Can Bangladeshi Existing Civil Justice System Ensure Access to Justice?

Our legal system theoretically ensure access to justice for each and every citizen of the county but in practice the door of justice is not open for disadvantaged segment of the society. Though national and international law impose obligation to the state to establish a legal system accessible to each and every member of society but in reality fulfillment of this obligation is yet to be a far reaching goal[1].

In our adversarial legal system, poverty, inordinate delay high cost of litigation, lack of legal aid mechanism and unavailability of alternative of formal Justice delivery system are considered the roadblocks in the way of access to justice.

Problem in our Civil Justice System

Our judicial and legal system has been historically nourished in the rich tradition of common law, and it can boast a long record of good delivery of justice. Like any other legal system, common law with its adversarial or accusatorial features, has its merits and demerits. But in recent years certain objective and subjective factors have so combined as to lead our judiciary to a situation where its demerits are overpowering the merits. Manifesting is crippling backlogs and delays. Delayed justice reduces even the winner of the litigation, for its costs in terms of time, money, every and human emotions are too high[2].

The reasons for delays in the functioning of 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 a 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 summons, which can be further slowed down by the intentions of the parties concerned indicating poor state of court administration.
3. Too much reliance on the resort to interim injunctive relief and orders, leaning the hearing of the 'main contentions and issue 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 heave case-load and partly be their unpreparedness to continue and complete the process.
5. Vested interest of the lawyers for lengthening 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 trail.
7. Scope for frequent amendments of the plaints and written statements at any stage of trial.
8. Reluctance of the judges, accentuated by their statutory non-compulsion, to use pre-existing rules and orders to expediter 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 of their rule making power to achieve procedural effectiveness.
9. Absence of lawyer-client accountability giving the lawyer monopoly power to conduct the case the way he considers best suited to his own interest.
10. Little scope for client-client interaction, which hides potential for alternative,   dispute   resolution   and   intensifies   confliction   nature   of proceedings.

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[1] Shah Alam, ‘Alternative Dispute Resolution by Early Judicial Intervention: A Possible Way out of Delay and Backlog in Our Judiciary’, Shah Alam, ed, Manual For Clinical Education, (Chittagong: Homeland Press and Publication, 2001), p.26.

[2] Ibid, p.27