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A Statement by the Asian Human Rights Commission
FOR IMMEDIATE RELEASE
AHRC-STM-264-2008
October 14, 2008
The media reports alleging that it is in fact a military officer who decides the case lists in the Supreme Court of Bangladesh is a shocking revelation which sharply brings to light the militarised political context in the country. Barrister Rafique-ul Haque who is defending two former prime ministers of Bangladesh in graft cases revealed to the Bar and the media that an army major is occupying a room on the second floor of the Supreme Court Building and deciding which judge should decide what case in the country.
It has also been revealed that three senior lawyers, Barrister Rafique-ul Haque, Barrister Shafique Ahmed and Barrister M. Amir-Ul Islam have received letters from anonymous sources stating that they are national betrayers and threatening the lawyers and the members of the judiciary with cross fire, which in the local context means assassination.
The Asian Human Rights Commission (AHRC) and several other national and international civil society organisations have reported that the current administration in the country is trying to smother judicial independence in Bangladesh by all possible means. The incidents cited above are the latest in a series of revealing acts where the army has infiltrated the judiciary to an alarming level. The recent reconstitution of High Court judges at the behest of the army is yet another example of this increasing interference.
Interference of any nature, however minor it may be, with the administrative and adjudicating function of the judiciary is a major setback for any country. Bangladesh need not look anywhere else to find shocking examples of how bad such interference could be. Pakistan, Burma, Nepal and Sri Lanka are immediate South Asian neighbours that have suffered severely from such interference with the function of their judiciaries. In Pakistan, however, the Bar was bold enough to challenge this interference when the independence of the judiciary and that of the lawyers was threatened by General Musharraf’s military regime.
The recent history of the administration of justice in these illustrates the fact that the judiciary is weak, subjected to executive control and sometimes even corrupt. The situation of Bangladesh in this regard is no different.
It is obvious that the judiciary in Bangladesh is fully aware of such interference by the executive and the military. In the context of the widespread fear psychosis in the country and the practice of impunity the judiciary may be unwilling to want to put up resistance against such interference. However, there is a widespread feeling among the lawyers and the people that executive and military interference must be resisted.
Threats received by lawyers and senior judges and even the recovery of explosives and explosions in the residences of sitting judges who challenge the current administration is proof that the current administration is bent upon silencing all opposing voices. Even the Bangladeshi media has fallen victim to this tragedy. Unfortunately some senior jurists within Bangladesh rally along with the administration, condemning anyone who opposes the current government and even directly and indirectly support the administration.
It appears that as of now the armed forces of Bangladesh is in absolute control of the government. The armed forces have literally transformed the administration into a puppet that dances to their tune.
So many of the important government posts are occupied by members of the armed forces that demilitarizing the country’s administration will take years. It is unfortunate that most of the country’s politicians are facing graft charges or have such tainted backgrounds that none of them dare to challenge this new status quo that is pulling the country into deeper corruption and nepotism. The support given by the World Bank and some other European countries to the military regime strengthens the militarization process in the country and makes the transformation into democracy and rule of law even more difficult.
The present situation can easily degenerate and the whole country may come under the grip of the military as has happened in countries such as Burma. It is the duty of all to prevent such a situation and it is particularly the duty of all civil society organisations and the international community to ensure that the militarization process should be brought to an end. In this context it is most important that the military presence in the Supreme Court office and other offices such as Sessions judges office, the Special Tribunal on Anti Corruption and the Judicial Magistrate’s Court should be brought to an end immediately.
About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation monitoring and lobbying human rights issues in Asia. The Hong Kong-based group was founded in 1984.
RATER ZONAKI
HONG KONG, China, October 14, 2008
The judiciary in Bangladesh is being seriously undermined by the military, to the point that it can no longer carry out its functions. Judges and courts are subject to illegal, unconstitutional and even criminal practices.
Among the more serious recent incidents, two handmade bombs were discovered in the residence of Justice Sharif Uddin Chaklader, who until last week was head of a High Court Division dealing with petitions challenging detention orders against politicians and businessmen. In late September a bomb exploded in front of the house of Justice Tariqul Hakim, another Supreme Court judge. Luckily neither judge was injured.
