by Dr. Uttam Kumar Das
The recent public debates between the Minster for Law, Justice and Parliamentary Affairs Barrister Shafique Ahmed and outgoing Chief Justice Mr. ABM Khairul Haque on the sincerity of judges and the government’s seriousness with regard to dispense of justice to the litigants have drawn public attention. It has further significance as it had happened in the very presence of the Prime Minister Sheikh Hasina.
Apparently, both the Minister and the Chief Justice are not happy with each other’s actions, as the heads of their respective organs keeping a huge backlog of cases pending both at trial courts and the Supreme Court of Bangladesh.
However, I could not find a consensus with regard to the number of back-logged cases. According to the Prime Minister, the number of pending cases in lower courts and the Supreme Court is about two million (Prothom Alo, 15 May 2011). However, according to the outgoing Chief Justice, the number is 1.6 million (Prothom Alo, 16 May 2011).
Whatever the exact number of cases might be, the reality remains that people have to suffer due to cases lingering on for years, sometimes for decades,. The investigators, prosecutors, defenders, court officials and judges are all involved in the process. Thus, it is understandable why the two got frustrated and broke out in annoyance publicly.
There are more than one version of the arguments.
The Minister for Law blasted the judiciary saying that judges are not serious about dispensing of justice. In support of the Minister, The Daily Star published an editorial on 16 May 2011: It reads, “The tendency to give dates without detail hearing, and to dispose of only few out of listed ones, is the norm rather than exception.” The Minister also further blasted judges for not following court hours strictly.
Now let us move to the position of judges. As the outgoing Chief Justice reported, the whole judiciary, especially the trial courts, have been suffering from manpower shortage, infrastructure and logistics among other limitations. He summarized the situation rightly: “the judiciary’s independence is like one asked to swim while hands and legs are tied” (Prothom Alo, 15 May).
To get an insider’s impression, I was talking to a young member of the judiciary (we were colleagues before at a Law School). What I derived from our discussions was very gloomy.
As he sees it, the number of the pending cases is totally unmanageable, given the total number of judges in the trial courts and court facilities.
There are a total of 1,200 judges in the lower judiciary staring from Assistant Judges up to District Judges. However, at least half of them are posted in administrative posts, i.e., Law Ministry and other Ministries, Supreme Court, Law Commission, National Human Rights Commission, and other public offices alongside on leave or deputation etc.
Given the population of the country at 160 million, there are one judge per 0.13 million populations. To no where is this figure comparable.
There are now around 400 vacant posts of judges in the trial courts. That is why the recommendations of the outgoing Chief Justice to double the number of judges deserve consideration.
At the same time, there is lack of infrastructural facilities. Reportedly, four to five judges at a duty station have to use one court or chamber room now on rotation basis. That is also a constraint since they could not utilize all of their court and working hours.
Since the job and responsibilities of judges are different compared to other professions, their salary structure should also be restructured taking into consideration ground reality. In this regard, the examples of India and Pakistan could be consulted.
With an aim to reduce the number of pending cases, the government has introduced Alternative Dispute Resolution (ADR) through enacting a law a couple of years back. However, that proved to be ineffective and fruitless. For this, again, judges and lawyers are blaming each other.
However, there are reasons for that failure. What we have done so far here is actually not ADR, rather a new form of trial (as I see it). It needs judges, lawyers, evidence, witnesses, etc. Also, there is no institutional mechanism and training components to implement ADR. So, it is like doing surgery without a proper training and degree.
Given my recent experience as a Graduate of a Summer Programme on Mediation at the Dispute Resolution Institute at Hamline University School of Law in Saint Paul, Minnesota, USA, I found that the United States has developed and gradually implemented a parallel system of mediation alongside the court-based trail system. In the USA, mediation is totally out-of-the-court system (though there is court-based mediation as well).
In the country like the USA, mediation has developed as a parallel subsystem of court trail. The relevant academics and practitioners had had huge contributions.
