Judicial system needs to be reformed to ensure justice for people

The British left Bangladesh many years ago. But their laws, judicial system and judicial framework are still in force. The judicial system reform that was supposed to happen many years ago has not happened at all in the past years. Rather, the government who came to power has shaped the judiciary to suit their interests. Therefore, the common people are being deprived of their rights to get speedy justice. This cannot be allowed to continue.

It is very important to bring reforms in the Supreme Court and lower court. Besides, the backlog of about five million cases in a country of about 180 million people can eventually collapse the country's judicial system. If there is no reform, the common people will only wander around the courtrooms, not get justice. And the initiatives that will be taken for reform must be for the common people, not just for those related to the judiciary.

First of all, the Supreme Court needs to be reformed. The first of those reforms should be in the appointment of judges. In our High Court and Appellate Division, the path of justice becomes quite complicated due to the appointment of judges based on the considerations of the political party in power. Every time, judges are appointed based on political considerations, violating the criteria of qualification and competence. For a long time after independence, judges were appointed based only on their qualities, ethics, and competence.

When judges are appointed based on political considerations, there are two problems. In that case, very good lawyers do not want to become judges, and if they are appointed based only on party considerations, they cannot go against the party who appoints them. As a result, they have a kind of gratitude towards the party by which they are becoming judges. Because of that gratitude, they often break their oath. They cannot give the right judgment at the right time. These judges are driven by political dictates and try to fulfill the wishes of the party.

In that case, those who become judges of the High Court cannot have any past political involvement. Those who become judges must have at least good academic results. It has been seen that a lot of third-class academic result holder judges have been appointed. As a result, the quality of judges has naturally decreased. They have judged on a party basis, which has shown that when there is a problem with the opposition party, they come to the court and are deprived of justice. While appointing judges to the Appellate Division, seniority has been violated, as a result, qualified judges have been frustrated. They have become mentally disturbed.

Everything is developing in our country. Our judicial system has been in operation for a long time. But the system is old. Even though it is old, there would be no problem if the laws were implemented correctly. One thing here is that the trial of a case goes on for a long time. The reason is that lawyers are not ready to hear the case or want to hear many cases in a day. The tendency to postpone the proceedings of the case by asking for time to hear the case is a curse for our judicial system.

In our courts, there is a tendency among lawyers to leave the court after taking time in the absence of the lawyer of the other party. Again, the judges give time easily. Which is very harmful. In England, a senior lawyer would take time off from hearing another case because he had four or five cases to attend. This system was discontinued there around 1977/78. The Chief Justice there gave a practice direction that no case would be postponed due to the busyness of the lawyer in another case. If a junior barrister asked for time in court on behalf of a senior barrister, the court would tell him that there are five thousand barristers in Britain. Bring one from those five thousand, excluding your senior. Tell the one who is busy in another case to leave this case.

This is how things have started changing in Britain. Now if a lawyer in a British court asks for time off because he is busy in another case, everyone will laugh. There are some senior lawyers in our Supreme Court who want to hear 12 to 14 cases in a day. In fact, it is not possible for a lawyer to hear so many cases well in a day. This is a serious problem in our courts. The structure of the judicial system in this populous country may be old. But if it is carried out systematically, there is no problem.

It is observed that many cases are filed to resolve a single dispute. I primarily handle company and banking-related cases. In many instances, 17 to 18 cases are filed regarding the same loan dispute. This trend is also evident in other criminal cases. Often, multiple cases related to a single dispute are filed across various courts, from lower courts to the high court.  Compared to the past, our population has grown significantly, leading to an increase in business activities and disputes. As a result, the number of cases filed in the courts has risen. When numerous cases stem from a single dispute, it creates a backlog of cases, overwhelming the courts. This makes it increasingly difficult to achieve timely remedies.

The crisis of judges, courts and supporting manpower is a very common picture of our courts. Such problems will always exist in developing countries. They need to be solved gradually. However, the backlog of cases is increasing due to the lack of speedy disposal of cases. The ratio of cases is increasing day by day due to filing 17/18 cases based on one dispute, and then the case is postponed and time is requested. Accordingly, other problems including judges and courts are arising. If many cases are filed based on one dispute, and the case is postponed and time is requested, this crisis will not exist.

