The last resort
Tuesday, 14 December 2010
The history of man is a history of conflicts between the forces of good and evil. Ever since man began to live in society offences, crimes and social troubles of many sorts have disturbed social peace and order. It was deeply realized right at the time social living began that a society needed a set of rules to regulate human behaviour in the interaction between individuals who in their socially organized living constituted a society. The rules of human conduct, in order to be effective and meaningful, had to be supported by a system of social sanctions to secure adherence of all those who formed a society to such rules. With the advent of states in human history the need for law and effective legal sanctions were all the more deeply realized.
Society without a legal system is inconceivable, although in human history there have been idealists who dreamed of a vision of life free from any restraints and constrictions to control the freedom of the individual to behave as he places. Despite the remarkable expansion of the frontiers of human knowledge in all its branches man is yet to achieve a society where wrongful acts of all sorts will cease to occur. Since such a society is impossible to achieve and disputes and conflicts that occur between individuals can not in all cases be amicably resolved, we have, of necessity, to have recourse to the process of the law as the last resort to settle disputes and conflicts him.
The purpose of this write-up is not to embank upon any theoretical or philosophical discourses on the purpose of law and a legal system. The author of this write-up, who is a practicing lawyer, intends to bring into focus some of the hard realities he has experienced during his professional life.
The state of affairs of the legal profession deserves a close look into it. The number of enrolled advocates has reached a high figure. Several years ago it was through that the number of advocates who were practising then in the courts of the country were too many for the amount of legal services people were in need of. In recent years the number of legal proceedings in the courts of the country has greatly increased and with the increase of business and commercial activities the demand for legal services has also increased considerably. We need a substantial number of well-trained and experienced legal experts.
The legal profession has been beset by problems of far-reaching consequences for a long time. The normal experience of a new entrant to the profession is discouraging and depressing. The first problem that a newly-enrolled advocate faces right at the beginning of his professional career is finding a senior with a comprehensive professional base. It will simply be naïve to expect a newly-enrolled advocate to have a good ability to deal with the various sorts of legal matters and to conduct litigation on his own. The law degree and the professional qualification that he has attained merely qualifies him to enter the legal profession. The legal world is immensely vast and varied. It takes years for a legal practitioner to acquire adequate knowledge of the various areas law to be able to deal with a matter touching any of them. It is not knowledge alone, a young legal practitioner has to learn the art of advocacy. Each day of the professional life of a lawyer should be a day of learning. The world of law is so vast that there is law dealing with almost every aspect of human life.
A new entrant to the legal profession initially feels overpowered by the demands of the profession. The need for a good senior to help and guide him on the difficult course of legal practice is acutely felt, but only a small number of young practitioners can avail themselves of the opportunity to attach themselves to senior lawyers having a comprehensive legal practice. Since many of the senior lawyers do not practise in the many fields of law in which legal practice is conducted in Bangladesh, the majority of the new-entrants to the profession find it difficult to get an opportunity to gain experience of legal practice in all the areas of law. Some of the new entrants take months to find senior lawyers to be attached to or be associated with. In the developed legal systems of the world law houses or law firms are organized on a firm footing and such establishments exist for a long time. Young legal professionals join them and conduct their legal practice for life or a long time. When they retire from the profession the young practitioners who are left behind continue to run the establishments.
Since no such establishments can be found in our country, it becomes very difficult for beginners to begin their professional lives at well-organized establishments run by professionally experienced senior legal practitioners. It is often seen that young lawyers switch from one law chamber to another and they do so for various reasons, one of the them being their desire to gain experience in different areas of legal practice.
The vast majority of those who join the legal profession do not come from rich families. The first few years of professional life does not generally turn out to be very remunerative and it takes several years even for serious-minded practitioners to build up legal practice to secure a reasonably good financial stability. Hence the initial period of the professional life of many is very trying and somewhat discouraging. The legal profession is quite crowded and highly competitive. Financial hardship and other uncertainties in the initial years do indeed force some to give up legal practice and switch over to some other occupation. The author of this write-up knew some brilliant lawyers who were educated abroad and had excellent background. They left the profession after several years of practice and some left the country for good and others, who did not leave the country, found high-salaried jobs or opportunities for business activities to secure for them a good financial standing. We need honest, well-educated and dedicated lawyers for the country and it should not be lost sight of that the institution of the judiciary as an organ of the state owes much, for its strength and high level of excellence, to an well-educated, able and dedicated community of lawyers.
