Laws, customs and procedures need to be fundamentally reformed to establish rule of law

Barrister Nazir Ahmed
‘Rule of law’ was declared by the Supreme Court of Bangladesh as one basic structures of the Constitution of Bangladesh.  Getting justice from the competent courts of Bangladesh is a fundamental and constitutional right of each and every citizen of the country.  “Law will take its own course” – this is a normal expectation in a civilised country.  What are the ground realities in Bangladesh?  Has the rule of law been established properly?  Is each and every citizen getting justice from the competent courts?  Does law take its own course?  These are the million dollar questions.  Followings are the apparent barriers against establishing rule of law, providing justice and ensuring that law takes its own course.      

Can the law take its own course?
We are very much accustomed to hear a phrase “ain tar nijessho gotite cholbe” (“Law will take its’ own course?”  Can the law take its own course in Bangladesh?  Certainly, it does not for most of the time.  Law is an abstract thing: it does not have hand and/or leg.  It needs to be operated and applied by the human beings.  If those human beings who were entrusted to operate and apply the law are partial, one eyed, corrupt and politically and ideologically biased, how will law take its own course?  Opposition leaders are arrested and often taken in remand based on suspicion or on flimsy or trivial grounds, whereas government party leaders are not even touched or properly questioned, let alone being arrested or taken on remand.  Is it the rule of law?  Is it the example of “law takes its own course?”  The names of Surenjit Sen Gupa on railway scandal, Dr Syed Mudassir Ali on Hallmark scandal and Syed Abul Hussain and Dr Moshiur Rahman on Padma Bridge scandal and few secretaries on the certificate fraud claiming to be freedom fighters have clearly come out on their involvement.  They should have been arrested straightway and taken into remand.  They should only be released on the due process of law.  If they are honest and not being involved, they will be cleared from the competent court of law.  If that happened, then it could only be said that ‘our country has rule of law,’ ‘law takes its own course’ and ‘no one is above the law.’
Mass withdrawal of the cases on political consideration
The government has so far withdrawn more than 10,000 cases filed against their party workers and leaders including the Prime Minister and other Ministers.  Among those withdrawn cases, there were cases of heinous murder, rape and violence.  By comparison, they have not withdrawn any notable case filed against the opposition party workers and leaders.  Why have the government been so keen to withdraw the cases filed against them, their party workers and leaders?  Why do they not let the cases go on trial at the competent court?  If they are innocent, they will automatically be cleared from the court of law.  Being even in power and after even the courts being politicised in an unprecedented ways, do they not have confidence in the competent court of law?  Mass withdrawal of the cases on political consideration threatens: (i) rule of law, (ii) independence of the judiciary, (iii) public confidence on the judiciary as a whole.  The irony is that the government has been doing this self-defeating thing with pride and self satisfaction.
Prosecuting authority in Bangladesh
There is no independent prosecuting authority in Bangladesh as we see in the United Kingdom in the name of Director of the Public Prosecutors (DPP).  Public Prosecutor (PP) and Assistant Public Prosecutor (APP) are the public/government prosecutors of criminal cases in the lower courts of Bangladesh.  The PP and APP are part of the government and they are appointed on political consideration. With the change of the government, their appointments are terminated.  When a new government comes into power, Advocates belonging to the government party become desperate to be the PPs and APPs in the respective districts.  I was unable to understand the logic and reasons of this until recently.  A good Advocate can easily earn lacs of taka each month.  Why does he want to become a PP or APP?  The PP and APP are government employees and as such they would get salary like other government employees which would be a few to 10 times less than a good Advocate could earn in his private practice.  I have been surprised to hear the logic and reasons from some honest district level Advocates.  Let me share this.
For bails, trials and hearings, Accused’s Advocates are required, under law, to serve their bundle/application to the PP and APP.  The PP and APP would not acknowledge the service in writing, which is required under law, unless they are given money!  In many cases, rates/amounts of money are fixed!  And the rates/amounts of money depend on the complexity of the cases.  The more complex the case is, the higher the rate will be!  Now consider how many cases and bail applications are filed and made in each and every day and how much money those PPs and APPs are making!  In this way, the PPs and APPs make money many times of their usual salaries.  Taking bribe in this way from file to file/case to case in the legal arena is an open secret matter.  Almost everyone involved in the lower courts knows this.  Given this scenario, how can the rule of law be established?  How can the law take its own course?  Can the proper justice be ensured in such environment?  There are some honest PPs and APPs but they are exceptions.  And the exception cannot be a rule.  I salute those honest PPs and APPs.