Given the cost involved and other complexities, an individual prefers to go to private mediators (who are licensed and monitored by respective regulatory bodies) in the USA.
However, I am not sure what policy makers in Bangladesh really wanted out of the ADR system. We also need to change the perception that only judges and lawyers would be “experts” on ADR or mediation. It is also a separate vocation like lawyering; and needs specials training and practices at institutional and individual levels.
It is a good thing to note that lately the Law Commission (LC) of Bangladesh has reviewed laws related to ADR in Bangladesh (with financial support from South Asian Institute of Advanced Legal and Human Rights Studies-SAILS).
The LC has come up with a set of appropriate recommendations which included- establish a separate authority for ADR and allocation of required budget, systematic training facilities for ADR, introduction of ADR related courses at law schools and practical learning facilities etc.
I would like to conclude reflecting on another issue. The way so-called development partners are pushing the government, that might not work here. We need to take into consideration our local contexts and realities on the ground.
Digitalization is important, however, before that we need to look into full-time electricity supply and other practical necessities at trial courts.
As reported in media, UNDP is supporting digitalization of court systems. To me digitalization does not merely mean installation of some computers, internet services or ceremonial introduction of websites. It means more than that - appropriate training and orientation for the people working there (here, I mean judges and lawyers) and progressive practices and utilization of those facilities. And definitely this is not to show others but to bring real benefit for the people - the poor justice seekers.
Development of skills should not be one sided and aimed at institutional initiatives only; It is also needed to be individually-driven and the aims should be pro-people.
[Th]ere is a great relevancy of academic institutions. A quality legal education could work miracles. It would facilitate individuals to learn the required skills of the trade to turn in to a quality lawyer and judge in future.
Uttam Kumar Das, Ph.D., is a Human Rights Lawyer; he earned his LL.M. with Major in International Human Rights Law from the University of Minnesota Law School, U.S.A. E-mail: udas1971@gmail.com
*Originally appeared in the PROBE News Magazine, Dhaka, 20-26 May 2011; link: http://www.probenewsmagazine.com/index.php?index=2&contentId=7124
The recent public debates between the Minster for Law, Justice and Parliamentary Affairs Barrister Shafique Ahmed and outgoing Chief Justice Mr. ABM Khairul Haque on the sincerity of judges and the government’s seriousness with regard to dispense of justice to the litigants have drawn public attention. It has further significance as it had happened in the very presence of the Prime Minister Sheikh Hasina.
Apparently, both the Minister and the Chief Justice are not happy with each other’s actions, as the heads of their respective organs keeping a huge backlog of cases pending both at trial courts and the Supreme Court of Bangladesh.
However, I could not find a consensus with regard to the number of back-logged cases. According to the Prime Minister, the number of pending cases in lower courts and the Supreme Court is about two million (Prothom Alo, 15 May 2011). However, according to the outgoing Chief Justice, the number is 1.6 million (Prothom Alo, 16 May 2011).
Whatever the exact number of cases might be, the reality remains that people have to suffer due to cases lingering on for years, sometimes for decades,. The investigators, prosecutors, defenders, court officials and judges are all involved in the process. Thus, it is understandable why the two got frustrated and broke out in annoyance publicly.
There are more than one version of the arguments.
The Minister for Law blasted the judiciary saying that judges are not serious about dispensing of justice. In support of the Minister, The Daily Star published an editorial on 16 May 2011: It reads, “The tendency to give dates without detail hearing, and to dispose of only few out of listed ones, is the norm rather than exception.” The Minister also further blasted judges for not following court hours strictly.
Now let us move to the position of judges. As the outgoing Chief Justice reported, the whole judiciary, especially the trial courts, have been suffering from manpower shortage, infrastructure and logistics among other limitations. He summarized the situation rightly: “the judiciary’s independence is like one asked to swim while hands and legs are tied” (Prothom Alo, 15 May).
To get an insider’s impression, I was talking to a young member of the judiciary (we were colleagues before at a Law School). What I derived from our discussions was very gloomy.
