The Constitution of Bangladesh aims to establish a socialist society with justice for its people. However, the country faces significant challenges in delivering timely justice due to a substantial backlog of cases and an inadequate Judge-population ratio.
To address these issues, increasing the number of Judges, improving witness management, digitalizing court fee payments, and cultivating legal awareness are essential steps toward a more efficient and accessible justice system.
- Case backlog in Bangladesh’s judicial system is a significant challenge, with approximately 3.9 million pending cases by December 2020.
- The Judge-population ratio in Bangladesh is inadequate, with only 10.6 Judges per million people, compared to other countries with much higher ratios.
- Increasing the number of Judges in the subordinate courts and Supreme Court is essential to reduce the backlog and ensure access to justice.
- Witness management and protection need improvement, including implementing laws for time slots, travel allowances, and compensation for witnesses to expedite criminal trials.
- Digitalizing the court fee payment process can streamline the system, reduce delays, and alleviate burdens on litigants, promoting an efficient and accessible justice system.
The preamble of the Constitution of Bangladesh encapsulates the aspirations of the liberation war, aiming to establish a socialist society where the political, social, and economic justice of the people of Bangladesh will be secured.
The Imperative of Timely Justice in Bangladesh
Article 31 of the Constitution of Bangladesh explicitly ensures that citizens have the fundamental right to be protected by the law. Moreover, Article 7 of the Universal Declaration of Human Rights (UDHR) guarantees equal protection of the law without any discrimination, and Article 8 articulates,
To comprehend the concept of “protection of the law,” it is crucial to consider its meaning. If a citizen does not receive timely legal protection and justice is often delayed, can we still consider it as upholding the principle of protection of the law or will the given remedy be ‘effective’ at all due to the tardy delivery of justice?
While Article 35 of the Constitution specifically addresses criminal trials and does not apply to civil cases, it provides insights for all types of cases. The Article grants the right to a speedy trial for the accused, implying that every dispensation of justice should be prompt. Moreover, participants expect their issues to be resolved within a predictable and reasonable timeframe. This predictability not only fosters trust in the legal system but also instills confidence in the judiciary.
The Burden of Justice: Mounting Caseloads
Despite the presence of favorable constitutional provisions, Bangladesh continues to struggle with a substantial backlog of cases within its judicial system, leading to the persistent belief that “justice delayed is justice denied.”
Like most other problems, Bangladesh has inherited its case backlog problem from its colonial days in the pre-independent era. During the year 1974, the Appellate Division (AD) had a total of five Judges, while the High Court (HC) had twelve Judges. At that time, the number of pending cases in the Appellate Division was 4,094, and in the High Court, it amounted to 28,186.
Number of Cases in 1974
No Data Found
Research conducted by Assistant Professors of Law, A B M Asrafuzzaman of University of Dhaka and Md. Golam Mostofa Hasan of Jagannath University published in the Dhaka University Law Journal shows that the backlog of pending cases in Bangladesh’s courts has seen a substantial increase in recent years. By December 2019, the backlog had reached a critical state, with approximately 3.7 million cases across all court types. The Supreme Court of Bangladesh alone had around 0.5 million pending cases, while the remaining backlog was in subordinate courts.
By December 2020, the total number of pending cases had risen to nearly 3.9 million, with the majority in subordinate courts. Comparing the periods from 2000 to 2010 and 2011 to 2020, the backlog increased by approximately 0.5 million and 2.5 million cases, respectively. These figures reveal a troubling trend for Bangladesh’s legal system, indicating a challenging future ahead.
According to a report published in the Daily Star on September 16, 2021, the judicial system in Bangladesh is facing a significant challenge in terms of caseload distribution. The report revealed that the Appellate Division currently comprises only 5 Justices, the High Court Division has 91 Justices, and the subordinate courts are manned by a staggering 1,700 Judges. However, the number of Justices has now increased to 8.
On average, an Appellate Division Justice is handling more than 3,045 cases, while their counterparts in the High Court Division are facing a caseload of approximately 4,923 cases. Even in the subordinate courts, the average workload per Judge remains high, with around 2,038 cases assigned to each Judge.
Digitising Landmark Rulings
Online GD Filing
Online Case Filing in Admiralty and Company Courts
Although Bangladesh’s interagency justice service system and judicial infrastructures are not fully digitalized, the Supreme Court has begun digitising historic rulings, the Bangladeshi police have introduced an online GD filing system, and the Company and Admiralty Courts in the High Court Division of the Supreme Court have recently introduced an online case filing system. Although it is acknowledged that the E-judiciary project has the potential to significantly expand the judiciary’s digital infrastructure, it is imperative to guarantee the upkeep of the court system’s current digital services, such as the digital judicial dashboard and the online causelist for lower courts.
