrates[19]: Case management by Judges and Magistrates should be effective and efficient. Supreme Judiciary Bangladesh must take an initiative so that there will be a performance evaluation method established for Judge and Magistrate.
v The setting up of specialized tribunals: The supreme Judicial should setup some special tribunal to deal with the case. They may setup a categories tribunal so that it will take less time to resolve a case.
v Increase number judge in judicial system: Supreme judicial must take bold step to assign new judge in judicial system so that it will take less time to resolve a problem.[20]
v Four-tier system of judiciary: [21]Supreme Judiciary can take step reform our judicial system from two tier two four tier system. So that our system will be decentralized and judicial work by Judge and lawyer will be faster and flexible.
v Strengthens court administration[22]: Strengthens court administration and reduces delays, improves case management, installs a court management information system and automation.
v Computerize System: Computerize judicial system can reduce backlog case problem and increased the efficiency of Judicial system.[23]
v Strengthen the public prosecution service: The supreme judicial must take some step so that public prosecution service will get strength to solve a case. Public prosecutor should get enough power so that they justify the work investigation process and if they found any loophole then they can take the correct step to solve the problem. [24]
Conclusion
In our judicial system backlog cases are one of most vulnerable problem. The rate at which this problem is increasing is quite disappointing.[25] Solving this problem is forceful, lengthy and challenging task for supreme judiciary. Our supreme judiciary cannot alone solve this problem but it can take first step to solve this problem. Step mentioned in above cannot resolve the problem fully but it can reduce the rate of the problem and it will help the judicial system to get people confidence.
Bibliography
Ahmed, B. M. (n.d.). Strengthening the Criminal Justice System. ADB Regional Workshop. Dhaka: ADB.
Alam, D. M. (2010, February 2). Problems of delay and backlog cases. The Daily Star.
Asiatic Society. (2007). Legal & Judicial System. In Banglapedia.
Biswas, Z. I. (2008, June 28). Judiciary must take bold steps to get rid of. Law and Our Rights,The Daily Star.
Biswas, Z. I. (n.d.). Access to Justice through State-led Rural Justice System in Bangladesh: A Case Study in Kansat Union Parishad.
Bari, H. .M. Fazlul. 2004. Separation of Judiciary How long will it take? Retrieved from: http://www.thedailystar.net/law/2004/08/04/vision.htm
Constitution of Bangladesh. (2005).
Downey, K. (2007, April – June). Sequenced Reforms as a Response to Governance Challenges in Bangladesh. Asian Affairs, pp. 40-59.
Ferdouci, N. (2009). Bengali language situation in the judicial system in Bangladesh. The Dhaka University Journal of Linguistics, 53-68.
Garner, B. A. (2001). Black’s Law Dictionary. Black’s Law Dictionary.
Government of Bangladesh and the United Nations Bangladesh Country Team. (2005). Millennium Development Goals, Bangladesh Progress Report 2005. New York: The United Nations.
Hoque, K.E. 2003. Judiciary. In Banglapedia. 6,Dhaka: Asiatic Society of Bangladesh
Hussain, M.M. 2003. Reporting on bail requires thinking. The Daily Star. Retrieved from http://www.the dailystar.net/law/200306/04/corridor.htm
Jahaid, D. (2004). Challenges Facing Bangladesh’s Justice System: Prospects of Adaptations of Restorative Justice System in Bangladesh. News From Bangladesh.
Jalil, L. R. (n.d.). The judiciary and its importance. Law & Our Rights,The Daily Star.
Ministry of Law. (2010, Octobor 9). About Bangladesh. Retrieved Octobor 5.30 PM, 2010, from Ministry of Law: http://www.minlaw.gov.bd/aboutbangladesh.htm
Rahman, J. S. (n.d.). Strengthening the Criminal Justice System. ADB Regional Workshop in Dhaka.
Rahman, J. S. (n.d.). Strengthening the Public Prosecutorial Service. Dhaka: ADB Regional Workshop.
Rahman, Mizanur. 2000. Governance and Judiciary. Governance: South Asian Perspective (Eds. Hye, Hasnat Abdul). Dhaka: University Press Ltd.
Rahman, M. Ziaur. 2005. Separation of Judiciary from the Executive. A monthly Current Affairs, January-2005. Dhaka: Professors Publishers Ltd.
Saha, B. C. (2005, July 6). Cleansing Drive on to Oust Corrupt Cops from Capital. Retrieved Octobor 9, 2010, from New Age BD: http://www.newagebd.com/2005/jul/06/front.html#3
Shahiduzzaman. (2006). SC Refuses Govt Appeal for More Time on Judiciary Separation. New Age BD.
Supreme Court of Bangladesh . (2010, October 6). Retrieved Octobor 7, 2010, from Wikipedia: http://en.wikipedia.org/wiki/Supreme_Court_of_Bangladesh
The Office of Chief Judge of Sabah and Sarawak. (2008). acklog of cases – definition and disposal from the perspective of the high court Sabah and Sarawak. Kuching, Sarawak, Malaysia.