Anonymous letters threatening assassinations were also sent to three senior lawyers – Barrister Rafique-ul Haque, Barrister Shafique Ahmed and Barrister M Amir-ul Islam – as well as the present and past presidents of the Supreme Court Bar Association.
Rafique-ul Haque, who is a former attorney general of Bangladesh, lamented the situation during an urgent meeting of the Supreme Court Bar Association last Sunday. “An army major sits in a room on the second floor of the Supreme Court building where no one is allowed to enter,” he said. He explained that this major handles the case list for the Supreme Court judge – meaning that only those cases the military-backed government approves of will be given a hearing.
Barrister Haque also explained that the chief justice has reconstituted the benches of the High Court Division, assigning junior judges to deal with sensitive criminal cases and sidelining more competent senior judges. It is generally understood that this was done under military pressure.
These incidents expose the vulnerability of judges and lawyers at the highest levels of the judiciary. Not even the Supreme Court of Bangladesh can confront the military authoritarianism in an organized manner.
These incidents have occurred whenever the military-controlled government has faced serious challenges from the highest levels of the judiciary, especially regarding enquiries into the legality of its actions in the past 21 months of emergency rule in Bangladesh.
The government, which grabbed power illegally, has no legitimate authority to rule the country. It is already unhappy with the decision of the High Court that declared its promulgation of ordinances to be beyond its constitutional powers. Also, under emergency laws, the current rulers have disallowed decisions by the Supreme Court on granting bail to certain accused persons.
It appears that over-ambitious high-ranking officers of the armed forces are behind these incidents. The armed forces of Bangladesh shamelessly believe that by invading the civil institutions they can achieve more, especially if a powerful institution like the judiciary is sufficiently suffocated. The people of Bangladesh seem headed for an even more disastrous era under the grip of the armed forces.
If the armed forces dictate to the highest judiciary, how can their abuse of power be curbed? Should the judiciary entertain or tolerate these ongoing military invasions? What role is the chief justice of Bangladesh playing to stop the humiliation of the judiciary at the hands of the military? Why is the lawyers’ community silent while its professional dignity and sanctity are under serious threat? Why does the Supreme Court not hold the armed forces accountable for grabbing power and occupying civil institutions illegally?
People who are aware of the situation in Bangladesh know that corruption and abuse of power with blanket impunity are among the biggest setbacks to the country’s journey toward democratic stability. At the same time, the existing system allows people to become involved in corruption, either by choice or by force, due to the lack of transparency and accountability by civil servants and politicians who are close to the military rulers.
This does not mean that only a few members of a specific professional community are responsible for leading the country toward disaster or capable of improving things overnight.
Officers of the armed forces are accustomed to taking orders and following commands. However, such practices are useless in civil institutions. Many decisions taken by the military in civilian circumstances are not based on rationality or on a constructive assessment of the consequences of these decisions. This is true because the military officers have no respect for civilians and civil institutions. Most people agree that the armed forces are absolutely incompetent to solve civil problems by adopting military rules and regulations.
The Bangladeshis and the international community who are committed to the rule of law should think seriously whether it is time to remain silent or to act to ensure the survival of Bangladesh’s judiciary and other civil institutions. Remaining silent could kill all hope of justice ever being restored to its rightful place in Bangladesh.
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(Rater Zonaki is the pseudonym of a human rights defender based in Hong Kong working at the Asian Human Rights Commission. He is a Bangladeshi national with a degree in literature from a university in Dhaka. He began his career as a journalist in 1990 and engaged in human rights activism at the grassroots level in his country for more than a decade. He also worked as an editor for publications on human rights and socio-cultural issues and contributed to other similar publications.)
Source: upiasiaonline.com
Zahidul Islam Biswas
Backlog of cases appears to be a common predicament of the judiciaries worldwide. Countries from both developed and developing world have been facing this problem more or less alike. However, this difficulty for Bangladesh judiciary seems going from bad to worse every year. According to latest annual report on the judiciary, still the Appellate Division of the Supreme Court has 8,997 cases pending, the High Court 2,62,349 cases and the judicial magistracy 6,02,173 cases as of December 31, 2007 although the disposal rate of cases has increased.
