A Possible Way out of Backlog in Our Judiciary

By Professor M Shah Alam

JUDICIARY of Bangladesh is caught in a vicious circle of delays and backlogs. Backlog of cases causes frustrating delay in the adjudicative process, which is eating away our judiciary. While delay in judicial process causes backlog, increasing backlog puts tremendous pressure on present cases and vice versa. This process goes on with no apparent remedy in view. Present rate of disposal of cases and backlog is alarming for justice, rule of law and economic development of the country.

Our judicial and legal system has a rich tradition of common law culture and it can boast of a long record of good delivery of justice. Like any other legal system, common law with its adversarial or accusatorial features, has both its merits and demerits. But in recent years, certain objective and subjective factors have led our judiciary to a situation where its demerits are ruling over the merits, manifesting in crippling backlogs and delays. Delayed justice fails to pay even the winning party of the litigation, for its costs in terms of time, money, energy and human emotions are too high.

Delay in our judiciary has reached a point where it has become a factor of injustice, a violator of human rights. Praying for justice, the parties become part of a long, protracted and torturing process, not knowing when it will end. Where it should take one to two years for the disposal of a civil suit, a case is dragged for 10 to 15 years, or even more. By the time judgement is pronounced the need for the judgement in certain cases is no more required. Moreover, in a society of class differentiation, the lengthy process, which is adversarial and confrontational in nature, puts the economically stronger party at an advantageous position. If the judiciary functions substantively and in accordance with the procedural laws, an existing wide scope for delays, can transform it into a system which becomes procedurally hostile towards marginalised sections of our people, defeating the goals of social justice.

The reasons for delays in our civil justice system are both systemic and subjective. They may be identified as follows:

1. Common law oriented adversarial or accusatorial character of the civil process as against inquisitorial as practiced in continental Europe, meaning that the litigation is party-controlled which provides wide maneuvering power to the lawyers, and presupposes lesser initiative and relative passivity of the judges.

2. Slow process of service of the summons which can be further slowed down by the intentions of the parties concerned, indicating a poor state of court administration.

3. Too much reliance on the resort to interim injunctive relief and orders, leaving the hearing of the main contentions and issues to 'infinity'.

4. Frequent adjournments of the trial caused by the insistence of the lawyers, and reluctance of the judges to limit these adjournments, such reluctance being explained partly by heavy case-load and partly by their unpreparedness to continue and complete the process.

5. Vested interest of the lawyers for lingering and delaying the process, for they are often paid by their appearances in the court.

6. Commonly made interlocutory orders and appeals which fracture the case into many parts and effectively stay the trial.

7. Scope for frequent amendments of the plaints and written statements at any stage of the trial.

8. Reluctance of the judges, accentuated by their statutory non-compulsion, to use pre-existing rules and orders to expedite the trial, or to sanction the parties for failing to follow the procedural requirements, meaning that the judges do not take initiative to employ procedural power already within their reach, nor do they make use of their rule making power to achieve procedural effectiveness.

9. Absence of lawyer-client accountability giving the lawyer monopoly to conduct the case the way he considers best suited to his own interest.

10. Little scope for client to client interaction which hinders potentiality for alternative dispute resolution and intensifies conflictual nature of the proceedings.

11. Failure of the parties to present the witnesses - sometimes genuine, sometimes deliberate.

12. Vagueness in the terms and wordings of the plaint and written statement, charging on the court time to clarify the issues, and the failure of the judges to impose costs for frivolous suits and pleadings.

13. Rotation and transfer of judges, often meaning that the same judge who heard testimony may not decide the dispute, taking away thereby much of his incentive to push forward the proceedings to judgement and seriously impeding the process of continuous trial; the new judge may have to repeat some of the procedural requirements already fulfilled.

14. Inadequate administrative and logistic support system, enormous work-load of the judges, poor salaries and poor working conditions - all having negative impact on the initiative and efficiency of the judges.

15. Insufficient internal discipline and accountability.

Above reasons and conditions exist in a long win or lose battle where the parties fight in a 'do or die' manner with no or little perspective of any consensual settlement move coming from any side which could steer the dispute to win-win resolution. Consequential frustration, desperation and costs become too expensive for any judicial system to sustain. Earlier, moves had been made to clear the procedural blockages of our civil justice system though success could not be achieved. Mere amendments of the CPC within the existing trial philosophy may not be the best way to look for the gateway in the blind-alley. Before it is too late, innovative approaches are needed to live upto the uphill tasks of reconstructing our judiciary.

Focussing on the experiences of some other countries including the USA and with an optimistic view that our age-old culture provides to settle any dispute through mediation, a carefully devised mechanism which involves proper court administration, effective case management and amicable consensual dispute resolution, can revolutionise our entire civil justice delivery system. The essence of the concept is that after the filing of the plaint and submission of the written statement, attempts would be made to resolve the dispute through various forms of alternative dispute resolution (ADR) by early judicial intervention. In short, it is mandatory recourse to ADR or CDR (Consensual Dispute Resolution) by the trial judge's order in the pre-trial stage of a case. Court administration and case management are to prepare the ground for the success of ADR. It may be mentioned that in some of the states of the USA (for example California) 90 per cent of the cases are resolved at the pre-trial stage through ADR by early judicial intervention, and only the remaining 10 per cent go to the trial. In our country the picture is just the reverse.