From Backlogs to Balance: Prioritizing the Judge-Population Ratio for Effective Judicial System
The issue of case backlog is not unique to Bangladesh but is shared by the Indo-Pak-Bangla subcontinent. While there are no specific suggestions from any institution in Bangladesh regarding the ideal Judge-population ratio, the Law Commission and the Supreme Court of India have recommended having 50 Judges per one million people as a means to reduce the backlog. According to the Strategic Plan 2017-2022 published by the Supreme Court, the Judge-population ratio in Bangladesh was 8.75 Judges per million people. However, due to the political status quo, the functioning of the Bangladesh Judicial Service Commission (BJSC) faced challenges, resulting in the current ratio standing at only 10.6 Judges per million people. In comparison, the United States, France, and Turkey had significantly higher ratios, with 108, 109, and 101 Judges respectively for every million people, as reported by the Council of Europe in 2010. This highlights the substantial progress that the judiciary of Bangladesh still needs to achieve.
Therefore, it can be reasonably concluded that addressing the elephantine case backlog and ensuring access to justice necessitates the appointment of a significant number of Judges in the subordinate courts and the Supreme Court. Reaching the minimum threshold of 50 Judges per million people should be a primary consideration in resolving this challenge.
The establishment of the BJSC following the Masdar Hossain case judgment has played a crucial role in the judicial system. The government has been providing substantial support to the Commission, evident through the annual administration of the Bangladesh Judicial Service (BJS) examination. However, the number of Judges appointed in the subordinate courts remains relatively low, with an average of around 100 Judges per year.
To effectively reduce the caseload in the legal system, it is imperative for the BJSC to increase the number of judicial appointments. A minimum of 500 Judges should be appointed annually. In 2014, the Bangladesh Law Commission recommended that the government recruit 3,000 Judges for subordinate courts to expedite the disposal of pending cases. This initiative is crucial until the Judge-population ratio reaches a target of at least 50 Judges for every 1 million people. Achieving this goal would necessitate a significant boost in judicial appointments, resulting in a more efficient resolution of cases and improved access to justice for the population.
Swift Justice: Improving Witness Management for Faster Trials
The appointment of Judges is crucial in expediting the resolution of both civil and criminal cases. However, when it comes to criminal cases, special attention needs to be given to witness management. The delay in delivering justice can be attributed to various factors within the legal system, including the presence of colonial-minded statutes, and the mistakes of lawyers, plaintiffs, defendants, and accused individuals. Lack of attention to witness management also plays a vital role in the delay of criminal cases.
Addressing this issue requires not only enacting laws concerning witness protection but also establishing laws for witness management and their effective implementation. Currently, witnesses are required to appear in court on a specific date without any specified time, leading to the wastage of their entire day as they cannot plan their schedules accordingly. Furthermore, there is no guarantee that witnesses will be called to testify on the day they are initially summoned. It is not uncommon for witnesses to be summoned multiple times on different days, which adds to the delay in case resolution. This is because witnesses often choose not to appear in court for every hearing they are called upon. This tendency of witnesses to be absent for certain hearings further complicates and prolongs the legal proceedings.
Additionally, the procedures for providing travel and daily allowances (TA/DA) for witnesses are antiquated. Such practices of the system contradict the fundamental right to a speedy trial as enshrined in Article 35 of the Constitution.
To address these issues, the legislature should establish laws on witness management that include mandatory time slots of no more than 3 hours for witnesses. Such laws should provide comprehensive protection for witnesses, covering their expenses for transportation, accommodation, and other necessary arrangements. It is also crucial to ensure that witnesses receive compensation equivalent to at least double their daily income. By implementing these measures, the legal system can better manage witnesses and provide them with the necessary support, ultimately reducing delays in delivering justice.
Transforming the Court Fee Payment Process: A Path to Efficient Justice
Streamlining the court fee payment process through digitalization can significantly address the delays and complexities associated with the current system. In the context of civil suits, at least 5 stages in the pre-trial phase can contribute to delays, often stemming from mistakes made by the parties or their lawyers. However, the cumbersome procedure for court fee payment is particularly problematic, given the analog nature of the system. This outdated setup not only adds unnecessary delays but also places an additional burden on litigants. However, a viable solution lies in digitalizing the court fee payment system.
Currently, court fee calculation is a complex task, requiring advocates to purchase stamps from vendors to fulfill the payment obligations at the Bangladesh Bank. This fragmented approach complicates the litigation process, forcing litigants to visit separate desks outside the court premises. Moreover, the processing of court fees takes several days before they can be utilized.
To address these issues, an amendment to Section 25 of the Court-fees Act 1870 is necessary to facilitate the digitalization of court fee payments. Learning from the experiences of countries like India and the UK, Bangladesh can introduce e-payment methods to streamline the process.
- Inclusion of a payment option on the court’s website, providing convenient access for litigants.
- Integration with one or more mobile financial services to facilitate payment.
- Connection of the court’s website with the chosen online payment gateway to ensure secure transactions.
- Enable litigants to submit e-receipts directly to the court, eliminating the need for physical documents.