It is a matter of hope that the judiciary after being formally independent on November 1, 2007, has shown its efficiency to a good extent. After the separation of the judiciary from the executive and with the introduction of judicial magistracy, the rate of disposal of criminal cases in the courts of magistrates increased by 51 per cent in December 2007 in relation to the cases disposed of by the judicial magistrates in November 2007.
According to the said report, 5,63,344 cases were pending with the judicial magistracy as of November 1, 2007 and 34,131 cases were filed in November 2007, while the magistrates disposed of 33,104 cases. On December 1, 2007, the judicial magistracy had 5,64,371 cases pending and 87,789 cases were filed in December 2007, while 49,987 cases were disposed of. On an average, 137 cases were disposed of by each of the 242 judicial magistrates in November, in a month after the judiciary became independent of the executive.
However, while there are a huge number of cases pending and the rate of filing cases is greater than the rate of disposal indicating increase of caseload every year, it is certain that judiciary will have to bear the huge backlog of cases on its shoulder for an uncertain period of time unless special steps are taken to heal the cancer of the judiciary.
Understandably, this problem is not just a setback of the judiciary, but it is a great predicament of any nation. Backlog of cases obstructs the ‘access to justice’ which is considered to be the ‘most basic human rights’, as ‘access to justice’ does mean not only the presence of justice mechanisms like courts, tribunals etc. but also the ability of those mechanisms to deliver affordable and timely justice to the citizens. Backlog of cases does not only delay the disposal of cases and impose huge expense on the justice seeker but also perpetuates tensions among litigants.
For this reason fighting against this judicial handicap is getting more and more importance globally day by day. Bangladesh realizing the gravity of the problem started tackling the problem long ago. First attempt to tackle the backlog of cases was to establish a number of tribunals to deal with disputes from some specified areas. The underlying assumption for establishing various tribunals was that in the existing adversarial judicial system the formal trial procedure takes a longer period of time. This is because of their strict following of Code of Civil Procedure or Code of Criminal Procedure. By contrast, the tribunal as a special justice mechanism following suitable speedy procedure for dealing with some disputes of specific areas could be better equipped to deliver timely and inexpensive justice. But it seems that the history of tribunal does not confirm this assumption. Bangladesh’s special tribunals have failed to contribute in improving the caseload situation of Bangladesh judiciary.
The next attempt, that was taken more than a decade ago, was to introduce ADR (Alternative Dispute Resolution) mechanisms, which includes mediation and conciliation, among others. In Bangladesh’s adversarial judicial system, trial procedure is dominantly controlled by the lawyers of the both sides of litigation, where the judges play minimal role to control the trial. Lawyers takes repeated time to make them well prepared for dealing with the case, or for sometimes to frustrate the aim of the case itself by delaying its progress. ADR is introduced against this backdrop. One example of that is introducing mediation in the family courts of the country. It is claimed that the ADR programme in family courts is a great success, and following that success scope for ADR is created in all other civil courts by amending the Code of Civil Procedure. The previous government was even planning to introduce ADR in criminal courts also.
It is mentionable that there are serious arguments against ADR; however, I am not going to rehearse that discussion here. Simply put my argument is that given the nature of disputes and cases, all these cannot be sent to be resolved through ADR mechanisms. Moreover, Moreover, if Bangladesh’s social structures, power practice and litigants’ mind are taken into account, how much ADR can contribute in other critical civil and criminal cases is uncertain. Moreover, sociologists such as Laura Nader have argued that even the American ADR models, which are often cited in India and Bangladesh now, actually divest the poor of justice. Similarly Galanter has argued that the informalism introduced by Lok Adalats is a debased form of informalism since it bypasses law rather than ensure that good law is available to all. Hence, the demand for strengthening the formal courts of law than relying on ADR finds persuasion in these arguments.
However, the point to discuss here is that all the times there were some attempts of legislative changes to deal with the backlog of cases. Time to time, various special laws and procedures have been made, and both Code of Civil Procedure and Code of Criminal Procedure have been overhauled to respond the need of speedy justice. But evidently Bangladesh judiciary has failed to deal with its enormous backlog of pending cases, denying its citizens right to justice.
