Chapter 1

INTRODUCTION

Bangladesh is a developing democratic country of the world .in a democratic society all
citizens have a right to access to justice and get fair trial. The constitution of the people
republic of Bangladesh 1972 has theoretically ensured access to justice, fair trial, rule of law,
fundamental rights, human rights, equality before law, and equal protection of law, but due to
financial crisis and ignorance of law, these constitutional protections have become a fake
promise to the vast majority of the people.
There is a close correlation between peace, justice and prosperity. Improvement of the justice
aspect is essential to facilitate the achievement of prosperity and peace. Effective access to
justice is one of the fundamental conditions for the establishment of rule of law in a society.
Comprehensive justice sector reform requires a dual track strategy which links top-down
institutional reform (supply) and bottom-up access to, arid demand for, better justice
(demand). Such a strategy will bring justice closer to the people. It will help to address the
low trust and inequities that many, in particular the poor, feel define the delivery of justice in
Bangladesh. Since, achieving social justice for all the people of Bangladesh is one of the key
aspirations outlined in the Constitution Bangladesh1 it requires well studied.

Meaning of the term 'Access':

Generally, the term 'Access' means a way of opportunity. 2 According to the Aiyer's Judicial
Dictionary, the term 'Access' means approach or means of approach. 3 According to the Free
Online Dictionary by Farlex define the term 'Access' as freedom of approach or
communication; or the means, power, or opportunity of approaching, communicating, or
passing to and from.4 In other words "Access", means "convenient, understandable, timely,
and affordable to everyone".

1
The Constitution of the People's Republic of Bangladesh (1972).
2
Chambers English Dictionary (Reprinted 1991), p. 7.
1

3
K. J. Aiyer's Judicial Dictionary (12'h Edn.), p. 12.
Page

4
The Free Dictionary at htip://legaldictionary.thefreedictionary.com/access visited on 31.10.2010
Meaning of the term 'Justice':
Generally, the term 'Justice' means the awarding of what is due. 5 The term 'Justice' implies
the virtue by which we give to every man what is his due, opposed to injury or wrong."6

Meaning of the phrase "Access to Justice':

The term 'access to justice' is not defined in any national or international law and has been
used in different ways in different contexts. It is associated with the ability to bring a
grievance before court, including the right to a fair hearing and an effective remedy. The right
to access to courts, while not specifically mentioned in international human rights law, has
become increasingly explicit over time, through case-based standard setting. 7 Traditionally,
the term refers to opening up the formal systems and structures of the law to all
disadvantaged groups in society. This includes removing legal and financial barriers as well
as social barriers such as language, lack of knowledge of legal rights and intimidation by the
law and legal institutions.
UNDP has defined access to justice as the "ability of people from disadvantaged groups to
prevent and overcome human poverty by seeking and obtaining a remedy, through the justice
system, for grievance in accordance with human rights principles and standards." 8 While this
definition gives little recognition to the role of informal or traditional justice, it is worth
noting that it employs an expanded "material", rather than formal understanding of justice,
characterized as "related to a model of construction of a legal system in which such
ideas/values as human and economic rights, recognized at an international law level, are to be
implemented by the law, regardless of whether they are formally recognized by the national
legal system of the country being assisted" 9
Ordinarily, access to justice has two dimensions: Procedural access (having a fair hearing
before a tribunal) and also substantive justice (to receive a fair and just remedy for a violation

5
Chambers English Dictionary (Reprinted 1991), p. 776.
6
K. J. Aiyer's Judicial Dictionary (12'" Edn.), p. 699.
7
McBride 1988: J. McBride 'Access to justice under international human rights treaties' Parker School Journal
of hast European Law, Vol. 5, 1998 Nos.1-2
8
R. Sudarshan, Rule of law and access to justice: Perspectives from UNDP experience, UNDP Oslo
Governance Centre accessed 30.06.04 at http://www.undp.org/oslocentre/access.htm.
9
M. Zamboni, "Rechtsstaat": Just what is being exported by Swedish development assistance organization?',
2
Page

