Work process:
Delay in suit is a great problem in Bangladesh. Country like Bangladesh where more than 35% of people live under the poverty line, this can be in a one word disaster. Where people go to the court to stabiles their right but they don’t get that because of delay in suit.
It becomes a bigger when backlog problem we get in civil nature suit that means in civil suit. In civil suit parties come to court to ensure their rights or get some things which they are entitle to get. But never have they got that when they ask fir that. Its takes long time for some reasons.
Here I try to find out some reasons and ways to over come those.
Fast of all I mention those problem then I put some solution but those are not the permanent solution so in the next part I have discus with some which can maintain the flow of case . after that I have mention some step and some step which are taken by the supreme court to reduce the backlogs in cases.
Introduction:
Delay in our judiciary has reached a point where it has become a factor of injustice, a violator of human rights. Praying for justice, the parties become part of a long, protracted and torturing process, not knowing when it will end. Where it should take one to two years for the disposal of a civil suit, a case is dragged for 10 to 15 years, or even more.
Court congestion resulting from delay in disposal of cases is a serious problem for the countries like Bangladesh as well as other countries of the world. In Bangladesh in the Supreme Court alone more than half a million cases of different nature have remained pending for years. The situation is not different in the district courts of various jurisdictions where number of pending cases is around two millions. The researchers found that even if all the courts ranging from the court of the magistrates to the Supreme Court stop accepting any new case from today then also it will require another 50 years to clear up the backlogs.
In the legal arena throughout the world the proposition was earlier that justice delayed is justice denied but with the lapse of time attitude of people has been changed and now any delay in the disposition of justice is regarded as injustice to persons seeking justice before the court of law. In the modern world civilization and development of a country is measured by the pattern and system of judicial administration of that country. Administration of civil and criminal justice system is the part of the overall judicial system of the country. Nowadays the issue of delay in the dispensation of justice is a matter of great concern in Bangladesh.
Delay in the dispensation of justice is regarded as main laches in the judicial system of Bangladesh. The unusual delay in the trial of civil cases has made justice an imaginary matter. Delay in disposal of cases on the one way makes justice expensive and on the other way long dependency contributes to the material change of the subject matter of the disputes and lack of both oral and documentary evidence resulting in justice being either impossible or valueless which ultimately indulges corruption. Delay in disposal of cases makes room for non-confident attitude of the people towards the judicial system of the country. There is no other alternative to make the judicial system meaningful and trustworthy to the people without ensuring speedy and fair dispensation of justice.
Delay in case disposal:
The judiciary is one of the important organs of a state. Its success depends on the honesty, sincerity, impartiality, knowledge, wisdom, efficiency and experience of judges, magistrate, police personnel, prison personnel, person working in the social welfare department and also non-governmental organizations.
In order to keep pace with the socioeconomic development in national spheres, the judiciary must be dynamic, sound and capable to meet the requirement of the time. Judges, magistrates and all the functionaries connected with the judiciary must have the commitment for the cause of justice and sense of dedication for the people and must rise to the occasion for ensuring speedy, inexpensive and substantial justice to the common people.
For finding out the causes of delay in the dispensation of justice and also to ensure speedy and fair justice to the people earlier several initiatives were taken and valuable recommendations given. But it is the bare reality that such initiatives ultimately failed to achieve success in the absence of sincere implementation of the programme.
he reasons for delays in our civil justice system are both systemic and subjective. They may be identified as follows:
01. Trial system :
Common law oriented adversarial or accusatorial character of the civil process as against inquisitorial as practiced in continental Europe, meaning that the litigation is party-controlled which provides wide maneuvering power to the lawyers, and presupposes lesser initiative and relative passivity of the judges.
02. Tendency
Pendencey of a larger number of cases in the courts in comparison with the number of courts… In our courts there is no consistency between the numbers of judges with the number of pending cases. In some courts the number of cases is abnormally high but in some courts the number is insignificant.
03. Absence of specialized type of courts
At present different types of cases such as land disputes, family disputes, commercial disputes, disputes relating to loan recovery, specific performance of contract cases are tried by the court of assistant judges and subordinates and additional district judges. But as the present decade is the decade of specialized knowledge so if the existing courts could be earmarked as specialized courts in accordance with the nature and class of pending cases then that would increase the volume of disposal of cases and also make improvement in the quality of justice and the quicker dispensation of justice. In the metropolitan areas the number of cases in the courts is excessively high. In each court of subordinate judge thousands of cases are pending for years together. As such on experimental basis specialized court system may be introduced firstly in the metropolitan areas earmarking each court to try same nature and class of cases. In any case number of cases in one court should not be more than one thousand and where in several courts of assistant judges the number of cases is less than one thousand therefrom by way of administrative order some courts are to be withdrawn and to be transferred to places where the number of cases is excessively high. If courts are located in comparison to cases instead of regions by manning those with the persons having specialized knowledge to try special types of cases then undoubtedly that would ensure speedy disposal.
04. Laches in the procedural laws:
In our procedural law although there are provisions for chronological advancement of cases but there is no compulsion for maintaining a timeframe for each chronological step. A case arrived at peremptory hearing after long journey can be brought back again to primary stage by any of the parties without any reasonable excuse by taking the advantage of absence of compulsion.
05. Lack of dutifulness of the presiding judge
Sometimes presiding judges are found allowing frequent adjournments without considering the hardship of adversary and also fixing dates of examining witnesses with a gap of more than a month but if undue adjournment can be reduced and if adjournment is not sought on the personal ground of illness of the conducting advocate and also if witnesses are examined non-stopped prior to closure of evidence in one particular case and in cases of exceptional circumstances in part heard cases if adjournment not exceeding one week is allowed then that may contribute to the speedy disposal of cases.
06. Lack of proper supervision
Lack of proper supervision over function of the courts either by the superior courts or by the court itself… If the courts of magistrates are regularly supervised by the chief metropolitan magistrates and chief judicial magistrates and the courts of assistant judges and subordinate judges by the district judges and both subordinate judges and magistrates by the Supreme Court then that would ensure discipline and orderly manner amongst the presiding judges and remove bottlenecks and irregularities occasioned in any stage of the case. If the court in the districts can be inspected once in a year then that would have immense bearing over improvement of the administration of civil and criminal justice.
07. Lack of sincerity on the part of lawyers
In Bangladesh in the absence of authorized soliciting system some of the lawyers compromising with the ethical responsibility are in the habit of accepting as well as filing cases which do not in the reality constitute any ground for placing before the court of law for adjudication resulting in pilling of cases. If those handfuls of lawyers cherish the ethical sense in true sense of the term then only cases involving real question of law and fact will come before the court resulting smooth growth of morality and ethics in the mind of the lawyers representing parties in different courts ranging from of the court of magistrates to the Supreme Court. Besides, lawyers should also be sincere and honest to the best of their ability so as not to seek adjournment on the ground like engagement in any other court, remaining away from station on any person ground, absence in the court on the ground of ordinary illness etc.
