There is a huge backlog of cases both in the lower and higher judiciary. In the lower courts about three million cases are pending while in the High Court Division there are about three hundred thousand cases. In the Appellate Division, despite huge pressure, I did not allow the docket to rise. Still there are about 15,000 cases pending. I was concerned about the huge number of cases and I was convinced that the present obsolete laws will not meet the challenges of burgeoning dockets. I identified several reasons for the continued increase despite commendable rise in rate of disposal. It was necessary to initiate a few urgent and doable steps. I believed that the time had come to implement business management practices in judicial administration and replicate diverse winning strategies from various other disciplines to usher in reforms. All are agreed that the judiciary is a very vital pillar of democracy that a robust and quick justice delivery system is essential to invite foreign investment in this era of globalization, and among nations vying for international investment Bangladesh has a decisive edge because of its inexpensive manpower.
Unless the judiciary is improved, it will be difficult to attract international investments. It is an undeniable fact that our judiciary has an extremely poor infrastructure in comparison of neighboring countries. This needs to be upgraded urgently. The allocation of funds for the judiciary has been abysmally low. If this unjust situation remains unaddressed, crimes will be perpetrated, and a sense of helplessness, dismay and disgust will set in the minds of the people against the Executive. Such despondency enables undesirable elements in society to move in and settle disputes with muscle and money. For a just order in society strengthening of the entire judicial framework is of paramount importance. Therefore, all the infrastructure needs related to the institutional development, such as, accommodation of judicial officers while performing judicial work, rich libraries, high-end IT infrastructure and functional conveniences for judges, lawyers, and litigants– -all must be made available without delay. With that end in view, within a few months of my appointment I chalked out a plan and calculated the shortage of courtrooms which must be constructed on an emergency basis and the digitization of the system in phases. Consequently, I handed over a plan to the Prime Minister in the interest of the judiciary pointing out that those developments related to the overall development of the country. A few days thereafter I noticed in dismay that the Prime Minister sent those papers to the Law Ministry with a view to bury the project.
Clearance of backlog must have the highest priority and appropriate measures should be taken to address the appalling situation. The first step is to increase the number of courtrooms and the number of judges. Increasing their number is not an easy task because one cannot become a competent judge in two to three years. Experience and judicial training are indispensable in becoming a mature judge. Hence the initial step must be increasing the number of judges and to deal with the vacuum it is necessary to raise the retirement age of District Judges as a temporary solution. Recruitment of about five hundred judges and giving them training and performing judicial works. Experience is a precondition for a judge to maturate. There are various reasons for a lack of professionally competent judges. And the chief cause for this shortage is the number of cases among a large population. Bangladesh has possibly the lowest number of judges compared to other countries. Even we cannot compare favorably with Bhutan and Nepal, two small countries. The second reason is the obsolete laws prevailing in the country. The colonial rulers promulgated most of the laws keeping in mind the objective of effectively ruling the country and collect revenues. With that end in view, the parent laws, e.g. Code of Civil Procedure, Code of Criminal Procedure, the Penal Code, the Evidence Act, Transfer of Property Act, Limitation Act, and Easement Act were promulgated.
These laws are still in force even after the transformation into a totally sovereign country. Most of those laws are directly in conflict with the ethos, objects and spirit for which our freedom fighters sacrificed their lives and additionally do not reflect the core values of our Constitution. We cannot claim to have become independent in 1947 because we were under the hand of another set of rulers. In fact, till 1971 we did not get the taste of independence politically, socially, culturally, and economically, and we were deprived of freedom of thought, freedom of expression, freedom of employment and freedom of language. The pending cases cannot be heard and disposed of under the existing laws, with the present strength of manpower, infrastructure and facilities available. The colonial laws must be dismantled. Some of the provisions in the Penal Code were promulgated with the goal of controlling and penalizing the “rebellions”.
These laws are in direct conflict with the fundamental rights enshrined in our Constitution. The Code of Criminal Procedure is totally obsolete and after the abolition of Chapters XVIII and XXI, it lost its efficacy. The amendments made in the Code directly conflict with other provisions. Under the present formulation of the Code an offender even if he commits a heinous crime like murder or rape followed by murder or dacoity with murder cannot be kept in judicial remand beyond fifteen days. I made observations in a case and cautioned the Attorney General and the Law Minister to make corresponding amendments to the law, but nothing has been done yet. The offender must be released on bail if no investigation is completed within this time. Section 344 of the Code does not cover the field because it was included to cover the field of Chapter XVIII. There are hotchpotch provisions prevailing in the in trial of complaint and police cases provided in Chapter XX of the Code. Similarly, Civil Procedure Code is also not workable after the amendments. There should be substantial changes in Order XXI of the Code.
Though India kept the Code of Civil Procedure 1908 it amended the Code in such a way that the provisions are not conflicting. We could not make corresponding amendments and the net result is the multiplication of proceedings. Some provisions of the Code are applicable in holding trial of recovery of outstanding loans by the Loan Recovery Act, but there are a lot of inconsistencies. I wanted to harmonize the provisions by pronouncement of a judgment with a view to protect of right of property of innocent persons whose property has been mortgaged with the banks by taking loans by deceitful means, but I could not harmonize the inconsistencies even in my decision. There are a lot of inconsistencies in every legislation which deserve to be scrapped totally and substituted with new laws to be recommended by a strong Law Commission with experts from lawyers, professors, laymen and judges, and basic laws must be promulgated in consonance with the spirit of our liberation struggle and the Constitution by slashing out the colonial mindset. The infrastructure available now is not at all suitable to take the load of the cases being filed, the manpower strength must be increased three-fold. There must be enough judicial training institutes in every district and a central judicial academy should be established in Dhaka for training of judges of all segments. They should be provided with adequate training on case management and court management.
There should be a law compelling the litigants to resolve their disputes by arbitration compulsorily and if a litigant disowns the arbitration award and institutes litigation and lost should be burdened with the costs covering the entire expenditure of the litigation the court’s time, the opponent’s harassment and lawyer’s fees. In respect of criminal law also, except felonies, pre-bargaining procedure should be introduced in the administration of criminal justice. It is basically a pre-trial negotiation before the prosecution and the accused in which the accused agrees to plead guilty to a charge in return of some concession from the prosecution. There are three types of plea bargaining: in charge bargaining the accused pleads guilty to reduced charges; in sentence bargaining the accused pleads guilty to a reduced the sentence; in fact, bargaining negotiation involves an admission to certain facts in return for an agreement not to introduce certain facts into evidence. This system is one of the alternatives to deal with large sections of criminal cases.