Syed Emran Hossain, Barrister-at-Law
Justice delayed is justice denied…. This proverbial maxim has become hackneyed and a large number of people in the whole world are affected with this very common problem directly or indirectly. Delay in the court proceeding is a global problem and the world suffers great economical diminution every year. Mr. Waren E Burger, former Chief Justice of United States, noted that "….. that people come to believe that inefficiency and delay will drain even a just judgment of its value…". Most of the countries in this 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 neighbor country India there are approximately 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 this ignominy. Financial experts opined that the delay is eating up 2 percent of the GDP 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 percent increase year-on-year. This problem also affected the whole Europe and developed courtries like UK, France, and Italy are also struggling to deal with the backlog of case. Not only that on 31 January 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 function of alternative dispute resolution, track allocation system of the court case. To get rid of backlog of cases the USA had enacted the Speedy Trial Act of 1974 which had 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 in 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 staring 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 alongside on leave or deputation etc. With this paucity in the number of judges we have nearly two million cases pending under Trial Court; 313,735 with the High Court and 9,141 cases with the Appellate Division. According to our current Law Minister Barrister Shafiq Ahmed, with the current infrastructure and efficiency of the judiciary it may take nearly six years to be disposed of Appellate Division cases, High Court and civil cases may take four year and Criminal cases may take two to three years to be disposed of. This statistics shows that this is inevitable for backlog of cases and it may take a century to dispose of the all 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 worthy to consider the reasons for such backlog cases. A major reason of backlog of cases is population boom. The number of judges and the number of population is highly disproportionate. Now the population of the country is 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. At the same time, there is lack of infrastructural facilities. Reportedly, four to five judges at a duty station have to use one court or chamber room now on rotation basis. That is also a constraint since they could not utilize 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 frivolous numbers of 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 Session 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 became a new hindrance for speed of justice i.e. political cases filed against the opposition leaders/men. 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 leaders increased enormously. The Awami League government formed in December 2008 continued the trend and thousands of frivolous political cases have been filed which obviously caused backlog of cases. Not only that the Appellate Division, with only one bench, has to stress a lot of their time for such merit less 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 send out of the list throwing bac