08. Complexity in the service of summons
Complexity in the service of summons in civil cases and unconditional privilege of filing petitions of amendment of plaits, submission of additional written statements and other interlocutory petitions at any stage of the suit… In the cases of service of summons in civil cases sometimes there is misuse of both money and time. Without affecting the existing system of service of summons through court and registered post on the basis of consent of the plaintiff summons may be served by publishing the same in the newspaper like that of commercial courts and where the plaintiff agrees to execute the same on his own initiative there he may be assigned to do the same. However, this would necessitate bringing in amendment in the procedural law. In addition to that unlimited privilege enjoyed by the parties with regard to filing of different petitions including that of interlocutory, amendment of plaints and written statements affects the usual course of case and unless extreme exigencies arise it is desirable to cut those privileges after passing through initial stage of cases. In special circumstances provision for such permission may be given to the next higher court by amending the necessary provision of procedural law. Apart from that there should be a fixed time frame for each stage of cases by inserting provision that any laches at any stage would adversely affect the interest of the party seeking step beyond the time frame.
09. Lack of coordination
Lack of coordination amongst different branches of prosecution in the trial of criminal cases and separate investigating agencies… Investigation is regarded as the heart of criminal trial and if the investigation is faulty with all fairness it is not possible on the part of the presiding judge to ensure proper dispensation of justice. So far Bangladesh is concerned investigation is carried out by the age-old system. Separate investigation police equipped with modern technology can make considerable improvement in the investigation process. The other factors which can help lot in the process of fair trial is accountability of witnesses who must not deviate from original stand at any eventuality and the prosecutors are to be capable of discharging their duties assigned with each individual case with high sense of morality, ethics, and integrity. While appointing prosecutors due emphasis are to be given in their quality, integrity and length of service after a report to the effect is given both by sessions judge and district magistrate and in any case not upon any political consideration. Besides in each district there shall be facilities for chemical examination and analysis. Like other countries of the world creation of prosecution cadre and bringing all trial magistrates under the direct control of the sessions judge can also make improvement to the desired extent in the administration of criminal justice and would also ensure proper coordination.
10. Lack of logistics for the judges
In Bangladesh many courtrooms are dilapidated, many presiding officers are not provided with steno-typist, many courts are functioning without having type machine, many presiding officers are attending courts on foot in absence of transportation facilities and many courts are not yet provided with computer. All those have already been ensured on our neighboring country and regarding Presiding judges all have been made accessible to computer by imparting training. In this respect an honest intention on the part of the government can ensure better result with significant improvement in the process of delay.
11. Lack of knowledge
Admissions of appeals, revisions and criminal miscellaneous cases without due consideration… The detail guidelines are given in the Civil Procedure Code as to what orders are appeal able and what are revisable and also in which cases prayers for bail to be sought. But some lawyers are found to be very liberal in accepting briefs of the clients and prefer appeals, revisions and miscellaneous cases in cases which do not call for preferring such claims. Sometimes it is found that after rejection of bail petition with due consideration of all the points the same bail petition on the self same grounds and apparently on not any new ground is moved for admission in a span of less than a week. Where the district and sessions judge is well-versed, law knowing, capable of handling things in well manner, prompt and efficient, there it is found that the rate of admissions of appeals, revisions are comparatively much low in comparison to original cases against which those relief’s are sought. So if both lawyers and district and sessions judges are respectful to each other and carefully examine law before going for filing of cases in the case of former and before admitting the matter in the case of later then only cases involving real questions of law and fact will come before the court resulting summary disposal of more than 50 per cent of matters at the very outset.
12. Absence of system for diversion of cases
Diversion is a very popular concept in the western world and by resorting diversion petty criminal and civil cases can be resolved by way of alternative dispute resolution and there are three fold benefits of the alternative dispute resolution namely (1) it reduces the court congestion; (2) it minimises the cost of litigation and (3) it saves time.
13. No use of ADR
In seeking solutions through alternative dispute resolution role of judges and lawyers representing the parties is very important. It is the lawyers who are to convince the parties that solution of the disputes outside the court is for the mutual benefit for them as it is cost effective and time saving. Initiating of resolving disputes may come from the presiding judge but while initiating such settlement the judge must be very careful so as to guard the chair from slur of any nature.
14. Rotation and transfer of judges:
Rotation and transfer of 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 judgement and seriously impeding the process of continuous trial; the new judge may have to repeat some of the procedural requirements already fulfilled.
15. Scope for frequent amendments
Scope for frequent amendments of the plaints and written statements at any stage of the trial.Absence of lawyer-client accountability giving the lawyer monopoly to conduct the case the way s/he considers best suited to her/his own interest, even to linger and delay the process.
16. Lack of strict adherence
Lack of strict adherence to time-frames or time-limits prescribed by laws (e.g. Section 339C of CrPC; Order VIII Rule 1, Order XVIII Rule19 of CPC; Section 20 of Nari O Shishu Nirjatan Domon Ain, 2000; provisions on speedy trial court and tribunal) for the proceedings and disposal of suits at different levels, and skipping them by various exception and extra-ordinary clauses. The problem is accentuated by the controversy of directory or mandatory character of the time-limit provisions, and Supreme Court judgements (i.e. Fazlul Haque vs. Tohed Ali 47 DLR 326 and Lal Mamud vs. Seraj Miah 45 DLR 638) on the directory nature of most of such provisions.
Above reasons and conditions exist in a long win or lose battle where the parties fight in a ‘do or die’ manner with no or little perspective of any consensual settlement move coming from any side which could steer the dispute to win-win resolution. Consequential frustration, desperation and costs become too expensive for any judicial system to sustain.
So far we have tried to find out the causes of delay and it is apparent that Bangladesh like other countries of this subcontinent as well as other third world countries is faced with the serious problem of backing of cases and all these cases accumulated as our judicial system in absence of proper court management system could not keep pace with the filing and disposal of cases. This has resulted court congestion in Bangladesh. Age-old trial system also contributes lot towards court congestion. Unnecessary delay attributing court congestion diminishes the chance of achieving justice and increases the cost of litigation. Owing to delay evidence can be lost, witnesses become unavailable and actual value of the judgement is reduced.
Recent research carried out in the countries having advanced judicial system reveals that delay is not inevitable. Judges, administrators and people involved in the litigation now know that justice is enhanced when a court supervises case-progress from the time of filing, sets meaning events and deadlines throughout the life of the case and provides credible trial and hearing dates. By adopting the principle and techniques of effective case flow management courts throughout the country can dramatically reduce backlogs and time to disposition.