Law, Social Justice and Global Development Journal (an electronic law journal), accessed 30.06.U4 at
http://elj.warwick.ac.uk/global/issue/2001 -2/zamboni.
of one's rights). It refers not only to the courts, but also to civil and administrative processes
such as immigration review or state compensation funds.
The term 'Access to Justice' demands explanation in order to cope with the present scenario
of Bangladesh. It means access by people, in particular from poor and disadvantaged groups,
to fair, effective and accountable mechanisms for the protection of rights, control of abuse of
power and resolution of conflicts. This includes the ability of people to seek and obtain a
remedy through formal and informal justice systems, and the ability to seek and exercise
influence on law-making and law-implementing processes and institutions. 10 The term 'access
to justice' is most commonly used in reference to the various mechanisms by which an
individual may seek legal assistance. In 1994, the Commonwealth Government appointed the
Access to Justice Advisory Committee. That Committee stated that the concept of 'access to
justice' involves three key elements:
1. Equality of access to legal services - ensuring that all persons, regardless of means, have
access to high quality legal services or effective dispute resolution mechanisms necessary
to protect their rights and interests.
2. National equality - ensuring that all persons enjoy, as nearly as possible, equal access to
legal services and to legal service markets that operate consistently within the dictates of
competition policy.
3. Equality before the law - ensuring that all persons, regardless of race, ethnic
origins, gender or disability, are entitled to equal opportunities in such fields as education,
employment, use of community facilities and access to senders.11
Thus, the focus of this Committee was the goal of equal opportunity to participate in the
formal justice system, both in terms of access to legal service and access to courts and
tribunals. To achieve this goal, the matters targeted for particular attention included the
funding and allocation of legal aid, the costs of legal services and legal proceedings, and
the public availability of legal information.
However, a broad interpretation of the terms 'access to justice' will yield a number of
possible perspectives on 'access to justice' that go beyond the focus on access to legal
services. These include-
1. The equal ability of all in society to access the processes to enforce existing rights or laws
(This perspective assumes that the rule of law provides an effective vehicle to achieving
10
Partly based on Bedner (2004), 'Towards Meaningful Rule of Law-Research: An Elementary Approach', MS
3
Page

Unpublished, VVI, Leiden; and UNDP (n.d.), 'Access to Justice Practitioner Guide'.
11
Access to Justice Advisory Committee, Access to Justice: An action plan, AGPS, Canberra, 1994, p.xxx.
 just or fair outcomes. Accordingly, such a perspective indeed concentrates on equitable
access to adjudication, conflict resolution institutions and intermediaries and legal
remedies;
2. The existence of widely accepted rights under international and regional laws that may not
be protected through the domestic justice system;12
3. Equal access for all minority groups to all legal rights enjoyed by the majority (This
approach would not accept differential laws applying to, for example, asylum seekers vis-
a-vis citizens, or homosexuals vis-a-vis heterosexuals.); and
4. The relative underdevelopment of the common law in areas associated with poverty law,
due to the lack of access to litigation opportunities.

Chapter 2
ACCESS TO JUSTICE IN BANGLADESH: REALITY
4
Page

12
For example, the application of ratified international conventions.
Rule of law is meaningless unless there is access to justice for the common people. The
judiciary must be accessible to all if rights are to be enforced. It is not sufficient that there
exists a system of independent judiciary, the cost of having recourse to the courts and
tribunals must be such that there is real access to the courts and tribunals. There may be set of
laws defining the rights of the people, but if the common people cannot seek enforcement of
those rights, those rights merely embellish the papers on which they are described and have
no significance in real life.13

The rich and powerful can always have their ways but it is the poor and weak who
need the support of the law. Having regard to the social and economic situation of the
common people, the cost of litigation in Bangladesh is high and is mounting and most people
cannot afford to seek remedies in courts.14

Access to justice in ordinary civil litigation:

Firstly: In a suit where one party is poor and the other party is opulent, equality, rule of law,
and fair trial as ensured in the Constitution15 and other legal documents of Bangladesh can not
be maintained. Because the contesting opulent party is able to appoint an eminent lawyer who
can easily take the fruits of the suit in favour of his client which the opposite advocate fails to
do.
Secondly: access to justice is prevented for the poor by high legal costs. Here costs include
court fee, process fee, advocate fee, and other incidental costs.
Thirdly: delay in disposal of a civil suit. In Bangladesh, for the disposal of a civil suit several
years are required. But poor litigants after fighting one or two years, lose everything and fail
to move the suit, so the court pronounces decree in favour of the strong party.
Fourthly: a big number of people in Bangladesh are ignorant as to their rights. So without
getting any legal assistance they cannot ensure enforcement of their rights.16
Access to justice in criminal cases:

