The current state of Bangladesh's judicial system reflects a unique mixture of the Indo-Mughal and English law. This is not surprising because, as part of the Indian subcontinent, the country had been under Hindu and Muslim rulers, followed by British rulers. During each of these periods, the country had to go through each ruler's distinctive legal systems. The British colonial rulers had developed the legal framework and hierarchy followed in Bangladesh. These basic legal and administrative structures are still governing the judicial system of the country. Some aspects of the Muslim and Hindu law were also maintained, allowing them to be, "regulated by the rules of their respective personal laws as enjoined by their respective religion"(Jahan & Shahan, 2009). Besides, the executive body had often tried to control the Judiciary by issuing directions, scrutinising, and even asking for explanations. Slowly, the higher court became free of such shackles, but the Lower Courts weren't lucky enough until 2007 when questions were raised about Article 22 of the constitution (separation of the Judiciary) of the People's Republic of Bangladesh. Finally, in 2009, the Judiciary, as a whole, became free of its shackles of subordination, following the process that had started in 1999 through the famous Appellate Division judgement in Masdar Hossain vs State case. The caretaker government initiated the process in 2007.
The justice sector in Bangladesh can be divided into two groups: formal and informal systems. The formal system includes the court administration of Bangladesh, magistracy, police, prosecution, etc. whereas the informal system covers traditional shalish, community legal services (CLS), NGO-organised mediation, village courts, etc. The formal system, vested with judicial power, can also be divided into Supreme Court and Subordinate Courts, also known as Lower Courts. The Supreme Court stands at the highest position of the judicial hierarchy and consists of the Appellate Division and High Court Division. The Appellate Division is chaired by the Chief Justice and seven other senior-most judges. Two sources empower both the divisions: Constitution and Statutory Laws. Article 103-106 of the Constitution empowers the Appellate Division. The High Court Division is comprised of ninety-two judges. Article 102 and 109 of the Constitution empowers the High Court Division, whereas other laws provide the division with original, appellate, revisional, and reference jurisdiction. Subordinate Courts are guided by Article 114 of the Constitution. The Lower Court system comprises five tiers: the court of District Judge, the court of Additional District Judge, the court of Joint District Judge, the court of Senior Assistant Judge, and the court of Assistant Judge. The pecuniary jurisdiction of the courts decreases in top-down order. There is also the court of sessions.
The formal judicial sector is supposed to be sufficientin providing justice to the citizens, but studies suggest that this goal has not been met and the accessibility of the poor to this formal justice system is limited. The problems causing the inefficiency are of two types: structural issues and socio-cultural factor-related challenges. Excessive case backlog is a structural problem that is affecting access to justice in Bangladesh the most. The formal justice system is under the pressure of a case backlog of more than 3.7 million (DhakaTribune,July 16th, 2020). The shortage of manpower in the system is another major concern. A total of 1397 judges for a country of more than 160 million people is grossly inadequate (The Daily Star,September 09, 2017). Ineffective law enforcement authority is another structural drawback hampering the delivery of justice.
The police make an arrest, frame the case, investigate, and submit charge sheets. Being the only authority for framing, investigating, and reporting the cases, there is enormous scope for manipulation by the police. "Justice is affected due to corrupt practices of the police. They make weak charge sheets with an attempt to weaken the case they get bribes from the offenders"(Jahan & kashem, 2006). A study by Action Aid shows that 84 percent of female victims don't even go to the police in fear of harassment by them. Outdated laws and increasing politicisation are some of the other structural setbacks hampering the delivery of justice. Psychological barriers, lack of control, etc. are some of the challenges related to socio-cultural factors that deter people from opting for the formal justice system.
While the formal justice sector has failed to deliver justice for the commons and the underprivileged, they have looked for other informal alternatives. The poor and vulnerable seek justice through several informal means such as traditional shalish, NGO-organised community mediation, NGO-employee mediated mediation (ADR), village courts and arbitration councils. Traditional shalish refers to the gathering of local elders to solve local disputes. An NGO formulates NGO-organised community mediations following a complaint. The NGO sends a notice to the parties involved and arranges a gathering in the presence of mediators, a lawyer, an NGO mediator, and a local government representative (Jahan & Shahan, 2009). ADR is a moderated version of the traditional shalish. The government introduced village courts to settle various minor criminal and civil disputes through the Village Court Act 2006 (also amended in 2013). UP chairs and members run this type of court to settle local disputes.
As a result, most people have lost faith in the judiciary system to resolve their legal disputes. The respective authority must introduce judicial remedies to redress the challenges to ensure effective access to justice through promoting Inter-Agency Collaboration between the Law and Justice Division, Parliamentary Affairs Division, and Law Enforcement Agencies of Bangladesh.
Arif Ahmed, Research Associate, Centre for Governance Studies (CGS).
Views in this article are author’s own and do not necessarily reflect CGS policy.