Justice delayed means justice denied
Friday, 14 September 2007
Syed Mujtaba Quader
ON both counts we Bangladeshis fall far behind. No money or investment is required to attain this; all that is required is the cultivation of a state of mind. With the growth of multifaceted NGOs like BRAC, ASA and Grameen Bank and the presence of a vociferous civil rights community the disadvantaged may have found some solace in recent times.
But the dispensation of quick justice seems to have taken a backseat in a pseudo-democratic environment where political parties take advantage of the ignorance of the common people and the greed of the privileged ones. The more one can use the judicial system for one's own selfish ends, the more successful one becomes. The legal system seems to have become a tool for the clever, the wily and the unscrupulous to the detriment of the entire nation. Individuals vie with each other to climb the mountains of achievement through the dishonest manipulation of the judicial system but they cannot see that the entire edifice of peaceful communal living is sinking in an abyss of wrong and evil.
After all, justice is the defining periphery for the value system of a people. By definition, if there is no value system there can be no justice, and conversely, if there is no justice, there can be no value system. Moreover, if justice cannot be delivered over an extended period of time, then it can be said that there is no justice during that period of time. 'Justice delayed is justice denied' the famous quotation from British Prime Minister William Gladstone is well understood by schemers who have learnt that, delaying justice is the way to defeating justice. Their mode of operation is quite clear - delay justice and you have control over the authority that be. And by extension, you have power over the whole system and the nation. In recent times, delaying justice has become the most important tool for unscrupulous people to be outside the system and eventually to manipulate the system from this vantage point. Going to court is the easiest way to win time and thereby have control over the situation.
'Not to decide is to decide' and if indecision can be forced upon the rightful adversary through the workings of the court, the decision will always favour the wrongdoer. The principal cause for the deflowering of our value system is the inability of our intellectuals and the legal system to recognise this. How many land grabbers do we know today who have gobbled up land of hapless villagers just by registering case in the local court? How many dishonest businessmen do we know who have stopped banks from foreclosing on mortgaged property by starting a court case? How many builders do we know who build huge buildings openly disregarding established building codes only by virtue of a court case? How many tenants do we know who go on occupying other people's property by just registering a court case? How many families around the country remain perpetually enmeshed in torment and anguish on account of a few square yards of inherited property because of one single court case. The list goes on and on.
The lower judiciary is the most affected. Court cases linger for years and years and litigants cannot go to a higher authority when the lower court itself is delinquent in its responsibility to delve out justice. It is important to note here that, although, legal cases are almost always taken to the High Court by the losers for getting better judicial dispensation, getting out of the lower court itself may become an almost Herculean task, win or loose. There are quite a few ways that these delays take place. The first is by a combination of skilful lawyers and insensitive judges finding many causes for deferring hearing of the cases month after month for no rationale reason at all excepting insensitivity and lethargy in carrying out their work. Sometimes dates are given two months away for no relevant reason at all. No methods exist for the litigant to appeal to a higher authority to seek redress from these whimsical actions of delay which over an extended period of time is tantamount to the denial of justice. The second is by lawyers who take the cases from court to court on flimsy technical grounds in a labyrinthine exercise of slippery judicial process that never finds traction anywhere. The third is by collusion between opposing lawyers who find much financial benefit in letting the case drag on and on for years. The fourth is by judges delaying the process as much as possible for finding financial benefit themselves. The fifth is by court officials in charge of court documents and procedures who subscribe to all forms of stratagems to prolong cases for financial benefit.
This list may go on and on. In all these cases the person who benefits the most is the person who is in the wrong, be it the litigant, the lawyer, the court official or the judge. Although edicts have been promulgated in the past by various governments to speed up the workings of the lower court, in practice, these have been mostly unsuccessful because of other technical legalities that supersede these edicts. Avenues for appeal to a higher authority against the inactions of the lower courts have been conspicuously neglected in these edicts.