In Bangladesh in the Supreme Court alone more than half a million cases of different nature have remained pending for years. The situation is not different in the district courts of various jurisdictions where number of pending cases is around two millions. The researchers found that even if all the courts ranging from the court of the magistrates to the Supreme
Steps to reduce Backlog in Our Judiciary
JUDICIARY of Bangladesh is caught in a vicious circle of delays and backlogs. Backlog of cases causes frustrating delay in the adjudicative process, which is eating away our judiciary. While delay in judicial process causes backlog, increasing backlog puts tremendous pressure on present cases and vice versa. This process goes on with no apparent remedy in view. Present rate of disposal of cases and backlog is alarming for justice, rule of law and economic development of the country.
Our judicial and legal system has a rich tradition of common law culture and it can boast of a long record of good delivery of justice. Like any other legal system, common law with its adversarial or accusatorial features, has both its merits and demerits. But in recent years, certain objective and subjective factors have led our judiciary to a situation where its demerits are ruling over the merits, manifesting in crippling backlogs and delays. Delayed justice fails to pay even the winning party of the litigation, for its costs in terms of time, money, energy and human emotions are too high.
Earlier, moves had been made to clear the procedural blockages of our civil justice system though success could not be achieved. Mere amendments of the CPC within the existing trial philosophy may not be the best way to look for the gateway in the blind-alley. Before it is too late, innovative approaches are needed to live upto the uphill tasks of reconstructing our judiciary.
Foregoing discussions laid the basis for making certain recommendations to overcome the problems of delay.
1. The number of courts to be set up in comparison to number of cases. There should not be more than 1000 cases in any court and this problem can be solved so far the cases pending in the district courts with the existing strength of judges and magistrates by temporarily transferring a court from a place where insignificant cases are pending to a place where larger number of cases are pending. In case of the Supreme Court this can be solved by appointing a handful number of additional judges for a temporary period within the existing provision of the constitution.
2. Specialized Courts are to be established up to the level of additional district and once courts are specialized the courts of additional district would be bifurcated and each court would be earmarked to try particular type of cases. This practice should also be introduced in the courts of assistant judges by classifying same nature of cases into one group and earmark either of the aforesaid officers to try cases falling in one particular group.
3. There should be provision for maintaining timeframe for each chronological step ranging from filing of the case to disposal of the case.
4. Proper service of summons can be ensured without affecting the existing system by entrusting the plaintiff on the basis of his consent to execute service of summons upon his adversary. This can also be done by publishing summons in the daily newspapers as is done in commercial cases.
5. After reaching of the cases to peremptory hearing no interlocutory applications and petitions relating to amendment of plaint and written statement should be entertained unless there is grave urgency and this should be ensured even by amending the necessary provisions of the procedural law.
6. Witnesses are to be examined unstopped once recording of evidence starts and adjournment should be allowed only when there is genuine ground but it should not be in any case more than a week. Judgements of both civil and criminal cases have to be passed within 15 days of argument and it should be maintained under any cost.
7. Timeframe fixed for concluding investigation and trial of criminal cases should be made mandatory and if any investigation or trail could not be concluded within the specified time frame then the concerned persons should account for that and provisions shall also be made for dismissal of the cases hit by time limit.
8. The practice of inspection of court by the presiding judge himself and also by the superior courts has to be done at least once in a year and the irregularities detected at the time of inspection are to be removed forthwith. The annual inspection report of district and sessions judges and also judges of the High Court Division if done annually are to be given proper attention by the authority concerned and in the inspection officers found efficient are to be properly evaluated and the officers found negligent are to be brought to book.
9. All presiding judges irrespective of ranks are to be provided with Steno-typist and if possible all are to be made accessible to computer. All Judges are to be provided with residential accommodation with transportation facilities for going to and coming from court.
10. All the existing vacant posts of the copying department and other administrative departments are to be filled up on priority basis and copies of different orders are to be supplied to the parties without any delay.
11. The entry in the court houses should be restricted and only the lawyers, their clerks, parties of the case and witnesses should be allowed to enter the court houses. This would reduce presence of unwanted roaming people in the court houses and also stop murmuring which presently is common almost in all courts.
12. Law officers of the government are to be appointed on the basis of merit and length of service after considering confidential report of district and sessions judge and district magistrate to the effect. In order to make the law officers accountable there should be separate prosecution cadre in consistent with other countries of the world.
13. There should be separate investigating police and they should be given the responsibility of service summons and warrants upon the witnesses with the direction to produce witnesses and secure arrest of the accused persons at the first instance.
14. There should be chemical examined laboratory in each district so as to dispose of matter relating to chemical analysis as expeditiously as possible and for achieving that end there should be forensic expert in each district with sufficient number of helping hands. In addition to that there should be facilities in each than health complex for examination of the rape victim within 24 hours of commission of rape upon the victim. If all concerned come forward with noble initiative to implement the recommendations made above, if not possible at a time then by phases, then undoubtedly there would be remarkable improvement in reducing the backlogs with manageable case-flow in each court. So the sooner the recommendations are implemented the better would be the result in the case flow management with dramatic fall in court congestion.
permanent ways to overcome the problems of delay:
ADR
The term “alternative dispute resolution” or “ADR” is often used to describe a wide variety of dispute resolution mechanisms that are short of, or alternative to, full-scale court processes. The term can refer to everything from facilitated settlement negotiations in which disputants are encouraged to negotiate directly with each other prior to some other legal process, to arbitration systems or minitrials that look and feel very much like a courtroom process. Processes designed to manage community tension or facilitate community development issues can also be included within the rubric of ADR. ADR systems may be generally categorized as negotiation, conciliation/mediation, or arbitration systems. Negotiation systems create a structure to encourage and facilitate direct negotiation between parties to a dispute, without the intervention of a third party. Mediation and conciliation systems are very similar in that they interject a third party between the disputants, either to mediate a specific dispute or to reconcile their relationship. Mediators and conciliators may simply facilitate communication, or may help direct and structure a settlement, but they do not have the authority to decide or rule on a settlement. Arbitration systems authorize a third party to decide how a dispute should be resolved.
It is important to distinguish between binding and non-binding forms of ADR.
Negotiation, mediation, and conciliation programs are non-binding, and depend on the willingness of the parties to reach a voluntary agreement. Arbitration programs may be either binding or non-binding. Binding arbitration produces a third party decision that the disputants must follow even if they disagree with the result, much like a judicial decision. Non-binding arbitration produces a third party decision that the parties may reject. It is also important to distinguish between mandatory processes and voluntary processes. Some judicial systems require litigants to negotiate, conciliate, mediate, or arbitrate prior to court action. ADR processes may also be required as part of a prior contractual agreement between parties. In voluntary processes, submission of a dispute to an ADR process depends entirely on the will of the parties.
