EMINENT jurists and lawyers from the South Asian nations at a roundtable organised by The Daily Star on Sunday. December 29. stressed the need for reforming the legal system to make it people fnendlv. protecting theh rights, while cutting the delays in dispensation of justice at a cheaper cost.

Editor ot The Daily Star. Mahfuz Anam moderated the session, held at a local hotel. Introducing the participants and explaining the background of holding the roundtable Mahfuz Anam observed that we are yet to evolve a people friendly legal system. Ils language is archaic even in Bangla. that ordinary people cannot understand. The expenses are high and the process to get justice is lengthy. In this backdrop he urged the participants to narrate their own experiences and efforts to suggest wavs to make it people-friendly,

The participants were former Chief Justice of India Justice Krishna Iyer: K K Venugopal. President of SAARC Law: Barrister Amirui Islam. President oi Bangladesh Chapter SAARC Law: Ranjit Abesuriya. former president of Bar Association of Sri Lanka: Justice Nayeemuddin. Member. Law Commission of Bangladesh. Justice C U Wigneswara of Sri Lanka and Abdul Matin Khasru. State Minister for Law and Parliamentary Affairs Bangladesh: Madhav Menon, an Indian lawyer: Raju Ramchandran. another lawyer from India and Ms Salma Sobhan from Bangladesh.

Noted Indian jurist Justice Krishna Iver narrating his years in the bar and the bench, observed that a change of mind among the bar court and the people necessary tor a radical transformation ot judicial system to bring it closer to the people

He said both the judge and the lawyer must have an empathy and professional discipline to’ietluce the duration of trial and avoid a lengthy process that denies justice. He also suggested that there should be a peer group among the judges to discipline them for not delaying cases on various pretexts like failure to attend the office on lime staying there and developing quick process for hearing and delivering the judgment to expedite justice.

Citing a number of cases, some involving illustrious personalities like late Indian prime minister Indira Gandhi, on her bail petition in a case, he said that he limited the timing of counsels on both the sides. "Nani Palkhiwala and Shanti Ghose were both well known for their arguments with lot oi theaterics. which consumed time for hearing. When I asked them if they could shed their rhetorics and come to the point so that we could finish the judgment on the day, each having two and-half-an hours, foregoing the lunch as 1 had decided to do so myself, they agreed and we finished the case. We then let the clerks to arrange printing of 5000 copies of the judgment, cyclostyling it overnight, keeping the veil of secrecy. The copies were available for al), doing away with the practice of long time even in those days when technology was limited." Justice Iyer said adding. Today a simple Xerox could do wonders."

The jurist from Kerala state of India who served as Chief Justice of India later on said, with the time changing today s Indian Chief Justice had promised computerisation of the Supreme Court. But unless the system is overhauled with a change in mentality of people, lawyers and judges there cannot be a people-friendly legal system, he observed.

Citing an example of delay in justice he said, the Lucknow High Court had been sitting on the case of Babri Mosque for a long time. The mosque had been demolished but the court was yet to come up with its verdict.

For such delay the judges should be made accountable and impeached, he added

To speed up the backlog he cited the example of Justice Raman of Kerala High Court who made a select list of cases for their quick disposal. But clerks and lawyers who felt their earnings would be reduced with speedy trial process burnt his effigy.

Justice Iyer suggested re forms in the semantics of law and penal code, stressing specially on a simplified drafting, replacing the Westminster style, which is archaic and colonial. Drafting is an art. a simple draft makes interpretation easy, he noted.

He also suggested that there should be a criterion for selecting judges not just increasing the number to deliver better justice and cut short the delay. Citing another example for making judges responsible he said, without naming, a judge oi the Kerala High Court used to arrive at his court at 10-30 am and leave in another 15 minutes, that left a pile up of cases. Sometimes judges transfer the cases to a full bench or another bench thus contributing to delays in disposal of cases.

On human rights Justice Iyer cited an example of Kerala High Court making the police respect human rights by carrying a drill on the issues among policemen. We have to be innovative making the law people friendly." the veteran judge noted.

Ms Salma Sobhan. giving examples of Bangladesh- whewe progress has been made in gender issues since the Nairobi conference, said 'We have made available a lot of translations ol legal issues and women's rights." Referring to the legal tangles resulting in delays, she said access to legal system and procedures are yet to be simplified and corruption making it expensive for redress seekers through litigation is still impeding quick disposal of cases.

