Can Technology Be a Potential Solution for a Cost-Effective Litigation System in Bangladesh?

Abstract

This article examines whether the increased use of technology has the potential to deliver a cost-effective and time-efficient litigation system in Bangladesh. It investigates how technology can be an integral part of the litigation system and a factor in reducing litigation costs and backlog to ensure greater access to justice. This empirical research identifies the costliest areas of litigation in Bangladesh, reveals why these costs arise, and how technology can be adopted to ensure a transparent reduction of litigation costs. Although technology has some practical and legal limitations, it represents a potential solution to the current deterioration endured by the Bangladesh judiciary.

Keywords:

• Technology
• litigation costs
• cost-effective system
• Bangladesh

Notes

1 Prillaman’s conducted the research in El Salvador, Brazil, Argential and Chile.

2 The publicly funded pilot program was to experiment the use of advance technology for selected courtrooms named, ‘Effective use of courtroom technology: A judges guide to pre-trial and trial’.

3 On 9 July 2020 this ordinance has passed and enforced as an act.

4 The Practice Directions no 08J, 06J, 07J, 230, 216 and 214 issued by the Supreme Court of Bangladesh are available at http://www.supremecourt.gov.bd/web/, accessed July 24, 2020.

5 After resuming the normal court process, a judge recorded deposition of a witness virtually. He was advised to retake the deposition manually from the judicial authority, arguing that virtual presence was allowed only for the emergency period and not allowed when the normal court proceedings restarted.

6 Administrative units are called “districts” in Bangladesh. However, the smallest administrative unit is called a “union”, accessed June 30, 2019, https://bangladesh.gov.bd/index.php.

7 The examples of specialized tribunals are the Administrative Tribunal, Special Power Act Tribunal, Labour Tribunal, Women and Children Torture Tribunal, Suppression of Acid Crimes Tribunal, Speedy Trial Tribunal, Cybercrime Tribunal, and Tribunal for Share Market.

8 The examples of specialized courts are the Family Court, Children’s Courts, Municipal Court, Environment Court, Anti-Corruption Court, Money Loans Court, and Marine Court.

9 Bangladesh became independent through a liberation war in 1971.

10 For empirical research, ethics approval was obtained from the Macquarie University Human Research Ethics Committee.

11 To enable judges’ participation and access to court records, permission was obtained from the Bangladesh Ministry of the Law, Justice and Parliamentary Affairs.

12 The most senior assistant judge court, locally known as the sadar court.

13 The most senior magistrate courts are locally named based on numbers, such as first magistrate court and second magistrate court.

14 Each case contained a number alongside the filing year. This is how the older cases were easily identifiable.

15 The cause list is the publicly available register book that maintains the case number, case date, cause of listing, and summary decision. It is a prescribed form of declaring the case status in brief with a scheduled date. See Rule 13 of the Civil Rules and Order (Bangladesh).

16 A pre-scheduled interviewing date was chosen.

17 A prescribed consent form was provided by the Macquarie University Human Research Ethics Committee, available on the website.

18 Sheristadar is the official administrative officer. For every court, there shall be a sheristadar who will be responsible for the administrative work of the court. They are also appointed by the government, but are not necessarily from a law background.

19 Peshkar helps the court handling the case record and scheduling and allocating time for each case. Peshkar is also known as a bench assistant.

20 The duty of the peshkar in criminal court is also as same as in civil court; that is, helping the court handling the case record and scheduling and allocating time for each case.

21 Stenographer takes dictation from the concerned judge and types accordingly at the entry level. In Bangladesh, the magistrate has the stenographer, but in civil courts, there is no available post for a stenographer. The concerned judge is responsible for writing the order or judgment.

22 The judges are appointed in a particular court for about three years. After that, they are transferred to another district by the Ministry of Law, Justice and Parliamentary Affairs (from the executive organ of the State) in consultation with the Supreme Court. However, in case of court staff, after about three years, they are also transferred to another court in the same districts, mostly by the district judge or the head of the local office (CJM, CMM).