These forms of ADR, and a variety of hybrids, are described in more detail in Appendix A: Taxonomy of ADR Models from the Developed and Developing World. The Guide uses the general term, ADR, when referring to conditions or programs that may affect or include various types of ADR, but will refer to particular types of ADR— negotiation, conciliation, mediation, or arbitration—
whenever possible.
What Can ADR Do?
Uses of ADR
ADR systems may be designed to meet a wide variety of different goals. Some of these goals are directly related to improving the administration of justice and the settlement of particular disputes. Some, however, are related to other development objectives, such as economic restructuring, or the management of tensions and conflicts in communities. For instance, developing an efficient, consensual way to resolve land disputes may be critical to an AID mission not because of its commitment to strengthening the rule of law, but because land disputes threaten the social and economic stability of the country. Likewise, efficient dispute resolution procedures may be critical to economic development objectives where court delays or corruption inhibit foreign investment and economic restructuring.
Within the context of rule of law initiatives, ADR programs can:
• Support and complement court reform
• By-pass ineffective and discredited courts
• Increase popular satisfaction with dispute resolution
• Increase access to justice for disadvantaged groups
• Reduce delay in the resolution of disputes
• Reduce the cost of resolving disputes In the context of other development
objectives, ADR programs can:
•Increase civic engagement and create public processes to facilitate economic restructuring and other social change
•Help reduce the level of tension and conflict in a community
•Manage disputes and conflicts that may directly impair development initiatives Experience suggests that ADR programs can have a positive impact on each of these development objectives, although the extent of the impact is very much dependent on other conditions within the country and the fit of the design and implementation of the program with the development objectives.
The following matrix matches the general ADR systems with the purposes and development objectives to which they are best suited. Although any one ADR system can be designed in a variety of ways, this matrix may provide general guidance on which ADR model to choose.
ADR programs can reduce delay in the resolution of disputes.
Use ADR when:
• Delays are caused by complex formal procedures.
• Court resources are insufficient to keep up with case backlog.
Do not use ADR when:
• Official intervention will impose complex procedures on ADR programs.
Delays are endemic in most court systems throughout the world and affect a number of development objectives. In some cases, delays are so extreme that they effectively deny justice, particularly to disadvantaged groups who may not be able to “grease the wheels” of the justice system. In other cases, delays in the resolution of commercial disputes impair economic development and undermine the efficiency of the economy. Informal dispute resolution (mediation and settlement programs),
or simplified procedures for dispute resolution (arbitration systems), can significantly reduce dispute resolution delay, and indirectly reduce court backlog by redirecting cases that would otherwise go to court. Reduction of dispute resolution delays may serve a variety of USAID strategic objectives outside the rule of law area. For example, in the Ukraine, support for mediation centers is founded on the premise that mediation can serve economic development objectives by accelerating the resolution of commercial and labor-management disputes, as well as other civil disputes arising from the privatization process.
In South Africa, quick resolution of labor-management disputes serves both economic and social equity objectives. Many studies of developing country ADR systems offer evidence that the systems have been effective in processing cases quickly, at least relative to traditional court systems. The Mediation Boards in Sri Lanka resolve 61% of cases within 30 days and 94% within 90 days, compared with months or years required by the court system. Court backlog in Sri Lanka was reduced by nearly 50% during the six years in which the Mediation Boards have operated there, although a direct empirical link has not been established. One judge in the Ukraine predicted that 90% of civil court cases could be successfully mediated, eliminating the backlog on the civil court dockets.
Studies of programs in China, India, Costa Rica, and Puerto Rico similarly indicate that ADR systems have been successful in handling large numbers of cases quickly and efficiently. However, studies showing that ADR systems deal with cases more quickly than the courts often do not address systematically the question of whether cases resolved by ADR are similar to or different from cases resolved by the courts, which could explain some differences in time to resolution.
Experience in the United States indicates that ADR can have a significant impact on the time required to reach a resolution. A study conducted by the State Justice Institute at the University of North Carolina compared cases assigned either to a mediated settlement conference (MSC) or directly to the superior court. The MSC program reduced the median filing-to-disposition time in similarly contested cases by about seven weeks, from 407 days to 360 days. In addition, participants were significantly more satisfied with the process and the outcomes of the MSC process than they were with the normal court process.
Some studies in the United States, however, indicate that ADR programs attached to the courts become burdened by the same administrative complexities and/or costs as the normal litigation process. A recent controversial study by the RAND Corporation indicates that federal district court ADR programs (specifically, mediation and early neutral evaluation) have not been effective in proving that ADR can reduce delays or costs associated with dispute resolution.
Certain types of ADR, like arbitration, may be susceptible to becoming as complex and costly as court litigation. Labor arbitration in the United States has also become encumbered with formal rules and regulations that limit its ability to operate efficiently. Delays in resolving disputes may increase when pilot or local ADR programs are expanded, if human resources are Insufficient to handle the increased caseload efficiently.
Case management
Few, having association with our formal justice delivery system, will dispute that prevalent case disposal scenario is plagued with three evils i.e. delay, cost and complexity. Yet fewer will argue that this bleak state of affairs has noting to do with our procedural system. Procedural part of our legal system is largely regulated by two century-old laws: Civil Procedure Code 1908 and Criminal Procedure Code 1898. Both these super-voluminous laws are full of niceties and elaborated in minutest details, complete hold of which requires exceptional genius. These laws allow litigants to seek redress of almost every single grievance, whatever small that may stem from the proceedings of the court, by means of appeal and/or revision. Though envisaged to provide complete justice, these ever-elastic procedural provisions paved the way for serious injustice. As a necessary corollary of this elasticity, which perhaps had some efficacy century ago, it is possible for a notorious pleader to stretch a given case to an agonising length beyond the contemplation of a layman. These laws are good for mechanical disposal of disputes but not for judicious application of human mind. To worsen the situation we belong to the legal family of adversarial system as opposed to its inquisitorial counterpart. This makes our legal system extremely lawyer-mediated so as to render the judge a passive actor in judicial proceedings. Here lawyers virtually direct the course of proceedings, length of the suit, discovery of evidence, examination of witnesses and what not. Thus, more often than not, private interest of a lawyer subdues the public interest of speedy trial.
As an essential result one finds our civil administration of justice unduly costly, inordinately slow and consequently unequal in that it leaves virtually no real chance for an under-resourced litigant against a wealthy barrator. But this awful condition is not unique to Bangladesh rather all the members of adversarial legal family encounter the same problem. The way some of them went to resolve this problem is to opt for some functionally efficacious attributes of inquisitorial system, one of which is popularly known as ‘case management’.
