What policies could be adopted in order to fix or improve legal remedies in my country or

legal system? Searching an Answer From Bangladesh.

Prepared by
Monjurul Ahsan

Introduction:
Alternative Dispute Resolution is not a new concept for the peoples of Bangladesh as this ancient
society historically manged its all the conflict with its existing social mechanism rather than
depending upon modern state. Alternative dispute resolution can be stated as “back and forth
communication process designed to reach an agreement between two or more parties in order to
resolve or prevent a legal dispute'' as stated by Professor Luigi Cominelli on 15.02.11 at IISL. ADR
is alternative to full-scale court proceedings and different in terms of application both formally and
informally. In country like Bangladesh village people usually preferred settling disputes amongst
themselves and do not appreciate any intervention from other villages. When the traditional values
and morals of the society are breaking down, then the traditional system of resolving disputes is
now standing virtually extinct and has been replaced by police cases, legal procedures and other
methods. However, traditional system of for resolving dispute still functional in the cases of
indigenous people as well as rural communities of the larger sections of the population. In this
paper, I would like to discover how traditional mechanism are functioning to resolve the disputes in
both cases of larger society as well as indigenous society and I would like to conclude with
remedies needed for enabling more functional alternative dispute resolution mechanism in the
country context of Bangladesh.

Necessity of Alternative dispute resolve mechanism in the context of Bangladesh:

Courts of Bangladesh are over burdened with huge number of cases which seems to impossible to
resolve followed by shortage of judges and courts make the problem more vulnerable. It requires
more financial support to over the the picture for manpower and other logistics. At the same time,
not enough number of students are coming out from the different public and private universities to
meet the shortage of judges and lawyers.

According to records, about 750,000 cases are pending with the courts of judicial magistracy. The
Supreme Court sources say about 500,000 cases, both civil and criminal, are pending with its
Appellate Division and at least 300,000 other cases, including writ petitions, are pending before the
High Court Division. http://www.thefinancialexpress-bd.com/more.php?news_id=91513
Government is now thinking differently and now introducing and recognizing mandatory alternative
dispute resolutions (ADR) in certain types of civil and criminal litigation and thinking that litigants
would go to court, as a last resort, once alternative dispute resolution is in place which would save
their costs and facilitate quicker dispute resolution.

Mainstream alternative dispute resolution Mechanism:

In Bangladesh, dispute resolution outside of courts is not new. However, the new thing is the
extensive promotion and proliferation of ADR models and its increased uses. In the traditional
system, disputes are resolved within the village. Historically, during the British period, in 1870, the
Panchayat system was introduced to manage and rule the area for its collection of revenue. The
Panchayat system was used to resolve minor disputes within their area, and the major disputes were
forwarded for legal procedures folowed by In 1919, the Bengal Village Self Government Act which
was introduced to resolve disputes locally. Later on, the government again itroduced the Rin
Shalishi Board to keep farmers free from tthe moneylenders to avoid clashes in the sociaty. the
Family Court Ordinance of 1961 and the Village Court Act of 1976 were introduced and authority
was vested on the Chairman of Union Parishad to try petty local cases and small crimes committed
in their area and take consensual decisions. These were later strengthened in 1985 with additional
power to cover women and children’s rights. The village court consists of UP chairman, members
and representatives from concerned parties. According to Village Court Act of 1976, the village
court can try disputes over property valued not exceeding Tk. 5,000 and obtained power to
summon a person to stand as a witness by impose a fine of up to Tk. 500 on contempt charges. The
village court provides easy access to the local people without any obstacle by allowing them to
defend their position without any outside assistance or lawyer. However, this system has some
disadvantages, such as the court decisions are sometimes biased and the members of the court may
or may not have adequate knowledge and inexperienced to conduct trial procedure. The present
Union Parishad is the primary level in the hierarchy of local bodies in Bangladesh and has a
mandate to settle disputes of the local people through Shalish. The decision of the Shalish is binding
to the parties. In the process, the village elite is also involved. Major cases are not settled locally.
Political influences are very frequent and often biased in the Shalish.
Source: http://www.studycirclebangladesh.info/admin/publication/2007041164_photo.pdf
Date:19.0211

Recognizing customary laws of the indigenous people for relsoving desputes:

United Nations Declaration on the Rights of The Indigenous Peoples, In Article 34, it has been
stated that, ''Indigenous peoples have the right to promote, develop and maintain their institutional
structures and their distinctive costumes, spirituality, traditions, procedures, practices and , in the
cases where they exist, juridical systems or customs, in accordance with international human rights
standards. ''
Source: http://www.un.org/esa/socdev/unpfil/en/drip.html
Date : 15.02.2010

Beside the main stream legal frame work of the Bangladesh, I believe that indigenous customary
laws could play very important role for resolving desputes among the parties. In this connection, I
would like to highlight some of the aspect of indigenous legal framwork which is still has been
activated with out state recognition. Chittagong Hill Tracts of Bangladesh is the area where largest
concentration of indegenous people of which is more than 6,00,000 people of the country still
operating their traditional legal mechanism to resolve dispute alternatively.

