‘Can I Get a Witness’: evidentiary and procedural issues that delay the administration of justice in Bangladesh
25 Nov 2015
"Justice delayed is justice denied” – William E. Gladstone
The effective delivery of justice in any given system requires the smooth-functioning of courts and the competent management of cases by all actors involved. A weak link in this justice chain could very easily cause fragmentation of the entire system, leading to low confidence in the formal justice system and injustice. The dire state of affairs has arguably been reached in Bangladesh where the disposal time can extend to 10 years in land cases and litigants lose an average daily income of USD 5.4 (Tk. 428) needlessly attending court through an average of 60 adjournments; it is estimated that the average litigants spends an average of USD 1500 pursuing a case through the formal system which dramatically impacts the accessibility of this system given almost half the population (43.3%) continue to live below USD 1.25 a day. The UNDP has been working to address some of these problems through projects supported by the Supreme Court to try and address the case backlog which is estimated at 2.86 million, and has partnered with the Ministry of Law, Justice and Parliamentary Affairs to try and foster greater communication, cooperation, and coordination amongst justice system actors in Bangladesh, including via appropriate ICT solutions and automation where appropriate.
In order to accurately identify some of the issues hampering the operation of the criminal justice system in practice and design feasible solutions, a UNDP-backed initiative recently undertook a detailed Business Process Mapping study to map the various processes involved in the managing of cases by criminal courts in Bangladesh. Specifically, an expert team from PwC was engaged to access courts in two districts (Pabna and Comilla) and meet with court staff, police, prisons, Public Prosecutors, defense lawyers, legal aid and medical officers to discuss the key issues plaguing the judicial system in those districts. Through this process, they were able to narrow down at which stage in the judicial process cases were being delayed and identify some of the underlying causes of this delay.
The study found numerous systemic issues which considerably affect the timely disposal of criminal cases in Bangladesh. This includes significant barriers to attending court both as a witness and as an accused in criminal proceedings. Failure to display pre-trial hearing listing information on public information notice boards outside the court makes it very difficult for ordinary people to follow court scheduling. The current process for serving summons to compel court attendance is also a painfully time-consuming manual process which involves multiple handovers. Courts also do not always receive acknowledgement of summons delivered to accused/witness by the investigating officer and thus are also deprived of the ability to track progress in this regard. Failure to capture and track necessary contact information overall impedes the attendance of key persons before criminal courts. This begins at the initiating process itself, frequently the First Information Report (FIR) in criminal cases, which does not compulsorily record the phone number of either the accused or necessary witnesses.
The present reliance on paper records and manual movement of files also results in substantial delays in the criminal justice system, potential loss of vital information and/or susceptibility to tampering due to degradation and poor storage of files and evidence. A huge amount of time is wasted manually writing warrants, summons and various other forms which have standard templates. Handwriting charge framing documentation is also time-consuming and is made worse by the tedious process of retrieving necessary particulars (such as time, place, circumstances, etc.) from paper files. The same is also true of bail, summons/warrant history which is not readily available to judges dealing with cases and can be difficult to retrieve. Witness evidence is further not recorded electronically and appeals are thus conducted on the basis of handwritten records made during the witness’ testimony. Appeals further require manually moving physical files from the court of judgment to the court of appeal, which is a time-consuming process causative of significant delay and currently heavily dependent of intervention and external influence by interested groups.
Overall the study found that the most significant bottleneck in the current system of criminal case processing was the excessive reliance on paper documents and large amount of clerical resources being spent manually preparing court documents, as well as a dependency on paper for recording court communication. A transition to a more computer-based system of recording relevant information through appropriately designed electronic forms and automated generation of standardised procedural files will vastly improve efficiency in the processing of criminal cases. Electronically recording witness evidence and allowing appearance in court via video-conferencing technology to avoid witnesses/Accused persons having to physically attend court in every case would also go a long way to improving the present system.
The study accordingly identified some innovative technological solutions to provide accurate and up-to-date information on cases when needed and overcome some of the inefficiencies of the current processes. UNDP has built upon these recommendations to develop a real-time case monitoring system with electronic scheduling and calendaring of future court trials and a more robust method of keeping track of witness contact information and facilitating court attendance via the recording of e-mail and mobile telephone contact information.
This new system and important work of the UNDP in ensuring more effective justice service delivery for ordinary people in Bangladesh will be taken forward in the next generation of justice programming currently being formulated to improve access to justice for all Bangladeshis.
Written by - Maybelline Massey