There is a solution to the problem of filing multiple cases based on a single dispute, which often leads to delays and repeated requests for extensions. The lack of resolution stems from our own unwillingness to cooperate. However, at some point, mutual cooperation will become essential to address these issues effectively. This era is often referred to as the 'Age of Consumers.' If I provide a service or sell something to you, there is often little accountability for the quality of service I deliver. We tend to undervalue our clients, treating them as insignificant, without recognizing that our livelihood depends on them and that they support our families. It is crucial that we show respect to our clients.

The backlog of cases in the courts is becoming increasingly evident and poses a significant obstacle to the country's economic development. One issue is that due to lawyers' busy schedules, sufficient time cannot be allocated for hearings. If one lawyer is unavailable, another should be brought in to ensure the hearing proceeds without delay. Secondly, we must take several steps to address the problem of multiple cases being filed to resolve a single dispute. One step is to better manage our court system. When applying for a new case, the application should clearly state whether there are any related cases pending in other courts. If it is a case in a lower court, arrangements should be made for all related cases to be heard together by a senior district judge. Similarly, if the case is in the Supreme Court, steps should be taken to consolidate all related applications and cases so they can be resolved in a single bench.

In addition, the interim appeals that are made also cause a lot of problems in the speedy disposal of the case. Such appeals should be sent to the judicial courts for disposal. Such judgments and orders are pending in our courts for months and years. If this is the case, there will definitely be a delay in the trial. Only by making changes in these places will a smart judicial system be established.

We need to make arrangements for the appointment of judges in our courts based on their qualifications. Before appointing a judge on appeal, it is necessary to see how many High Court judgments of this judge have been overturned on appeal. Also, what is his academic quality? In addition, training should be arranged for lower court and High Court judges. Because, those who are tried in the High Court as lawyers do not have any experience as judges.

We have an arbitration system in our country, but conciliation is less common. These are relatively new concepts, yet they pave the way for improved access to justice. In England, Lord Woolf replaced the Rules of the Supreme Court (RSC) with the Civil Procedure Rules (CPR). Alongside the CPR, several practice directions were introduced for lawyers. Notably, arbitration was made mandatory once a case entered the court system. In our country, arbitration is not mandatory but is considered part of public policy. This method could be adopted here as well. It is often suggested to withdraw cases from court and settle them through ADR (Alternative Dispute Resolution). Our Arbitration Act was enacted in 2001. However, it seems that many changes have been made since its enactment, and many judges remain unaware of these updates.

In the UK, Chief Justice Woolf's report on Access to Justice emphasised the importance of procedural rules. New laws were introduced with the condition that they would take effect after two years. During this time, extensive training was provided to judges and lawyers to ensure effective implementation. In our country, it is not feasible to implement changes in the law if judges and lawyers are unaware of the nature of these changes. Unfortunately, there is no adequate training system in place for lawyers and judges here.

The government and courts must take the initiative to provide quality training to judges and lawyers to effectively resolve cases through alternative dispute resolution methods. Although our justice delivery system is independent, the courts must take proactive steps to implement ADR effectively.

I have a little to say about arbitration, I have been involved in this system for many years. There is a problem in our arbitration law. This law is to support arbitration. The law tells the court to support arbitration. This system is a contractual dispute between two parties. Since the party wants to resolve the dispute through arbitration, the court will support them. The court will not go against them. But it is seen that the court is interfering in this with minor issues. Then how will ADR be successful? Where both parties want to do ADR, the court will definitely support them. This thing is implemented in Singapore, so they are so far ahead in case management. Most countries in the world are now moving towards arbitration, we are lagging behind here.

The British were the colonial ruling class in this country. Their mentality was also ruling and colonial. Their thinking was that if the citizens of this country could be included in their system, then it would be easy to bring the citizens under control. The British came to this country with just a few people and conquered us. They kept the judiciary and the administration in the hands of one person. That is how they made laws. Yet their judiciary and administration are separate. The kind of laws they made for us do not exist there. But even today we are running the judiciary and many other things with their colonial laws. One reflection of this is the tension between our judicial and executive magistrates. How do executives become magistrates? The British have done this too. So as soon as the British left this country, the laws they made should have been thrown into the Bay of Bengal. I still think that should be done. Or those that can be changed should be done.