Understandably, all these abovementioned attempts were made considering only some aspects of the backlog of cases. In other words, these attempts were piecemeal ones to tackle the judicial malaise. Consequently success was also piecemeal, not comprehensive or overwhelming. It otherwise reveals that for an overwhelming development of the ‘caseload situation’ there is a need for a comprehensive approach to analyse the entire situation and take comprehensive actions that will weightily take into consideration the administrative and financial aspects, among others, of the judiciary.
Generally, the state of court administration is considered a great contributing factor in the backlog of cases. In the case of Bangladesh, we see the judge-population ratio is one of the lowest in the world. I don’t have exact data in my hand this moment, but I guess the ratio is not more than 12/13 judges per million population. Comparing to developed world’s judiciary, the ratio may evoke disbelief among many of us. A paper shows that even twelve years ago the numbers of judges for per million people were 41 judges in Australia, 75 in Canada, 51 in England and 107 in the USA.
In developed country’s judiciary, along with judge- population ratio, another aspect which is taken equally importantly or more importantly is the ratio of case management staff number of cases. Court administration cannot succeed without the unstinted support of the Court staff and its Registry. In fact, they are the backbone of the system and the administrative burden really falls on them. Though there is no data as to this ratio in Bangladesh, undoubtedly it is also one of the lowest in the world.
While the unjustified shortage of court staff is contributing mismanagement of trial, proceedings and records, the ancient or traditional management technology have been worsening the situation. Most of the case management work – for example maintaining case files, keeping records of document and evidence, writing warrant, summons, notice, order, judgment etc is done manually, following century old format. Many developed courtiers, like USA, Australia, United Kingdom, Canada, who had faced same type of case management problem due to shortage of staff have been gradually overcoming this by introducing ‘e-management’ of cases. Their experiences show that by using modern information technologies like computer data base and internet etc. these case management problems can be overcome to a great extent even with the existing ‘insufficient’ number of staff. Hopefully, ‘modern technology has been introduced in the management of court and cases that will help in bringing transparency to the judiciary’, as the immediate past chief justice of Bangladesh recently said at the launch of the 2007 annual report of the judiciary.
Along with all these comes the role of law enforcing agencies, i.e., the police department. Criminal justice system is very much dependent on police and thana administration. Corruption in the Bangladesh police administration contributes heavily in the malaise of Bangladesh legal system. Without taking care of this department, nothing good can be expected overnight from the present independent judiciary.
No doubt, for improving court administration, the number of judges and management staff and infrastructure development is must, for which huge financial investment is necessary. In Bangladesh, the expenditure on judiciary in terms of GNP is again one of the lowest which is not more than 0.5 percent I guess. On the contrary it is 4 per cent on the average in other developed countries. Considering this trivial financial care of the judiciary, the poor administration of justice in Bangladesh is not inconsistent.
While this is a general discussion on the causes underlying the backlog of cases Bangladesh judiciary, the concerned experts are expected to reveal more causes. The point here is that for getting rid of the backlog of cases all these expressed and hidden causes have to be taken into account.
Now Bangladesh Judiciary is separate from executive. This separation is a result of a long struggle. It is now the responsibility of the judiciary to reap the benefits of being independent and to stand by the justice hungry people of the country. However, after separation of judiciary form executive, the judiciary is theoretically independent; practically it is still dependent upon the other partners in government, i.e., the executive and legislative branches of government, specifically in cases of legislative changes, police cooperation, allocation of national budget for judiciary etc.
In such a position judiciary must make a clear vision of how much time and in which way it wants to overcome the suffocating backlog of cases. Then it has to convey its vision to other partners of the government and convince them so that they cooperate to fulfil that vision. And at the same time judiciary must update the common citizens on this vision for upholding their confidence in judiciary. But, above all, the judiciary must be cautious that it does not sacrifice access to ‘justice’ for the sake of ‘access’ to justice.
The writer, an advocate of the Supreme Court of Bangladesh, is currently with the Centre for the Study of Law and Governance, JNU, New Delhi. Email at: zahid.bangladesh@gmail.com
Source: The Daily Star, Section: Law & our Rights, Issue no. 74, June 28, 2008.
See: http://www.thedailystar.net/law/2008/06/04/index.htm