In this confusion and chaos, the only leverage that a litigant can reasonably apply is to be able to choose and change lawyers at will depending on how much benefit a litigant perceives to be receiving from the person who is supposed to represent him and his interests in the court. It is a fundamental fact that a litigant goes to court with the intention of asserting his lawful rights, in other words, to win the case. If there was not even a slim chance of winning a case, the litigant could not be expected to go to court at all -- the litigant would have to yield and submit to the stronger adversary outside of court. The only exception as explained above is the self-confessed and unashamed wrong-doer who goes to court with the only intention of delaying resolution of the issue and thereby benefiting from the delay. So, in order to win the case, the litigant is pre-disposed to selecting the best person in his understanding to represent him to win the case. This right of the litigant to choose and select a lawyer of his liking is fundamental to the disposal of justice in the present system.
Market forces are supposed to play its role in fostering excellence in the legal profession. Instead, even this fundamental right of the litigant is being infringed upon in our present day judicial practice. The Bar Council has made it a rule that a lawyer once empowered to handle a case cannot be changed without a formal written release from the lawyer. Courts do not accept changes in legal representation without clearance from earlier representatives. Obtaining exception to this requirement is lengthy and cumbersome. This involves making an application to the Bar Council and obtaining a ruling in this regard. This is almost impossible to do for common litigants with no knowledge of the law. The argument may be that this aspect of the practice prevents litigants from not paying fees to lawyers. Although, this may be true on paper, lawyers are known to use this ploy to keep clients tied up to themselves for years on end for benefit only to themselves with no caring at all to the actual cause of delivering justice.
No issue can be more paramount in the judicial system than to deliver justice to litigants. Petty attempts of lawyers and their associations to protect their own selfish interests ahead of the interests of the litigant are repugnant, in the least. This kind of anti-competitive practice breeds incompetence in the legal profession and thereby ultimately harms the litigants' and the public's interests. If it came to that, lawyers could always take delinquent litigants to task through the courts themselves. In actuality the complexity of this issue is compounded by the lawyers themselves by not presenting exact rates and prices for their services beforehand to inexperienced litigants. Market forces are disregarded by not allowing lawyers to advertise in any form thereby keeping litigants at the mercy of arrogant and selfish lawyers who are wary of competition from younger practitioners.
Presently a sense of hope mixed with expectation about getting justice in our society has taken root among the citizens with the coming of the security services backed-Caretaker Government. A lot is being said and done to separate the judiciary from the executive which seems to be the way out of the judicial-political morass. Corruption seems to be taking a dive and a ray of hope has emerged that justice in the courts shall eventually prevail.
However, when one examines the facts one cannot but despair. There are over 140,000 writ petitions alone pending for dispensation on the desks of the high court. According to a study, a vast number of cases are in the courts for disposal. The number of cases is more than the population of the country because some people are involved in multiple court cases. According to the same study, the average time taken for a court case to be resolved in Bangladesh is 9.5 years. Some court cases have been known to go on for 50 years. In many cases the initial need for instituting a court case gets extinguished by the time a verdict is given by the court. How can any legal system tackle such formidable statistics? May be, the strategists will be well advised to think again about what we are up against.
The success of efforts to make the judiciary independent and make rule of law viable in the country to a large extent depends on the goodwill and cooperation of the Bar Council and the Bar Associations coupled with the ACC and other organs of the state in initiating reforms in their rules and ranks to reflect the requirements of modern times and the needs of the litigants. Simply separating the judiciary from the executive may not uproot all the evils. The matter may have to be tackled in the spirit of a revolution.
Finally, we need to remember the famous quotation from the English philosopher Edmund Burke who said, 'All that is necessary for the triumph of evil is for good men to do nothing'. If we do not do anything to protect the right-doers and punish the wrong-doer then, we cannot blame anyone if the knife is pointed in our own direction tomorrow.
..................................................