13
Mahmudul Islam, Constitution Law of Bangladesh (2003) p.63
14
Ibid.
15
The Constitution of the Peoples Republic of Bangladesh. It was enacted on 04 November. 1972 and came
into force on 16 December, 1972.
16
Md.Asadujaman, Access to Justice and Legal Aid in Bangaladesh, p.2, vide
5
Page

http://www.academia.edu/1526562.
In Bangladesh, the police are generally corrupt and their investigation is faulty. Most of the
criminal cases do not get strong foundation because of the weak investigation carried out by
the police. The attorney system in Bangladesh is also inefficient and corrupt.
The state attorneys17 are appointed on political consideration. The party in power appoints
those lawyers as state attorneys, who are affiliated with their party. They are changed with
the change of the government. Because of the transitory nature of attorney service they are
inefficient and not committed to preserve the interest of the community.
While the innocent are languishing inside jail for the lack of legal aid, the criminals are
enjoying freedom by influencing the criminal justice system. The criminal justice system
today is a big business and affects large numbers of people. The criminal justice system is
linked with key socio-political objectives, such as the maintenance of law and order and
preservation of the peace, the security of the individual and the protection of property; and,
increasingly the protection of human rights and individual freedoms. The Bangladesh penal
code is drafted in accordance with colonial British law, which contains many conflicting and
competing policies when applied to present-day situations. The paradox of that law is that it
insists on the application of force and the violent deprivation of liberty, consistent with the
British colonial perspective, in the name of limiting force and fraud and defending liberty.
The police are essential part of the criminal justice system in Bangladesh. The police play a
very important and vital role for the implementation of fair trials. The Bangladesh
government is trying to fix the agenda for democratic policing by transforming the police
force into a police service with the help of UNDP. The prison system has become a
vital component of suppression and brutality, even though prison should be a place for
rehabilitation and correction. Simply put, justice is detained behind the walls of these
Bangladeshi prisons. Prison reform is a necessary objective to ensure people's rights and
"humanize" Bangladesh. Prisoners' rights have become an important item on the agenda for
prison reforms. Lawmakers should introduce a bill to humanize the prison a stem in
Bangladesh, where the main philosophy of prison systems is based on colonial law.18
Chapter 3
Barriers to Access to Justice

17
They are-Attorney General, Additional Attorney General, Deputy Attorney General, Assistant Attorney
General, Public Prosecutor, Assistant Public Prosecutor, Government Pleader and Assistant Government
6

Pleader.
Page

18
The Penal Code, 1860 (Act No.XLV of 1860).
Several factors act as the impediments to Access to Justice. UNDP "Access to Justice:
Practical Note19 has identified following barriers by which the justice system is frequently
weakened:
 Delays, prohibitive costs of using the system, lack of available and affordable legal
representation, which is reliable and has integrity, abuse of authority and powers,
resulting in unlawful searches, seizures, detention and imprisonment. Weak
enforcement of laws and implementation of orders and decrees.
 Severe limitations in existing remedies provided either by law or in practice. Most legal
systems fail to provide remedies that are preventive, timely, adequate, non-
discriminatory, just and deterrent.
 Inadequacies of existing laws to effectively protect women, children, poor and
other disadvantaged people, and gender bias and other barriers in the law and the legal
system.
 Lack of de facto protection, especially for women, children, and men in prisons or
centers of detention.
 Lack of adequate information about what is supposed to exist under the law, what
prevails in practice, and limited popular knowledge or rights.
 Lack of adequate legal aid systems.
 Limited public participation in reform programmes.
 Excessive number of laws.
 Formalistic and expensive legal procedures.20
 Barriers related to having low literacy skills.
 Barriers faced by people who have disabilities.
 Avoidance of the legal system due to economic reasons, fear, or a sense of futility of
purpose.
Many of the barriers are relevant to all disadvantaged groups in the community. These
include the high cost of legal services, inadequate funding for legal aid service providers,
restrictive funding policy for legal aid, restrictive legal aid eligibility guidelines, poor
coordination of legal aid services in Bangladesh

19
Law and Justice Institution- Access to Justice for the poor (Practitioners Guide) Developed by UNDP in
2005. http://web.worldbank.org/Website /External/Topics/EXTLawJustinst.
7

