The Bangladesh legal system has crossed several milestones in the last decade
Bangladesh’s legal system closely resembles Britain’s legal system. Since the institution of the judiciary’s independence in 1999’s Masdar Hossain case, the system has undergone several changes. For example, there has been increased interest in human rights concerns such as gender-based violence, torture, land, business, crime, food safety, court backlogs, and accessibility of the system.
Fueled by the need to increase the system’s efficiency in promoting law and order and at the behest of the public, Bangladesh’s Ministry of Law, Justice, and Parliamentary Affairs has helped institute numerous policies that address these concerns.
The concerns have occasioned the government to reorganize the justice system, and amend and enact new legislation. By critically analyzing various sources, I shall highlight recent public interest issues and the policy changes that the government has instituted in the last decade.
Retribution of the fugitive killers of Bangabandhu
The commitment to ensuring justice and the ministry›s proactive nature can be evidenced by its vigour towards the execution of individuals convicted of assassinating the Father of the Nation Bangabandhu Sheikh Mujibur Rahman. The government managed to track down and extradite fugitives and, in the process, bring the rest that had earlier managed to abscond trial and execution.
Trial of war criminals
Honouring the pledge to try war criminals, the government set in motion the workings of the long-awaited punishment of the war criminals by forming the International Crimes Tribunal (Bangladesh) (ICT).
Since its inception in 2009, the ICT has so far delivered verdicts in 42 cases against 97 people for crimes against humanity, including genocide during the Liberation War in 1971. The latest verdict delivered by ICT was on October 22, 2020, where the tribunal issued a death warrant for Sayed Muhammad Qaiser.
While the country currently lacks the infrastructure and legal framework for a functional virtual judiciary, there have been efforts to gradually develop these systems, as evidenced by the promulgation of ordinance No 1 of 2020, in response to the access to justice crisis due to the pandemic. The Law ministry responded to the crisis aptly and promulgated the ordinance based on the recommendation of the Supreme Court of Bangladesh, which superseded all other procedural laws to offer courts the ability to conduct virtual proceedings.
However, further amendments to court proceedings’ rules and laws are needed to legally digitize and regulate processes such as fees, affidavits, and judgment certificates. Digitization shall increase court access and decrease case times which currently reduce the judiciary’s efficiency.
UN Convention compliance
The ministry’s vigour to fulfil international commitment can be seen in the observance of the United Nations conventions against torture. The parliament enacted the Torture and Custodial Death (Prevention) Act, 2013 with the specific objective to make the law conform to the provisions of CAT, a UN body.
The incumbent law minister, Advocate Anisul Huq, confirmed this commitment while delivering a report to the UN, which guided the enactment of the Torture and Custodial Death Prevention Act.
The government is also aware of the large backlog of cases. According to the law minister, several initiatives such as setting annual targets and developing frameworks for out of court settlements shall be gradually introduced.
The justice system, which currently has more than three million pending cases, intends to increase human resources, develop alternative dispute resolution measures, and set annual resolution targets of 500,000-600,000 cases.
In order to decrease the case backlog, the government amended the Civil Courts Act in 2016, so as to increase the financial jurisdiction of lower court judges in settling civil cases.
The High Court, however, stayed the amendment after two writ petitions were filed that year challenging it.
These changes complement long-standing efforts by the law ministry to increase access to justice and reliance on the judiciary, such as the decade-long effort to provide free legal assistance that has seen more than 500,000 individuals assisted by various government agencies in the ministry.
Based on a UNB article, between 2009-2020, the government offered help to citizens in courts through a public helpline and a specialized workers’ legal assistance cell.
These efforts are aimed at increasing access and effectiveness of the judiciary, while increasing trust in the system.
The ministry is actively seeking measures that promote the judiciary’s professionalism and independence. One of these measures is developing a national judicial academy at Shibchar in Madaripur that would professionalize the judiciary through additional training to standardize procedures.
The law minister hoped that the extra training would improve perceptions of the judiciary’s independence from the executive and legislature while enhancing its performance.
Apart from judicial systems and practices, inefficiencies in various types of laws such as crime, health, business, and real estate have been identified, with necessary amendments being sought.
One of these is the 2005 Formalin Control Act which, while outlawing the use of formalin in food preservation, lacks effective control and preventative measures.
Additionally, the health law failed to include formalin alternatives that would likely be used in response to the act. These lapses could decrease the effectiveness of the law, thereby jeopardizing public health.
Concerns about the legislation’s effectiveness extend to criminal law, with pertinent issues such as gender-based violence and crime, which attract significant advocacy. An example of this is adopting the death penalty as punishment for rape following heightened advocacy by citizens and human rights groups due to an unprecedented increase in sexual violence cases.
However, Amnesty International has expressed concerns on the effectiveness of the measure since the main hindrance to justice in such instances are conviction failures and the misogynistic environment that discourages judicial remedies.
It is not that the ministry was unaware of the fact that capital punishment was not the best possible solution to this rampant social evil but it decided to make this amendment at the behest of the people.
The designation of capital punishment could increase the government’s focus on sexual violence and act as a deterrence, as is the case with incidences of extreme violence such as murder.
Additionally, recent corporate law amendments demonstrate the ministry’s willingness to address gender-based issues.
An example of this is the amendment of the 2006 Labour Act which, in addition to guaranteeing women’s employment benefits during maternity leaves, provides life insurance covers and reduces union fees for employees during these periods.
Consequently, the law is meant to benefit workers and their families by guaranteeing employment benefits such as salaries and life insurance policies.
There has also been progress towards eradicating discrimination based on race, sex, disability, religion, or belief as the law commission is working on anti-discrimination legislation.
Corporate and business law reform
There has been a raft of amendments of existing corporate laws to improve the country’s business environment. One example is the Companies Act, which has legalized the delegation of authority, such as the execution of documents by third parties in any jurisdiction.
Additionally, the proposed amendments to the Bankruptcy Act aim to promote business confidence by increasing the penalties for defaulters such as travel, participation, and career mobility restrictions.
Amendments to the Company Act in 2020 had provisions for the one-person public limited company, making it easier to do business.
The government has taken several positive strives towards road safety. On October 8, 2018, parliament passed the Road Transport Act. After the long-standing Motor Vehicle Ordinance of 1983, the new act introduces a myriad of updated laws and adds new definitions for what constitutes an offence, with most of the fines and punishments receiving major bumps.
Land law reform
To compound these, there is the 2020 proposal to amend the Land Act, which seeks to harmonize land-related laws under a general body that would enable the use of district tribunals with the target of resolving disputes within 60 days.
While there are concerns that the tribunals could be compromised, diminish the judiciary’s power, and complicate judicial procedures, it indicates the ministry’s pro-activeness in reducing backlogs. With further refinement, this amendment could unlock the economic potential of land by promoting ownership, which would promote transactions and development.
Since independence, Bangladesh’s judicial system has been in a state of constant change in a bid to resolve emergent issues that could threaten the rule of law. It has especially been noticed in the last decade that the government and the law ministry were exceptionally responsive to the public’s demands, more than ever before. While some of the measures have attracted scrutiny on their effectiveness, the ministry’s efforts represent the system’s willingness to recognize and adopt changes that promote socio-economic development.
Barrister Sayed-Ul-Haque Dinar is Advocate, Supreme Court of Bangladesh, and Head of Chambers, The Law Square.