'Speedy Trial Tribunal can not be a temporary or a substantive solution'

Former Chief Justice Mostafa Kamal talks to Kaushik Sankar Das of The Daily Star
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The Daily Star (TDS):Does the legal system or the judicial process in Bangladesh favour the rich only?
Mostafa Kamal(MK): No legal system or judicial process is specifically designed to favour the rich. Our legal system or judicial process was never designed to favour the rich. But if the rich becomes richer and the poor poorer and if more people are thrown progressively below the poverty line, then the rich finds a way out of those state monopolies that no longer serve him with efficiency and creates a parallel service system of its own.

It will dismantle state monopoly and establish private clinics, hospitals, universities, banks, insurance companies, leasing and other financial institutions, mobile phones, newspapers and periodicals, courier service etc. and devise a thousand other ways to establish, run and flourish an economy supported by a chain of institutions parallel to and richer than those of the state. Unfortunately for them, the country's constitution does not allow them to set up parallel civil and criminal courts to cater for their litigation needs. They would have done it if were possible. So they try to bend the country's statutory civil and criminal justice delivery system to their own advantage.

They are partially successful at times but theirs is not a hundred per cent success story in completely breaking down the legal system and the judicial process. So, my answer to your question is, no, the legal system or the judicial process does not favour the rich. If it appears to be favouring them, the focus of attention should be to reform the economy and achieve a fair distribution of wealth. With a vulgar accumulation of wealth in the hands of a few and with a wider distribution of poverty among the rising population all the systems and processes will look like favouring the rich. It is easy to give a system and a process a bad name and then hang it, but it is not easy to devise an alternative system and process and establish them, keeping he gap between the rich and the poor as wide and as wild as before.

TDS:Would you agree that ignorance of law, lack of money and fear of reprisal keep the ordinary people, mainly the poor, from taking resort to court?
MK:No, I do not agree. Ignorance of law is not the monopoly of the ordinary people, mainly the poor. I find many rich people and otherwise highly educated people occupying or formerly occupying responsible positions in society equally if not more ignorant of law. Some lawyers and even some police officers, magistrates and judges are ignorant of the law that they ought to know. Lack of money is not a deterrent to litigation. What is deterrent is the hassle and prolonged battle that ensues when a civil or criminal litigation begins. Fear of reprisal is equally present in the mind of the rich and the poor, the rich from the richer and the poor from the equally poor as well as from the rich. But the legal system and the judicial process have nothing to do with the fear of reprisal. Given a good law and order situation the fear will evaporate.

TDS: The courts have already been overburdened with thousands of cases. What causes the inordinate delay in disposing of a case? Why is there a similar scene both in the higher and lower courts?
MK: Reason No. 1. The physical infrastructure of the courts has not been attended to. East Pakistan started with 3 crores of people in 1947. Today we are a nation of 14 crores. Most of our court buildings are 150-year dilapidated buildings too congested to accommodate lawyers, judges, the litigant public and court staff. Even the Supreme Court building was not designed to be a Supreme Court. It was designed to be a Provincial High Court building. Now it is too small to accommodate an enlarged High Court Division and an enlarged Appellate Division. Under the Legal and Judicial Capacity building project of the Government of Bangladesh, funded by the World Bank, a number of new district court buildings, some of them vertically, will be built. But there is no plan to build a new High Court Division building and a new Appellate Division building, handing over the present one to the Dhaka District Court that has to accommodate 41 Judges and ejlashes.

Reason No. 2. Along with a population explosion, there has been a litigation explosion in Bangladesh. From an exclusively land-related litigation, the country has been propelled into a global economy litigation.

The lower courts were ill-prepared for this multi-pronged litigation explosion. No attention was paid to the growing needs in the legal and judicial sector to bear the load of a vastly expanded justice delivery system.

Still awaited are an increase in the number of lower court judges and court staff, increase in their pay and allowances, introduction of modern technology, like computer, photocopier, tape recording machines for recording evidence etc. in the preparation of cases for trial, a modern case management system and a modern court administration system, resolution of disputes outside the court by mediation, arbitration or conciliation.

Taking over of the management of the case by the court instead of leaving it to the lawyers and clients, purging frivolous, vexatious and false cases at the threshold stage, reducing adjournments strictly and imposing heavy costs as a deterrent to frivolous adjournments, setting up a calendar for each case and strictly adhering to it, shortening the disputed questions of fact and law long before trial to make the trial short and less time-consuming, ensuring that an event scheduled to take place on a certain date will take place definitely on the scheduled date, thus ensuring certainty in the judicial process remain a far cry.

Access to justice by the poor, disadvantaged, women and children by creating physical facilities in the court precincts and by rationalizing the legal aid system, training the court staff on modern technology, case management and case administration, to name a few, have not taken place at all and the accumulation of these and other in attentions and neglect have finally taken their toll in the shape of unacceptable backlog of cases, delay in the disposal of cases and corruption at those points where the suits get stuck. Some of the problems indicated above have been very recently taken care of by amending some statutes and some of the other problems are being attended to by the Legal and Judicial Capacity building project of the Government of Bangladesh, that is confined to civil cases only, but it must be born in mind that legal and judicial overhauling requires the continued efforts of at least two or three generations of judges, lawyers and court staff. You cannot come out of the morass in which we now find ourselves by simply wishing that it goes. Also immediate is the taking up of a new project -- that of overhauling the criminal justice delivery system. I hope that the government will move quickly towards that direction.