As he sees it, the number of the pending cases is totally unmanageable, given the total number of judges in the trial courts and court facilities.
There are a total of 1,200 judges in the lower judiciary staring from Assistant Judges up to District Judges. However, at least half of them are posted in administrative posts, i.e., Law Ministry and other Ministries, Supreme Court, Law Commission, National Human Rights Commission, and other public offices alongside on leave or deputation etc.
Given the population of the country at 160 million, there are one judge per 0.13 million populations. To no where is this figure comparable.
There are now around 400 vacant posts of judges in the trial courts. That is why the recommendations of the outgoing Chief Justice to double the number of judges deserve consideration.
At the same time, there is lack of infrastructural facilities. Reportedly, four to five judges at a duty station have to use one court or chamber room now on rotation basis. That is also a constraint since they could not utilize all of their court and working hours.
Since the job and responsibilities of judges are different compared to other professions, their salary structure should also be restructured taking into consideration ground reality. In this regard, the examples of India and Pakistan could be consulted.
With an aim to reduce the number of pending cases, the government has introduced Alternative Dispute Resolution (ADR) through enacting a law a couple of years back. However, that proved to be ineffective and fruitless. For this, again, judges and lawyers are blaming each other.
However, there are reasons for that failure. What we have done so far here is actually not ADR, rather a new form of trial (as I see it). It needs judges, lawyers, evidence, witnesses, etc. Also, there is no institutional mechanism and training components to implement ADR. So, it is like doing surgery without a proper training and degree.
Given my recent experience as a Graduate of a Summer Programme on Mediation at the Dispute Resolution Institute at Hamline University School of Law in Saint Paul, Minnesota, USA, I found that the United States has developed and gradually implemented a parallel system of mediation alongside the court-based trail system. In the USA, mediation is totally out-of-the-court system (though there is court-based mediation as well).
In the country like the USA, mediation has developed as a parallel subsystem of court trail. The relevant academics and practitioners had had huge contributions.
Given the cost involved and other complexities, an individual prefers to go to private mediators (who are licensed and monitored by respective regulatory bodies) in the USA.
However, I am not sure what policy makers in Bangladesh really wanted out of the ADR system. We also need to change the perception that only judges and lawyers would be “experts” on ADR or mediation. It is also a separate vocation like lawyering; and needs specials training and practices at institutional and individual levels.
It is a good thing to note that lately the Law Commission (LC) of Bangladesh has reviewed laws related to ADR in Bangladesh (with financial support from South Asian Institute of Advanced Legal and Human Rights Studies-SAILS).
The LC has come up with a set of appropriate recommendations which included- establish a separate authority for ADR and allocation of required budget, systematic training facilities for ADR, introduction of ADR related courses at law schools and practical learning facilities etc.
I would like to conclude reflecting on another issue. The way so-called development partners are pushing the government, that might not work here. We need to take into consideration our local contexts and realities on the ground.
Digitalization is important, however, before that we need to look into full-time electricity supply and other practical necessities at trial courts.
As reported in media, UNDP is supporting digitalization of court systems. To me digitalization does not merely mean installation of some computers, internet services or ceremonial introduction of websites. It means more than that - appropriate training and orientation for the people working there (here, I mean judges and lawyers) and progressive practices and utilization of those facilities. And definitely this is not to show others but to bring real benefit for the people - the poor justice seekers.
Development of skills should not be one sided and aimed at institutional initiatives only; It is also needed to be individually-driven and the aims should be pro-people.
[Th]ere is a great relevancy of academic institutions. A quality legal education could work miracles. It would facilitate individuals to learn the required skills of the trade to turn in to a quality lawyer and judge in future.
Uttam Kumar Das, Ph.D., is a Human Rights Lawyer; he earned his LL.M. with Major in International Human Rights Law from the University of Minnesota Law School, U.S.A. E-mail: udas1971@gmail.com
*Originally appeared in the PROBE News Magazine, Dhaka, 20-26 May 2011; link: http://www.probenewsmagazine.com/index.php?index=2&contentId=7124
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