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Justice delayed

  • Published at 12:02 am December 22nd, 2016
  • Last updated at 12:14 pm December 22nd, 2016
Justice delayed

This is a story of a person I met recently. He is a man from a remote village of Faridpur, a driver by profession, living in Dhaka and looking for a job. He lost his job three times within the last three years.

“Why is it happening to you repeatedly?” I asked.

“Following a conflict with my neighbours, a case was filed against me. This case has remained unresolved for the last four years.

“Although I was granted bail at the outset of the case, it required me to visit my village and district town frequently, either to consult with lawyers or to appear in court, which forced me to be absent from my work.

“Sometimes, I was able to manage a leave and sometimes, I wasn’t, which resulted in the loss of my job,” he replied.

This is just one example among thousands on how long-pending cases create burden for the poor, and the marginalised families become even more marginalised.

We can now imagine the situation of those who have been waiting for justice, but their cases have remained pending in different courts over the years.

Bangladesh judiciaries are overburdened with a huge case backlog. As of December 2015, a total of 3,109,173 cases were pending in different courts, of which, 41.3% were civil and 56.4% were criminal cases.

The lower judiciaries share 86.9% of pending cases. An estimation shows that the growth rate of pending cases from 2010 to 2015 was 50%. The year-wise growth rate in the case backlog calculated for 2011, 2012, and 2013 were 15%, 12%, and 9.4% respectively.

Despite the situation, there are some good signs. The government has shown concern on the increasing trends in case backlog, which is reflected in its various policy frameworks and ongoing initiatives. Several technical projects are being implemented by different ministries and departments.

The 7th Five-Year Plan (2016-2019) mentions judiciary as one of the four critical areas of intervention for its unfinished agenda in governance.

It considers the increasing trend in case backlog as an emerging challenge for governance, judicial effectiveness, access to justice, rule of law, and citizen rights.

The performance indicator in the plan also emphasises on reduction of case backlog to ensure that it “does not cross 3.3 million thresholds by 2019.”

The strategy for Digital Bangladesh also aims at strengthening the judiciary. It especially focuses on reduction of case backlog through an improved case data management system.

As a result, judiciaries have already started witnessing some positive impacts on the overall situation of case backlog. The Supreme Court Annual Report 2015 observed that the case disposal rate from 2014 to 2015 increased at 162% in the Appellate division, 149% in the High Court Division, and 107% in the subordinate judiciaries.

The year-wise growth rate in pending cases also has significantly declined from 9.4% in 2014 to 3% in 2015. Despite a significant improvement in the case disposal rate, the total number of pending cases is still increasing, which has already crossed 3.1 million. It indicates that increase in the disposal rate is vital, but it might not be the only factor responsible for the case backlog.

Let’s look into the balance sheet of case inflow and outflow. An analysis shows that the relative frequency of case inflow is higher than that of case outflow.

A report stated that due to the gap between the number of cases newly filed and the number of cases disposed of, 1,051 cases were added every day to the existing pending cases. The Bangladesh Justice Audit observes that if the current trends in case inflow and outflow continue, the case backlog in 2018 for the Session Courts, CJM Courts, Nari-O-Shishu Courts in Comilla district would be 68%, 67%, and 79% respectively. Almost the similar trends have been projected for the other four districts, namely Mymensingh, Rangpur, Madaripur, and Gopalganj.

According to the popular discourse, the most common causes of case backlog are lack of judges, insufficient infrastructure, and population growth. As a result, the popular approach always talks about recruitment of more judges and building more infrastructure (more courts).

The most common causes of case backlog are lack of judges, insufficient infrastructure, and population growth. As a result, the popular approach always talks about recruitment of more judges and building more infrastructure

It is true that the ratio of the number of judges to the size of the population is very low in Bangladesh. At the same time, data for the last five years shows that the growth rate in case backlog is at least two to 13 times higher than the growth rate in population.

This indicates that population growth rate is not the primary reason for case backlog. Fortunately, members of only 25% of the households in Bangladesh are involved in either civil or criminal disputes, among them, 68% never come to the formal justice system.

It is clear that the unchallenged case inflow to the courts greatly contributes to the increasing trends in case backlog.

It is therefore unthinkable to reduce case backlog without a comprehensive strategy to reduce case inflow to the formal justice system.

Exploring and using options for diversion before and/or after cases are filed should be considered as one of the immediate measures. Experts and practitioners strongly recommend exploring options for diversion.

The suggestions to expedite case diversion process include: (1) An effective use of local-level public and social institutions, (2) amendment of CrPC to incorporate provisions for ADR/mediation for criminal cases, (3) widen the scope of the village court to cover many other potential issues under its jurisdiction, (4) use of social and religious institutions to raise awareness, (5) proactive roles by the lawyer community and police.

The Women Support Centre under the SP Office of Brahmanbaria district started resolving disputes through mediation from August 2015. From August 2015 to March 31, 2016, they received 503 complaints. Among them, 390 were resolved through mediation, only 28 cases were filed as formal cases.

Police managed to divert 96% of complaints which could have been added to the formal justice system. The district police authority already mentioned that this initiative contributed to the reduction of the case backlog in the district.

Another example of diversion is by Savar police for the Beday community, where instead of arresting or filling cases, they offered skills training to youths who were involved in drug-related affairs.

Legal aid rules have a provision for mediation. It creates a new scope for diversion. The IRSOP project of the Home Ministry is also piloting the restorative justice process in 10 districts.

Learning from those exercises and replication of the good practices would make the system more efficient in diversion and of course, a holistic approach of diversion would contribute significantly to the reduction of case backlog. All relevant stake-holders including the donor community need to play proactive and positive roles in this regard.

Munir Uddin Shamim is working on a bilateral technical project on justice reform as National Project Coordinator.