The writer can be reached at
e-mail:[email protected]
ON both counts we Bangladeshis fall far behind. No money or investment is required to attain this; all that is required is the cultivation of a state of mind. With the growth of multifaceted NGOs like BRAC, ASA and Grameen Bank and the presence of a vociferous civil rights community the disadvantaged may have found some solace in recent times.
But the dispensation of quick justice seems to have taken a backseat in a pseudo-democratic environment where political parties take advantage of the ignorance of the common people and the greed of the privileged ones. The more one can use the judicial system for one's own selfish ends, the more successful one becomes. The legal system seems to have become a tool for the clever, the wily and the unscrupulous to the detriment of the entire nation. Individuals vie with each other to climb the mountains of achievement through the dishonest manipulation of the judicial system but they cannot see that the entire edifice of peaceful communal living is sinking in an abyss of wrong and evil.
After all, justice is the defining periphery for the value system of a people. By definition, if there is no value system there can be no justice, and conversely, if there is no justice, there can be no value system. Moreover, if justice cannot be delivered over an extended period of time, then it can be said that there is no justice during that period of time. 'Justice delayed is justice denied' the famous quotation from British Prime Minister William Gladstone is well understood by schemers who have learnt that, delaying justice is the way to defeating justice. Their mode of operation is quite clear - delay justice and you have control over the authority that be. And by extension, you have power over the whole system and the nation. In recent times, delaying justice has become the most important tool for unscrupulous people to be outside the system and eventually to manipulate the system from this vantage point. Going to court is the easiest way to win time and thereby have control over the situation.
'Not to decide is to decide' and if indecision can be forced upon the rightful adversary through the workings of the court, the decision will always favour the wrongdoer. The principal cause for the deflowering of our value system is the inability of our intellectuals and the legal system to recognise this. How many land grabbers do we know today who have gobbled up land of hapless villagers just by registering case in the local court? How many dishonest businessmen do we know who have stopped banks from foreclosing on mortgaged property by starting a court case? How many builders do we know who build huge buildings openly disregarding established building codes only by virtue of a court case? How many tenants do we know who go on occupying other people's property by just registering a court case? How many families around the country remain perpetually enmeshed in torment and anguish on account of a few square yards of inherited property because of one single court case. The list goes on and on.
The lower judiciary is the most affected. Court cases linger for years and years and litigants cannot go to a higher authority when the lower court itself is delinquent in its responsibility to delve out justice. It is important to note here that, although, legal cases are almost always taken to the High Court by the losers for getting better judicial dispensation, getting out of the lower court itself may become an almost Herculean task, win or loose. There are quite a few ways that these delays take place. The first is by a combination of skilful lawyers and insensitive judges finding many causes for deferring hearing of the cases month after month for no rationale reason at all excepting insensitivity and lethargy in carrying out their work. Sometimes dates are given two months away for no relevant reason at all. No methods exist for the litigant to appeal to a higher authority to seek redress from these whimsical actions of delay which over an extended period of time is tantamount to the denial of justice. The second is by lawyers who take the cases from court to court on flimsy technical grounds in a labyrinthine exercise of slippery judicial process that never finds traction anywhere. The third is by collusion between opposing lawyers who find much financial benefit in letting the case drag on and on for years. The fourth is by judges delaying the process as much as possible for finding financial benefit themselves. The fifth is by court officials in charge of court documents and procedures who subscribe to all forms of stratagems to prolong cases for financial benefit.
This list may go on and on. In all these cases the person who benefits the most is the person who is in the wrong, be it the litigant, the lawyer, the court official or the judge. Although edicts have been promulgated in the past by various governments to speed up the workings of the lower court, in practice, these have been mostly unsuccessful because of other technical legalities that supersede these edicts. Avenues for appeal to a higher authority against the inactions of the lower courts have been conspicuously neglected in these edicts.