Backlog of cases
The courts of Bangladesh are overburdened with millions of cases.  With the continuous rising of population and moral degradation in the society, the number of cases are rising sharply at the geometrical rate (i.e. 1, 2, 4, 8, 16 etc), whereas disposing of the cases are progressing at the normal mathematical rate (i.e. 1, 2, 3, 4, 5 etc.).  Furthermore, the dramatic increase of the human rights violations and apparent institutionalisation of the corruption, litigation against the state as well as against the government and semi-government entities has increased substantially.  As a result, the backlogs of cases are increasing day by day.  Shortage of judges and resources are making the matters worse. 
According to statistics (2010), around 750,000 cases were pending with the courts of judicial magistracy.  The Supreme Court sources said about 500,000 cases, both civil and criminal, were pending with its Appellate Division and at least 300,000 other cases, including writ petitions, are pending before the High Court Division.  The number has sharply risen since then.  It is now estimated that around 3 million cases are currently pending at courts in Bangladesh.  Recent seminar presentation document of Bangladesh International Arbitration Centre (BIAC) revealed a horrifying scale of pendency of civil suits in the country.  According to that document, over 77% of civil cases in the Appellate Division and 27% civil cases in the High Court Division are pending.  In addition, 66% of civil suits are pending in the districts and divisional level.  However, the exact number of commercial suits or criminal cases is not estimated in that document. 
The Law, Justice and Parliamentary Affairs Ministry said over half a decade ago that disposing off over million cases pending with the courts in Bangladesh would take at least 86 years if no new cases were lodged.  That forecast was made many years ago and surely the backlog of cases has risen sharply since then.  Thus, it can now safely be said after a decade later that disposing off all backlog of cases pending with all courts in Bangladesh would take at least 100 years if no new cases are lodged!  Can a country prosper and go forward smoothly with such a backlog of cases?  The judicial system may collapse and people will be led to take the law in their own hand unless the proper remedial actions are taken immediately by the government. 
Inordinate delays in the legal proceedings have mainly been causing backlog of cases.  Some proceedings (especially land disputes) are so lengthy that litigants are unlikely to get an outcome of their litigations during their life time.  Their next generation may get the final judgment!  Under these circumstances, pro-activeness of the parties involved, prompt and complete compliance of the court orders, and government initiatives are absolutely necessary to bring litigation to a conclusion.   
Appointment and promotion of the Judges
The judges in the lower courts are satisfactorily appointed through a vigorous and competitive public exam called “Bangladesh Civil Service (BCS).”  Those who can successfully pass all stages of the BCS are, no doubt, talented and meritorious.  When it comes to their promotion and transfer, the executive (the government through the Law Ministry) plays a greater and major role.  Here comes political consideration and meneubours.  The government routinely appears to block promotion of competent judges on different tricks and make arrangements to transfer competent judges to remote areas of the country if their judgments go against the interests of the government.   
The procedure and customs of appointing and elevating the judges in the Supreme Court are not satisfactory at all.  Most of the time, the judges at the Apex Court are appointed and elevated based on party consideration, belongingness and whose junior that particular person was as opposed to merit and competence.  Despite having a clear constitutional provision asking to make law for the appointment of judges, it has been forty three years of independence but no successive governments have made a proper law and an intensive regulation for making the appointment and promotion of the supreme court judges clear, transparent and accountable.  This is very irony.  The Supreme Court judgements involve the application of wisdom, talent and intellect.  Unless the country ensures that the talented, intellectual and impartial legal experts are appointed as the Judges of the Apex Court, how can we have or expect quality judgement ensuring proper justice.  We cannot expect tasty mangos from bamboo trees! 
Corruption in the judiciary and judicial processes
Corruption is in endemic level in the judiciary and judicial processes.  To file a case or suit in the Supreme Court, bribe has to be given at different stages.  The case will not come to the court unless bribe is given to the Section and then the matter will not come to the Cause List unless Bench Officer is given bribe.  The amount of bribe is fixed depending on the nature of the case.  Getting a certified copy of the order and/or judgment is a right of the concerned party.  Yet bribe has to be given to get it.  This is open secret in the Supreme Court.  Bench Officers’ and Section Officials’ corruption can easily be found out if their income and corresponding wealth are thoroughly investigated.  Transparency International Bangladesh (TIB) published its survey report on the perceived corruption in the Supreme Court in 2011.  But no proper remedial actions were taken.
The conditions at the lower courts are even worse.  Most of the officials (registrars, personal assistants, personal secretaries, nazeers, clerks, peons etc) in the lower courts are involved in corruption.  File of a case does not move from one table to another without bribe being given.  Apart from the court officials, many unscrupulous middlemen, brokers and touts make money in the lower courts. 
