The hybrid legal system for ensuring justice
Saturday, 25 July 2009
K.M. Mukta
JUSTICE is still elusive to the millions of the down-trodden in today's world. And more often "justice cries in silence" for a multitude of factors. The complexities in the legal systems, of course, remain the main factor in the denial of justice.
The "hybrid legal system" under globalisation can ensure a normative approach for sustainable justice for all. It would bring utilitarian and individual advantage for justice-seekers, irrespective of race, caste and religion to culminate in sustainable development as challenges of justice cut across all boundaries.
Each legal system has its advantages and disadvantages. The traditions of 'discretion' and 'precedent' of common law legal system have far reaching ramifications in the whole gamut of justice. Under it, the passive role of judges in the adversarial tradition of common law impeded justice, particularly in the developing countries left by the British colonial authority.
For example, in the common law system that Bangladesh inherited as a British colonial legacy, there is 90 per cent acquittal rate in the criminal cases. The present orthodox adversarial legal tradition in the judiciary of Bangladesh, except in some cases of higher judiciary, makes the young energetic and committed judicial officer totally dependent on uneducated lawyers and moth-eaten documents in sacks. It is as if the judiciary has taken the solemn oath not to follow the modern functional changes, adopted by the contemporary world.
The civil law system, with its classical tradition of inquisition and codified law, prevents separating a false case from a genuine one or to find out the reality for the objective of ensuring justice. This rigid and orthodox approach towards precedent and discretion handicaps the civil law legal system.
The legal system of the Fareast and the religious legal system are in this regard laudable. The natural and congenial legal traditions of various smaller nations and indigenous communities deserve praise for their notion of justice, gender justice and equality.
The industrial revolution brought a paradigm shift to the global cosmopolitan village to import the influence of other legal systems.
The developed countries, irrespective of their previous legal systems and traditions, have brought changes by importing dynamic legal traditions from other legal systems of the world for ensuring justice to keep pace with the changing times.
The countries of the European Union (EU), the USA and other developed countries are the champions of hybrid legal system for dispute resolution. But most of the developing countries of Asia and Africa are continuing with outdated 'mono legal system' that causes a colossal wastage of human resource, with justice remaining elusive.
Poverty, red tape, continuation of colonial legacy burdened by neo-colonial factors and mal-governance obstruct change in law and legal system in the developing countries only to protect vested interests and impede justices.
But in the modern era of welfare-based on human rights, the legitimate expectation of the common people cannot be neglected and set aside anymore. Transparency and accountability demanded by the deprived from pole to pole, can be ensured by hybrid legal system alone.
As the hybrid legal system ensured fair play and justice in some societies of the world, its appeal is sweeping across the conscious world. But this system calls for more research as only a limited number of scholars now do it in some regions of the world.
Unfortunately, the notion of hybrid legal system remains unknown in the developing countries where the policy-makers lack the "political will" and commitment to ensure justice and the rule of law to the citizens.
The jurists, the academics and the civil societies in the developing societies, lacking the awareness, avoid advocacy with the policy-makers to adopt the hybrid legal system, that does not allow hypocrisy and lacunae of mono legal traditions to deny justice. Some legal scholars are asking for the hybrid legal system but their feeble arguments cannot convince the colonial tradition-oriented policy-makers.
The scholars in law must go for serious research to strengthen their argument. The government should constitute commission to replace the existing legal system with the hybrid legal system. The law can be bent under the existing system to deny justice. The people, who own the Republic, lost much of their confidence on an unfair system.
The writer, a lawyer, researcher and analyst on law and judiciary, can be reached at
e-mail: kohinoorgazi@yahoo.com
JUSTICE is still elusive to the millions of the down-trodden in today's world. And more often "justice cries in silence" for a multitude of factors. The complexities in the legal systems, of course, remain the main factor in the denial of justice.
The "hybrid legal system" under globalisation can ensure a normative approach for sustainable justice for all. It would bring utilitarian and individual advantage for justice-seekers, irrespective of race, caste and religion to culminate in sustainable development as challenges of justice cut across all boundaries.
Each legal system has its advantages and disadvantages. The traditions of 'discretion' and 'precedent' of common law legal system have far reaching ramifications in the whole gamut of justice. Under it, the passive role of judges in the adversarial tradition of common law impeded justice, particularly in the developing countries left by the British colonial authority.
For example, in the common law system that Bangladesh inherited as a British colonial legacy, there is 90 per cent acquittal rate in the criminal cases. The present orthodox adversarial legal tradition in the judiciary of Bangladesh, except in some cases of higher judiciary, makes the young energetic and committed judicial officer totally dependent on uneducated lawyers and moth-eaten documents in sacks. It is as if the judiciary has taken the solemn oath not to follow the modern functional changes, adopted by the contemporary world.
The civil law system, with its classical tradition of inquisition and codified law, prevents separating a false case from a genuine one or to find out the reality for the objective of ensuring justice. This rigid and orthodox approach towards precedent and discretion handicaps the civil law legal system.
The legal system of the Fareast and the religious legal system are in this regard laudable. The natural and congenial legal traditions of various smaller nations and indigenous communities deserve praise for their notion of justice, gender justice and equality.
The industrial revolution brought a paradigm shift to the global cosmopolitan village to import the influence of other legal systems.
The developed countries, irrespective of their previous legal systems and traditions, have brought changes by importing dynamic legal traditions from other legal systems of the world for ensuring justice to keep pace with the changing times.
The countries of the European Union (EU), the USA and other developed countries are the champions of hybrid legal system for dispute resolution. But most of the developing countries of Asia and Africa are continuing with outdated 'mono legal system' that causes a colossal wastage of human resource, with justice remaining elusive.
Poverty, red tape, continuation of colonial legacy burdened by neo-colonial factors and mal-governance obstruct change in law and legal system in the developing countries only to protect vested interests and impede justices.
But in the modern era of welfare-based on human rights, the legitimate expectation of the common people cannot be neglected and set aside anymore. Transparency and accountability demanded by the deprived from pole to pole, can be ensured by hybrid legal system alone.
As the hybrid legal system ensured fair play and justice in some societies of the world, its appeal is sweeping across the conscious world. But this system calls for more research as only a limited number of scholars now do it in some regions of the world.
Unfortunately, the notion of hybrid legal system remains unknown in the developing countries where the policy-makers lack the "political will" and commitment to ensure justice and the rule of law to the citizens.
The jurists, the academics and the civil societies in the developing societies, lacking the awareness, avoid advocacy with the policy-makers to adopt the hybrid legal system, that does not allow hypocrisy and lacunae of mono legal traditions to deny justice. Some legal scholars are asking for the hybrid legal system but their feeble arguments cannot convince the colonial tradition-oriented policy-makers.
The scholars in law must go for serious research to strengthen their argument. The government should constitute commission to replace the existing legal system with the hybrid legal system. The law can be bent under the existing system to deny justice. The people, who own the Republic, lost much of their confidence on an unfair system.
The writer, a lawyer, researcher and analyst on law and judiciary, can be reached at
e-mail: kohinoorgazi@yahoo.com