For those who begin the legal profession do not have any institutional support of any sort to help them overcome the initial period of financial hardship. Institutional support is also necessary with a view to providing professional training programme to them. There are hardly any opportunities for young lawyers as it exists now to receive training in all areas of legal practice. It is high time the Bar Council should give serious thought to the matter and develop a programme of comprehensive training for a reasonable period of time for the beginners of the legal profession. The county needs well-trained, capable and learned legal practitioners to make the last resort effective and meaningful.
In the legal profession both extensive and intensive knowledge is indispensable. The long arm of the law extends to human activities of almost all sorts. The legal profession by its very nature is highly demanding in that a lawyer cannot do well in profession without a thorough study of the law. In any country, lawyers constitute one of the most vigilant sections of the people. They fight for and exert themselves hard in order to protect the rights of citizens. The high ideal of the rule of law, in order to be meaningful and effective in real terms presupposes, as one of the necessities, the existence of a dedicated and ever-vigilant community of lawyers. This community of the society, as the champion of the down-trodden, repressed and persecuted, needs to be looked after and supported by the state.
The court system of our country deserves our mindful consideration. Litigant people fall back on the court when they find that they cannot resolve disputes amicably or by any other way. They hope for an early resolution of the disputes through the process of the law but the painful experience is that a legal proceeding takes an unusually long time to be disposed of by the court. There are several causes for the delay in the disposal of suits and other legal proceedings. At present, the most important cause for the delay appears to be what may be termed an explosion of litigation in the courts of law. A court of law has to deal with a huge number of cases on a daily basis. The case records of many legal proceedings contain a large number of documents and deeds. The process of adjudication normally takes time for the obvious reasons that a judge has to go through and examine a large number of papers of many proceedings, hold hearings, hear advocates of both sides and to write up judgments after studying the relevant laws and decisions of the higher courts.
The courts of law are now flooded with cases, both civil and criminal and the situation is no doubt alarming. The judges, the lawyers, the government and all those who are associated with the judiciary should right now address themselves to the problem of the explosion of litigation and study the problem thoroughly in order not to frustrate the hopes of the litigant people for the expeditious dispensation of justice by the judiciary. The problem of the explosion of litigation ought to be studied having regard to the underlying causes for the proliferation of litigation. Some of the causes for it appear to be external in nature and as an example we may cite the wrong recording made by the land survey officials in 'Khatians' during a survey operation. It is a fact that many law suits and other legal proceedings have been initiated all over the country by those owners of landed properties who were adversely affected by wrong entries made in 'Khatians'.
The officials of the authorities, government or otherwise, whose acts, decisions and orders have an effect on the rights of the citizens should be careful and discreet about exercising their powers and authorities conferred upon them by the law. Any default on their parts will no doubt drive a citizen affected by the default to have recourse to the last resort.
Criminal cases have also been proliferating over the years. The rise in the commission of crimes should basically be looked at from sociological stand points. The judiciary, generally speaking, is concerned with the administration of law and justice. What really causes a man to commit a crime or what social factors are responsible for the increase of criminal behaviour in a society are questions that are primarily for the social thinkers and sociologists to ponder about and suggest the ways to deal with them. It should be borne in mind that punishing a criminal is not of itself enough to rid a society of criminal activities. Social and economic conditions need to be addressed and the society should be based on the ideals of justice, equity and equality and, above all, the economic emancipation of the people has to be achieved.
The role of the judiciary in a modern state is of paramount importance. It acts as the guardian of the citizens. The dignity of the judiciary must be ensured at any cost and the citizens ought to be encouraged to show respect for the judiciary. By our constitution the citizens have the right to the freedom of expression. This right should not be exercised in any manner which tends to undermine the dignity of the judiciary.
An act of contempt of the court is a grave wrong because it tends to lower the dignity of the court. Some time ago a journalist asked me to advise him on some of the comments he wished to make on a matter of public importance. I found it somewhat difficult to advise him in definite and specific terms, because the law is not exhaustive enough and it may not be very easy to locate the borderline between acts amounting to contempt and those not amounting to contempt. The law of contempt of court should be reviewed by legal experts and in the event changes are made to this law, the need for striking a happy balance between the right to the freedom of expression and the need for preserving the dignity of the judiciary. Moreover, any updating of the law should be carried out to ensure clarify and intelligibility as to what constitutes contempt of the court and what does not.