Answer to the second part of the question. The higher judiciary is also afflicted with the problem of litigation explosion. I do not agree with those who think that appointment of more judges will solve the problem. A judge who possesses the quick faculty of separating the chaff from the grain is able to dispose of a case quickly and with justice. People with such ability are hard to come by, but we must not lose heart and have faith upon the younger generation of lawyers who are joining the Bar with far better qualifications and upon the younger judges who have joined the subordinate judiciary with far better qualities and qualifications. Like the subordinate judiciary and the magistracy, the higher judiciary also needs a better case management and court administration system and a wide use of modern technology.

TDS: Is it the judicial system or something else?
MK: We have a 250-year old tried and tested judicial system, older than that of the USA. We are not a Banana Republic. Nor are we an ex-Soviet Union country devoid of any legal tradition. Our problem is one of overloading and poor management. You cannot transplant an alien system into an ancient system.

But yes, we have the paramount, all-important and pervasive problem of control of the judiciary by the executive. That is the "something else" in your question. Four years ago the Appellate Division passed the judgment in Masdar Hossain's case ordering the Government to constitute a Judicial Service by Presidential Rule or otherwise, constitute a Judicial Service Commission, a Judicial Pay Commission and to frame rules for pre-recruitment and discipline rules for the members of the Judicial Service. Time has been taken 18 times so far to implement this decision. We do not know of any move by the Government to implement the apex Court's directives.

I have repeatedly said after my retirement and am reiterating now that whatever progress be made with the Legal and Judicial Capacity Building Project or any Criminal Justice Project in future, Bangladesh Judiciary will never gain credibility both inside and outside the country unless the judiciary is separated from the executive. I shall say something more. The judgment in Masdar Hossain's case was passed within the limits of the existing Constitution, but the Constitution does not go far enough to separate the judiciary from the executive. The Constitution should be amended to make the separation complete, meaningful and effective.

TDS: Do you think the lawyers could play a more sincere and accountable role in expediting the judicial process?
MK: Yes, I do. Lawyers all over the developed world have taken the initiative to reduce backlog of cases, to introduce Alternative Dispute Resolution (ADR), modern case management and court administration. Our lawyers are by and large unaware of these developments elsewhere. Our prominent lawyers who have traveled and even conducted cases outside the country have disappointingly been reticent in imparting their knowledge of these developments to their fellow lawyers. The adversarial system, introduced by the British in this country, is being abandoned by the British themselves in their latest legal reform. They are moving towards a consensual resolution of disputes that the USA, Canada and Australia achieved many years ago.

TDS: What could be the immediate and sustainable solution?
MK: I regret to say that accumulated problems in the judiciary do not yield to any immediate and ready-made solution. But there can be a sustainable solution if we, the lawyers, judges and the court staff, put in a concerned effort for two or three generations along the lines indicated earlier.

TDS: Why have not any steps been taken so far to address this problem?
MK: No one considered building up of judicial infrastructure, case management, court administration and the introduction of modern technology in the court important enough to be included in the successive Five Year Plans of the then Pakistan and Bangladesh. There were a number of lawyers and Judges at the helm of affairs at different times in the past. They suffered from a lack of vision. Bureaucrats, industrialists, businessmen and others did not think of it. The whole nation is now paying for their lapses.

TDS: Could the newly introduced speedy trial tribunal be an effective solution?
MK: Speedy Trial Tribunal is a piece of selective justice that can neither be a temporary nor a substantive solution. It can at best be an exercise in ad-hocism. Each component of criminal investigation and trial is in a state of disarray.

The whole process of filing an FIR with the police, the magistracy enjoying both executive and judicial powers, conditions of remand, the investigative process, the prosecution agencies, expert evidence, availability of witnesses, forensic, post-mortem examination, chemical tests including viscera examination, submission of charge sheet or final report, interference of the legislators and the executive with the criminal justice system and finally the manner and method of criminal trial -- are all in need of a thorough revision.

Several Ministries are involved in the process. The first requirement is a political will to reform, the second requirement is the formulation of an all-comprehensive reform strategy in the criminal justice delivery system, the third requirement is investment of funds and the fourth requirement is execution. Piecemeal solutions increase, not decrease the maladies.

TDS: Does politics undermine or influence the judicial process? If so, to what extent?
MK: Yes it does, but there is no qualitative or quantitative measurement indicator with which to determine its extent. Separate the judiciary completely from the executive and you will see how politics will leave the judiciary disgracefully. There can be no improvement in the judicial process without an effective separation if we are to achieve an impartial and independent judicial process, both in the civil and in the criminal justice delivery system.

TDS: Similarly to what extent black money influences the judicial process?
MK: When money influences the judicial process there is no knowing whether it is white money or black money that is being pumped into the process.

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The interviewer is assistant editor of The Daily Star.