20
In criminal and civil litigation and in administrative board procedures.
Page
Action Needed:
UNDP in Bangladesh is committed to using human rights-based approach in its
programming, guided by international human rights standards and principles. In its opinion, a
human rights-based approach is useful to-
a) focus the problem on the immediate causes impeding access;21
b) define who is most affected;22
c) define who is accountable for addressing the problem;23 and
d) focus capacity development strategies on the specific capacities relevant actors need to
solve the problem.
Access to justice is, therefore, much more than improving an individual's access to courts, or
guaranteeing legal representation. It must be defined in terms of ensuring that legal and
judicial outcomes are just and equitable. According to a human rights-based approach to
development, it is important to identify the grievance that calls for a remedy or redress. A
grievance is defined as a gross injury or loss that constitutes a violation of a country's civil or
criminal law, or international human rights standards.
The capacity and actions needed to achieve access to justice, following a human rights-based
approach, are outlined below:

Legal protection:
Provision of legal standing in formal or traditional law, or both, involves the development of
capacities to ensure that disadvantaged people's rights are recognized within the scope of
justice systems, thus giving entitlement to remedies either through formal or traditional
mechanisms. Legal protection determines the legal basis for all other support areas on access
to justice. Legal protection of disadvantaged groups can be enhanced through: (a) treaty
ratification and their implementation in the domestic law, (b) constitutional law, (c) national
legislation, (d) implementing rules and regulations and administrative orders, and (e)
traditional and customary law. While implementing, following authorities can play the key
role-

21
Lack of safeguards to access or insufficient performance of them.
22
The poor and other disadvantaged people.
23
8

Institutions, groups and individuals.

Page
 1. Parliament,24
2. Ministry of Foreign Affairs,
3. Ministry of Law, Justice and Parliamentary Affairs,
4. Police forces,
5. National Human Rights Commission,
6. Law Reforms Commission,
7. Legal drafting cells of relevant ministries,
8. Local officials involved in legal drafting,
9. Judges, particularly of courts whose decisions are binding on lower courts or,
under the law, are able to influence courts in other jurisdictions,
10. Traditional Councils,
11. Community leaders (chiefs, religious leaders),
12. Persons, especially those involved in legal research, legal advocacy and monitoring.

Legal awareness:
Development of capacities so that disadvantaged people know it is possible to seek redress
through the justice system, whom to demand it from, and how to start a formal or traditional
justice process.
Enforcement of rights is dependent on both an awareness that those rights exist and
knowledge of avenues for redress. Lack of legal awareness is a serious impediment to
accessing justice, in particular for the poor who are less likely to be familiar with their rights
and less likely to use the formal system.

Partnerships:
Linking judges, prosecutors and police with community groups can enhance community legal
awareness, increase public trust in the state and improve the capacity of the legal apparatus to
respond to the needs of the poor. Community-based legal aid posts and paralegals are
effective mechanisms for delivering legal information at the grassroots level.
Following authorities can play important role in building legal awareness
1. Ministry of Law, Justice and Parliamentary Affairs,
2. Ministry of Education,
3. Schools, colleges and universities,
9

4. Legal aid providers,

Page

24
Constitutionally known as ‘House of the Nation’ (vide Art.65 of the Bangladesh Constitution).
5. Quasi judicial bodies,25
6. Local government bodies,
7. Non-governmental institutional,26
8. Labour unions.

Legal Aid and Counsel:

Development of capacities (from technical expertise to representation) that people need to
initiate and pursue justice procedures. Legal aid and counsel can involve professional lawyers
(such as in case of public defence systems and pro bono lawyering)., laypersons with legal
knowledge (paralegals) or both (as in "alternative lawyering" and "developmental legal aid").
Following authorities can play major role in providing legal aid and counseling-

1. Ministries of Law and Justice and state-funded legal aid programmes,

2. Public Attorneys,
3. Court system,27
4. Local governments,
5. Police and the prison system, Bar associations,
6. Non-governmental organizations,
7. Law clinics (often linked to university faculties of law).