For better understanding of general readers it may be mentioned here that adversarial system is generally adhered to by countries that were once colonies of the United Kingdom. On the other hand countries of continental Europe and their former colonies adopted a rationally more sensible method of settling disputes they call inquisitorial system. In adversarial system judicial proceedings are typically controlled by the pleaders of the disputing parties. Judges are supposed to perform merely an umpiring role and are disallowed to intervene the proceedings.
Conversely, judges in the inquisitorial system are more inquisitive in their conduct of cases and empowered to exercise greater control. While the inquisitorial system is solely devoted to unfold the truth, adversarial system place overriding importance on ensuring a level-playing field for contestants so that through rigorous clash between lawyers of both sides the truth can emerge by itself. Being a lawyer controlled system, the outcome of a case in an adversarial system is not so much dependent on the merits of the case as it is on the comparative skills of the concerned lawyers. It implies that you can demand justice under this system only when you can ensure sound supply of cash.
But to be truthful it must be said that both the adversarial and inquisitorial systems have their relative advantages and disadvantages and over the decades there has been a debate to resolve where the balance lies. In today’s world the debate gradually loses much of its rigours as somewhat convergence is taking place between these apparently divergent systems to meet practical necessity. Thus in adversarial systems, societal pressure to strike a balance between ‘speedy trial’ and ‘fair trial’ made ‘jurisprudential purity’ to give way to pragmatism. This triumph of functionality over traditional rigidity prompted the conventionally adversarial nations to install ‘case management’ in their judicial system.
Case management requires the judge to play a more ‘active role’ and get acquainted with the cases at an early stage. In this mechanism a ‘Procedural Judge’ receives the suit at the first instance. Suits are then differentiated on the basis of their monetary value, legal complexity, urgency and accrodingly they are categorized into different tiers so as to facilitate differential and individualized treatment to each of them. Parties are made aware of the true state of things of the suit at court’s disposal at its threshold, as a result of which there remains little scope for clients to be misguided or illusioned about their potential success. A leading objective of case management is to encourage settlement of cases at the earliest appropriate stage.
Another important aspect of case management is the scheduling of each particular case. Same procedural judge is to prepare a schedule detailing the anticipated progress of that case at different stages along with respective time limit. It will then be referred to the ‘Trial Judge’ who will be responsible to periodically monitor proper maintenance of the schedule as developed by the ‘Procedural Judge’ and make necessary modifications in the litigation plan as warranted by circumstances. Pleaders, and in the time of necessity parties, are to be involved all through the process. If any party is found to be in default and guilty for unreasonable delay the court will make him/her pay the price in the shape of compensation payable to the innocent party. This fear of monetary loss certainly minimizes the chances of both derelictory and dilatory tactics. The basic idea is to make a fundamental transfer in the responsibility for the management of civil litigation from litigants and their legal advisors to the courts. It is really significant to note that a number of countries including pioneering States of adversarial legal culture like USA, UK, Canada and Australia made almost simultaneous efforts to get purged of the traditional stubbornness of adversarial system by introducing ‘case management’. And this strategy to fight the ‘delay’ factor proved worthy as their primary hard works are now paying off. The USA enacted the Civil Justice Reform Act in the year 1990 to induct ‘case management’ system in their civil administration of justice. Australia opted for case management in pursuance of a sound background paper called ‘Judicial and Case Management’ prepared by the Australian Law Reform Commission. But the most remarkable and most publicized headway in this regard is made by a State considered to be the birthplace of adversarial system: the United Kingdom.
The UK owes its reform in civil administration of justice to a report prepared by Lord Woolf. Lord Woolf’s report on procedural reform of the civil justice system, titled “Access to Justice”, was commissioned by the Lord Chancellor in 1994. Its importance as a complete overhaul of the system can hardly be overestimated. Lord Woolf was entrusted with the responsibility to make an in-depth inquiry into the loopholes in existing system and suggest possible reforms in a comprehensive report featuring clear guideline to follow in implementation of the concluding recommendations. Accordingly Lord Woolf published an interim report in 1995 and submitted his final report in 1996. English people are now cashing in on the famous Woolf’s Report.
Being inspired by the advancement in introducing case management in other countries and its consequent impact India took initiatives to work out modalities for implementation of case management formula in their civil procedure. A five-member committee headed by the Chairman of Law Commission of India Shri Justice M. Jagannadha Rao was constituted on 30 October 2002 pursuant to a direction issued by the Supreme Court of India in Salem Advocates Bar Association, Tamil Nadu vs. Union of India. Accordingly the Committee scrutinised relevant documents from foreign jurisdictions and arranged consultations with local stakeholders. The bottom-line drawn by the Committee was emphatically in favour of its introduction in India with some indigenization of the idea considering India’s very own legal culture and practice. This report had been wholeheartedly received by the Supreme Court of India and the High Courts were requested to frame rules as per the report.
Except some stray efforts in the form of introducing provisions on ‘mediation’ and ‘arbitration’, the vibrant trend around the world to shift the pendulum of case-control from lawyers to judges has hardly gained any interest in our country as yet. But the acceptance of this idea in our neighboring nation, that shares almost the same legal legacy and culture, suggests that we can well adopt ‘case management’ to get rid of delay to a considerable measure and thus bring greater sense to our judicial system.
Good court administration has been defined and described in many different ways. In simple terms it may be described to imply:
(a) Good record-keeping and systematic filing of the cases;
(b) Subject wise classification of the cases;
(c) Good monitoring so as to classify the cases on the basis of the stages they have reached;
(d) To identify and to rid the docket of ‘dead’ or moot matters in order to prevent them from clogging the schedules;
(e) Monitoring and case-flow tracking in such a way as to know the status of each case, to know its procedural position, to locate documents and records more easily and to reflect everything in transparency plate.
Good court administration is necessary for ready references and control over exodus of cases that are in the docket, and is to be ensured by judicial administrators to help the court instantly with any information it needs for effective case management. Efficient court staff equipped with modern technological facilities like computerization would be necessary for good court administration.
Case management on the other hand, means detailed scheduling of the life and history of a case, after written statement has been submitted, drawn by an early judicial intervention i.e. sitting judge’s order, enforcing active participation of the parties and strict observance of the schedule under court’s supervision. In other words, it is procedural calendar of a particular civil suit (sort of an academic calendar in a university) where the parties have to follow procedural stream-lining worked out by the court, and which also includes initiation and coordination of consensual processes aimed at the resolution of the case other than through a court trial.
Parties are required to submit separate case management statement within a stipulated time identifying and narrowing down the factual and legal issues of the case. Then they are asked to submit a joint case management statement, further concretizing the issues. In case they fail to do so, a joint case management statement would be prepared with judge’s active participation at a special hearing. After the main issues have been identified and agreed upon, the trial judge in consultation with the parties will send the case to one of the forms or mechanisms of the available ADR. Institutional arrangement for the availability of the system of ADR devices (conciliation, mediation, early neutral evaluation, arbitration or even judicial settlement by a non-trial judge) with proper training for the persons to provide ADR, is to be made by the judiciary in advance. While recourse to ADR would be mandatory, there would be nothing like binding decision of the ADR forum. But when the consensual decision by the parties is reached, court will issue necessary order for its execution. In case ADR efforts fail, the case shall go for trial.
