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LAW reform: Justice delivery system

internal component for delay should be eliminated

MD. NUR ISLAM
THE justice delivery system in our country is time consuming and unaffordable to the poor people to some extent. The existing regime of civil suits in Bangladesh is governed by the Code of Civil Procedure enacted in 1908. Since then little change has taken place. The legal system may very well be described as admirable but at the same time slow and costly and entails an immense sacrifice of time, money and talent. The causes of backlog and delay of disposal of cases are systematic and profound. The legal system's failure to impose the necessary discipline at different stages of trial of cases allows dilatory practice to protect the case life. A case usually takes about ten to twenty years to disposed of. It is learnt that nearly one million cases are now pending in different courts of the country. The break-up of this backlog is: 4,946 cases in the Appellate Division of the supreme court; 1,27,244 cases in the High court Division, 3,44,518 civil cases and 95,689 criminal case in the judges court and 2,96,862 cases with Magistrate courts and 99,004 cases with Metropolitan Magistrate courts. After years of controversy and frustration of the problem of administration of justice system, a new device needs to be chalked out.
Components of delay in civil cases
A great deal of delay occurs in summon service, processes filed by the parties are not promptly sent to the nazir for service; unduly long adjournments are frequently granted as a matter of course for filing deficit court fees on plaints, process-fees, cost, commissions etc. Tardy practices are made in filing written statement; amendment of pleading even at belated stage; substitution of parties also causes delay of disposal of suits. Want of skilled lawyer and indifferent court is also a contributing device for causing delay of disposal of suits.
Components of delay in criminal cases
Absence of witnesses in the criminal cases even after repeated issuance of summons and warrants; driving out of the witnesses of the criminal case by the defence side in a collusive venture and connivance; absence of prosecutor and defiance lawyer; non-production of accused persons by the jail authority are the key component hindering speedy disposal of cases. Failure of producing the accused persons by the jail authority outside the districts on grounds of their involvement and being wanted in other criminals of the said districts for shortage of police escorts; abscondence of the accused persons and their voluntary surrender before the court in the middle of trial seeking for recalling of the witnesses already examined which cause the delay. Splitting up of the criminal records for simultaneous trial of the adult as well as juvenile offenders at two separate court; frequent hearing to the bail matters for the same accused persons; non-appearance of the magistrate recording the confessional statements of the accused persons even after repeated issuance of summons and processes; non-arrival of the Investigation officer even after exhaustion of
all the process; non-compliance of warrants by the police personnel; nonappearance of the expert witnesses for proof of the expert reports and dilatory tactics of the defence lawyer etc are the usual components of delay in the disposal of criminal cases. These are the common causes of delay, which are generally faced by the Sessions, Special and Tribunal Judges during the trial of criminal cases.
Some recommendations to avoid delay
Court supervision and monitoring
A consensus has emerged that a docket can be current only when a judge supervises the scheduling and progress of all steps of the case with systematic case management. Once a litigant invokes the jurisdiction of the court, the court has the responsibility of pressing the lawyers and litigants to prepare the case for adjudication without delay. The court's loss of control over the litigation invariably leads to procedural inactivity.
In reality, each case is to be supervised throughout its life with no unreasonable interruption in its procedural development. Monitoring can play the pivotal role for improved court administration and case management. In terms of monitoring, the District & Sessions Judges may hold the key position in the lower judiciary and as such their responsibility to enhance improved court management is a must. In this sphere, the following strategies can be recommended:
U Quarterly sitting arrangement;
U Interaction with Bar in respect of related matters;
U Co-ordination with the Judges of Subordinate court;
Monitoring in terms of providing logistic support. Here logistic support includes skilled staff, necessary Stenographer/Typist, accommodation of office and residence and transport facility of the judges.
Time saving device
By applying the time saving devices we can save more time. As it is seen in the different stages of the suits/cases there are some time killing matters. Those stages can be avoided or minimised by the presiding Judges by applying the appropriate means.
introduction of informal justice system
Alternative dispute resolution system can be strongly recommended to overcome those set backs and delays beside the formal justice system in order to eliminate the endless sufferings of the poor litigants. This new device can be developed by practising dispensation of justice in traditional methods like mediation, conciliation and arbitration. For the first time in our legal system the provisions with regard to ADR has been introduced by amending the code of civil procedure. In chapter V of Artha Rin Adalat Ain, the provisions of ADR have also been incorporated. Certainly, this concept is denovo in our Civil Justice Delivery System.
Case categorisation system
For the purpose of filing and record, cases will be classified according to subject matter/type and possibly also value and age. This could help with the consolidation of similar types of cases for hearing and disposal by the judge at the same time and assist the case tracking and case flow management finally resulting in expeditious disposal of suits and cases.
Effective legal aid system
The main objective of legal aid system is to promote access to justice and ensure justice for all without any discrimination. By providing legal aid system a good number suits and cases can be disposed of at it's earliest. A large section of justice seeking people is being hindered to proceed with their cases for financial constraints. In this circumstance, the effective legal aid system can play a vital role to minimising the number of suits/cases pending before the court of law.
Comprehensive legal reforms
The government has already introduced Alternative Dispute Resolution (ADR) in judicial system by amending the civil procedure code. ADR introduced earlier in family courts of 15 district, as pilot project has been proved successful. Another reform as to formation of monitoring cell to discuss and highly sensational cases for quick disposal has also proved effective. The government is the major litigant in this country, either
as plaintiff or dependent. Under PO No. 142 of 1972, the government is a necessary party in all title suits for specific performance of contract and so on. In many cases the government does not make any appearance. The government is thus responsible in many cases to prolong the litigation. To shorten the case life and to stop hesitation on the part of government
PO 142 of 1972 should be amended. Major reforms in our legal system are necessary for ensuring speedy justice.
Concluding remarks
The fundamental aim or motto of the judiciary is to ensure justice within shortest possible time. Judiciary plays a co-ordination role between other two organs of the state. It's role is not limited therefore merely in settling disputes within the four walls of the court room in between two disputants. The judiciary cannot be oblivious of the social consequence that may follow from what it decides and how it decides.
Finally, it may be pointed out that no solution of the problems will ever be effective unless and until the parties including their advocates and also the judges come forward with all sincerity to end litigation in due time. Only then the maxim of equity which goes to say that justice should not only be done but must be shown to have been done will come into reality.
Md. Nur Islam is an Assistant Judge.