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“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh

Issue No: 158
February 27, 2010

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Ensuring access to justice

Ershadul Alam

The avowal that Lord Hewart made Justice should not only be done, but should manifestly and undoubtedly be seen to be done was meant to ensure justice as and when necessary. Timely implementation of law is the basis of justice in the society. Recognizing the confidence upon the credibility of administration of justice in our country, the scope of development in this sector cannot be overlooked. For achieving development in this field, the client, lawyers and the judges have to play an upbeat role in their respected area. In addition to this, some societal factors such as illiteracy, ignorance of law, lack of awareness and poverty must be removed from the society. For those features in the society and for complex legal procedures existing in formal legal method, the aggrieved become puzzled from beginning to the end to their effort to get justice.

Scope of law
Notwithstanding the above factors, ensuring of access to justice is envisaged in almost all the international human rights instruments. The right is recognized irrespective of sex, social status etc., though in practice it is yet to be appeared. The Universal Declaration of Human Rights (UDHR) acknowledged the right to be protected against tyranny and oppression. The whole text of the UDHR is about the recognition, protection and promotion of human rights. Protection of human rights is not possible without ensuring access to justice. Article 7-12 of the Declaration emphasized on the protection of human rights and access to justice for the people irrespective of civil and criminal matter.

International Covenant on Civil and Political Rights also confirmed the protection from violation of human rights and access to justice. The right to get effective legal remedy by the competent authority is also recognized in Article 2 of this Covenant. Article 9-11 & 14-17 and some other articles of Part III of the Covenant describes about the right to protection and access to justice by appropriate manner. Beside ICCPR, article 5 & 6 of the International Convention on the Elimination of All Forms of Racial Discrimination specifically recognized the equal protection and treatment before law without any discrimination. The same treatment is also applicable in terms of remedy by law. The non-discriminatory measures in the protection of access to justice is also seen in article 2(B) & (C) of the CEDAW. The states responsibility in this regard has been underlined in article 2(1) of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Beside the women, the access to justice is also important to be protected for the child. Article 16 of the Convention of the Rights of the Child protects the child from being subjected to arbitrary or unlawful interference with his or her privacy, family etc. The convention clearly defines the states responsibility to take legislative, administrative or others measures to this end under article 19. The general principle of law would be applicable to the child in the process of trial and even when he is found guilty of offence. They deserve special care in the process of law under article 40.

However, the access to justice was specifically focused in the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power. In this declaration the victims of crime and the victims of abuse of power are treated separately. The provision of fair treatment and adequate compensation is ensured in this declaration. Article 12 of the declaration guaranteed the states responsibility to compensate the victims when it is not fully available from the offender or other sources. The compensation is payable to the victims and his family as per the provision of this article. There are many other international human rights instruments which focused on access to justice in civil and criminal matters.

Even with all those instruments in hand, why the people are being deprived of their right to get justice is a question which cannot be answered by pointing finger upon a particular body or institution. Without considering the entire course of action for administration of justice, the origin of the denunciation in legal remedy cannot be identified and the sufferings of the aggrieved cannot be healed and prevented.

Focusing timely dispensation of justice
Long delay to deliver justice is one of the gravest reasons for denial of access to justice for the poor. It is said that justice delayed is justice denied. But to some extent justice delayed is injustice when it is not timely. For delay to get justice, the aggrieved bear a negative thought to seek justice from the formal legal system. Undergoing the sufferings seems better to them rather than submitting to the traditional system. Delay to deliver justice is also a fact in India. Commenting on the issue, the Chief Justice of India Mr. K G Balakrishnan warned that long periods of delay in disposing of cases would lead people to "revolt" and the legal system to crumble. The warning of the Chief Justice of India cannot be ignored in Bangladesh. In our country, a civil suit is dragged for 10 years or more where it should take one year or two for disposal which brings no result to some extent. The requirement of the cases to some aggrieved is ceased by the time the judgment is pronounced. Delivery of judgment in the quickest possible time depends on many grounds which are missing in our present system. Among others, the scope of frequent amendments of the pleadings at any stage of the trial obstructs the development of the proceedings.

Management of resources
Persistent absence and transfer of judges affects the delivery of justice. Motivation for the judges in this regard is important which can prevent frequent absence from their duty. Adequate number of judges should be engaged or recruited to ensure timely and quality justice to the people. It will reduce the workload upon them. On the other hand, frequent transfer of judges impedes the progress of towards judgment. We see in many instances that the judge who set in motion the case and hear the testimony may not continue to settle the dispute. This creates problem to the next judge who has to repeat some of the procedural requirement or any event for the cause of justice.

Owing to inadequate administrative and logistic support, timely and adequate remedies are not available from the court. Poor salaries and messy working environment cause aversion to the minds of the judges to be sincere in the profession.

Cost involvement by the poor
People of the country have to spend a lot of money to get justice from the court, even if the value of suit is lower than the amount spent to this end. This puts the economically stronger party at an advantageous position than the weaker aggrieved.

Absence of accountability and procedural dilemma
Wide range of liberty given to the lawyers in conducting the cases according to the whims of the lawyers puts the clientele into ambiguity. Excessive authority of the lawyers and domination over the clientele cause impasses to the case and the client into doubt about the future of the case. So, to bring change in this scenario, transparency and accountability from the lawyers must be ensured and ignorance of the client must be removed. Leading the case for the interest of the lawyers should be checked. The lawyers having judicial minds cannot linger the case for his vested interest, rather they should conduct a case for free every month for the poor and the destitute litigants, who otherwise would have no access to justice, as proposed by the Chief Justice in the inaugural ceremony at his office. The concerned Bar Association and the office of the Judge can coordinate the issue.

There are some procedural problems arising out of production of witness & evidence, repeated time seeking and amendment of pleadings etc. The expected course of proceedings are perturbed by the poor performance in the production of witnesses, repeated time seeking by the parties over a trifle reason and so on.

Rethinking some issues to way out
The lawyers and the judges have a role to change this disgraceful condition to establish rule of law. When an aggrieved submits to the court, the court has a responsibility to see the welfare of the client. The supervising and monitoring role in this regard should be played by the court. But unfortunately, our judges can spend little time on, as a result of intense workload. To ensure rule of law, access to justice and human rights both the formal and informal system should be applied and strengthened by the government. As a good omen to popularize informal system, the government has introduced the provision of ADR by amending the Code of Civil Procedure. Beside this, Chapter V of Artha Rin Adalat Ain has also been incorporated to settle the dispute between the parties. But alternative method of dispute settlement is yet to receive proper focus to the expected and required level. Sufficient funding and focus is urgent in this field. A revolutionary approach by all concerned in this field is the call of time.

The writer is an Advocate and researcher.




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