Application of case management techniques by the trial judge envisages active participation and joint communication among the parties and their lawyers throughout the case. It requires each side to answer the requisitions, if any, made by opposing parties and additionally, imposes sanctions for non-compliance. It requires the opposing parties to identify the real controversies in the case and seek early responses from each side on question of fact and law. Thus, case management leads to a clear identification and narrowing of the legal and factual issues to be decided. To quote one authority, “The objectives of cases management are to establish judicial responsibility for the otherwise substantially party-controlled, adversarial preparations of civil cases for trial. Specifically, case management is designed to reduce dilatory, frivolous, inefficient, and protracted litigation practices and to replace party controlled litigation processes with judge-controlled, sequential steps in the life of a civil proceeding” [in a definite time-frame] (“Indian Civil Justice System Reform: Limitation and Preservation of the Adversarial Process”, New York University Journal of International Law and Politics, Vol. 30, Nos. 1 & 2, 1997-98, p. 62).
Judicial reforms for good governance in Bangladesh
Introduction Governance:
Governance in a broader sense means “how people are ruled, how the affairs of the state are administered and regulated as well as nation’s system of politics and how these function in relation to public administration and law” (Mills and Serageldin 1992:304).
Good Governance:
We may summarize some of the criteria considered desirable for evaluating good governance. These are legitimacy, accountability, transparency, lack of corruption, competence, efficiency, sustainability, equity, rule of law, empowerment of poor specially women, reduction of non-development expenditures, participation and decentralization.
Judiciary and Good Governance:
Among the various actors the government is the main actor for good governance. Since government consists of three basic organs–executive, legislature and judiciary, the governance of a country revolves based on these three organs. When an organ is ineffective or does not work smoothly, weak or bad governance prevails. The judiciary of a country comprises all courts, which interpret laws, settle disputes, enforce rights of the citizens and impose penalty to the offenders. A country without legislature in conceivable but without judiciary a civilized country is hardly conceivable “There is no better test of excellence of government than the efficiency of its judicial system” (Bryce, 1921:42). So an effective and independent judiciary is the sine qua non of good governance. A country can not claim to have good governance without providing easy, affordable, speedy and impartial justice to the people.
Objectives and Scope:
The main objective of this chapter is to suggest how to make justice delivery in Bangladesh speedy, effective, transparent, accessible and affordable to the people in general. For this purpose in November 2007 lower judiciary of Bangladesh was separated from the executive. But mere separation of lower judiciary is not enough to improve the condition of justice delivery in the country. This needs other reforms with which the present study deals.
Bangladesh: A Panoramic View
Bangladesh became independent in 1971. It is a unitary country. It is a small in size having 143,999 kilometres. 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 squire kilometre. Muslims 88.3%, Hindus 10.5%, Buddhis 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 (subdistricts[490]). 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).
The State of Judicial Governance in Bangladesh:
Currently Judicial governance in Bangladesh is operated by two-tier system of courts– district court at the district level and Supreme Court at the centre. 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 is also very expensive. A very few rich people have capacity to fund the case battle and the poor who are majority in the country can not 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 as to how many cases are pending with the district courts throughout Bangladesh but according to a study under the present judicial process operating both in district and Supreme Court “it is estimated that number of cases awaiting trail or adjudication will take over 100 years to clear up unless extraordinary is done immediately! (Mintoo 2004:136). So the situation of justice in Bangladesh may be equated with the famous saying “justice delayed, justice denied”.
Reform Proposals:
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, we propose the following reforms:
Four-tier system of judiciary: The existing two-tier system of judiciary may be converted into four-tier system. They, in descending order, are:
(i) Supreme Court at the centre.
(ii) 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. If not possible to create provinces, permanent Benches of High Court Division may be established in the division levels;
(iii) District court at the district level; and
(iv) 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. ;
Impartial Appointment of Judges in the Higher Courts: 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.
Abolition of Provision for Chief Advisor from Retired Chief Justice: The interim government of Bangladesh is headed by immediate past retired Chief Justice known as Chief Advisor of caretaker government. The sitting government keeping in mind the Chief Advisor controls the promotion of judges superseding others. Even the immediate past political government increased the age of judges in the Supreme Court from 65 to 67 for a particular retired Chief Justice to be Chief Advisor. The provision for retired Chief Justice as Chief Advisor should be abolished and this may prevent the promotion of judges on political consideration.
Separate Commercial and Environment Courts: Like civil and criminal courts, commercial and environment courts should be established.
Computerization and Monitoring System: 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.
Contempt of Court: Finally present conception of contempt of court should be changed keeping in mind that the judiciary is not out of criticism.
Revitalization of Village Court: 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.
Judiciary must take bold steps to get rid of backlog of cases:
Backlog of cases appears to be a common predicament of the judiciaries worldwide. Countries from both developed and developing world have been facing this problem more or less alike. However, this difficulty for Bangladesh judiciary seems going from bad to worse every year. According to latest annual report on the judiciary, still the Appellate Division of the Supreme Court has 8,997 cases pending, the High Court 2,62,349 cases and the judicial magistracy 6,02,173 cases as of December 31, 2007 although the disposal rate of cases has increased.
It is a matter of hope that the judiciary after being formally independent on November 1, 2007, has shown its efficiency to a good extent. After the separation of the judiciary from the executive and with the introduction of judicial magistracy, the rate of disposal of criminal cases in the courts of magistrates increased by 51 per cent in December 2007 in relation to the cases disposed of by the judicial magistrates in November 2007.
According to the said report, 5,63,344 cases were pending with the judicial magistracy as of November 1, 2007 and 34,131 cases were filed in November 2007, while the magistrates disposed of 33,104 cases. On December 1, 2007, the judicial magistracy had 5,64,371 cases pending and 87,789 cases were filed in December 2007, while 49,987 cases were disposed of. On an average, 137 cases were disposed of by each of the 242 judicial magistrates in November, in a month after the judiciary became independent of the executive.
However, while there are a huge number of cases pending and the rate of filing cases is greater than the rate of disposal indicating increase of caseload every year, it is certain that judiciary will have to bear the huge backlog of cases on its shoulder for an uncertain period of time unless special steps are taken to heal the cancer of the judiciary.
Understandably, this problem is not just a setback of the judiciary, but it is a great predicament of any nation. 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. Backlog of cases does not only delay the disposal of cases and impose huge expense on the justice seeker but also perpetuates tensions among litigants.