The last resort on which citizens fall back when threatened with the invasion of any of their legal rights must be made truly effective or else the fundamental rights guaranteed in the constitution of the country will no doubt appear to be empty of meaning.
..................................................
Mahbubuddin Ahmed is a Barrister at Law and an advocate, the Supreme Court of Bangladesh
Society without a legal system is inconceivable, although in human history there have been idealists who dreamed of a vision of life free from any restraints and constrictions to control the freedom of the individual to behave as he places. Despite the remarkable expansion of the frontiers of human knowledge in all its branches man is yet to achieve a society where wrongful acts of all sorts will cease to occur. Since such a society is impossible to achieve and disputes and conflicts that occur between individuals can not in all cases be amicably resolved, we have, of necessity, to have recourse to the process of the law as the last resort to settle disputes and conflicts him.
The purpose of this write-up is not to embank upon any theoretical or philosophical discourses on the purpose of law and a legal system. The author of this write-up, who is a practicing lawyer, intends to bring into focus some of the hard realities he has experienced during his professional life.
The state of affairs of the legal profession deserves a close look into it. The number of enrolled advocates has reached a high figure. Several years ago it was through that the number of advocates who were practising then in the courts of the country were too many for the amount of legal services people were in need of. In recent years the number of legal proceedings in the courts of the country has greatly increased and with the increase of business and commercial activities the demand for legal services has also increased considerably. We need a substantial number of well-trained and experienced legal experts.
The legal profession has been beset by problems of far-reaching consequences for a long time. The normal experience of a new entrant to the profession is discouraging and depressing. The first problem that a newly-enrolled advocate faces right at the beginning of his professional career is finding a senior with a comprehensive professional base. It will simply be naïve to expect a newly-enrolled advocate to have a good ability to deal with the various sorts of legal matters and to conduct litigation on his own. The law degree and the professional qualification that he has attained merely qualifies him to enter the legal profession. The legal world is immensely vast and varied. It takes years for a legal practitioner to acquire adequate knowledge of the various areas law to be able to deal with a matter touching any of them. It is not knowledge alone, a young legal practitioner has to learn the art of advocacy. Each day of the professional life of a lawyer should be a day of learning. The world of law is so vast that there is law dealing with almost every aspect of human life.
A new entrant to the legal profession initially feels overpowered by the demands of the profession. The need for a good senior to help and guide him on the difficult course of legal practice is acutely felt, but only a small number of young practitioners can avail themselves of the opportunity to attach themselves to senior lawyers having a comprehensive legal practice. Since many of the senior lawyers do not practise in the many fields of law in which legal practice is conducted in Bangladesh, the majority of the new-entrants to the profession find it difficult to get an opportunity to gain experience of legal practice in all the areas of law. Some of the new entrants take months to find senior lawyers to be attached to or be associated with. In the developed legal systems of the world law houses or law firms are organized on a firm footing and such establishments exist for a long time. Young legal professionals join them and conduct their legal practice for life or a long time. When they retire from the profession the young practitioners who are left behind continue to run the establishments.
Since no such establishments can be found in our country, it becomes very difficult for beginners to begin their professional lives at well-organized establishments run by professionally experienced senior legal practitioners. It is often seen that young lawyers switch from one law chamber to another and they do so for various reasons, one of the them being their desire to gain experience in different areas of legal practice.
The vast majority of those who join the legal profession do not come from rich families. The first few years of professional life does not generally turn out to be very remunerative and it takes several years even for serious-minded practitioners to build up legal practice to secure a reasonably good financial stability. Hence the initial period of the professional life of many is very trying and somewhat discouraging. The legal profession is quite crowded and highly competitive. Financial hardship and other uncertainties in the initial years do indeed force some to give up legal practice and switch over to some other occupation. The author of this write-up knew some brilliant lawyers who were educated abroad and had excellent background. They left the profession after several years of practice and some left the country for good and others, who did not leave the country, found high-salaried jobs or opportunities for business activities to secure for them a good financial standing. We need honest, well-educated and dedicated lawyers for the country and it should not be lost sight of that the institution of the judiciary as an organ of the state owes much, for its strength and high level of excellence, to an well-educated, able and dedicated community of lawyers.
For those who begin the legal profession do not have any institutional support of any sort to help them overcome the initial period of financial hardship. Institutional support is also necessary with a view to providing professional training programme to them. There are hardly any opportunities for young lawyers as it exists now to receive training in all areas of legal practice. It is high time the Bar Council should give serious thought to the matter and develop a programme of comprehensive training for a reasonable period of time for the beginners of the legal profession. The county needs well-trained, capable and learned legal practitioners to make the last resort effective and meaningful.