Commission, observed that legal profession is highly technical but it is not the only problem standing in the way of making law people-friendly. The problem lies in delay and expenses, he noted

Giving examples he said that in the apex court oi Bangladesh there are hardly any case pending lor ten years. We have reduced the number of criminal cases pending for three to four years. Leave petitions are almost uptodate. Habeas Corpus are filed in thousands, some three to four hundred a month. But these are disposed off quickly. Writs are also cleared.” he added.

to get rid of the backlog in cases to bring the desired changes to make justice available to the people for their benefit.

The best option we advice to clients is not to go to court.” she noted about the frustrating experience a litigant incurs through long delays and ex-Knses involved. People still use >al system as a weapon against’another, making the need for the reforms and the meaning of law understood by the people.

Justice Naeemuddin Ahmed, member of the Bangladesh Law

But the problem is posed by the civil suits, which in some cases remained pending for ten years. Civil appeals are pending for, in some cases. 10 to 15 years. "Even at one instance in Chittagong 1 found appeal in civil suits pending for even 20 years for reasons best known to the judges. I know one case in particular where it could be disposed of in day." Justice Naeemuddin said. "

On other problems he said a civil suit in a trial court which could be disposed of in eight to 10 months but remains pending for four to five years. "Previously supervision has been very effective but I have found district judges did not inspect their courts where civil litigations remain backlogged.' ne added.

Stressing on improving the quality of manpower Justice Jaeeniuddin further observed that the courts are poorly manned. He also called for transparency of judges.

On reforming the judiciary to reach justice easily to people he cited the failed experience of Upzila Courts and bifurcation oi the High Court.

Sri Lankan Justice C U Wigneswara observed that political interference sometimes leaves the judges frustrated and works as an impediment to dispensation of justice.

He recommended working out reforms to evolve a system

In this connection he cited the experience in his country where reconciliation and family courts did not work, eventually passing their loads on to the Judges' courts because of lack of reforms.

RfiiUit Abesuriya,, former i President of Bar Association oi * Srt Lanka dealt - wither the hu man issues like the right to counsel and right to silence as basic fundamental rights. The right to counsel has been incorporated in the constitution of Sri Lanka since 1978. Every accused has a right to counsel. But expensive litigation system sometimes maxes it impossible for the accused to hire legal aid. he said about the Sri-Lankan experience while pleading for developing a system of legal aid like that of UK. In this connection he referred to the role of the Bar Association in his country where it tried to fill the void. In case of women and detenues the association provided assistance. Those who were in detention in thousands because of political situation sent petitions to the Chief Justice who referred them to the association to prepare their petitions as a constitutional right.

He stressed on the constitutional recognition of right to counsel and right to silence by the accused during arrest to help Justice.

On the experience of mediation board in Sri Lanka he said they are not manned by serving udges but retired Judges, dcal-ng with certain types of minor cases, which helped disposal of a large number of cases, cutting delays in dispensation of Justice.

Ranjit Abesuriya observed that to make law friendly to people the lawyers have a great role to play by making themselves available to the people.

K K Venugopal. an Indian legal expert who is also the president of the SAARC Law. identified two "great impediments" to the Justice delivery system. One is delay in the disposal of cases, and the other is expenses in volved in litigations. The ex penses include court fees and lawyers' fees.

For a people-friendly justice delivery system, the litigation process has to be altered. Venu gopal said. Referring to the ADR (Alternative Dispute Resolution) set up in India. Venugopal suggested that certain types oi disputes such as camnaeu^d dispute could be settled outside the formal courts which could be called rrieaiatlon or concur ation courts. -

Claiming that the ADR courts are doing well in India. Venugopal said that the Indian government has already allotted a piece of prime land in the heart Delhi for setting up an institution which would pro vide training to the mediators or the conciliators. The conciliation courts would work as supplementary courts, he suggested.

"With a view to making the litigation cheaper." Venugopal suggested fixation of lawyers' fees in some kind of cases such as accident and divorce cases. He. however, argued for the provision of contingency fees for lawyers in case disposal of a litigation is delaved.

Raju Ramchandran. another

legal expert from India narrating his country's experience observed that reason behind (he unfriendly legal system lies with the faulty electoral laws. "Under the present electoral laws and rules, money can play a big role in getting elected to parliament, So the chances for the pro-people candidates to win the polls are slim, and that is why the parliaments are not always the true representatives of the people." Ramchandran said. The legislations enacted by such members of Parliaments are bound to carry some people unfriendly ingredients, be added.

Pointing out another Impediment to a sound judicial system. he said the politicians would play a role in appointing the Junges that eventually contributes to develop some sort of oligarchy in the benches.