For this reason fighting against this judicial handicap is getting more and more importance globally day by day. Bangladesh realizing the gravity of the problem started tackling the problem long ago. First attempt to tackle the backlog of cases was to establish a number of tribunals to deal with disputes from some specified areas. The underlying assumption for establishing various tribunals was that in the existing adversarial judicial system the formal trial procedure takes a longer period of time. This is because of their strict following of Code of Civil Procedure. By contrast, the tribunal as a special justice mechanism following suitable speedy procedure for dealing with some disputes of specific areas could be better equipped to deliver timely and inexpensive justice. But it seems that the history of tribunal does not confirm this assumption. Bangladesh’s special tribunals have failed to contribute in improving the caseload situation of Bangladesh judiciary.
The next attempt, that was taken more than a decade ago, was to introduce ADR (Alternative Dispute Resolution) mechanisms, which includes mediation and conciliation, among others. In Bangladesh’s adversarial judicial system, trial procedure is dominantly controlled by the lawyers of the both sides of litigation, where the judges play minimal role to control the trial. Lawyers takes repeated time to make them well prepared for dealing with the case, or for sometimes to frustrate the aim of the case itself by delaying its progress. ADR is introduced against this backdrop. One example of that is introducing mediation in the family courts of the country. It is claimed that the ADR programme in family courts is a great success, and following that success scope for ADR is created in all other civil courts by amending the Code of Civil Procedure. The previous government was even planning to introduce ADR in criminal courts also.
Understandably, all these abovementioned attempts were made considering only some aspects of the backlog of cases. In other words, these attempts were piecemeal ones to tackle the judicial malaise. Consequently success was also piecemeal, not comprehensive or overwhelming. It otherwise reveals that for an overwhelming development of the ‘caseload situation’ there is a need for a comprehensive approach to analyse the entire situation and take comprehensive actions that will weightily take into consideration the administrative and financial aspects, among others, of the judiciary.
Generally, the state of court administration is considered a great contributing factor in the backlog of cases. In the case of Bangladesh, we see the judge-population ratio is one of the lowest in the world. I don’t have exact data in my hand this moment, but I guess the ratio is not more than 12/13 judges per million population. Comparing to developed world’s judiciary, the ratio may evoke disbelief among many of us. A paper shows that even twelve years ago the numbers of judges for per million people were 41 judges in Australia, 75 in Canada, 51 in England and 107 in the USA.
In developed country’s judiciary, along with judge- population ratio, another aspect which is taken equally importantly or more importantly is the ratio of case management staff number of cases. Court administration cannot succeed without the unstinted support of the Court staff and its Registry. In fact, they are the backbone of the system and the administrative burden really falls on them. Though there is no data as to this ratio in Bangladesh, undoubtedly it is also one of the lowest in the world.
While the unjustified shortage of court staff is contributing mismanagement of trial, proceedings and records, the ancient or traditional management technology have been worsening the situation. Most of the case management work – for example maintaining case files, keeping records of document and evidence, writing warrant, summons, notice, order, judgment etc is done manually, following century old format. Many developed courtiers, like USA, Australia, United Kingdom, Canada, who had faced same type of case management problem due to shortage of staff have been gradually overcoming this by introducing ‘e-management’ of cases. Their experiences show that by using modern information technologies like computer data base and internet etc. these case management problems can be overcome to a great extent even with the existing ‘insufficient’ number of staff. Hopefully, ‘modern technology has been introduced in the management of court and cases that will help in bringing transparency to the judiciary’, as the immediate past chief justice of Bangladesh recently said at the launch of the 2007 annual report of the judiciary.
Along with all these comes the role of law enforcing agencies, i.e., the police department. Criminal justice system is very much dependent on police and thana administration. Corruption in the Bangladesh police administration contributes heavily in the malaise of Bangladesh legal system. Without taking care of this department, nothing good can be expected overnight from the present independent judiciary.
No doubt, for improving court administration, the number of judges and management staff and infrastructure development is must, for which huge financial investment is necessary. In Bangladesh, the expenditure on judiciary in terms of GNP is again one of the lowest which is not more than 0.5 percent I guess. On the contrary it is 4 per cent on the average in other developed countries. Considering this trivial financial care of the judiciary, the poor administration of justice in Bangladesh is not inconsistent.
While this is a general discussion on the causes underlying the backlog of cases Bangladesh judiciary, the concerned experts are expected to reveal more causes. The point here is that for getting rid of the backlog of cases all these expressed and hidden causes have to be taken into account.
Now Bangladesh Judiciary is separate from executive. This separation is a result of a long struggle. It is now the responsibility of the judiciary to reap the benefits of being independent and to stand by the justice hungry people of the country. However, after separation of judiciary form executive, the judiciary is theoretically independent; practically it is still dependent upon the other partners in government, i.e., the executive and legislative branches of government, specifically in cases of legislative changes, police cooperation, allocation of national budget for judiciary etc.
In such a position judiciary must make a clear vision of how much time and in which way it wants to overcome the suffocating backlog of cases. Then it has to convey its vision to other partners of the government and convince them so that they cooperate to fulfil that vision. And at the same time judiciary must update the common citizens on this vision for upholding their confidence in judiciary. But, above all, the judiciary must be cautious that it does not sacrifice access to ‘justice’ for the sake of ‘access’ to justice.
Access to justice through legal aid:
Legal aid is fundamental to social and legal justice. Bangladesh is a developing democratic country of the world .in a democratic society all citizens have a right to access to justice and get fair trail. The constitution of the people republic of Bangladesh 1972 has theoretically ensured access to justice, fair trial, rule of law, fundamental rights, human rights, equality before law, and equal protection of law, but due to financial crisis and ignorance of law, these constitutional protections have become a fake promise to the vast majority of the people.
The third paragraph of the constitution states that it shall be a fundamental aim of the state to realize through the democratic process a socialist, free from exploitation, society in which the rule of law, fundamental human rights and freedom, equality and justice, economical and social, will be secured for all citizens.
Article 27 of the constitution says that all citizens are equal before the law and entitled to equal protection of law. Article 14 stipulates that it shall be fundamental responsibility of the state to emancipate backward sections of the people from all forms of exploitation. Article 31(2) guarantees protection of law that the citizens and the residents of Bangladesh have the inalienable right to be treated in accordance with law. Article 35(3) ensures speedy and fair trial. All these guarantees become meaningless without providing any legal aid to the indigent persons.
Firstly: In a suit where one party is poor and the other party is opulent, here equality, rule of law, and fair trail, ensured in our constitution and other constitutions and documents of the world can not be maintained because the opulent party is able to appoint an expert advocate who can easily take the fruits of the suit in favor of his clients which the opposite advocate fail to do.
Secondly: access to justice is prevented for the poor by high legal costs, here costs include court fee, process fee, advocate fee, and other incidental costs.
