Case management system to reduce case backlog

The Case Management System (CMS) has a focus on delivering justice in time with a 'rights based approach'. Here procedural law is considered as a case management tool. Lately, the focus on 'Case Management' in judiciary is ensured all over the world but it is a new thought in Bangladesh. 

Generally, civil cases are document based. However, in most of the cases oral evidence is taken as supplementary to the documents. Sometimes, it is taken to prove documentary evidence. The civil courts of Bangladesh follow the Evidence Act 1872, the Code of Civil Procedure 1908, the Civil Rules and order, The Civil Courts Act 1887, the Civil Suits Instruction Manual and some other special laws as applicable to operate a civil case.

Both my professional and research experience reveals that most time consuming stage in a civil case is 'examining witnesses (evidence)' which is commonly known as 'peremptory hearing (PH) stage'. In examination of witnesses that are very often familiar as 'oral evidence', is not a very vital to prove the civil case, preferably the court looks for the documents mainly. Oral evidence are rather supplementing to the documents or when there are lack of documents to support the client's case.

The traditional way of taking evidence in civil cases has been described in sections 135-166 of the Evidence Act 1872 and Order XVIII of the Code of Civil Procedure. Among them section 138 ensures the order of the examining witness as: examination in chief, cross examination and re-examination. The witness statement is now used in civil cases for a lengthy examination-in-chief. The common practice in Bangladeshi civil courts in examining the witnesses are to state the whole case line by line and the judge has to write all the statement by hand and if not then s/he must have to clarify according the CPC (rule 5 and 8 Order XVIII of the Code of Civil Procedure 1908). 

In civil cases, judges deals with commonly two types of cases: first, those require the presentation of oral evidence to prove the case and second, those involve only the revision of documents. The first category needs the full trial and mostly is complex in nature and time consuming, whereas the second category can be identified as simple, less time consuming and those could be decided upon the documentary evidences.

In 2008 Malaysia adopted 'tracking system' that involved separation of cases/issues that could be resolved by affidavit with some other case management. Malaysia conducts the second category of cases, termed as 'trial by affidavit' skipping peremptory hearing stage to dispose the cases quickly and they have reduced a huge number of case backlog.

The same procedure may be adopted in the Civil Court of Bangladesh to reduce case backlog. For that, when the cases are lodged, it should be classified according to complexities and right the moment it would be identified whether it needs oral evidence or not. When it needs only reviewing documents, it should be summed up with 'peremptory hearing' stage that is examination of witnesses. The statements of the Plaintiff(s) and Defendant(s) that is 'examination in chief' would be submitted to the court by affidavit because it will save time and speed up the case. In case of documents based cases, the court will fix a date for argument or a short hearing summarising the examination of witnesses.

On the other hand, the cases need full trial with examining oral evidence would also be summarised by making the 'examination in chief' submitted through affidavit and limiting cross examination only on the question of law and question of fact. My professional experience revealed that majority of lawyers do not prepare for cross examination and waste court's time by making vague questions rather on the issues. This time consuming stage for the court must be stopped and it would only be possible when the lawyers will take adequate preparation and focus on the issues of cases. In addition, there should be an option of winding up a case on the administrative ground, for example lack of taking action on due time or expiration of the time limits.

In addition, the judgement writing procedure needs to be changed as well. The Code of Civil Procedure ensures to address all the issues at the judgement (rule 5 Order XX) but in practice, the judge writes the case of the plaintiff and defendants (very often it is made in elaborative form) which is time consuming. Here the provision of summary judgement for the appropriate cases would be introduced to save time and ensuring speedy disposal. However, we must be cautioned that summary judgment is not always appropriate for every case and it may vary.

Bangladeshi legal system is too complex for a lay man to navigate easily. As being in the common law system, Bangladesh has been able to rely extensively on the judiciary's ability to alter practices through modifications to its own rules and additional directives. However, these proposed changes will require modifications to existing procedural laws. For example, in addition to further changes to implement case management system in the civil courts of Bangladesh, simplification of introduction of evidence for civil cases – in essence the admissibility of written documents for the examination-in-chief should be allowed in the civil court proceedings.

THE WRITER IS MPHIL CANDIDATE, MACQUARIE UNIVERSITY, SYDNEY.