Adjudication:
Development of capacities to determine the most adequate type of redresses or compensation.
Means of adjudication can be regulated by formal law, as in the case of courts and other
quasi-judicial and administrative bodes, or by traditional legal systems. While doing these
acts following authorities can play the key role-
1. Courts.
2. National human rights institutions.28
3. Alternative dispute resolution mechanisms: these can be attached to the court system, or
be administrative bodies.29

25
Human Rights, anti-corruption, and electoral commissions.
26
Example: NGOs, Bar Associations, Universities, communities, etc.
10

2727
Example: to deal with court fees.
28
Human Rights Commission and Ombudsman.
Page

29
Such as land and labour boards.
4. Traditional and indigenous ADR.

Enforcement:
Development of capacities for enforcing orders and decisions is emerging from formal or
traditional adjudication. As regards enforcement, the following can play the key role-
1. Prosecution,
2. Formal institutions,30
3. Administrative enforcement,
4. Civil society and parliamentary oversight,
5. Development of watchdog and monitoring capacities of civil society, so that it can
strengthen overall accountability within the justice system,
6. NGOs working on monitoring and advocacy,
7. Media,
8. Parliamentary select and permanent committees.

Strengthening the Normative Legal Framework providing Legal Protection:

The normative legal framework refers to the presence of a legal umbrella that defines rights
and duties, reflecting customs and accepted social behaviour. This encompasses both state
and law and has three main elements: (i) the substance of rules; (ii) processes by which rules
are made and amended; and (ii) actors and institutions involved in determining the process
and substance. Such legal framework should focus on the following points-
1. Efforts to enhance public participation in the law- making process should also be
strengthened,
2. Efforts to document and disseminate best practices and pro-poor regulations should be
supported,
3. Support to harmonize the regulatory environment will enhance legal consistency and
certainty.
Key Challenges in Bangladesh:
The key challenges behind the real picture respecting the access to justice in Bangladesh arise
due to following reasons-
11

30
Police and prisons.
Page
 1. Lack of coordination among institutions to ensure optimum use of existing
resources for access to justice, despite available normative frameworks and
institutional resources.
2. Failure of public institutions to adopt a human rights approach in the administration of
justice, in particular when handling cases such as domestic violence and trafficking
crimes that have been traditionally ignored, and inadequately funding for
supporting victims of domestic violence and trafficking.
3. The normative framework that addresses respect for international human rights is
drafted in such a general manner that it creates confusion with regard to what means
are available to seek redress against actions (or inactions) that violate human rights.
4. Deficiencies in the Law on Administrative Justice that lead to practical problems in an
efficient administrative justice system.
5. Lack of a strategic approach to improve the level of transparency and accountability in
the performance of public officials.31
6. Limited alternatives to judicial adjudication for provision of justice outside
overburdened courts and tribunals.
7. Limited legal awareness and education among the general population, which
is a prerequisite for the increased confidence of the citizens in seeking formal
redress for injustices.
8. Insufficiently resourced legal aid system.
9. Unchanged procedural laws, such as the civil procedures that undermine efforts to
respond to a fast evolving social and economic environment, excessive duration of
judicial proceedings and an antiquated manual case management
system.
10. Lack of mapping and collection of relevant jurisprudence.
11. High number of unexecuted decisions of courts and tribunals.
12. Upcoming challenges with the establishment of new justice institutions, such as
juvenile justice mechanisms required by law.
13. Weak civil society engagement and oversight over the performance of the justice
systems and its actors.
14. Gender, ethnicity, and age-based barriers in the legal system and in society at large
that effectively fail to protect women, minority communities, displaced and returned
12

persons, and children and youth.

Page

31
It includes judicial officials, both local and international, during performance of their official duties.
 15. Court liaison offices are not fully operationalized.

Chapter 3
CONCLUSIONS
The right of access to justice demands that, judicial organs should be open to all whose rights
have been affected. It has been argued that, for rule of law to have any meaning at all, there
should be an independent judiciary to guarantee that each and every person or institution is
13

treated equally before the law and without any discrimination.