Indigenous institutional frame work for resolving desputes:

Indigenous administrative system is three tired:
1. Village level: Karbari as its leader (head), appointed from among the villagers, by the Raja
( tribal chief) directly on the recommendation of the mouza headman. The Karbari is responsible for
all matters relating to the village.
2. Mouza level: there are more than 350 in the entire CHT. Each Mouza has a headman who is
responsible to collection of revenue, preservation of peace, allocation of agricultural lands including
Jums, conservation of natural resources of the Mouza, administration of customary law etc.
3. Territorial level: At the highest level it is the Raja who has authority over hole region.
The internal matters of each village community are decided by its members under the leadership of
Karbaris.
Any matters which can not be satisfactorily placed before the Mouza headman and if required
matters are taken to Raja(Roy, Rajkumari 2000, p. 32).
These traditional institutions exercise powers of limited detention, of imposing monetary fines and
of restituting property in accordance with customary law. The administration of justice involving
family law matters of the indigenous people is formally vested by law upon the headman and the
chiefs. Most of the concerned disputes are taken before the village karbari and the same may never
reach the headman or chief if they are resoved in village level. The Karbari usually sits with a
council of influential social leaders and other village elders who tries to resolove the matter through
informal hearings. Parties are not usually represented by others, especially legal practioners, and
must plead for them selves. These deliberations may involve methods that are more in the nature of
mediation and arbitration, than adjudication. ( Roy, Raja 2004,p.131)

Problems of ADR in Bangladesh

We have many success stories of resolving issues through ADR. Many people who have
experience with ADR become very committed. People are also enthusiastic to resolve disputes
locally. Still people very frequently go for legal procedures due to the following:

– High socio-economic status groups, government bodies, large businessman gets more positive
reults than have nots as mentined by professor Luigi Cominelli (date: 14.02.11, IISL) is relevent
in the country context of Bangladesh.
Institutionalization process of ADR is still need to be developed. In most of the cases, when
negotiation takes place where its charector seems to be more like mini trial rather than facilitative or
evaluative process which reflect more autoritarian charector of the deision making process and
some times not peoples frendly.
– Persons dealing with ADR do not have adequate knowledge and experience.From my point of view, for mediating
negotiation process Bangladesh is far behind to offer a systemetic body of abstract knowledge and training
standerds to upgrade standerds of the mediator.
– For resolving desputes, process of mediation magnifying the imbalance power and seems to be
most of the cases manipulated by the strong party.
In many cases, disaggregation and privatization of class and public interst could be visbile while
Alternative Dispute Mechanism works. For example, In June 14, 1997, Magurchara gas field
explosion coused by International gas exploring compnay 'Occidental' escape from the scence by
negotiation process with the leaders of the indigenous people while destroying large portion of
Lawachara researve forest and wild life. At the same time they negotiated with the government
agencies with minimum amount of compensation. Thus, we could say that this kind of settlement
actually privatizing justice system of the country and depoliticizing issues that are very much has
political charector.
Peoples` lack of trust of community leadership

Ploicy recommendation for the Procedures of the ADR

– ADR needs to be complience with existing legal framework of the country. Other wise, positive
out come of ADR such as devlop bargaining power of the poor, avoiding conflict, win-win
situation, maintaing social harmony could not be achived unless fair procedure of ADR if not
executed following the rules of law and social justice. In that sense, there is a option to make
bridge between existing national legal framework with traditional mechanism. Other wise,
developing country like Bangladesh where common people are less empowerd can be
maipultaed by the powerful strong party.
Socio-legal scholers of Bangladesh realized the importance of making this bridge and opined for
strengthening and broadening differnt doors of the existing legal framework for co-opting spirit of
ADR movement as stated below while they were presenting in a national conference regarding
'Enforcing Court Sponsored ADR in Bangladesh' held in September 18, 2010 by Bangladesh Law
Commission. Main recommendation were as follows: a. Petty disputes to be resolved at grassroots.
b. Establishment of ADR training institute. c. Development of the leadership of the Supreme Court
for implementation of ADR policy. d. Developing National policy for the alternative despute
resolution. e. Awareness building. f. Changing the mindset of lawyers and judicial officers
regarding ADR. g. Nationwide awareness campaign among stake holders. h. Training in ADR
should be available to the law graduate. I. Lawyers succeeded in settling a dispute by way of ADR
may be paid by the Government. J. Decentralization of the High Court Division and proposed
circuit bench of the HCD to be held in different parts of the country to mitigate the miseries of the
justice seekers by ADR.
From my point of view, beside openingg doors of the national legal frame work for co-opting ADR,
we need to reconsider existing traditional customary legal system as well as indigenous legal system
by providing them training as well as awarness to the community to get a conscience knowledge
how a dispute could be resolved with going to the court.

Conclusion:
ADR implies that dispute has an end by its expressive, processing, treatment and conflict
management ability by naming, blaming and claiming. This back and forth commuication process
has effetive role, if it can properly do its functional role for the shake of well being of the sociaty. In
country like Bangladesh, ADR has great siginificance in order to promote Justice and well being of
the sociaty.

References:
Roy, Rajkumari Chandra.(2000), ´´Land Rights of the Indigenous Peoples of the Chittagong Hill
Tracts, Bangladesh`` IWGIA Document No. 99, Classensgade 11 E, DK 2100-Copenhagen,
Denmark.

Roy, Raja Devasish. (2004), ´´Challenges for Juridical Pluralism and Customary Laws of
Indigenous Peoples: The case of Chittagong Hill Tracts, Bangladesh``, Arizona Journal of
International and Comparative La, Volume 21, Number 1, spring 2004

Cominelli, Luigi on 14-18.02.11 at IISL (Class lecture)

http://www.studycirclebangladesh.info/admin/publication/2007041164_photo.pdf
http://www.thefinancialexpress-bd.com/more.php?news_id=91513
http://www.un.org/esa/socdev/unpfil/en/drip.html
http://www.thedailystar.net/law/2010/10/02/event.htm