Delay in justice: An abysmal crisis

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Syed Emran Hossain
Justice delayed is justice denied…. This maxim has become hackneyed and a large number of people all over the world are affected by this very common problem, directly or indirectly. Delay in the court proceeding is a global problem and the world suffers great economic diminution every year. Mr. Waren E Burger, former Chief justice of United States, noted that "….. people come to believe that inefficiency and delay will drain even a just judgment of its value…" Most of the countries in the world are not free from this problem and its effect is much more severe in a developing country like Bangladesh where most of the public organisations shamble due to inefficiency.
Before going to elaborate about the delay in justice in Bangladesh I would like to shade some light on the speed of justice in some other countries and the measures they have taken to resolve the problem.
In our neighbouring country India there are approximately 30 million (3 crore) cases pending and there are nearly 13000 judges to deal with such a huge number of cases. This uneven statistics obviously cause a backlog of cases causing extreme delay and the clients suffer. Financial experts opined that the delay is eating up 2.0 per cent of the GDP (gross domestic product) on an average creating a hostile environment for investment. In China, there are approximately 1,30,000 courts to deal with more than 11 million cases with a 6.3 per cent increase year-on-year. This problem also affect the whole Europe. Developed countries like UK, France and Italy are struggling to deal with the backlog of cases. On January 31, 2012, some 152,200 cases were pending before the European Court of Human Rights. This situation poses a serious threat to the effective functioning of the Courts throughout the Europe. However, they have taken many measures like wide application of alternative dispute resolution (ADR) and track allocation system of the court case. To get rid of backlog of cases the USA enacted the Speedy Trial Act of 1974 which has fixed standard time requirements for timely prosecution and disposal of criminal cases in district courts. In 1990, the US Congress enacted another legislation that directs each District Court to devise and adopt a civil expense and delay reduction plan. Similar laws need to be enacted in Bangladesh.
Now let's consider the issue of delay in justice in Bangladesh in detail. The courts of Bangladesh can be divided into two major categories: Supreme Court of Bangladesh and Subordinate Courts. The Supreme Court comprises two divisions namely High Court Division and Appellate Division. Appellate Division is the Apex Court of Bangladesh comprising only one bench presided by the Chief Justice of Bangladesh. The High Court Division has approximately 55 Benches with nearly 100 judges. The Subordinate Courts comprise of all Civil and Criminal Judges Courts and Magistrate's Courts. There are approximately 1,200 judges in the lower judiciary, starting from Assistant Judges up to District Judges. However, a major portion of them are posted in administrative posts, i.e., Law Ministry and other Ministries, Law Commission, National Human Rights Commission, and other public offices. With this paucity in the number of judges we have nearly two million cases pending under Trial Court; 313,735 with the High Court Division and 9,141 cases with the Appellate Division. According to Law Minister Barrister Shafiq Ahmed, with the current infrastructure and efficiency of the judiciary it may take nearly six years to dispose of Appellate Division cases, High Court and civil cases may take four years and criminal cases may take two to three years to be disposed of. This statistics shows that backlog of cases is inevitable and it may take a century to dispose of all the matters. Moreover, the rate of filing cases is much higher than the rate of disposal. Therefore it is very alarming for Bangladesh and something really needs to be done to get rid of this abysmal crisis.
Before going to suggest anything it is worthwhile to consider the reasons for such backlog of cases. A major reason of backlog of cases is the population boom. The number of judges and the number of population is highly disproportionate. The population of the country is now about 160 million and there is only one judge available for approximately 0.13 million people. Owing to the shortage of judges, even if judges work beyond their normal capacity, the arrears are bound to increase. The total number of judges is not adequate to clear the backlog of cases. It is not possible even to dispose of the actual fresh institution. Apart from that the numbers of benches in the High Court Division are inadequate to deal with such a huge number of cases and there are now around 400 vacant posts of judges in the trial courts.
Beside the paucity of judges another aspect should be taken into consideration which is the ratio of case management staff and number of cases. Court administration cannot succeed without the unstinted support of the Court staff and its office. There is also lack of infrastructural facilities. Reportedly, four to five judges at a duty station have to use one court or chamber room now on a rotation basis. That is also a constraint since they cannot utilise all of their court and working hours. As a result, the number of the pending cases is totally unmanageable, given the total number of judges in the trial courts and court facilities.