Page
It is expected that when conflicts between citizens or between the state and citizens arise,
there is a place that is independent from undue influence, that is trustworthy and that has the
authority over all the parties to solve the disputes peacefully. The courts in any democratic
system are that place of refuge.
If justice is not easily and equally accessible to every citizen there can hardly be the rule of
law. If access to justice is limited to the rich, the more advantaged and powerful section of
society, then the poor and the deprived will have no stake in the rule of law and they will be
more readily available to turn against it. Ready and equal access to justice is a sine quo non
for the maintenance of rule of law”.
Adequate access to justice is the pre-requisite for a peaceful society, which is absent in
Bangladesh. Bangladesh ranked at the bottom among 97 countries in guaranteeing access to
civil justice due to its lengthy court procedures and judicial corruption, said the latest report
released by Washington based World Justice Project. "The country faces serious challenges
in the dimension of civil justice/' said the Rule of Law Index 2012 report of the World Justice
Project providing country-by-country scores and rankings in eight areas of rule of law. The
report about Bangladesh says, "Human rights violations and police abuses are also significant
problems." The report noted that administrative agencies and courts are extremely inefficient
and corrupt. The country has lower crime rate than many countries with higher levels of
economic development, although mob justice is a persistent problem, noted the report.32
In Bangladesh the laws are often discriminatory and legal processes are expensive, slow and
complex. The result is that certain groups of people have inadequate and unequal access to
justice through the formal legal system. For these reasons, they tend to rely on customary
justice systems. Improving access to justice requires that both formal and customary systems
must be made to work justly and equitably. Improving access to justice also means more than
reforming legal procedures. It can also mean law reforms, making courts more user friendly,
improving customary systems and improving the treatment of offenders.
Findings:
Positives: I came to know that there are many legal aid institutions in Bangladesh, which are
working for ensuring equal access to justice to all citizen of Bangladesh. These legal aid
bodies working with the aim to make enable disadvantaged people of country to go court and
even to other legal bodies with their claims, and when any people face any problem to get
remedy of their claim then also these legal aid authorities helm them to get proper remedy.
14

Another sector in the field of assistance for ensuring equal access to justice is Village Court.
Page

32
New Age (A daily newspaper) 29 November, 2012.
Village courts are playing important roll to provide equal access to justice and also speedy
remedy.

Negative:
Though there are many laws an organizations in our country, which are talking about equal
access to justice to all citizen of country but practically not all laws are enforcing to provide
equal access to justice and not all organizations are active to help disadvantaged peoples.
Our land laws aimed to say that any person appearing before a court has the right not to be
discriminated against, either in the course of the proceedings or in the way the law is applied
to the person concerned. Further, whether individuals are suspected of a minor offence or a
serious crime, the rights to a fair trial have to be equally secured to everyone.
Recommendations: The right to the effective enforcement of the judgment of a court means
that, however complex the case and whatever the difficulties in resolving it, the court must
use all objectively feasible and appropriate means to ensure its enjoyment.
In societies emerging from conflict, large segments of the population may not have had
access justice. Equal access involves extending the reach of formal rule of law institutions to
the population by removing barriers to their use. Strengthening access also involves engaging
the informal sector to enhance its reach, effectiveness, and compliance with human rights
standards.
In a society recovering from violent conflict, several barriers to justice—financial,
geographic, linguistic, logistical, or gender-specific—are present. Improving access is not just
about more courtrooms or more staff. It is also about quality of justice. Justice systems that
are remote, unaffordable, slow, or incomprehensible to the public effectively deny legal
protection. Increase the quantity and quality of justice administration to address these
problems. Better prepared defense attorneys, more citizen-oriented court staff, more
reasonable hours, better information about the justice system are all means for improving
quality. The justice system should be linguistically accessible with local language
proceedings or provision of interpretation.
As regards the problems in relation to gap between law and practice, ideals and actual, it has
already been stated that problems in Bangladesh are many, intractable in some, but not
insurmountable. And in order to meet the aspirations and demands of present day for the
maximum good of the Bangladesh legal system, it has now become an extreme necessity to
15

initiate some new measures. And finally besides existing laws, the ways by which the judicial
Page
system in Bangladesh can be strengthened and the gap between legal expectation and legal
achievements can be bridged are also through initiating following vital measures:
 There is lack of coordination among institutions to ensure optimum use of existing
resources for access to justice, despite available normative frameworks and
institutional resources. In this regard, a coordination
body may be established to oversee and implement the access to justice agenda.
 There is failure of public institutions to adopt a human rights approach in the
administration of justice, in particular when handling cases such as domestic
violence and trafficking crimes that have been traditionally ignored.
 Unchanged procedural laws, such as the civil procedures that undermine efforts to
respond to a fast evolving social and economic environment, excessive duration of
judicial proceeding and an antiquated manual case management system should be
changed. In this regard the recommendation is that the judicial procedure should be
simple and judges should have effective power to override technicalities. If any
technically stands in the way of justice a judge should have the authority to set aside
the same. He must aim at giving justice to the party and that also in a speedy and
efficient manner.
 As regards delay in administering justice, the formidable criticism against the
existing common law judicial system is that its procedure is dilatory and expensive,
the legitimacy of which cannot be denied. But it is, however, to be admitted that
certain minimum procedural rules of 'due process' according to American terms, or of
'natural justice' according to English phrase are to be observed if the judges are to
render justice according to law. The use or abuse of procedural delay, however,
depends upon how the Bench and the Bar behave. An earnest desire on the part of
both with an understanding will surely curtail procedural delay. All the blame of delay
cannot be laid at the door of procedure or the lawyers. In our country the
inadequacy of the number of judges is the chief cause of accumulation of cases and
delay in their disposal. However, this dismal condition in the administration of justice
may be improved by quick fulfillment of various recommendations of the past
and present Law Commissions constituted time to time.
 There is lack of a strategic approach to improve the level of transparency and
16

