This article was first published in The Independent at http://www.theindependentbd.com/arcprint/details/129137/2017-12-22
There is a vast virtual library of reports, written by countless reputable experts and organisations, describing how dysfunctional the criminal justice system in Bangladesh is; how corrupt, how slow, and how inefficient it is. No report fails to fret over the millions of pending cases in ‘the backlog’.
Yet, despite all that, it is a deeply fascinating and intriguing system. Nothing ever quite is what it seems to be, and every time I visit, I learn something I didn’t know before, and that certainly isn’t mentioned in all those reports.
Visiting courts in Bangladesh is like travelling in a time machine to a bygone era. The language is a mixture of Farsi from the Mogul empire, English from the Raj, all embedded in legal Bengali – a bahasa so cryptic that laypersons whose mother tongue is Bengali will, at best, understand it only partially.
I find myself walking through scenes from a Charles Dickens novel. Hawkers are selling food and drinks to weary litigants and their families. Lawyers dressed in long black robes hasten by, carrying bundles of time-faded documents, bound together with pieces of string.
Cases and all information associated with them are recorded in enormous ledgers, filled to the margins with Bengali handwriting so neat it could pass for calligraphy. Judges write down what every witness, complainant and accused says, in shorthand.
Everything is manual; the administration of justice for over 160 million people is done with the help of nothing but pen and paper. Computers are few and far apart, often covered with a towel to protect them from dust, and hardly ever switched on. In a system from the 19th century, computers remain, for the most part, superfluous.
Commenting on plans to digitalise court processes, a Nari-o-Shishu judge cautioned; ‘if my computer breaks down today, it makes little difference – my court will carry on regardless. But if you make us dependent on those machines, then what happens if they break down?’ Her comment helped me realise what it is that has come to fascinate me so much about the justice system: its resilience.
Every morning, for hundreds of years, these courts have opened their doors. They have been through colonialism, wars of independence and liberation, political upheaval and coupes, flooding and droughts. While the world around them has transformed itself through technology, the law courts of Bangladesh have resolutely stood firm, and very little has changed. Every day, thousands of cases are adjudicated, according to laws from an era when neither cars nor aeroplanes existed, and when it was still considered fitting for European rulers to exploit colonies for profit and strategic advantage. Miraculously, Bengali ingenuity has somehow managed, through a patchwork of pragmatic bypass solutions, to make this supposedly anachronistic system operate in 2017, serving a young, energetic, independent nation that is generating impressive economic growth.
Almost defiantly, the court machinery somehow grinds on. But perhaps there is more to this than the scenes from a 19th-century saga.
Cases often drag on for many years, prompting parties to settle grievances on their own terms. The fashionable phrase seems to be ‘alternative dispute resolution’ only that in many cases, it is not an alternative at all, but rather the only way to get a result since the formal system is so unlikely to reach a verdict. But then it also appears as if the tedious court process serves to incentivise parties to do a deal, and if the alleged offender is in custody, then the pressure is undoubtedly on to try and find a solution. Prison conditions are said to be grim and people are known to sell all they have to get their loved ones out.
We might be looking at a colossal informal negotiation scheme, in which the formal process is merely a lever used to coax an antagonist into an accord. Money is undoubtedly critical in all this, and as in every other aspect of life, it will buy significant advantages.
So effective might this scheme be, that some insiders say that many of the old pending cases have in fact been settled and that those cases only exist as stained and dusty files, tucked away in some corner, long since forgotten by the litigants. If we just count cases that are 'live' in the sense that the parties have not settled them, then the infamous ‘backlog' may not at all be as overwhelming as the official data suggests. Similarly, if we measure the time it takes to settle, instead of counting the years it takes to dispose of a case formally, then the system may not be as slow as it appears from statistics.
Perhaps the best way to understand the criminal justice system is to think of it as a theatre. There is one performance on stage, one that we can all come and watch, the one that is reviewed and critiqued in the all those reports I mentioned earlier. Then there is another drama, taking place backstage, where only the actors and crew are permitted. Those of us sitting in the audience will know precious little, if anything, about what goes on in that drama after we have all gone home at the end of the evening's performance.
Maybe this helps explain how the criminal justice system can be so resilient.
Maybe it is only that play on the stage that has stuck to the 19th-century manuscript, allowing the real drama to unfold behind the scenes, unfettered by obsolete laws, archaic procedures and mystical language.
Maybe by looking at what is functional, as opposed to being so obsessed with that which appears dysfunctional, will we understand the real story better.
Maybe.
Only the actors would know.
Marcus Baltzer