Thirdly: delay in disposal of a civil suit, in our country for the disposal of a civil suit several years are required, but poor litigants after fighting one or two years, lose their every thing and fail to move the suit, so the court pronounce decree in favor of the strong party.
Fourthly: a big number of people of the country are ignorant as to their rights. So without giving any legal assistance they can not ensure their rights.
In the case of bandhu mukti morcha vs. union of India 1984, 3 scc161, the former chief justice of India P.N. Bhagwati observed, where one of the parties to a litigation belongs to a poor and derived section of the community and does not possess adequate socials and material resources, he is bound to be at a disadvantage as against a strong and powerful opponent.
It is evident that it is necessary to provide some level of legal aid to persons otherwise unable to afford legal representation. If it is not provided then it must violate the principle of equality before law and due process under the rule of law. so, for ensuring of the equality before law, due process of law and fair trial adequate legal aid is fundamental for the indigent litigants which may be given in the following ways.
1. Staff attorney model: In this model, lawyers are employed on salary solely to provide legal assistance to qualifying low income clients.
2. In a Judi care model: private lawyers and law firms are paid to handle cases without taking fees from the poor clients.
3. The community legal clinic: comprises non profit clinics serving a particular community through a broad range of legal services.
4. Providing information sheets to the general public on the legal assistance system.
5. Legal aid board: consisting of several lawyers appointed by government with fixed salary for advocating on behalf of poor clients.
6. NGOs based legal aid system: NGOs may provide legal aid by creating awareness among the people and fighting in the court on behalf of the poor clients. There are some NGOs i.e. BLUST, AIN O SALISH KENDRA, BNWLA, are playing leading role in providing legal aid.
To ensure legal aid to the poor litigants the different countries of the world have taken different steps and models. In Bangladesh, order 33 of the code of civil procedure1908, says that pauper may institute any suit as a pauper. Rule 1 defines that a person is a pauper when he is not able to pay the prescribed fee or where no such fee is prescribed, when he is not entitled to property worth five thousand taka other than his necessary wearing apparel and the subject matter of the suit. This provision has no application for its archaism so an effort for providing legal aid to the indigent litigants was first taken up by the government by a notification dated 18january 1994 .
Three lakh cases now pending with SC, HC More than three lakh cases — civil, writ, original and criminal — are pending with the High Court (HC) division and the Appellate Division is yet to dispose of more than 11,000 cases, official sources said. The sources also said the cases were piling up every year due to the poor logistics of the judiciary. At least 150 cases are filed with the HC every day for disposal, they pointed out.
The Supreme Court (SC) annual report of 2007 reveals that a total of 2.93 lakh cases were pending with the HC division for disposal. The SC report of the year 2009 says that 1.67 lakh cases were waiting to be disposed of by the HC in the year 2003, and over 1.84 lakh cases in 2004. The number of cases increased to 2.05 lakh in 2005.
According to the SC annual report of 2010, 3.1 lakh cases were pending with the HC. Among them, over 1.8 lakh were criminal cases, 77,000 civil cases and over 50,000 were writ and original cases.
Of the 1.8 lakh pending criminal cases, The cases have piled up every year since 1996.
A high official of the writ branch of the High Court said, on condition of anonymity, that every day the court registered at least 150 cases, filed to challenge the legality of various actions of the authorities.
He also said the number of pending cases had been increasing day by day since 1991, but there had not been an increase in the number of officials to handle them.
Eminent lawyer Dr M Zahir told: “All of us including advocates, concerned officers and judges are working slowly.” That’s why a lot of cases are pending with the High Court, he added.
“The authorities should set a time-frame for disposal of every case. If it is followed then the cases would be disposed of quickly,” Dr Zahir said.
Justice TH Khan said: “If the government wants to bring down the number of pending cases then judges should be appointed considering their efficiency, skill and professional ability.”
The number of pending cases has been increasing due to growing population and its attendant problems. “Now the government needs to increase the number of judges and officials in the HC, and the selections should focus on quality and efficiency, Justice Khan said adding, otherwise the pending cases will keep on increasing.
The sources said that in 2010, the then Chief Justice had taken special measures for quick disposal of over one lakh cases pending with the High Court.
Following his initiative, at least 40 thousand cases had been disposed of between October and December last year. Besides, a close monitoringsystem has been introduced to improve case management and quick disposal, the sources added.
During the tenure of the then CJ, the Appellate Division had disposed of a number of cases, but the number of pending cases has been increasing at the Appellate Division, the sources said.Experts opined that special measures should be taken to reduce the backlog. If needed, some special benches may be assigned to quickly dispose of the cases, they added.Bangladesh: SC moves to reduce backlog of cases.The Supreme Court has taken special measures for quick disposal of over one lakh cases pending with the High Court, which is now bogged down with more than three lakh cases.
Following his initiative, the number of pending cases came down from 3.53 lakh to 3.13 lakh between October and December last year. Besides, a close monitoring system has been introduced to improve case management and quick disposal, the sources add.
During scrutiny, SC officials found that of the 3.1 lakh pending cases, over 1.8 lakh are criminal cases, 77,000 civil cases and over 50,000 writ and original cases.Of the 1.8 lakh pending criminal cases, over one lakh were filed under Section-498 of the Criminal Procedure Code (CrPC) for obtaining bail and the rest under 561(A) of the CrPC for quashing criminal charges and these piled up every year since 1996.
Many involved in the functions of the higher judiciary believe there might be many reasons for lawyers and their clients to be reluctant to dispose of such cases.Besides, if a case continues for long, it is a good long-term source of income for the lawyer of the case. So most of the lawyers also prefer to keep the cases pending, the sources say.
Supreme Court Cause List at Finger Tips
The Supreme Court (SC) of Bangladesh launched a new initiative that will make court case information more easily accessible to the public. Building upon the Court’s efforts to display the list of pending cases on the internet, information on these Supreme Court cases will now be available via mobile phone SMS.The Supreme Court signed a deal with a private company to help litigants get information about the status of cases pending in the apex court on their mobile phones as part of ongoing support to the justice sector from the UN Development Programme (UNDP).With this service, people can now get information about a case, including its present status just by sending a text message (SMS) to 2233 from any mobile telephone.
Former Chief Justice ABM Khairul Haque inaugurated the system at the Judges` Lounge of the Supreme Court. The Chief Justice said that through inaugurating the system of sending information about cases though mobile phone SMS, Bangladesh made a step towards a digitalised Bangladesh.Lack of access to information and case-data is one of the many contributing factors to the large backlogs within the court system.
The Supreme Court website currently allows the Court to directly upload case information scheduled for the next working day. Yet, with an estimated 72 million mobile phone users in Bangladesh, the SMS-based system can be accessed by many more people from across the country, via technology already in their hands.