Wahhab, P. M. (n.d.). Judicial reforms for good governance in Bangladesh. Chittagong, Bangladesh: University of Chittagong.
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[1] Backlog of cases – definition and disposal from the perspective of the high court
[2] Rahman, J. S. (n.d.). Strengthening the Criminal Justice System. ADB Regional Workshop in Dhaka.
[3] Section 6, Bangladesh Laws (Revision and Declaration) Act 1973
[4] Constitution of Bangladesh, Part VI, The Judiciary
[5] A judge must: (i) be a citizen of Bangladesh; and (ii) be an advocate of the Supreme Court for not less than 10 years; or have held judicial office in the territory of Bangladesh for not less than 10 years; or have such other qualifications as may be prescribed by law for appointment as a judge of the Supreme Court.( Constitution of Bangladesh, Part VI, The Judiciary)
[6] The President appoints the Chief Justice independently (Art. 48 [3], Constitution) but relies on the advice of the Prime Minister in appointing judges (Art. 95, Constitution).
[7] Removal from office is possible only on the recommendation of the Supreme Judicial Council consisting of the Chief Justice and the next two senior judges.( Constitution of Bangladesh, Part VI, The Judiciary)
[8] Biswas, Z. I. (2008, June 28). Judiciary must take bold steps to get rid of. Law and Our Rights,The Daily Star
[9]It will also ensure human rights. Backlog of cases obstructs the ‘access to justice’ which is considered to be the ‘most basic human rights’, as ‘access to justice’ does mean not only the presence of justice mechanisms like courts, tribunals etc. but also the ability of those mechanisms to deliver affordable and timely justice to the citizens. (Biswas, Z. I. (2008, June 28). Judiciary must take bold steps to get rid of. Law and Our Rights,The Daily Star.)
[10] Downey, K. (2007, April – June). Sequenced Reforms as a response to governance challenges in bangladesh. Asian Affairs, pp. 40-59
[11] The intransigence of the bureaucracy makes it nearly impossible to hold political leaders accountable for making good on their campaign promises. Nor will it allow for the improvement of sectors that would allow the government to deliver socially beneficial services such as education, healthcare and a general rule of law. (Downey, K. (2007, April – June). Sequenced Reforms as a response to governance challenges in bangladesh. Asian Affairs, pp. 40-59)
[12] Alam, D. M. (2010, February 2). Problems of delay and backlog cases. Law & Our Right,The Daily Star.
[13] Biswas, Z. I. (2008, June 28). Judiciary must take bold steps to get rid of. Law and Our Rights, The Daily Star.
[14] Transfer of the judges, often meaning that the same judge who heard testimony may not decide the dispute, taking away thereby much of his incentive to push forward the proceedings to judgment and seriously impeding the process of continuous trial; the new judge may have to repeat some of the procedural requirements already fulfilled.(Alternative Dispute Resolution, Bureau for Global Programs, Field Support, and Research)
[15] See Footnote 12
[16]. Millennium Development Goals Bangladesh Progress Report 2005. The United Nations, 2005.
[17] Challenges Facing Bangladesh’s Justice System: Prospects of Adaptations of Restorative Justice System in Bangladesh By Delwar Jahaid, News From Bangladesh
[18] Barrister Moudud Ahmed,Key Note Speech in Strengthening the Criminal Justice System From the ADB Regional Workshop in Dhaka, Bangladesh, 30–31 May 2006
[19] See Foot note 1
[20] Meritorious and efficient persons should be appointed the judges of higher Courts. But it is alleged that almost all judges of High Court Division of Supreme Court have been appointed on political consideration neglecting merit and efficiency. (Judicial reforms for good governance in Bangladesh, Prof. M. Abdul Wahhab, Ph D,University of Chittagong, Bangladesh)
[21] The existing two-tier system of judiciary may be converted into four-tier system. They, in descending order, are: 1) Supreme Court at the center.2) The present High Court Division of Supreme Court may be decentralized to the division levels (upper unit of field administration) as independent High Court by upgrading existing 6 divisions into provinces.3) District court at the district level; and 4)Upapila (sub-district) court at the upapila level and the similar court in the metropolitan areas. This will serve two purposes. Firstly, upazila court will lessen the burden of district court and secondly it will act as the controlling and supervising authority of village level courts. ( Wahhab, P. M. (n.d.). Judicial reforms for good governance in Bangladesh. Chittagong, Bangladesh: University of Chittagong)
[22] Challenges Facing Bangladesh’s Justice System: Prospects of Adaptations of Restorative Justice System in Bangladesh By Delwar Jahaid, News From Bangladesh
[23] See foot note 19
[24] Public prosecutors in Bangladesh have no control over the investigation; such control lies with the magistrates. There is no separate corresponding wing in the executive police. The duties of the public prosecutor commence with the appearance of the accused before the courts.(Justice Shafiur Rahman,Key Note Speech in Strengthening the Criminal Justice System From the ADB Regional Workshop in Dhaka, Bangladesh, 30–31 May 2006)
[25] See foot note 13