accountability in the performance of judicial officials. In this regard,

Page
 transparency and accountability in adjudication and administration of justice may be
institutionalized.
 There are limited legal awareness and education among the general population. In
this regard, a broad public legal awareness and education campaign can be
implemented regularly.
 Our legal aid system is insufficiently resourced. In this regard, the Bangladesh
Government may support full operationalization of the legal aid system.
 Since justice is administered according to law and law has to play its role in the life
of man from the beginning to the end, it is necessary for all branches of legal
institutions, judges, teachers and practitioners to play a significant role in the
community particularly where there is a rapid and profound process of change in the
society. Legal education shall have regard to the social responsibilities of the lawyer
including co-operation in providing legal services to the poor and the promotion
and defence of economic, social and internal rights in process of development.
As to education of the public concerning law it shall be the responsibility of the teachers and
lawyers to educate the members of the public about the principles of the rule of law, the
importance of the independence of the Judiciary and of the legal profession and inform them
of their rights and duties and the relevant and available remedies. Teaching of at least the
general principles of law should be introduced even in the schools and if necessary the
younger students should be taught law in the form of stories like AESOPE's Fables with a
view to eradicating narrow prejudicial ideas about law from popular minds and cultivating in
them the true knowledge of the law without which human life is hardly possible in the
civilized world.33
There are deficiencies in the Law on administrative justice that lead to practical
problems in an efficient administrative justice system. In this regard, the Government
of Bangladesh may guarantee a fully functional administrative justice system.
There are lack of mapping and collection of relevant jurisprudence. In this regard,
the concerned authority may compile relevant jurisprudence and legal literature.
 There are a huge number of unexecuted decisions and Court liaison offices are not
fully operationalized. In this regard, the Government should improve the
efficiency of court management.
17
Page

33
Dr, Hamiduddin Khan, Law and life of the Society, Bangladesh Perspective,p.23.
 Civil society’s engagement and oversight over the performance of the justice system
and its actors is too weak. In this regard, the Government should support robust civil
society and media to oversight of the administration of justice.
 There are gender, ethnicity and age based barriers in the legal system. The existing
measures to protect women, minority communities, displaced and returned persons,
and children and youth are inadequate. In this regard, the Government should
implement specific measures to remove obstacles to access to justice for women,
minority communities, and displaced or returned persons.
 Despite having mandates of the Constitution as well as Act of the Parliament, there is
no Ombudsman in Bangladesh. In this regard, the government should enforce the
Ombudsman Act, 1980 to appoint Ombudsman for ensuring easy access to justice
against administrative faults.
 There is unsatisfactory level of professionalism among lawyers in judicial
proceedings. Any failure or miscarriage of justice due to negligence of the law
officers or lawyers may lead the result disastrous. Therefore, it is expected that in
discharging professional responsibilities, law officers and lawyers should be more
careful and must follow the professional code of ethics. As regards legal aid to the
poor litigants, lawyers' individual efforts may be geared up so as to meet the need of
the present day.
 However, Bar Association may take more responsibility to safeguard the integrity of
legal profession. On the other hand, we need a framework of constant monitoring and
supervising the performance of the clerks, peons, peshakars, shcrestadars and judicial
officers of the lower courts to avoid irregularities in the court process. Finally, the
salary and other facilities of the personnel of the courts should be increased so that
they can enjoy better living conditions.
 The traditional Shnlish system is sometimes quite ineffective and being abused. In this
regard, informal justice system should have been promoted with novel attire, based on
human rights principles, under the control of a supervisory body.
 The courts and Tribunals in Bangladesh could not function smoothly and
uninterruptedly because of the restrictions imposed on their jurisdiction by the 1975
Martial Law Regime (1975-1979) as well as 1982 Martial Law Regime (1982 - 1986).
18

