ALTERNATIVE DISPUTE RESOLUTION: BANGLADESH PERSPECTIVE1

ALTERNATIVE DISPUTE RESOLUTION: BANGLADESH PERSPECTIVE1

Mohammed Yasin2

&Mohammed Mohiuddin Khaled3

AbstractThe term Alternative dispute resolution is foreign

historically, but the concept was culturally ingrained inthe long practice of village administration system of

Bengal. It has now become a very contemporary concept forthird world organism for the reason that, the marginal

people of third world, such as of Bangladesh are in paradoxof myths of law and order system of a traditional design. Thistradition is, however, not originated from the indigenous

cultural roots, but from British colonial inheritance, whichwere prepared and applied to dominate the natives, and

awfully notable that, from the pre-assumption of adissimilar culture and society. So, now the clash moment ofour law and order system is very apparent, and the social

philosophers are searching for an alternative way of disputeresolution. In this paper, we have an intention to seek and

evaluate their thinking, propositions and intellectualworks, line up the frequent goal of those propositions andquestioning some criterion which is followed by them. As

result, the philosophy of this paper is based on appraisingand searching the most effective ways for resolution of

disputes other than formal legal system, not only non-state,

1 The paper was prepared for and presented in a seminar on Alternative DisputeResolution: Bangladesh Perspective organized by Law Club, on September 27, 2005, at 4.00pm in the academic building 2, Southern University Bangladesh.

2 Student, Department of Law, Southern University Bangladesh.

3 Associate Professor & Ex-Chairman, Department Of Law, University Of Chittagong& Advisor, Department Of Law, Southern University Bangladesh.

of ‘Alternative Dispute Resolution: Bangladesh Perspective’

or non-formal, but originated from the rooted culture of thesociety.

Alternative dispute resolution: range and objectiveAlternative dispute resolution covers a range of means toresolve conflicts in a method other than formal litigation.The modern ADR movement originated in the United States inthe 1970s, inspired by a desire to avoid the cost, delay,and adversarial nature of litigation, in order to providemore effective, efficient and satisfying dispute resolution,and thereby improving the quality of justice and citizenperception of it. The present interest in ADR, in many partsof world is motivated for four principal concerns (Genn,Hazel: 1999): (a) avoiding the cost and delay of courtproceedings and coping with court overcrowding, (b)improving access to justice, (c) offering more efficientmethods of dispute resolution, and (d) offering the publicmore chance to be involved in dispute resolution process.Alternative dispute resolution (ADR) techniques, which aredesigned to resolve civil disputes outside the auspices ofthe formal judicial system, has taken diverse forms,including court-ordered arbitration, summary jury trails,private adjudication, corporate ‘mini-trials’, and communitymediation. Proponents say it saves time and money forlitigants, eases the burden on an overloaded court system,and focuses on negotiation and compromise rather thanconfrontation and making liable. Detractors, however, claimADR is basically designed for business disputes and theaffluent class and could narrow the access of minorities andthe poor to the formal judicial system.Now, from the experience of USA and UK, the court reformersare seeking to foster its use in developing nations. But itis a prominent fact in this instant that, the concept of ADRin the marginal countries is motivated to a desire to reviveand reform traditional mediation mechanisms of theirhomespun cultural roots, which includes not only civilcharacter of cases but also some sort of disputes ofcriminal character. So, the goal of ADR movement in third


world countries like Bangladesh initiates a movement forchange in society, the legal system and jurisprudence oflaw.

The Problem Area: rough road to realityBangladesh is a small country with an area of 142,776 sq.kilometers. It has a population of about one hundred andthirty million. Bangladesh is almost surrounded by Indiawith a small part of its eastern border shared with Myanmar.This country won its independence from Pakistan in the year1971, under the process of a bloody war. The vast majorityof the population of Bangladesh is Muslim by religionincluding some Hindus, Buddist, Cristian and a few tribalAdivashies. Most of the population are of spiritual mind innature but not conservative anyway. They are sometimesmisled by the conservative politicians. Most of thepolitical groups often use religious sentiments for theirpolitical gain.Bangladesh inherited a colonial legal system from theBritish by means of historical disaster. Early colonialgovernment introduced the English Law and Polity in Indiawhich included present-day Bangladesh. The East IndiaCompany introduced the civil military systems in the Indiansubcontinent. This imposition had resulted to the conversionof simple indigenous law of India into the complexlegislative and justice systems of the British colonialauthority. After the end of the British colonial rule in1947, Bangladesh went under the ruling of Pakistan. But, thelegal system had minimal changes during 1947-1971—until theindependence of Bangladesh from Pakistan. Thus, the trendsof judiciary and sociology of modern Bangladesh lawindicates that over the last 34 years, it has beenstruggling with an inherited judiciary, which isquestionable from its own context.Now the fact is that, the judicial system of Bangladesh isjammed by huge backlog suites and cases similar to someother common law countries. Backlog of cases in the courts,and widespread judicial corruptions, put the condition of