Ramchandran also suggested evolving a system where democratic accountability of the legal personnel, including judges, should be incorporated. He also opposed Venugopal s view that lawyers should be paid for contingency fees for delayed trial pn the ground that it would be arradomtadtburdeii eta the * people- -. > . '

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# Abdul Matin Khashru. the state minister for Law, Justice and Parliamentary Affairs of Bangladesh, observed that the justice delivery system of the country "is costly, time consuming and cumbersome."

"On top of all, our rural people who constitute the majority of the country's population — most of whom live bellow the subsistency level — do not have accessibility to the justice especially because of the expenses involved in litigations", the state minister said. ' For us. a people-friendly judicial system therefore means a system which would make sure that the said people have accessibility to the courts, get justice quickly and at a cheaper rate."

Khashru added

In this regard, the state minister told the conference that he was thinking of introducing Grameen Courts in the rural areas which would be working as supplementary courts to the formal ones The GC would deal with cases of tn fling matters such as family disputes and disputes arising out of divorce and so on." he said.

For a people-friendly legal system the minister also „ stressed on the "accountability of the supreme judiciary an effective mechanism to monitor the activities of the lower courts by the higher ones and adequate logistic supports to the judiciary."

Barrister Amirui Islam, president of the Bangladesh chapter of SAARC Law. said, "Our judicial system is not people-friendly when these days even machines are getting user-friendly " He. however, observed that when it was a matter of changing a system run by human beings there was a need to apply some creativity.

In a bid to identify the impediments to a people-friendly judicial system. Barrister Islam said: The judges are not always oath conscious " Analysing the concept of equal Justice he asserted that it was a comprehensive package that includes both social, economic and political rights of the people.

Dr Mohiuddin Farooque. Secretary General of Bangladesh Environment Lawyers Association, said: In our country people are not scared of law but of lawyers and the legal process I can also ask whether our legal system is lawyers-lriendly or even friendly to judges because such aspect may be a precondition to have a people-friendly legal system. The broader answer is No\ This is because when a young person enters the noble profession with high spirit and morale as junior to some senior lawyer he or she. in most cases, becomes a domestic law servant. The initial phases and years are full of exploitation by the senior lawyers who either don't pay or underpay the young lawyers or juniors. Sometimes seniors put the money taken from client as "junior s fees into their own pockets. Due to this unprofessional atmosphere. 1 nave seen many bright lawyers simply perish from the profession being demoralised and Irustrated. Those who survive. it would be an exception, if the society still expects them to retain the values of serving for justice.

The clerks or Muhuris of the lawyers exploit the clients, and in many cases may also write the legal documents themselves although the lawyer takes high fees.

Criticising the existing mechanism of appointing Judges, he said. While appointing them, we are most callous." "Before appointing a Judge, his or her track record including one s commitment to the constitution of the state and even writings should be scrutinised properly/ Islam maintained.

Stressing on the need of judicial accountability, he said the media and the academics could play a vital role by discussing the judgements and help correcting the judicial system. There should not be any indiscriminately use of contempt power by the court to shut criticism of judgements."

Madhav Menon, a legal expert from India, opined that the people in legal profession are yet to be socially sensitised and made accountable. They should also be sensitised to the needs of a people-friendly legal system, be sensitive to gender, children and the handicapped. Unless the human element is taken care of. the needs of the society cannot be met there cannot be a pro-people system oi justice.

"Lawyers also over-exploit their seniority and face-value in procedural matters and in court rooms. They get undefined priority from many courts which also attracts more clients who want relatively quick disposal. This advantage leads to higher fees and so higher cost.

After jnhcrjiUng i the colonial legal system we, perhaps, became more "British” than the Britishers. Often, it is not appreciated that every minute of the court hour is Tax payers' and also the litigants' money ".

Petty matters and unnecessary talks eat up the expensive and valuable time. The judicial system is also a "revenue earning" sector where people pay lots of money as various court fees and charges. It s not free, yet they don't get justice. It is. perhaps, a self-sustaining institution. Yet the logistics and manpower of the courts are inadequate. No subsidy is provided to the poor although non-earning servicesectors are being financially supported and run.

"To make the system propeople. which may be a subjective matter, among others, access to resources and access to Justice need to be ensured to them. To avoid costs when larger section is affected, class action suit or public interest litigation in the form of pro bono publico can be undertaken for them. The question of "person aggrieved" as hindrance to such litigation for want of personal damage or injury has been recently resolved by the Appellate Division of the Supreme Court in the case of Dr Mohiuddin Farooque vs. Bangladesh & Others, in which the scope of such litigation through a pragmatic interpretation of the above phrase has been expanded. However, sometimes, some courts are reluctant to hear these litigations because of its unique complexity. ’