Law reform: 'Snail in coma'?
The process of law reform is notorious for its snail's pace in Bangladesh. But recently, after reading the book Bangladeshe Ainer Sanskar O Ain (2016) by one of our leading legal academics Professor Shah Alam, a question popped into my mind: where is the snail of reform now? Is it alive or in a coma?
Justice Krishna Iyer once metaphorised law reform with 'making corrugated irons flat with a hammer'. Professor Alam's publication reminded me of that metaphor. In the book, Alam comes up with a set of law reform proposals. These proposals were made to the government by the Law Commission Bangladesh (LCB) at different times over the last twenty years. Alam's association with the LCB as its Member and Chairman (Acting) for almost a decade puts him in a position to play a leading role in making those reform proposals. In this book, therefore, Alam canvasses the necessity of law reform to the larger audience perhaps from a greater sense of accountability. Through this, Alam also wants to be honest to his conscience against an unimpressive record of law reform. As such, I see the book as a demonstration of further public communication of LCB's works. Alam reminds us that the Law Commission's purpose is to promote law reform for people's empowerment. Therefore, if the government seemingly traps the LCB into the nets of 'bureaucracy', a communication is to be made to the people who are the ultimate source of law. Alam's publication, from this end, is a thirst to place 'law at people's service'.
In my understanding, a central theme of the book is the nature of 'legal transplantation'. Professor Shah Alam argues for transfusing a fresh blood into the legal system by borrowing the experiences of other jurisdictions. For example, he argues for establishing a national law school after the 'Menonic Vision of Legal Education' through which India has excelled in producing globally competent law graduates. Other examples of legal import includes: introduction of the notion of ADR and plea bargaining, modification of the share of a sole survived daughter of a deceased in the inherited property, benefiting from the civil law legal system in expediting the justice process, withdrawing Bangladesh's reservation to the CEDAW, using Bangla as a court language and so on. However, Professor Alam's line of thought reminds me of the problem of implanting foreign model into the native legal system, a problem that Professor Teubner (1997) calls 'legal irritation'. For Teubner, 'no model from any one legal system will perform in precisely the same way when transplanted into another legal system.' In order to avoid this 'irritation', however, Professor Shah Alam favours continued research on foreign experiences before they are allowed to anchor at the chariot of our native jurisprudence.
The important question Alam poses in the book is whether the efforts of law reform in Bangladesh should be doomed into a failure. For me, this invites a deeper investigation: whether the institutions of law reform in Bangladesh are appropriate to deliver effective law reform. Therefore, the reader would have loved to know how Alam views the law reform model with the apparatus of a LCB having recommendatory power only. This question is significant because the duty of law making appropriately belongs to the legislature. One may then legitimately ask why it fails to bring the reform on regular basis. Is it not because the legislature in Bangladesh is usually under the control of the executive government whose legislative program may have no space for law reform or it may not be appealing to its political agenda or it may be opposed to the interest of powerful groups whose support is crucial to teeth into the state power.
Yet another problem in the way to effective law reform is 'departmentalism', which Alam couches in a different language perhaps from his trait of humility. Every organ claims its superiority over the other. This mindset is never absent from the thinking of many who yield power including law making one. The bureaucracy having its influence on the executive thinks that they have the sole prerogative to draft the law. As such, they assume that LCB is lawfully born (1996) to be unnoticed. A lawyer-turned-law minister, therefore, has many reasons not to read the recommendations of the LCB equipped with retired judges and academics. This phenomenon reduces the LCB into an 'academic think tank' than an effective machinery of legislative government. It is in this reality, the moot issue we miss from the book is: how we wish to view the LCB model of law reform? Or do we need the reform of the law reform?
In many cases, Alam mentions, the LCB even makes the draft of a law in order to lessen the burden of the bureaucracy. These draft legislation constitutes an important contribution to legislative enactments. The LCB's drafting process allows the enactment to test the broad generalities of law carefully drawn after series of discussions and research. Overlooking the findings of the LCB, therefore, is an acceptance that unjust and inappropriate outcomes do not matter or must simply be tolerated. This, Professor Shah Alam rightly mentions, defies our 'imagination'. The testimony Professor Alam produces leads us to think that the government needs a LCB like 'a fish needs a bi-cycle' (In last twenty years, only in 14 per cent cases government pays attention to LCB's recommendations).
Alam's book serves another purpose. It mitigates readers' inquisitiveness to know the way of functioning of the public bodies. It is a reminder that reform requires an investment in public communication: our language, our timing and our performance. Therefore, a compelling narrative is essential in selling the reform to the uncommitted 'wait-and-see' public servants to make them know what is going on. Professor Shah Alam's book, therefore, is about making a public case designed to make people face the need for key changes.
The reviewer is currently pursuing PhD in Law at Victoria University of Wellington.
Comments