law and order in Bangladesh at hazard. US Embassy in Dhakain its commercial guide pointed out that, in Bangladesh overten years can pass between bringing a court case andexecuting a judgment and there is no penalty for delayingproceedings. Such a position of legal situation influencesthe world entrepreneurs badly who are interested ininvesting money in Bangladesh, as well as it suffers thepoor peoples of the country. Delay in disposal of cases in Bangladesh has reached a pointwhere it has become a part of injustice, a violator of humanrights (Alam, M. Shah: 2000). At this context, an importantsubstance is that, in a society of class differentiation theprolonged process, which is adversarial and belligerent innature, places the financially stronger party at anadvantageous position. If the judicial system functionssubstantively and in accordance with the procedural laws,the increasing scope for delays can transform it into asystem which may become procedurally hostile towardsmarginalized sections of its people, defeating the goals ofsocial justice. There can be remarked some crucial reasonsfor delay in the functioning of our civil justice system(Alam, M. Shah: 2000): (i) the adversarial character oflegal system which provides wide maneuvering power to thelawyers, and presupposes lesser initiative and relativepassivity of the judges; (ii) vested interest of the lawyersfor lengthening and delaying the process, for they are oftenpaid for their appearance in the court; (iii) commonly madeinterlocutory orders and appeals which fracture the caseinto many parts and effectively stay the trial; (iv)absence of Lawyer-Client accountability giving the lawyermonopoly power to conduct the case the way he considers bestsuited to his own interest; (v) little scope for client-client interaction which hides potential for alternativedispute resolution and intensifies conflictual nature of theproceedings; (vi) rotation and transfer of judges, oftenmeaning that the same judge who heard testimony may notdecide the dispute, taking away thereby much of hisincentive to push forward the proceedings to judgment andseriously impeding the process of continuous trial, the new


judge may have to repeat some of the procedural requirementsalready fulfilled; (vii) inadequate administrative andlogistic support system, enormous workload of the judges,poor salaries and poor working conditions- all havingnegative impact on the initiative and efficiency of thejudges; (viii) insufficient internal discipline andaccountability.So, in our present legal system, increasing expenses oflitigation, delay in disposal of cases and huge backlogshave virtually shaken the confidence of the people in thejudiciary (Husain, Syed JR Mudassir, J.: 2004). In thisbackdrop, we cannot but ponder about the device like ADRwhich is potentially useful for reducing the backlogs anddelay in some cases of our courts. It is also opinion of theADR promoters that, alternative dispute resolution, beingmuch cheaper and speedier than the existing legal system,can greatly mitigate the sufferings of poor litigants(Husain, Syed JR Mudassir, J.: 2004). Amicable settlement byway of ADR leads to win-win results for the parties, ratherthan lose-win situations in the formal court adjudication(Alam, M. Shah: 2006).Another prominent essence for establishing ADR system is thenecessity to make a transit way into the local disputeresolution system of Adivasi, minor and other marginalpeoples of the country. Adivasi traditions with itsdifferent method of life, different religion, differentlanguage, and different methods of jurisprudence survivedfor centuries in this land (Dhavan, Rajeev (1989). Toexplore and patronize their personal laws and culturalcomponents ADR can play an important role.

Introduction and Development of ADR in BangladeshDespite the fact that the concept of ADR in Bangladesh isimposed and developed with the intention to stand in samefooting with developed countries as USA and UK, the natureof Bangladeshi ADR has its own personality andrepresentation differing with the foreign one. The foreignADR is based on commercial disputes; the main goal is to


avoid cost and delay. But in Bangladesh, there is asignificant substance that, the introducing of ADR in thescope of Law initiates firstly in family disputes. Theimportant fact is that, in a vibrant capitalized society,the objective of ADR is how far could be ensured thebusiness interest of capitalism, but in a third worldcountry, like Bangladesh, the goal initiates with theaspiration how far the social harmony can be maintained. So,the movement of ADR in such countries is motivated to thereviving and reform of traditional mediation mechanisms oftheir homespun cultural roots which includes not only ofcivil but also tiny criminal disputes. Notable, huge NGOs inBangladesh are working in the field of ADR in rural site, torevive the home ingrained dispute resolution system ofBangladesh. The Conflict Management Group for USAID’s Centerfor Democracy and Governance conducted a study on theAlternative Dispute Resolution (ADR) in Bangladesh. Thestudy showed, in Bangladesh, a broad NGO-led communitymediation program, supported by the USAID and the AsiaFoundation, mediates over 5,000 disputes a year. However, wewould discuss now the development of ADR in Bangladeshconcisely.With a desire to resolve the degree of problems faced by thecourts in Bangladesh and the noticeable inability of theexisting legal system, an initiative was taken in 1999 byMr. Justice Mustafa Kamal to initiate reforms in the legalsystem of Bangladesh (Mahbub, SK. Golam: 2005). TheBangladesh Legal Study group was formed under the leadershipof Justice Mustafa Kamal. The other members of the BLSG wereMr. Justice K. M. Hasan (the then senior most judge of theHigh Court Division, later the Chief Justice of Bangladesh),Mr. Justice Anwar-ul-Huq (then Joint Secretary, Ministry ofLaw, Justice and Parliamentary Affairs, later elevated as aJudge, High Court Division), Professor Dr. M. Shah Alam(then a member of the Law Commission,) and Barrister ShafiqAhmed (then president of Supreme Court Bar Association).In its report the BLSG identified lack of accountability,absence of discipline and fragmentation in the litigationprocess and the absence of resourceful alternatives to full