Cost of the litigation is rarely imposed. As a result of which, frivolous cases are often instituted. Abnormal increase of value of land in last 15 years and the inefficiency of the land registry instigate huge number of false and baseless civil cases to be filed for unlawful gain. Frequent adjournment and lawyer's tendency to drag a case are also major reasons for delay in disposing litigations. False litigants can easily drag their case for ages for unlawful gains. There are thousands of cases where parties are litigating against interlocutory/interim orders leaving their original case pending. District and Sessions Judge, and equivalent Additional Judge, being a single person, struggle to deal with both civil and criminal cases diligently or within time. An unfortunate example of delay can be experienced if a person has any case in the Land Survey Tribunal. There is only one court in Dhaka to deal with all the cases regarding correction of record which makes the judge to hear a case for 3-4 days in a year. Moreover, due to lack of an Appellate Land Survey Tribunal parties aggrieved often file Appeal or Civil Revision in wrong forum ultimately causing endless delay.
Recently another problem is looming which has become a new hindrance to speed of justice i.e. political cases filed against the opposition leaders and workers. This problem was there from the beginning but the so-called regime of caretaker government after 1/11 such number of filing cases against political persons increased enormously. The present Awami League government has continued the trend and thousands of frivolous political cases have been filed which obviously causes backlog of cases. Not only that. The Appellate Division, with only one bench, has to spend a lot of time on such meritless political cases leaving many genuine cases pending for years. Beside that due to sudden change of constitution/jurisdiction of the bench in the High Court Division, many part-heard matters are sent out of the list throwing back the parties to the earlier position which causes delay and they have to incur extra expenses. Apart from that, the delay in the transfer of Lower Courts Report (LCR) is another serious problem.
Now, we should ponder on the ways of ending this dreadful crisis. First of all, a track allocation system can be recognised for the subordinate civil courts. Code of Civil Procedure 1908 and Small Causes Act 1887 need to be amended for better track allocation system and independent Small Causes Court needs to be established. Apart from that separate Arbitration Court and Court to deal with Succession Cases need to be established for Metropolitan Cities which are currently dealt by the Courts of Joint District Judges. In comparison with Bangladesh, Civil Procedure in India and UK has been changed a lot. The number of Court of Assistant Judge and Joint District Judge should also be increased to meet the huge number of litigation. Besides, the efficiency of Sereshta of court office needs enormous development to deal with the huge number of cases properly.
It may be noted that the advocate's fees and other costs have increased many times in the last 50 years, but the court fee is hardly realistic to generate more revenue for creating infrastructure and appointing more judges to strengthen the legal system. In the earlier times costs were invariably awarded or reasons for not awarding costs were given in all civil proceedings. But nowadays costs are rarely awarded. Increase of court fees and imposition of costs can generate more revenue for creating efficient court system. The cost for adjournment should also be imposed frequently to curtail unnecessary delay.
At the same time salary of the judges should be increased which can make them more zealous and dedicated towards their work considering that remuneration of judges is in fact much more higher not only in developed countries but also in India and Pakistan. The backlog of cases cannot be cleared without additional strength. To tackle the problem of backlog within a timeframe, we need to allocate additional funds for employing additional judges. Later, as the backlog comes down, these judges would be crucial in keeping the fast pace of the judicial system.
Apart from that, a more effective filtering mechanism of cases needs to be introduced to reduce number of frivolous cases. We have an Alternative Dispute Resolution (ADR) provision in CPC but this has yet to yield the expected result. ADR system like negotiation, mediation and arbitration should be used more often to reduce the burden on court. The government should bring necessary changes in the relevant laws and work hard to create awareness among citizens about such alternative solutions. Government may make rules for payment of lawyers who would dispose of cases through ADR. Government can also impose a requirement to deposit a certain portion of the award for filing Appeal against the verdict of any Arbitration/ADR. It will also curtail delay if the High Court Division is made the first Appellate tribunal for the verdict of both national and international Arbitration and there can be a separate bench for dealing with arbitration cases.
The total number of benches in the High Court Division needs to be increased for early disposal of cases. Moreover a notice can be given before constitutional change of the benches so that sudden list out of part-heard matters can be avoided. It is high time to have two or three benches in the Appellate Division of the Supreme Court of Bangladesh so that backlog of cases in the Apex Court can be reduced. Beside all these, the government should act more impartially to trim down the number of felony arrests and filing frivolous cases for political purposes which undoubtedly create delay.
It is true that, the problems of the justice system cannot be solved overnight but a combined effort of the legislature, judiciary, advocates, court officers and accommodating gesture from the citizens can curtail the delay in the court proceeding to a tolerable level within a short period of time and this can make access to justice easier for everyone.
The writer, a Barrister-at-Law, is an Associate at H & H Company. iam_emran@hotmail.com