In this confusion and chaos, the only leverage that a litigant can reasonably apply is to be able to choose and change lawyers at will depending on how much benefit a litigant perceives to be receiving from the person who is supposed to represent him and his interests in the court. It is a fundamental fact that a litigant goes to court with the intention of asserting his lawful rights, in other words, to win the case. If there was not even a slim chance of winning a case, the litigant could not be expected to go to court at all -- the litigant would have to yield and submit to the stronger adversary outside of court. The only exception as explained above is the self-confessed and unashamed wrong-doer who goes to court with the only intention of delaying resolution of the issue and thereby benefiting from the delay. So, in order to win the case, the litigant is pre-disposed to selecting the best person in his understanding to represent him to win the case. This right of the litigant to choose and select a lawyer of his liking is fundamental to the disposal of justice in the present system.
Market forces are supposed to play its role in fostering excellence in the legal profession. Instead, even this fundamental right of the litigant is being infringed upon in our present day judicial practice. The Bar Council has made it a rule that a lawyer once empowered to handle a case cannot be changed without a formal written release from the lawyer. Courts do not accept changes in legal representation without clearance from earlier representatives. Obtaining exception to this requirement is lengthy and cumbersome. This involves making an application to the Bar Council and obtaining a ruling in this regard. This is almost impossible to do for common litigants with no knowledge of the law. The argument may be that this aspect of the practice prevents litigants from not paying fees to lawyers. Although, this may be true on paper, lawyers are known to use this ploy to keep clients tied up to themselves for years on end for benefit only to themselves with no caring at all to the actual cause of delivering justice.
No issue can be more paramount in the judicial system than to deliver justice to litigants. Petty attempts of lawyers and their associations to protect their own selfish interests ahead of the interests of the litigant are repugnant, in the least. This kind of anti-competitive practice breeds incompetence in the legal profession and thereby ultimately harms the litigants' and the public's interests. If it came to that, lawyers could always take delinquent litigants to task through the courts themselves. In actuality the complexity of this issue is compounded by the lawyers themselves by not presenting exact rates and prices for their services beforehand to inexperienced litigants. Market forces are disregarded by not allowing lawyers to advertise in any form thereby keeping litigants at the mercy of arrogant and selfish lawyers who are wary of competition from younger practitioners.
Presently a sense of hope mixed with expectation about getting justice in our society has taken root among the citizens with the coming of the security services backed-Caretaker Government. A lot is being said and done to separate the judiciary from the executive which seems to be the way out of the judicial-political morass. Corruption seems to be taking a dive and a ray of hope has emerged that justice in the courts shall eventually prevail.
However, when one examines the facts one cannot but despair. There are over 140,000 writ petitions alone pending for dispensation on the desks of the high court. According to a study, a vast number of cases are in the courts for disposal. The number of cases is more than the population of the country because some people are involved in multiple court cases. According to the same study, the average time taken for a court case to be resolved in Bangladesh is 9.5 years. Some court cases have been known to go on for 50 years. In many cases the initial need for instituting a court case gets extinguished by the time a verdict is given by the court. How can any legal system tackle such formidable statistics? May be, the strategists will be well advised to think again about what we are up against.
The success of efforts to make the judiciary independent and make rule of law viable in the country to a large extent depends on the goodwill and cooperation of the Bar Council and the Bar Associations coupled with the ACC and other organs of the state in initiating reforms in their rules and ranks to reflect the requirements of modern times and the needs of the litigants. Simply separating the judiciary from the executive may not uproot all the evils. The matter may have to be tackled in the spirit of a revolution.
Finally, we need to remember the famous quotation from the English philosopher Edmund Burke who said, 'All that is necessary for the triumph of evil is for good men to do nothing'. If we do not do anything to protect the right-doers and punish the wrong-doer then, we cannot blame anyone if the knife is pointed in our own direction tomorrow.
..................................................
The writer can be reached at
e-mail:[email protected]