During these periods, the Martial Law Administrations resorted to massive

Page

removal/dismissal or compulsory retirement of civil servants and judges, and all

 orders made, acts done, and actions taken in this regard by the Chief Martial Law
Administrators were made immune from being challenged in or before any Court or
Tribunal on any ground whatsoever.
Thus, the Courts and Tribunals in Bangladesh could not try any case filed against the
order/decision of the Chief Martial Law Administrator, and, as such, were unable to give
relief against high-handed actions. In this regard, apart from the constitutional steps so far
taken by the Constitution (15th Amendment) Act, 2011, proper effective political steps
should be taken to stop introduction of Martial Law regime in the country so that judicial
independence can be ensured and protected.

Recommended Readings:
'Access to Justice for Indigenous Peoples in Bangladesh' (A case study prepared by R.D. Roy,
S. Hossain and Dr. M. Guhathakurta). This publication was supported by UNDP Regional
Indigenous Peoples' Programme (RIPP).
Access to Justice Advisory Committee, Access to Justice: An action plan, AGPS, Canberra,
1994.
Access to justice round-table discussion, Parktonian hotel, Jhannesburg, 22 July 2003.
Australian Institute of Health and Welfare, The definition and prevalence of physical
disability in Australia, Canberra, 2000.
Borhan Uddin Khan, Fifty Years of the Universal Declaration of Human Rights (1998).
Advocate Sk. Shamsur Rahman, Bribe Explosion and Our Law Relating to Bribe, published
in the Dhaka Law Report Journal, July 1985.
Chambers English Dictionary (Reprinted 1991).
Dr. Mizanur Rahman, Human Rights and Empowerment (2001).
Economic Commission for Europe Task Force on Access to Justice, Third Meeting, Geneva,
14 October -15 October 2009.
Advocate Nairn Ahmed, Factors and Pressures Influencing Proceedings of Civil Litigation in
Bangladesh: Problems and Proposed Measures, published in the 'FOCUS' (a journal of legal
studies), Vol. 1, 1993.
Tatjana Haque, L. Karen Casper, Jahan Turello Dan and Riffat, 2002, In search of Justice:
Women's Encounters with Alternate Dispute Resolution, Dhaka, The Asia Foundation.
Lena Hasle, Too poor for Rights? Access to Justice for Poor Women in Bangladesh: A Case
19

Study, 2003/2004 MSC Human Rights.

Page
Justice Kemaluddin Hossain, Justice Ibrahim Memorial Lecture on "Independence Judiciary
in Developing Countries" Part III (1984).
K. J. Aiyer's Judicial Dictionary (12th Edn.).
Mustafa Kamal, ADR in Bangladesh, Article Collected from www.lawcommission
Bangladesh.org.
Law and Justice Foundation
http://www.lawfoundation.net.au/reportconsultations/18551215C340B419CA2570600
07D4EA3.html.
Law and Justice Institution- Access to Justice for the poor (Practitioners Guide) developed by
UNDP in 2005. http://web.worldbank.org/ Website/ External/Topics /EXTLawJustinst.
Law and Policy reform at the Asian Development Bank Challenges in report from the ADB
Symposium on Implementing Access to Justice Reforms, January 2005.
M Anderson, 'Access to Justice and Legal Process: Making Legal Institutions Responsive to
Poor People in LDCs' (2003).
Mahmudul Islam, Constitutional Law of Bangladesh (2003).
J. McBride, 'Access to justice under international human rights treaties' Parker School Journal
of East European Law, Vol. 5,1998.
Md. Abdul Halim, Constitution, Constitutional Law and Practice: Bangladesh Perspective
(2006).
NSW Law Reform Commission Report No. 80, People with an Intellectual Disability and the
Criminal Justice System, Sydney, 1996.
F. Osman, Problems of Formal Systems in Bangladesh, mimeo, Dhaka, 2006, BRAC
Research and Evaluation Division.
S. M. Hassan Talukder, Independence of JucHciarv in Bangladesh: Law and Practice (1994).
S. M. Hassan Talukder, Law and Judiciary in Bangladesh: An Appraisal (2011).
20
Page