In the legal profession both extensive and intensive knowledge is indispensable. The long arm of the law extends to human activities of almost all sorts. The legal profession by its very nature is highly demanding in that a lawyer cannot do well in profession without a thorough study of the law. In any country, lawyers constitute one of the most vigilant sections of the people. They fight for and exert themselves hard in order to protect the rights of citizens. The high ideal of the rule of law, in order to be meaningful and effective in real terms presupposes, as one of the necessities, the existence of a dedicated and ever-vigilant community of lawyers. This community of the society, as the champion of the down-trodden, repressed and persecuted, needs to be looked after and supported by the state.
The court system of our country deserves our mindful consideration. Litigant people fall back on the court when they find that they cannot resolve disputes amicably or by any other way. They hope for an early resolution of the disputes through the process of the law but the painful experience is that a legal proceeding takes an unusually long time to be disposed of by the court. There are several causes for the delay in the disposal of suits and other legal proceedings. At present, the most important cause for the delay appears to be what may be termed an explosion of litigation in the courts of law. A court of law has to deal with a huge number of cases on a daily basis. The case records of many legal proceedings contain a large number of documents and deeds. The process of adjudication normally takes time for the obvious reasons that a judge has to go through and examine a large number of papers of many proceedings, hold hearings, hear advocates of both sides and to write up judgments after studying the relevant laws and decisions of the higher courts.
The courts of law are now flooded with cases, both civil and criminal and the situation is no doubt alarming. The judges, the lawyers, the government and all those who are associated with the judiciary should right now address themselves to the problem of the explosion of litigation and study the problem thoroughly in order not to frustrate the hopes of the litigant people for the expeditious dispensation of justice by the judiciary. The problem of the explosion of litigation ought to be studied having regard to the underlying causes for the proliferation of litigation. Some of the causes for it appear to be external in nature and as an example we may cite the wrong recording made by the land survey officials in 'Khatians' during a survey operation. It is a fact that many law suits and other legal proceedings have been initiated all over the country by those owners of landed properties who were adversely affected by wrong entries made in 'Khatians'.
The officials of the authorities, government or otherwise, whose acts, decisions and orders have an effect on the rights of the citizens should be careful and discreet about exercising their powers and authorities conferred upon them by the law. Any default on their parts will no doubt drive a citizen affected by the default to have recourse to the last resort.
Criminal cases have also been proliferating over the years. The rise in the commission of crimes should basically be looked at from sociological stand points. The judiciary, generally speaking, is concerned with the administration of law and justice. What really causes a man to commit a crime or what social factors are responsible for the increase of criminal behaviour in a society are questions that are primarily for the social thinkers and sociologists to ponder about and suggest the ways to deal with them. It should be borne in mind that punishing a criminal is not of itself enough to rid a society of criminal activities. Social and economic conditions need to be addressed and the society should be based on the ideals of justice, equity and equality and, above all, the economic emancipation of the people has to be achieved.
The role of the judiciary in a modern state is of paramount importance. It acts as the guardian of the citizens. The dignity of the judiciary must be ensured at any cost and the citizens ought to be encouraged to show respect for the judiciary. By our constitution the citizens have the right to the freedom of expression. This right should not be exercised in any manner which tends to undermine the dignity of the judiciary.
An act of contempt of the court is a grave wrong because it tends to lower the dignity of the court. Some time ago a journalist asked me to advise him on some of the comments he wished to make on a matter of public importance. I found it somewhat difficult to advise him in definite and specific terms, because the law is not exhaustive enough and it may not be very easy to locate the borderline between acts amounting to contempt and those not amounting to contempt. The law of contempt of court should be reviewed by legal experts and in the event changes are made to this law, the need for striking a happy balance between the right to the freedom of expression and the need for preserving the dignity of the judiciary. Moreover, any updating of the law should be carried out to ensure clarify and intelligibility as to what constitutes contempt of the court and what does not.
The last resort on which citizens fall back when threatened with the invasion of any of their legal rights must be made truly effective or else the fundamental rights guaranteed in the constitution of the country will no doubt appear to be empty of meaning.
..................................................
Mahbubuddin Ahmed is a Barrister at Law and an advocate, the Supreme Court of Bangladesh