In the above endemic level of corruption, general people and litigants become the real victims.  These customs of bribe and corruption are easily tolerated by all.  This is unthinkable in a developed country like the UK.  The courts are the last resort/place of people’s expectation and dependence.  They go there for justice.  While they go there for justice, they even become victims of injustice in multiple ways.               
Backdated laws
Most of the laws in Bangladesh are either back dated or outdated.  The nation with the modern global village has advanced a lot.  The laws have not been developed to meet the demands and needs of the time.  The civil procedures are conducted predominantly by the Code of Civil Procedure 1908 and the criminal procedures are conducted by the Code of Criminal Procedure 1898.  The whole penal system is regulated by the Penal Code Act 1860 and the evidence is conducted by the Evidence Act 1872.  Some superficial and cosmetic changes were made in the past but those were too little and too slow.    
Examples of some bad cultures and customs
Examples of some bad cultures and customs that have developed in the last few years are:
1.    In spite of having a clear legal provision for a case/suit to be filed in competent court, dozens of cases in the same and similar matter is often filed in different district courts up and down the country.  Those courts have been taking cognizance of those cases!  The culture has risen shaprly in the last few years.  The country in general and the Apex Court in particular appear to be tolerating at comfort.
2.    Many cases are being filed against numerous unidentified persons.  Often the number goes to 5,000 to 10,000.  Police are put at liberty to arrest and implicate with criminal offences or discharge upon taking bribe as they wish.   
3.    Despite having no locus standi, cases of defamation are filed in different courts in different districts, most often the persons who file the case are totally unconnected with the person who alleges to have been defamed.  
4.    Magistrates often after hearing a case do not pass their orders on bail and remand.  Rather they leave these to be given later from their khas karma (private office).  As a result, rumours spread that he or she takes instructions from high ups of the government.
5.    Police often carry out extrajudicial killing.  They routinely arrest accused or opposition activists and shoot at their leg from close range.  No action is taken against those responsible police officers.   
Conclusion
The overwhelming backlog of cases in Bangladesh, politicisation of the judiciary, backdated laws, endemic corruption persistent in the judicial sector, politicisation of the prosecuting authority, mass withdrawal of the cases purely on political consideration, executive interference of law from taking its own course, and encouraging and tolerating apparent bad cultures and customs in the legal sector have caused serious legal and social problems.  The problems it has caused are: law and order situation is continuously deteriorating, the rule of law has been in verge of collapsing in the country, pubic confidence on the law and court has gone to the lowest level, and propensity has developed in many people to take the law in their own hand.  Some people appear to be using criminal methods (contract killing, kidnapping and enforced disappearance of rivals/other sides) as alternatives to litigation.  This is very dangerous and alarming for the country and its people. 
Recommendation
To ensure law taking its own course, to establish rule of law and, above all, to provide justice in true sense to the litigants, the following recommendations are made:
1.    The number of judges and resources should be increased at a sufficient level.  The public and private universities should be encouraged, monitored and strictly regulated to produce enough and competent law graduates with high moral ground to meet the social and legal challenges.    
2.    Litigants of those litigations which have already filed have the legitimate right to get justice and have proper resolution of their cases.  Parallel to this, the government must take effective steps and initiatives to use other dispute resolution methods widely.  Steps should be taken to harshly punish those who file false or vexatious cases.
3.    How can the Justices of the Supreme Court of Bangladesh ensure justice without fear or favour?  If they give judgments in sensitive cases against the government, the government will be upset and their elevation to the Appellant Division will be blocked.  They will certainly be superseded.  Thus, an independent Judicial Appointment Commission should be set up with non political leading experts in Bangladesh for the purposes of the appointment and promotion of the Supreme Court Judges similar to the United Kingdom.
4.    An independent prosecuting authority should be established so that the decision on prosecution, drop of the charge, withdrawal of cases and conducting the trial are taken by politically impartial authority based on merit and evidence as opposed to political intention or desire. 
5.    Tougher measures should be taken first to reduce and then to eliminate the endemic level of corruption from the courts, the final destination of the people for seeking justice.  Identified court officials through proper investigation should be given exemplary punishment so that it can act as deterrence for other corrupted officials.
6.    A high powered commission should be set up with former Chief Justices of Bangladesh with a view to fundamental review and reform of the existing laws and legal procedures.  The commission will thoroughly investigate the loopholes, assess the adequacy, find out the shortcomings, and then finally propose and recommend changes needed to meet the needs and demands of the changing time.  The government and the judiciary will implement those changes at once. 
 
Barrister Nazir Ahmed: Legal expert, analyst, writer and columnist.  He can be contacted via e-mail: ahmedlaw2002@yaho.co.uk      


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