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ADB Review [ May 2002 ]
Moudud Ahmed, the Bangladesh Minister of Law, Justice, and Parliamentary Affairs, explains his efforts to reform the country's justice system.
By Eric Van Zant, (email@example.com)
Moudud Ahmed has set out to make justice in Bangladesh easy, inexpensive, and speedy. It is an enormous task.
Reforming the justice system is an important element of reducing poverty in his country, says the Bangladeshi Minister of Law, Justice, and Parliamentary Affairs, who has previously served as his country’s Prime Minister and Vice-President. “If the legal system is not friendly to implementing poverty reduction strategies, then it is bound to frustrate the entire effort of poverty reduction. Legal system reform is essential.”
And those three simple ideas—ease, low cost, and speed—form the basics of better access to justice and will restore confidence in the justice system among ordinary Bangladeshis.
Yet 145 years of history, courts clogged by a massive backlog, long-standing vested interests opposed to reform, and a shortage of funds and talent stand in the way.
Mr. Ahmed is overseeing the ongoing separation of the Bangladeshi judiciary branch of government from the executive and has pushed through legislation to remove some of the many distortions in the country’s court system that have contributed to a mammoth backlog of cases.
In the following excerpts from an interview with ADB Review, Mr. Ahmed shared his experiences in bringing the Bangladeshi justice system “up to speed.”
How do legal reforms impact on development?
Poverty reduction cannot be achieved in an isolated way. You have to take it
in an integrated way that brings in various areas.
One of them is the legal
system. If the legal system is not functioning well, it will not be friendly
to government efforts
at reducing poverty; it will stand in the way.
What is the status of efforts to separate the executive and judicial branches of government?
Article (22) of our constitution says that the judiciary must be separated from the executive organs of the state. There has been a political commitment by every government since the birth of Bangladesh to separate the two. And the Supreme Court in December 1999 delivered judgment on the executive to separate the judiciary.
When we talk about separation of powers, we are referring to the separation of the judicial magistracy from executive control. The higher courts already enjoy the freedom from the separation of powers. The issue of separation is how to bring the officers—magistrates performing traditional functions—out of executive control and bring them under the Supreme Court. (The rest of the judiciary is under the Supreme Court.)
What is being done?
The Supreme Court has proposed to differentiate the magistrates performing executive functions—they will remain with the executive—and those performing judicial functions (holding a trial) must come under the judiciary. About 600 magistrates belonging to the administrative cadre are under the control of the executive, and they are performing the two kinds of functions.
So we need 600 judicial magistrates to replace them. We have to make some interim arrangements to phase out these magistrates that are also government officials. I cannot just throw them out. They will have to be phased out gradually by judicial officers recruited through an independent commission on a competitive basis, and they have to be trained.
How long will this whole process take?
In West Bengal, they have taken 15 years to complete (a similar) transition. In Pakistan, they have taken 9 years or so. The Supreme Court has said in Bangladesh it is possible in 4 years. We think it will take about 6. What will happen is the separation will commence as soon as we formulate the rules. There are two more rules to be made, and the basic law, the criminal procedure code, has to be amended.
Suppose every year we recruit 100 new judicial officers, I will be able to replace 100, and in 5 or 6 years’ time we will be able to replace the whole lot of magistrates. But that does not mean we will have to wait 6 years for effective separation.
Describe some of the challenges.
Any reform, particularly in the legal system, will face serious resistance. The legal system itself is a conservative organ of the state. They don’t want to move: they don’t want to change because the vested interests of the lawyers are vitally important.
But our constitution also ensures that every citizen has a right to a speedy trial. That is among the very basics of “access to justice.”
Yet in Dhaka district courts, 89 cases have been pending for the last 35 years. There are cases where adjournments have been sought up to 1,266 times in the last (50) years and the case is pending.
So what I did is I changed the civil procedure code. I discussed with senior lawyers, and I had a bill approved by the Cabinet and by a parliamentary standing committee and then passed by the Parliament. It is called the Civil Procedure Code First Amendment 2003. I made several changes.
If there is a finding by the court that a case had been filed only on false documents (about 30% of cases are frivolous), there should be a penalty against the party of about Bangladesh taka (Tk)100,000 ($1,600). Then I said if you are asking for an adjournment, you should pay Tk500 ($8) to the other side. You cannot have free justice. Nothing is free.
And then, if you go for an injunction and if the court grants you one, but it is found that you have no title to the property that you claim to be yours, then you have to pay Tk50,000 ($800) as compensation.
These are the areas where we introduced cost, compensation, and penalty. About 450,000 civil cases are still pending for disposal in various courts, including the lower judiciary.
This backlog has to be cleared. Some cases have been pending for 10, 15 years. So when this bill was passed, we gave 3 months’ time for the law to take effect. In the meantime, all the lawyers started demanding my resignation. They thought I had done the maximum damage to the judiciary. And the independence of the judiciary had been taken away by this law. My effigy was burnt. By an extraordinary step, by an ordinance, I had the implementation date postponed and called all the lawyers of the country, leaders of the bar associations, and the senior judges. I had a series of meetings with them. They accepted the principles of the law, but demanded a reduction in the cost, penalty, and compensation amounts.
A new law was then passed, and the first amendment was repealed and the amounts were brought down. But I have not compromised. The new law is now working very well.
What other measures have been introduced?
We have also introduced alternative dispute resolution (ADR) mechanisms in our civil justice system.
In the family courts, it is the women who are the victims. They don’t want to go to those courts because it takes 5, 7, 10 years before they can get anything. The lawyers at the beginning were very much opposed to it because they thought, “if my case is settled quickly, then I will lose money.” The longer the case goes on, they thought, the more they would earn. But eventually the ADR system has worked very well. Both the lawyers and the litigants are happy now.
In another amendment of the Civil Procedure Code, we introduced ADR for all civil cases. The lawyers were a little bit skeptical so I made a documentary movie and showed it around the country and now it has started functioning. One case settled in the ADR means you save 5–7 years for the courts, the clients, the public, and the lawyers.
For the ADR, in every district court a list of mediators is prepared by the district judge and the president of the local bar. If a judge, by reading the petition and written statement, thinks that the case could be solved through the ADR, he will suggest a compromise. If they agree, the judge can be a mediator if he wants to. If not, the arties can select anyone from the list of mediators and they will get 90 days time to come to a settlement.
What are the speedy trial tribunals?
They will only try five types of cases (including) rape and murder. All the sensational cases are tried by the tribunals. A normal case (in the criminal justice system) used to take 5–7 years for disposal. Now it is being disposed of in 5–6 months.
We have brought in the question of accountability of the judges, the police officers, and the prosecution. If the investigating officer does not submit the charge within a designated time, he will have to explain and report to the inspector general of police, and the judge will have to write to the Supreme Court to explain why he has not been able to dispose of the case. No judge or responsible officer would like to do that.