By embracing digitalization in court fee payments, Bangladesh can alleviate the hardships faced by litigants and reduce delays in the judiciary. As the government has kept its promise to build a “Digital Bangladesh” and is progressing towards a “Smart Bangladesh,” it is imperative for the parliament and administrative bodies to enact and implement laws that facilitate digitalization in court fee processes. This transformative step will pave the way for a more efficient and accessible justice system. However, it is crucial to consider that before implementing a digitalized system, there must be a focus on creating “digitally empowered citizens” who are capable of utilizing the system effectively. Without proper digital literacy, individuals who lack technological skills may face challenges in navigating and utilizing the digitalized justice system. Therefore, alongside the digitalization efforts, initiatives should be taken to enhance the digital literacy skills of the population to ensure that the system serves as a facilitator of justice rather than an additional burden.
Enhancing Access to Justice by Establishment of Courts
The Republic has made strides in establishing various courts and tribunals through different statutes, such as the Administrative Tribunal Act of 1980, the Bangladesh Labour Act of 2006, the Artha Rin Adalat Ain (Money Loan Court Act) of 2003, and the Environment Court Act of 2000. These measures have been implemented with the aim of improving access to justice and alleviating the case backlog. However, despite these efforts, a significant challenge persists due to the inadequate number of Judges available. As a result, the same Judges are often burdened with presiding over multiple courts, resulting in limited progress in reducing delays and effectively addressing the backlog. Therefore, to truly empower these tribunals to deliver justice, it is imperative for the state to prioritize the appointment of necessary number of Judges.
The Gram Adalat Ain (Village Courts Act) of 2006, the Conciliation of Disputes (Pouro Area) Board Act of 2004, and the Arbitration Act of 2001 provide avenues for citizens to seek justice through alternative dispute resolution mechanisms. However, a significant challenge arises from the lack of judicial consciousness among the tribunals and the individuals seeking justice. It is important to note that this critique does not lay blame on the citizens themselves. Rather, the focus is on the laws, lawmakers, and the colonial structure of the legal system, which contribute to a lack of judicial consciousness and hinder the accessibility of justice.
Cultivating Legal Awareness: Breaking Colonial Mindsets
Arpeeta Shams Mizan, an Assistant Professor of Law at the University of Dhaka, argues in her paper, “Continuing the Colonial Legacy in the Legislative Drafting in Bangladesh: Impact on the Legal Consciousness and the Rule of Law and Human Rights,” that the replacement of community-based native laws with colonial laws has disrupted legal practices and shaped people’s perception of law in the region which undermines the development of a legal consciousness and hinders a deeper understanding and appreciation of the rule of law.
From this analysis, it can be inferred that alternative dispute resolution (ADR) processes may prove effective for large multinational companies, but laws such as the Gram Adalat Ain and the Conciliation of Disputes (Pouro Area) Board Act of 2004 are unlikely to be successful without a legal consciousness that is free from a colonial mindset.
Indeed, to ensure effective alternative dispute resolution (ADR) and promote justice, it is crucial for the new generation of law students to be free from the influence of colonial hangover. By cultivating a legal education system that emphasizes autochthonous jurisprudence and the legal history of the land, students can develop a deeper understanding of their own legal traditions and cultural context. Prioritizing the socio-legal perspective in their studies can further enhance their awareness of the societal impact of law and the need for non-colonial approaches to drafting laws.
By equipping law students with this knowledge and perspective, they can contribute to the development of a legal consciousness among the population. They can play an active role in advocating to the government for the creation of laws that align with the values, needs, and aspirations of the people. This approach will help break free from the legacy of colonialism and ensure that the legal system in Bangladesh reflects the unique socio-cultural context of the nation.
Strategic Priorities
The Supreme Court of Bangladesh, in its strategic plan for 2017-2022, outlined the case backlog situation and identified four main causes, i.e.
- Insufficient human resources, including Judges and staff members.
- Inadequate knowledge, skills, and motivation.
- Ineffective and outdated rules, orders, policies, and systems.
- Insufficient physical facilities.
Unfortunately, these issues have not been adequately resolved, and it is crucial for the Republic to address them in order to establish an effective justice system.
Moreover, the strategic plan also identified direct stakeholders, i.e. the police, prosecution, prison, Bar, Law and Justice Division, and Health Department. Indirect stakeholders included the Legislative and Parliamentary Affairs Division, Ministry of Home, Bangladesh Judicial Service Commission (BJSC), Judicial Administration Training Institute (JATI), Law Commission, and Bar Council. By promoting collaboration and synergy among these direct and indirect stakeholders, along with other relevant state institutions involved in digitalization, education, and universities offering law programs, it is feasible
Conclusion
As the economy of Bangladesh experiences rapid growth with numerous large-scale development projects, it is also essential to prioritize the protection of human rights, uphold constitutional obligations, and fulfill international commitments. To honor the aspirations and aims of our freedom fighters, it is imperative to address the extensive case backlog by increasing the number of Judges, enacting laws that prioritize the well-being of the people, and embracing digitalization in the legal sphere. These measures are crucial for achieving true justice for the population and staying aligned with our collective objectives.
About the Author
Fahim Shihab Reywaj, a law student at the University of Dhaka, who expresses himself through debating, writing, and poems; a strong advocate of our national liberation struggle and aspires to achieve the fundamental aim declared in the preamble of our constitution. Often introduces himself by saying, ‘too human to be a seagull.’