Focus Keyword: E-judiciary in Bangladesh
The present government of Bangladesh has promised through its election manifesto to make the country digitalized and with the end of making a ‘Digital Bangladesh’, it is going ahead with the mission termed as “Vision 2021”.
The philosophy of 'Digital Bangladesh' comprises ensuring people's democracy and their rights, transparency, accountability, establishing justice and ensuring delivery of government services to the citizens of Bangladesh through maximum use of technology, with the goal being the overall improvement of the daily lifestyle of general people.
As per the Constitutional provisions, Bangladesh is composed of three independent organs of the government. Independence of Judiciary is ensured in the Constitution of Bangladesh and further pronounced by the Apex Court in the landmark case Secretary, Ministry of Finance vs. Masdar Hossain & others case. As a Constitutional organ, we cannot think of a 'Digital Bangladesh' without a digital judiciary.
However, the scenario is very awfully worse that the court buildings, record rooms and other mechanism have no minimum touch of digitalization which has created an unbearable logjam of cases. Civil suits have turned into another name of 'injustice'. This article aims to discuss the current state of the 'burdened' judiciary with timely solution of e-judiciary.
Status quo of the judicial proceedings
Constitutionally, the judiciary of Bangladesh is composed of two parts namely the Supreme Court with further classification as Appellate Division and High Court Division and Subordinate Courts .
i) Higher Judiciary
Appellate Division and High Court Division basically entertain the Appellate Jurisdiction except some cases are originally heard by the latter. In cases under the Companies Act, 1994, Admiralty Act, 1861, Banking Company's Ordinance, 1962, matter of Christian marriage, Writ etc., HCD acts as the Court of first instance.
A suit in HCD, any appeal to either HCD or Appellate Divisions, Review, Revision, writ etc. can be filed by submitting petition manually with a mandatory physical presence which is very sluggish, time-consuming and risky for the party. A poor victim from Saint Martin Island or Chittagong Hill Tracts has to travel 300-400 kilometers toward Dhaka just for filing a writ, appeal, review, revision etc. which may be heard later. This 'hard-bearing cost' will discourage the party to seek his legal remedy. There is a possibility, especially in rural areas, that a party may be threaten or attacked by the adverse party on the way of case filing. So, there is a need for “e-case filing system” to ensure the proper justice to the disadvantageous group. Generally, entry of a case, allocating case number, and further processes are given in computer-typed process which may be erroneous or corrupted wherein a large number of average 4329 cases are filed daily in the Supreme Court, a 2015 report said.
If a filing is done, notices are served in paper form to the parties. It is frequent that notices are concealed, counterfeited and delayed to be served to the intended party. So, introduction of “e-notice service system” will be a time-befitting step. In hearing and trial stages, whole court processes are completed in long-observed traditional methods. At the last stage of the trial, judges write down their judgments manually and pronounce the judgments. In recent days, some of leading judgments are being published on the Supreme Court Website.
ii) Lower Judiciary
Lower judiciary has two sides i.e. criminal courts and civil courts and both act as the court of first instant except some appeals are heard by Sessions Judge, District Judge or by other lower grade Judges.
A case in criminal matter may be filed either in session or magistrate court or in police station whereas a civil case must be filed in civil court. In both cases, suits are filed through instituting FIR, complaint or plaint which compulsorily require physical presence of human beings.
In hearing and trial stages, examination or cross-examination of witness, taking evidence is followed by 200 years old British-made methods. It is noteworthy that the Evidence Act, 1872, the fundamental prevailing law of evidence, doesn't admit digital evidences.
How justice is denied
Current slow, interrupting and expensive system cannot give remedy of peoples' grievance. Rural marginalized people suffer in every stage by middlemen, court officials or even by lawyers. Thus, they become frightened to ask for remedy. Illegal transaction, corruption, bribery, unaccountability can never be stamped out due to the deficiency of digitalization.
In investigation, law enforcing agencies just visit the crime scene and collect apparent clues but they have lack of using forensic methods to preserve relevant clues which may damage important clues of any case. In hearing and trial stage, traditional inquisitorial role is played by both judges and attorneys. It causes unjustified delay in the disposal of a case. Now-a-days, submission of any deciding document in a case is presented manually which has risk of being damaged, corrupted, concealed or lost anytime.
i) Land suits: name of carrying cruel legacy
A 2015 report of Dhaka Tribune showed that around 60% of outstanding civil litigation cases in Bangladesh, involving some 1.8 million litigants related solely to land disputes. A bulk portion of these cases are involved with millions of family members of ill-fated families. A mutation suit, correction of records-of-right, pre-emption suit may engulf 15-20 years (!) in average that creates serious denial of justice. Land suits filed by grandfather may be continued by son or son's son by the passage of generation. Sometimes the parties or crucial witnesses pass away, important evidences decay, years lose, a lot of money expense but land suits remain unfinished.
