Labelling the current judicial system and the case disposal rate as “shameful” and “intolerable,” the Law Commission has suggested that initiatives be taken immediately to reform the whole system for the sake of the nation.
Commission Chairman and former chief justice ABM Khairul Haque and two other members – Justice ATM Fazle Kabir and Prof Dr M Shah Alam – made the observations in the report of an investigation which was conducted to look into the delay in the delivery of the verdict for the case of Adflame Pharmaceuticals, formally known as “State v Helena Pasha and others.”
The commission submitted the report to the Law Ministry on Monday, mentioning 16 suggestions for both the trial court and the High Court with a view to ensure quick disposal of cases.
The Adflame Pharmaceuticals case was filed over the deaths of at least 76 children, mostly infants, after consuming adulterated paracetamol syrup in the 1990s. On July 23, the Dhaka Drug Court delivered a verdict in the case – more than 21 years after the case had been filed.
The court sentenced three officials of Adflame Pharmaceuticals to 10 years of rigorous imprisonment, the maximum punishment stipulated in the law. The three convicts are Adflame Director Helena Pasha, Manager Mizanur Rahman and Production Officer Nigendra Nath Bala.
The then drug superintendent Abul Khayer Chowdhury filed the case on December 19, 1992 against Helena and seven others under the Drugs (Control) Ordinance of 1982.
In the eight-page report, the commission has presented the case steps since it commenced in 1993.
To find the reasons behind the delay in the proceedings, the commission examined the main case documents at the chamber of the district drug court and divisional special judge’s court judge.
The investigation found that the case was delayed by 19 years and two months for no valid reason.
The charges were framed against five of the accused on May 28, 1994, one and a half years after the case was filed, “though it was not necessary to take such a long time for the indictment.”
It was also revealed that the High Court rule questioning the indictment order against three of the accused had not been found in the trial court. Rather only the order – delivered after 14 years – vacating the rule “for not having any substance” was found.
“Because of the rule that sought the main case documents, the hearing for the case was stalled for 14 years at the trial court. This incident reflects the seriously irresponsible attitude of the people concerned with the judicial system. It is a stark example of the well-known proverb ‘Justice delayed, justice denied,’” stated the report.
The commission also questioned why the High Court order reached the trial court – situated only two miles away – after two months and said, “It seems that the delay was deliberate and was a result of a lack of necessary monitoring by the officials concerned.”
It is a matter of grave concern since a copy of the order was kept in an almirah of the judge’s chamber for over two years. “It cannot be said how long the document would have been left there, had the judge not noticed it. No doubt, it was also done deliberately,” said the commission.
Even though bench assistant Abdul Haque Sheikh was issued a show-cause notice for his acts, it could not be found whether any further measure had been taken against him and the commission said: “It seems that no departmental action was taken against him for committing such a massive offence.”
It also took three years to record testimonies of the three witnesses since they did not appear before the court, though several arrest warrants had been issued against them. Moreover, it took three months for the court to be informed that one of the four witnesses had died.
The commission said: “Deposition of the witnesses could be recorded in one working day.”
The report also states: “It is irrational and unacceptable that the closing arguments in the case were adjourned 10 times upon defence petitions.” This is why it took 11 months to complete the argument stage.
The probe body observed that had there been no delay in the case, it would have taken only two and a half years to deliver the verdict.
“The victims and their families were deprived of justice for over one and a half decades only because of utter failure of our judicial system, especially case management at the High Court.”
Commenting on two other cases filed over deaths of children after taking adulterated paracetamol syrups, the commission said trials of those cases had been stalled for around 18 years. Still, it took over one year for the High Court order to reach the trial court. “Recording of testimonies began in August [this year], around 21 years after the cases had been filed.”
Regarding the Adflame case, the commission said: “The case has been disposed of only in the trial court. It may be taken to the High Court and even the Appellate Division. It is uncertain how much time it may take to finally dispose of the case – this is the naked truth. With this judicial system, we have no option but to hide our face in shame in front of the people, the owners of Bangladesh.”
The report says such an “intolerable” judicial system must change for the sake of the country and the nation. “Though such reforms cannot be done overnight, it should begin now.”
Suggestions for trial courts
The police administration will have to take prompt initiatives to produce witnesses before the courts. They should also inform the court about the non-appearance of a witness. If needed, punishment should be given to anyone responsible for negligence.
The authorities should take steps if witnesses come to the court but are not produced before it. The depositions should be recorded with the highest priority since the witnesses might not be able to go to the court repeatedly. To encourage them to testify, the witnesses need to be provided with benefits and facilities.
It is necessary to introduce an alternative and modern system for recording the testimonies of witnesses since the judges currently have to write those down.
The commission suggests continuing the trials without any adjournments, in line with the rules. If needed, adjournments can be made for special circumstances but should not be lengthy.
Suggestions for High Court
The High Court has to be more cautious while issuing rules and stay orders. The chief justice may strictly discourage this while administrative steps can be taken to dispose of the rule related to stay orders.
The commission also suggested a provision that if a rule was not disposed of within six months, it would be vacated automatically.
Analysing the 14 years’ statistics on the appointment of judges, the probe body found that even though the number of judges increased, the cases, instead of decreasing, were shooting up alarmingly.
As immediate measure, the commission suggested that a committee be formed led by the chief justice to appoint efficient and honest persons as judges.
Commission Chairman Justice Khairul Haque told the Dhaka Tribune: “We submitted the report to the Law Ministry yesterday [Monday]. We hope the government will take necessary steps to reduce the backlog of cases.”