Good court administration has been defined and described in many different ways. In simple terms it may be described to imply:

(a) good record-keeping and systematic filing of the cases;

(b) subject wise classification of the cases;

(c) good monitoring so as to classify the cases on the basis of the stages they have reached;

(d) to identify and to rid the docket of 'dead' or moot matters in order to prevent them from clogging the schedules;

(e) monitoring and case-flow tracking in such a way as to know the status of each case, to know its procedural position, to locate documents and records more easily and to reflect everything in transparency plate.

Good court administration is necessary for ready references and control over exodus of cases that are in the docket, and is to be ensured by judicial administrators to help the court instantly with any information it needs for effective case management. Efficient court staff equipped with modern technological facilities like computerisation would be necessary for good court administration.

Case management on the other hand, means detailed scheduling of the life and history of a case, after written statement has been submitted, drawn by an early judicial intervention i.e. sitting judge's order, enforcing active participation of the parties and strict observance of the schedule under court's supervision. In other words, it is procedural calendar of a particular civil suit (sort of an academic calendar in a university) where the parties have to follow procedural stream-lining worked out by the court, and which also includes initiation and coordination of consensual processes aimed at the resolution of the case other than through a court trial.

Parties are required to submit separate case management statement within a stipulated time identifying and narrowing down the factual and legal issues of the case. Then they are asked to submit a joint case management statement, further concretising the issues. In case they fail to do so, a joint case management statement would be prepared with judge's active participation at a special hearing. After the main issues have been identified and agreed upon, the trial judge in consultation with the parties will send the case to one of the forms or mechanisms of the available ADR. Institutional arrangement for the availability of the system of ADR devices (conciliation, mediation, early neutral evaluation, arbitration or even judicial settlement by a non-trial judge) with proper training for the persons to provide ADR, is to be made by the judiciary in advance. While recourse to ADR would be mandatory, there would be nothing like binding decision of the ADR forum. But when the consensual decision by the parties is reached, court will issue necessary order for its execution. In case ADR efforts fail, the case shall go for trial.

Application of case management techniques by the trial judge envisages active participation and joint communication among the parties and their lawyers throughout the case. It requires each side to answer the requisitions, if any, made by opposing parties and additionally, imposes sanctions for non-compliance. It requires the opposing parties to identify the real controversies in the case and seek early responses from each side on question of fact and law. Thus, case management leads to a clear identification and narrowing of the legal and factual issues to be decided. To quote one authority, "The objectives of cases management are to establish judicial responsibility for the otherwise substantially party-controlled, adversarial preparations of civil cases for trial. Specifically, case management is designed to reduce dilatory, frivolous, inefficient, and protracted litigation practices and to replace party controlled litigation processes with judge-controlled, sequential steps in the life of a civil proceeding" [in a definite time-frame] ("Indian Civil Justice System Reform: Limitation and Preservation of the Adversarial Process", New York University Journal of International Law and Politics, Vol. 30, Nos. 1 & 2, 1997-98, p. 62).

Realisation by the parties that ADR is more cost-effective and time-effective is a pre-condition for its launching. Environment under which ADR takes place and specified legal and factual positions of the parties are vitally important for the success of any ADR effort. Case management techniques by ensuring contacts between the parties and identifying the real controversies seek to meet exactly these requirements - right environment and understanding of the issues. Needless to say that success of any ADR programme will require goodwill and cooperation of the litigants, lawyers and judge accompanied by necessary motivational work to be conducted amongst them.

It has been argued that mandatory recourse to ADR at the pre-trial stage by judicial intervention would not be a welcoming development for the lawyers, for their income could fall by any success of ADR programme. It's true that any success of ADR could lead to short-term fall in lawyers' income. But the long-term outcome would be completely different. Any success of the judiciary sponsored ADR would enhance the prestige and reliability of the judiciary drawing more litigants to it. Total number of cases of even much lower percentage of enhanced flow of cases going for trial would be quite formidable. Lawyers' fees for the cases going to trial naturally would be relatively high. Moreover, lawyers would be remunerated during ADR stage. In fact, an efficient judiciary with successful ADR programme and effective and timely adjudication is more likely to raise lawyers' income than to reduce it. This has been proved by American experience.

Under existing laws of Bangladesh it is not possible to cover all the aspects of court management and achieve it objectives, nor it is possible to introduce a full court-sponsored system of ADR. It shall require new enactments or amendments in the CPC. But at the beginning, it may not be advisable to go for radical enactments or amendments, rather it would be good to proceed with court management and ADR depending, wherever possible, on pre-existing laws and rules, at least to achieve limited objectives. This can be demonstrated by a pilot project, preferably by some family courts, using pre-existing rules, and also expanding their procedural authority by a special order of Supreme Court. Success of a pilot project may prepare the ground for necessary legislation for the agenda of full case management and mandatory ADR by judicial intervention.

Source: The Daily Star, Dhaka, 16 April, 2000