Most of the instructions given by the Appellate Division in the Masdar Hossain case on the separation of the judiciary have not been implemented. Implementation of the instructions in the Masdar Hossain case is essential to establish a strong judiciary. Besides, it is worth mentioning one more thing, our judges receive less financial support. In Singapore, a judge is paid a million dollars. No one can easily mix with or meet the judges there. They have to live under tight security. In our country too, judges should now be given a salary structure so that their financial security is ensured.

In our country, people have become more aware of their rights than before. But writs and lawsuits have become a trend. Our judicial system (cost consequence system) is not in place. It is seen that someone filed a case with no merit. As a result of that case, an injunction was issued. A ship was stuck in the water for years, or construction work was stopped. It was seen that after 10 years, the plaintiff lost in court. He filed the case irrationally. But the one who suffered damage does not get any compensation. But in other countries including Britain, this system of giving compensation is in place. In Britain, before asking for an injunction in a case, one has to tell the court that it would be wrong if I asked for this injunction, then I will pay compensation to my opposition party. That is what happens. As a result, no one easily asks for an injunction in the court and does not file a case. And lawyers also do not encourage the party to file a case. Even though it is within our law, we do not follow it. Another problem in our country is that a decision is made in a government work. A writ was filed against that decision, a stay order was taken, a rule was taken, and then it was gone. It is seen that five years have passed since the stay order was taken. There is no hearing. As a result of the order, government work has been stopped. I have seen in Britain, other European countries and many developed countries, that the orders that are made during the interim period are settled very quickly on a priority basis. This has not happened to us here yet.

The introduction and implementation of the Collegium system in the appointment of judges in the Appellate Division and the High Court is very important. Besides, transparency in the appointment of judges will not come. And transparency in the appointment of judges will actually make many things in the High Court more public-friendly and the path to establishing justice will be smooth. In this case, we can follow the Collegium system of appointment of judges in the High Courts of our neighboring country, India.

The Collegium system is a system for the appointment and transfer of judges in the Supreme Court and High Court. It is not rooted in the Constitution. Instead, it has evolved through judgments of the Supreme Court. Under the system, the Chief Justice of India (CJI), along with four senior-most Supreme Court judges, recommends the appointment and transfer of judges. A High Court Collegium, meanwhile, is led by the incumbent Chief Justice and the two senior most judges of that court. The government can also raise objections and seek clarifications regarding the Collegium's choices, but if the Collegium reiterates the same names, the government is bound to appoint them to the post.

The genesis of the collegium system in India

The collegium system has its genesis in a series of Supreme Court Judgments.

S P Gupta Vs Union of India, 1981 (First Judge Case): Supreme Court held that consultation in the process of appointing judges does not require concurrence, and instead only involves the exchange of views.

Supreme Court Advocates-on-Record Association Vs Union of India, 1993 (Second Judge Case): The Supreme Court reversed its previous and altered the definition of consultation to mean concurrence. It was decided that the advice tendered by the CJI in regard to the appointment of judges to the Supreme Court is binding on the President. Further, the CJI is required to consult with two of his most senior colleagues before tendering such advice.

Third Judge Case, 1998: Supreme Court stated that the consultation process to be adopted by the CJI requires "consultation of plurality judges". The CJI should consult a collegium of four senior most judges of the Supreme Court. Even if two judges give an adverse opinion, they should not send the recommendation to the government. National Judicial Appointments Commission (NJAC) Act, 2014: It was brought to replace the existing collegium system for appointing judges.

Ahsanul Karim. Sketch: TBS

However, a five-judge Constitution Bench declared it as unconstitutional and nullified it, stating that it posed a threat to the independence of the judiciary.

The current system for appointing judges in the lower courts of the country is quite transparent. But more efforts should be taken to ensure the quality of judges. A major obstacle in the appointment and transfer of judges in the lower courts is the transfer and posting of judges to various important places including the capital on the basis of power party considerations. It is seen that the relevant minister of the party in power or someone close to that minister influences the transfer and posting of judges. It has been seen that someone close to that minister of the ruling party or the lawyers in his chamber of minister control the entire court judicial system. This needs to be addressed. For this, political will is essential.

*The writer is a constitutional expert and senior advocate at the Supreme Court of Bangladesh