Law Education
A
competent Judiciary: The ultimate guardian of human rights
Barrister
Aminul R. Islam
Violation
of human rights is not something alien to us or any nation
in the world. This is rather a natural phenomenon in human
societies. What differentiates us from many other nations
on earth is that the phenomenon of violation of human
rights are contained correctly in those countries whereas
in our country this is tolerated (thought to be justified)
with the acceptance that there is no effective apparatus
present in our country to contain/effectively contain
this evil of violation of human rights.
What
happens in Bangladesh is that when this violation occurs
then there is no social disgust against such violation
and, consequently, no one (including the victim) feels
any need to seek redress against such violation. Let me
give some examples of violations of human rights which
will help to clarify my point. When a child goes to learn
basic Islamic knowledge from a mullah them whenever the
mullah feels that the child is not learning according
to his expectation he uses his cane on the child with
liberty and the people think that this is not only right
but also necessary. When somebody is arrested by the police
on the accusation of committing a crime, say theft, the
police beat up the accused with liberty and the people
around the scene enjoy this. When a young maidservant
makes a mistake the employer slaps her with liberty and
people feel that this is justified.
We
cannot expect the general people of our country to change
overnight or even to change at all. This must be done
by those of us who understand/feel right from wrong and
who are actually responsible to bring about the change.
There are many sections/apparatus of our society who can
contribute towards doing this but, in my opinion, it is
the judiciary who must play the ultimate role in bringing
about the required change.
Make
no mistake, the law is there. We do not need any change/major
change in the law. Assault is illegal. The constitution
guarantees the physical integrity of its citizens. What
we need is to change ourselves so that whenever such violation
occurs we prosecute them and hand them out the appropriate
punishments. Once we started to do this then the general
public would start to change their attitude towards physical
abuse and gradually come to feel disgust/abhorrence towards
physical abuse. If this were done then the whole culture
would be against physical abuse of any kind.
The
theory is simple. Then why this is not happening? There
could be and are multitude of reasons. One of the reasons
is the degree of competence of the judiciary and its mechanisms.
The mechanism include the officers of the courts. Lawyers
are the officers of the courts.
We
understand the social and other barriers in successfully
prosecuting those who are routinely (with impunity) committing
the crimes of physical abuse. We also know that it could
be extremely difficult to bring about convictions of those
who are guilty of physical abuse. But what about a skilled
lawyer? To a skilled lawyer this might not be difficult
at all. A skilled lawyer is a lawyer who has/created a
natural ability to face all kind of lies, forgeries and
conspiracies and bring out the real picture of what actually
happened before the court. Obviously, we do need and,
I believe that we do have a reasonable bench to comprehend
what are being shown by the lawyer and deliver judgements
accordingly.
I
am not saying that there is no scope of improvement in
the bench. This is always the case about every profession.
What I am saying is that with the current quality of bench
we could manage things if we could get the quality lawyers
in the courts.
We
have got a system of educating and training our lawyers.
This system was given to us by the British government.
But whereas the British system of educating and training
the lawyers has been improving to make it more and more
practical we are still living in a world of academia where
we learn unnecessary details (such as memorising what
sections of Criminal Procedure Code relate to what offences)
of different acts.
In
the UK they do not test you as to whether you could remember
the section number of a particular offence/law. They test
to as to whether you know the law. They test you as to
whether you could digest the facts and apply the law to
the facts properly. They test you as to whether you could
analyse an intricate situation and present your case accordingly.
You do not need to memorise the section numbers. This
is because as a lawyer you will have the benefit of having
your books in your library (both private and public) and,
in practice, a British lawyer does carry some law books
in his bag into the courts.
In
order to become an advocate a law degree is not good enough.
One has got to do the Bar Vocational Course in order to
become an advocate (barrister). This course enhances the
skills of the lawyer in many ways and prepares him to
properly face the practical life as a lawyer. This article
is not intended to go into the details of the course.
But I would give some idea of what happens during the
course.
Almost
every day of the course the students are given difficult
(mostly absolutely difficult) cases and are given specific
tasks of advocating in favour of specific parties. The
students take their cases, research them and then, on
the following class, they perform advocacy in front of
the whole class. It happens that students do this more
than once on a single day. Now imagine what happens to
such students by going through such training. I can tell
what happened to me and my friends who went through such
training. Even on the first day of my appearing before
the court I had no nervousness at all. The same goes to
my friends. This is because we learnt/prepared ourselves
more than what we practically needed to face when we appeared
before the courts.
The
Law Society (which is responsible for solicitors who does
have rights of audience in lower courts) gives some substantial
exemption to lawyers who are educated/trained in Bangladesh
and who practised in Bangladesh. One sad truth came to
my notice when I saw them perform before courts in the
UK. They, like students of law as opposed to practitioners,
cite law after law before the courts. This is wholly unnecessary
and agitating to the judges. Most cases do not involve
dispute involving the interpretations of law. They involve
facts and evidence of cases. The lawyer needs to concentrate
on facts and evidence of the case. He does not need to
lecture the judge on the law. The law is there, open to
everybody, everyone understand this. It is wrong to assume
that lawyers and judges do not understand the laws. If
one is not capable of understanding the law then the universities
must not pass him when he does his law degree. If it is
the case in Bangladesh that people who are not capable
of understanding the law are passed by their universities
in their law degrees then it is an urgent matter for us
to take immediate and drastic action in relation to law
degree courses and the universities. We cannot bypass
this problem. This must be handled face on.
Taking
into the whole scenario into context I am absolutely respectful
and nurture a very warm feeling towards the justice in
the High Court of Bangladesh. There are so many things
that they deserve to be praised on. Their tolerance is
absolutely commendable. There are many facets of their
virtues when compared to that of the justices in the UK.
A very substantial number of them, in my opinion, are
bestowed with higher virtues.
I
was overwhelmed to see how easily the justices in Bangladesh
managed, with smiling and serene face, the lawyers who
did not know what they were talking about and who became
pure nuisance to the courts. The justices deserve better
lawyers. This is utterly unfair on them to require them
to conduct their affairs with sub-competent lawyers. The
degree courses and the trainings in the first place should
flush out sub-competent lawyers.
If
we can achieve the objective of making sure that people
with relevant education and training come to the profession
of lawyers and conduct the affairs of the courts only
then we can hope that the whole mechanism would start
to run properly and once the whole mechanism starts to
run properly we, who are part of the mechanisms of the
judiciary, will become the ultimate force in safeguarding
properly the human rights.
The
author is specialising in Human rights cases in UK.