Lack of modernization, slow process of service of the summons which can further be slowed down by the parties concerned indicates a poor state of our court administration. In absence of online database in land offices, many land-robbers make counterfeit deeds and documents which lead the weaker party to a disadvantageous position. Though the Limitation Act, 1908, the Code of Civil Procedure, 1908 have specified the time limits but these limits cannot be maintained properly in almost every land suit. This crying of evil legacy can only be solved by rapid digitalization and disposal of land suits.
ii) Case backlog: an overburdened judiciary
The number of pending cases in all courts stood at 31,56,878 of 31 December 2016 whereas A recent UNDP forecast said the case logjam may reach 5 million by 2020, the year before Bangladesh's golden jubilee when the country is projected to become a middle-mid-income country. This huge pile of cases is causing serious bar to seek justice by destructing time, money, hope and emotion of the parties. Though the case disposal rate isCopyright © 2017 Bangladesh Law Digest.All right reserved. tentatively high, but this large number of cases cannot be disposed in a shorter period without digitalization. The working hours of court are being wasted by manual process. USA, Singapore, Canada etc. are now successfully disposing cases by using technologies. Besides digitalization, other mechanisms like ADR, negotiation, mediation, arbitration etc. can be useful to remove the deadlock of cases.
Framework of e-judiciary
It is neither possible nor desirable to digitalize the whole judicial system overnight. The digitalization of judiciary can at best be divided into two parts: structural digitalization and systematic digitalization.
i) Structural digitalization
Our congested court rooms are not largely up-to-date. Most of the court room has no internet access, video conferencing management, e-cause list, online submission system, modern database etc. which causes delay, mismanagement, corruption, loss of unnecessary expenses in the cases.
A digital court room must have uninterrupted internet connection. Video conferencing may help to hear and try the criminals or defendants, complainants or plaintiffs and witnesses from jail custody or distant area. It is highly risky to escort terrorist high-commanders, political leaders or leading criminals to court from jail custody. In Bangladesh, an armed gang attacked police van to snatch three convicted JMB leaders in Mymensingh on 23 February, 2014 and another death penalty convicted Harkat-ul-Jihad-al-Islami leader Mufti Abdul Hannan and 20 others were tried to be freed by attacks with hand-made bombs while cop's van was returning from Court to the jail on 6 March, 2017 in Gazipur. So, video conferencing can help to smoothen trial of such criminals.
Adequate computers for each courtroom should be set which will help threefold mechanism i.e. judges, attorneys and litigants as well as the court officers. Multimedia projector, camera, monitor, electronic recorder, VCR/DVD player, printer etc. are needed to simplify and quicken the court activities and make proper use of working hours of the court. Data analyzer may be inserted so that it would help to analyse thousands of data within a second. Using different cameras, especially the evidence camera can instantly convert a paper document or physical exibit to an e-image.
ii) Systematic digitalization
(a) E-case filing
For filing a case, it is immaterial of human presence which causes unnecessary sufferings to the people. In e-case filing system, a person may create a personal account with secured password where every updates of the case can be provided within a moment. Thus, this service can reached up to peoples' bedroom. Different countries like USA, UK, Singapore etc. have already started to use e-filing. Bangladesh has reached 66.779 million internet subscribers in January, 2017 which opened the door of digitalization easily.
(b) Digital Case Management System (DCMS)
Case management system, a internal function of the court, if digitalized, it will enhance the efficiency, swiftness and flawlessness of the courts. Case management software helps to better use, manage, consolidate, share and protect the confidential data of the court record room. It will reduce the possibility of losing, damaging or twisting any documents rather give a perpetual existence of the documents.
(c) Use of mobile SMS service
Bangladesh has reached total 129.584 million mobile subscribers in February, 2017. Cause list of particular cases may be sent via SMS to the common people. Any latest update, query or information may reach within a short period of time by SMS. So, this system may help secure secure justice.
Light of hope
Though Bangladesh judiciary has not digitalized radically yet, some timely steps have been taken. Supreme Court of Bangladesh has started to upload the latest landmark judgments in their website. Online cause list is also available in the abovementioned website. Besides, the Supreme Court has also introduced online bail system, preserving information relating to cases, introduction of search tools, case SMS service, and online complaint service. Bangladesh Police has launched online GD filing system recently. 20 lower courts of Sylhet have been oriented with digital technologies.
The following recommendations should be considered to make the way of e-judiciary smooth:
a) Independence and separation of judiciary must be ensured fully.
b) The whole old-fashioned courtrooms should be accommodated with new technologies.
c) Court record room should be modified with Online Database System (ODS) and case Management System (CMS) as well.
d) Adequate budget should be allocated where only about 2000 crore taka was budgeted in 2016-17 fiscal year despite the total budget was 3.41 trillion.
e) Judges, lawyers, law enforcing agencies and court officials should be trained so that they can cope with e-judiciary.
f) Use of technology has high risk of being hacked, distorted and misused. Proper steps should be taken to tackle such risks.
g) As Bangladesh has lack of essential technologies, advance technologies, services, experts should be exported.
h) Required laws, especially the Evidence Act, 1872 should be amended making parallel with e- judicial system.
i) Backup plan should be ready for the urgencies.
j) National and sub-national committee must be formed to control and utilize the whole scheme and to hear the grievance of the people.
k) People must be aware and cooperative to use the e-judiciary.
E-judiciary, a whole tech-based judicial system, may bring a radical change in the field of the administration of justice. Moving toward a 'Digital Bangladesh', skipping judiciary from digitalization will be an incomplete journey to the digitalization. Common people will automatically habituate with the e-judiciary by the passage of time if it is introduced. It is high time the government of Bangladesh took initiatives for a e-judiciary standing four years from achieving the 'Vision-2021'.
. Article 22 of the Constitution of Bangladesh.
. 52 DLR AD 82.
. Part VI, Chapter I and II of the Constitution of Bangladesh.
. Article 103(1).
. Sections 408, 410 of the Code of Criminal Procedure, 1898 and section 109 of the Code of Civil Procedure, 1908.
. Article 101 of the Constitution of Bangladesh.
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