Scope for e-courts and e-judiciary in Bangladesh

Md Nayem Alimul Hyder | Published: December 27, 2014 00:00:00 | Updated: November 30, 2024 06:01:00

The Constitution of Bangladesh itself ensures the basis of the legal aid mechanism through its different articles though there is no explicit and unambiguous expression in any article on the subject matter concerned. Firstly article 27 says that all the citizens are equal before the law and are entitled to an equal protection of the law. Article 14 states that it shall be the fundamental responsibility of the state to emancipate backward sectors of the society from all forms of exploitations. Article 18 says that the state shall endeavor to ensure equality of opportunity to all citizens. Article 31(2) guarantees the protection of law and to be treated only in accordance with the law. Article 35(3) ensures a speedy and fair trial. Article 33(1) states that any person arrested shall not be denied the right to consult and be defended by a legal practitioner of his choice. The Constitution of Bangladesh recognizes the concepts 'equality before the law', 'equal protection of the law', 'rule of law' and other legal concepts wherein the issue 'legal aid' is observed to be underpowered and basically remains as a non-applicable concept. We get the flavour of legal aid in specific provisions in a very limited scale in Bangladeshi laws both in the civil and the criminal sectors. Various international documents have also been framed for the protection of these rights. These are Articles 7, 8 and 10 of the Universal Declaration of Human Rights 1948, Article 14 of the International Covenant on Civil and Political Rights 1966, Articles 6(1) and 20(1) of the Commonwealth of Independent States Convention on Human Rights and Fundamental Freedoms 1995. Article 9 of the Arab Charter on Human Rights 1994, Article 3 of the African Charter on Human and People Rights 1981, Article 24 of the American Convention on Human Rights 1978.Â Â
These rights intend to ensure a "right to justice" to those who cannot afford the "costs and forms" of availing justice in Bangladesh. In short, Right to Free Legal Aid is the backbone for granting access to justice to "marginalized people" of Bangladesh. It has been more than 40 years since the Constitution of Bangladesh came into force. However, till now the objectives of achieving Right to Free Legal Aid and Right to Fair Trial are distant dreams. This is really frustrating as 40 years is a very long time to achieve this objective. Our legal and judicial systems are marred with many "loopholes" and "deficiencies" that would not allow us to achieve the objective of "omnipresent justice" in Bangladesh. The most recent development and operating legislation relating to legal aid in Bangladesh is the Legal Aid Services Act, 2000. According to this Act, the whole legal aid service to indigenous people is conducted through a National Legal Aid Services Board and by its district committees. All the powers and authorities in this regulation of legal aid are vested on the National Legal Aid Board. National Board shall determine the eligibility of the applicants for the legal aid and enact the rules of business in this regard. Different legal aid schemes shall be developed and complemented by legal education and research. The Act envisages initiatives to the Board to make the local people aware of their legal rights through publications, seminars and the media. Moreover the most interesting point is that there are no such provisions for online procedures for the aggrieved parties.Â The government machinery and system is suffering from corruption, lack of transparency and accountability and colonial mindset. We are still not open to use of Information and Communication Technology (ICT) for "extending the reach of justice" to different corners of Bangladesh. In India computerization of courts has helped in reducing the "backlog of cases" in the past. However, mere computerization of court would not serve any further purpose in the present times. We have to migrate from "analogue courts" to "computerized courts" and "electronic courts" as soon as possible.Â We are still waiting for the establishment of first E-Court of Bangladesh.Â Â
An electronic court (e-court) is the process where the traditional courts are made more effective and speedier through the use of information and communication technology (ICT). From filing of the case to its final adjudication, all is done in an online environment. E-courts have some unique features such as role based access to authorized users, uploading the scanned files/evidence and adding appropriate metadata, allowing judges to see recording of proceeding for review and why case was rescheduled last time,Â making the knowledge and information content available in 24x7 online environments, appropriate searching of case records, provision to provide case CD/DVD to authorized person, provision for taking record backup at a specified backup site, live webcast of case proceedings through web portal, can be used by court reporters that missed a word or statement.
Now we have to rely more upon "software element" than dependence upon hardware alone. For instance, use of software can curb bench hunting in Bangladesh and increase disposal of cases up to 25% to 50%.Â Software and applications can also be used for "dispute resolution purposes". We have Arbitration Act, 2001 that empowers the parties to a dispute to resolve their disputes through Alternative Dispute Resolution Mechanisms (ADRMs) like arbitration, conciliation, mediation, etc. However, the Arbitration Act is "outdated" in nature as it does not specifically support use of Online Dispute Resolution (ODR) in Bangladesh. There is an urgent need to enact a new Arbitration Law for Bangladesh that will also recognize use of ODR in Bangladesh for dispute resolution. While other nations are working towards using ODR for dispute resolutions, Bangladesh is in no mood to do so. For instance, the UK government has started a consultation on the use of Alternative Dispute Resolution (ADR) to help UK consumers resolve complaints and disputes. ODR is also proposed to be used for cross border e-commerce transactions, cross border technology transactions, domain name dispute resolution, etc. Even legal standards for Online Dispute Resolution for cross-border electronic transactions are under consideration.Â Â
These "technological remedies" are not difficult to adopt but the "political will" to do the same is missing. Bangladesh cannot truly achieve the task of bringing access to justice for marginalized people of the country until the government "truly accepts and adopts" use of ICT for that purpose. We have an information and communication technology-friendly government in the country with a "strong leader" in the form of Sheikh Hasina that can help in achieving this much needed objective. I am confident that access to justice for marginalized people of Bangladesh would be a reality very soon as the Prime Minister prefers to use ICT for bringing various "public reforms".
The writer is Senior Lecturer, Department of Law, World University of Bangladesh.
E-mail: lawmnahyder@yahoo.com