On the efficacy of the amendment to the Legal Aid Act, 2000

Mohammed Shahjahan : A lively debate as to the merits and otherwise of the recent amendment to the Legal Aid Act, 2000 is on across the table amongst the legal fraternity now. While a number of the gentry in the judiciary tend to be supportive of the said amendment, lawyers in general are on the other side of the spectrum! These diametrically opposite stands have given rise to some pertinent questions as follow.

The said amendment seeks to alter specific provisions of as many as nine distinct types of legislation on both civil and criminal disputes. The civil matters covered by the amendment happen to be disputes relating to family, premises rent control, partition and pre-emption of land and maintenance of parents whereas the criminal matters under the amendment concern dishonour of cheques and dowry.

The amendment aims, purportedly and arguably, at modernisation of the judiciary, reduction of backlogs of cases and ensuring access to justice for the aggrieved.

‘Modernisation’ being a lofty concept warrants the fulfilment of conditions more than one to be translated into reality in any sector of national life. And for legal aid to be vibrant here in our country, one can’t simply afford to lose sight of the acute shortage of manpower and infrastructural impediments facing the district-level legal aid offices.

Also Read : Independence Day of USA & its relevance with Bangladesh’s journey towards rebuilding Democracy, Due Process of Law & Human Rights

True it is that the judiciary as a whole stands plagued with huge backlog of cases. As the reasons are many, so are the ways to address them. But regrettably enough, the only viable option finding favour with the policymakers concerned happen to be outsourcing! By ‘Outsourcing’, I refer to the phenomena of further clothing the Village Courts and the legal aid officers with enhanced jurisdiction over such matters as are in the amendments so brought about over the course of last couple of years. The crux of the problem of backlogs of cases lies squarely in the inadequate number of judicial officers, though. What do we make of it?

The amendment has made pre-litigation mediation mandatory in the disputes cited above. Herein comes the question whether a mechanism that has not been mandatory hitherto should overnight be made so or not. This is all the more so because it has the effect of precluding the citizens from the right to a speedy trial before an impartial court of law as mandated by the constitution. What if recourse to mediation were provided for only in matters pending before the courts of law as under Section 89A of the Code of Civil Procedure, 1908?

Also Read : Some Reform Proposal to Ensure Justice in the Criminal Justice System

The recent shift in legal aid legislation is intended to compel the prospective plaintiff or complainant to knock at the door of the legal aid office sans specifying the legal consequences in case the defendant or the accused refuses even to attend. And there is more to it. There being no time-frame set or stipulated for the resolution of the disputes to be laid before the legal aid officers, the aggrieved would be in for much delay and hardship. Besides, they would, in the long run, be required to file cases or suits that might possibly increase the sufferings and the costs of litigation manifold.

When it comes to civil disputes such as premises rent control, partition and pre-emption of land property, the parties may badly be in need of interlocutory orders in the form of temporary injunctions or orders as to maintenance of status quo. What happens under such circumstances?

With the legal provisions of limitation requiring strict compliance under the Negotiable Instruments Act, 1877 in place intact, how come a holder in due course approaches the legal aid officer instead of the court of law designated?

That both the Acts of 2000 and 2018 dealing with the offences of dowry are special laws necessitated to curb the menace of repression on women in our country is common knowledge. Would it really be an exaggeration should one claim that the amendment is apt to decriminalise the offences of dowry poised to render women more vulnerable to repression?

Author : Mohammed Shahjahan; Advocate, Supreme Court of Bangladesh.