Access to Justice and ADR

Lesson 1 1
Meaning of Access to Justice
• Limited access for the poor and disadvantaged to formal justice and
legal entitlements in the courts of Bangladesh
• Reasons: huge backlog of cases, delays in the disposal of cases and
high litigation cost
• The country’s judiciary is now facing a huge backlog of around 34 lakh
pending cases in the courts, causing immense suffering to the justice
seekers, according to findings of the Justice Audit Bangladesh (April
2019).
• There are around 515,000 cases pending in the Supreme Court at
present. The figure was only 25,000 in 1982.
Lesson 1 2
Meaning of Access to Justice
• Amid such situation, only 13 percent people are now getting judicial services
from the courts across the country, according to the report of Justice Audit
Bangladesh.
• The audit report said that the pending cases at Chief Judicial Magistrate
Courts was 14 percent in between 2016-2017 while the growth of piling of
the pending cases was 16 and nine percent at Sessions’ Judge Courts and
High Court Division respectively.
• If the growth continues at same pace, the audit report projected that the
pending cases in Chief Judicial Magistrate Courts, Sessions’ Judge Courts and
High Court Division would be 72, 82 and 89 percent respectively by 2022.

Lesson 1 3
 Justice System Case Flow

The chart above depicts the flow of cases from complaint to police and court through to sentencing and
prison. The size of the circles represents relative volume of cases. The number in the large circle in the
middle represents the total number of cases (pending and new). SOURCE: bangladesh.justiceaudit.org
Lesson 1 4
Justice System Case Flow

The graph provides estimated projections of the growth of pending

cases in court (2018-2022). SOURCE: bangladesh.justiceaudit.org
Lesson 1 5
Supreme Court Statistics
SOURCE: bangladesh.justiceaudit.org
Crimi Crimi Civil
nal nal Civil Cont
Criminal Jail Jail Civil Civil Petiti Civil empt
SC_Appellate Criminal Criminal Misc. Criminal Petiti Appe Petiti Revie on Appe Petiti Tot
Division Petition Review Petition Appeal on al on w Etc. al on al
Cases carried
forward from 133
2015 867 79 992 654 100 32 7088 504 1320 1658 67 61
Cases filed in 994
2016 1271 90 1327 173 15 6 4044 652 1585 748 34 5
Subtotal cases 560
in 2138 169 2319 827 115 38 6
Cases disposed 963
in 2016 1186 95 385 91 5 8 6580 244 541 482 17 4
Total pending 136
end 2016 952 74 1934 736 110 30 4552 912 2364 1924 84 72

Lesson 1 6
Meaning of Access to Justice
• Scarcity of judges
Number of judges and magistrates by district
Source: Ministry of Law, Justice and Parliamentary Affairs Year: 2018
Total M F
Deputation 164 133 31
Total Judges 971 739 232
Total Magistrates 498 398 100

Lesson 1 7
Meaning of Access to Justice (A2J)
• A2J means access to formal adjudicative processes in the court system or access
to litigation.
• A2J in its narrower sense echoes the doctrine of ‘social exclusion’ in society,
which has been defined as ‘limited access to the full range of social citizenship
rights, which precludes the poor from exercise of such rights’.
• In border sense, A2J includes some informal and non-adjudicative process; e.g.
village salish.
• There are different alternative modes of justice, which complement existing
formal courts and can be used to enhance access to justice to those who may not
be able to access justice through the formal justice delivery system.

Lesson 1 8
Purposes of A2J
• To ensure that people have physical access to the existing justice
delivery system such as court, tribunal, or other forums delivering
justice, etc.
• To ensure that the people’s justice delivery system ensures fair and
equitable justice (also procedural fairness).

Lesson 1 9
Lord Woolf’s General Principles to Access
to Justice
• Justice is fair when it:
• is just in its outcome;
• ensures that litigants have an equal opportunity to assert or defend their
equal rights, regardless of their resources;
• provides every litigant with an adequate opportunity to state his or her own
case and to answer his opponent;
• is dealt with reasonable period;
• is understandable by the parties;
• provides as much certainty as the nature of particular case allows;
• involves procedures and cost proportionate to the nature of the issue.

Lesson 1 10
Development of the Concept of A2J
• Three waves of A2J started in 1960s in the USA
• 1st wave: a series of efforts from many developed countries to increase
access to legal aid and legal advice to their citizens. Example: 1963, USA
SC – criminal defendants have a right to legal counselling in serious
criminal charges; LSCS
• 2nd wave: A2J through a class of actions, known as PIL, for collective or
social interest.
• 3rd wave: A2J movement started with the introduction of ADR and other
informal processes to resolve small claim cases in the USA.
• How these three waves are relevant to the context of Bangladesh?
Lesson 1 11
Recognition to the Right to A2J
• A2J under the Constitution of Bangladesh 1972
• Access to justice under UDHR 1948 art 6, 7, 8
• Access to justice in other international instruments (ICCPR art 16;
ICESCR)

Lesson 1 12
Barriers to A2J and notion of ADR
• Subjective barriers: intellectual and physiological barriers including
“age, physical or intellectual deficiency… the attitude of state
functionaries such as the police, lawyers and judges”
• Objectives barriers: “purely physical barriers including geographisic
dispersion of courts, availability of claims officers and lawyers etc.
while other objective barriers are ‘cost of obtaining legal redress’,
‘delay in legal’ proceedings’ and ‘structural complexity of the legal
system”.

Lesson 1 13
Limits of A2J in Formal Justice System
• Delay in the formal justice system
• Increasing, high expenses of litigation
• Under stuffing in formal courts
• Complexities in court process
Corruption in justice delivery
• Scarcity of legal aid

Lesson 1 14
Mandates to Practice ADR
• ADR under Quranic law (Al Quran 30:21; 4:35; 42:40)
• UN Charter (Art. 33)
• ICCPR 1966 (Art 42—conciliation commission)
• Arab Convention on Commercial Arbitration 1987
• Inter American Convention on International Commercial Arbitration
1975
• European Convention on International Commercial Arbitration 1961
• WTO DSB (Art 21.3)
• MFLO 1961; FCO 1985; CPC, Labour Act, ITO, etc.
Lesson 1 15
Assignment
• Write a 700-word piece on “Ensuring Access to Justice through the
Introduction of New Technology in the Judiciary”.
• Submission deadline: 10 July 2019
• Follow standard rules of citation and referencing

Lesson 1 16