23 The primary interviews were to discover the causes of increased litigation expenses, contributions of individuals and institutions, and to find a way forward. While doing so, whether potential adaptation of technology in the Bangladesh judiciary could reduce litigation costs was discussed with caution. This article is confined to that part only.

24 At the time of data collection, the Supreme Court of Bangladesh recorded the total number of pending cases as 3,569,750 at the end of 2018. See also, Correspondent Staff, 2018, “Over 34 Lakh Cases Pending in Courts.” The Daily Star, Dhaka, October 30, accessed June 11, 2019, https://www.thedailystar.net/city/news/over-34-lakh-cases-pending-courts-1653643.

25 Recently, a judge fainted from heatstroke while he was adjudicating. See, Yamin (2019), “Judge Fainted on Heat Stroke.” The Rising BD, Dhaka, May 24, 2019, accessed June 21, 2019.

26 The common practice in Bangladesh is that lawyers charge per appearance basis without any fixed rate or contact.

27 Sometimes, at the argument stage, renowned lawyers are hired with high fees.

28 There are two ways to file a criminal case in Bangladesh: (1) General registrar (GR) and non-general registrar (NGR) cases are filed at the local police station and (2) complain registrar (CR) cases are filed at the court and are more similar to civil cases.

29 Section 11 of the Code of Civil Procedure (CPC) 1908 (Bangladesh) states regarding res judicata:

No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.

30 India has already introduced a limitation the calculator and court fees calculator application. See the Supreme Court of India (https://main.sci.gov.in/court-fees-calculator) and the Supreme Court of India (https://main.sci.gov.in), accessed 29 March 2021. While Bangladesh has not introduced similar software, the country has introduced a Muslim inheritance calculator app that helps calculate property ratio. See https://play.google.com/store/apps/details?id=com.landcalculation&fbclid=IwAR15NeWsYfWn3ZWzBVGivYkr51orpZzq_JxwJmPcxh5eSJOwHFcc1gSJQV0, accessed July 10, 2019.

31 Practice Direction no 214, dated May 10, 2020 and Practice Direction no 220, dated May 16, 2020 issued by the Supreme Court of Bangladesh, accessed July 22, 2020, http://www.supremecourt.gov.bd/resources/contents/notice_20200510_214a.pdf.

32 Practice Direction no 14 J, Supreme Court of Bangladesh, accessed July 31, 2020, http://www.supremecourt.gov.bd/resources/contents/notice_20200730_14a.pdf.

33 In Bangladesh, the public prosecutor is involved with criminal cases when the case is ready for trial; however, at the investigation stage, they do not have any involvement with the case.

34 Every police office receives an identification number at the time of joining.

35 While the interview was held, by the time the court hearing was over on that day, the interviewee did not even see her lawyer, although she paid his fees through his assistant.

36 High-tech courts rooms are able to present evidence electronically, which can be easily transmitted to any location. These rooms also enable remote two-way testimony through video conferencing, have a digitized court record system, and allow forensic experts, oral arguments, and even judges’ appearances through the technology.

37 See CrPC, s 156, 167.

38 Ibid s 167(5). This time limit is for general penal offences but special laws limit investigating time differently. For example, investigation reports are to be submitted within 15 days for offences under the narcotics law. See the Madokdrobbo Niyontron Ain 1990 (Bangladesh) s 42(kha).

39 In the latest budget for Bangladesh (2020–21 fiscal year), Bangladeshi Taka (BDT) 1962 crore was allocated to the judiciary, of which BDT 223 crore was for the supreme court and BDT 1739 crore was for the law and justice division, including the subordinate judiciary. Information collected from the ministry of law, justice and parliamentary affairs.

40 Narcotics law, human trafficking law, acid control laws, and speedy trial laws can accept digital evidence.

41 A mode of paying government fees.