trial as the most pressing problems. One of therecommendations made in the report was to initiateimmediately a pilot project on mediation, a non-mandatoryconsensual dispute resolution system, in the Family Courtsin Dhaka, and then expand it to other courts. The reason forinclusion of the Family Courts in the Pilot Project was thatit did not involve any new legislation. The Family CourtsOrdinance, 1985 itself provides for conciliation whereasinclusion of other courts at that stage needed legislationor amendment of the Civil Procedure Code 1908 (Hasan,K.M.:2001). The ordinance deals with divorce, restitution ofconjugal rights, dower, maintenance and custody of children.The ordinance empowers the trial judge to effectreconciliation between the parties both before and aftertrial. In the Pilot project, statistics show that the totalrealization of money through execution of decrees in familysuites disposed of by trial is far below the totalrealization of money in disputes settled through mediation.From 1985 to 2000 the total money realized in connectionwith Family Court cases of the three courts in the projectwas about TK. 62,00,000 whereas the total realizationthrough mediation in the same courts from June 2000 up to16th May 2001 was about TK. 51,00,000 (Hasan, K.M.:2001)The paramount success of the mediation courts is changingthe mental attitudes of the judges, lawyers, litigants andgeneral public who were doubtful about mediation. Theexperience in Family Courts has provided a strong foundationupon which an environment to introduce ADR in commercialcases has been established. In this context, recently someprovisions for mediation have been included for the firsttime in the Code of Civil Procedure 1980 and in chapter V ofthe Artha Rin Adalat Ain 2003. The provision included in the CPCis applicable to all suits to be filed or pending in courtsexcept a suit under the Artha Rin Adalat Ain 2003.Now under sub-section 1 of the section 89A of the CPC, atany stage after filing a written statement(s) by thedefendant or defendants, if all the contesting parties are


in attendance in the court in person or by their respectivepleaders, apply to the court for mediation, the Judge hasfollowing three options:

i) the court (the Judge himself), by adjourning thehearing, may mediate in order to settle the disputeor disputes in the suit, or

ii) refer the dispute or disputes in the suit to theengaged pleaders of the parties; or to the party orparties where no pleader or pleaders have beenengaged; or

iii) refer to a mediator from the panel prepared by theDistrict Judge under sub-section 10 for undertakingefforts for settlement through mediation.

To facilitate ADR and make it more familiar to the people,there is a proposition by ADR promoters that, a degree ofcompulsion might be used, so that, if the Court refers acase then no appearance of weaknesses to use ADR would beinvolved. But a converse argument is that, mandatoryrecourse to ADR at the pre-trial stage by judicialintervention and thereby any success of ADR could lead toshort term fall in lawyers’ continuing income. Moreover,there are fundamental constitutional issues about the rightof the individual to access of justice in the courts. ADR isthe system which has been evolved from the failure of theadversarial system of law. Any attempt of compulsion maydamage the main echo of the process.Another remarkable note is that, mere amendments of the CPCwithin the existing trial philosophy may not be the best wayto look for the gateway in the blind alley (Alam, M. Shah:2000). Before it is too late, innovative approaches areneeded to live up to the uphill tasks of reconstructing ourjudiciary.

A critical reassessment of ADR conceptIt is very apparent from historical evidence of Indiansubcontinent that, Contemporary India, Pakistan and


Bangladesh’s legal system is foreign in origin. Theestablishment of an outpost in India in 1619 initiatedBritish rule and gradually control of India by the 1850scame through monopoly of overall British trades. English wasmade the official language and several traditional Hindu andMuslim customs were outlawed.Anthropologists’ opinion is, in every basic community, wheresociety, with all means of its own religious, cultural andahistoric moments, survived with its organic quality,quantity & differentia; they would have a home ingrainedsystem of dispute resolution. Such a basic and dynamicfeature of a society can not be altered or remixed by anyfusion-based culture.For the reassessment of ADR concept we desire to study thetribulations of our legal system, which is grown on basis ofRoman utilitarian and totalitarian society, with this verysensation. It is a common gap and intention of modernurbanized and centralized legal system which is developedunder colonial rulers in the than native colonies that, ithas tried to de-culturalize the native society and abolishit. As numerous scholars observed in India, ‘psychologicalindoctrination’ of an elite layer has been identified as animportant aspect of colonization and rule in India. Thiselite layer was English-educated and these British rulerscraftily imposed their values and notions to further theirgoals of domination and exploitation. In 1835, ThomasMacaulay articulated the goals of British colonialimperialism in a few words: ‘We must do our best to form aclass who may be interpreters between us and the millionswhom we govern, a class of persons Indian in blood andcolor, but English in taste, in opinions, words andintellect’(Majid, Farida: 1998). As the architect ofColonial Britain's Educational Policy in India, ThomasMacaulay was to set the tone for what educated Indians weregoing to learn about themselves, their civilization, andtheir view of Britain and the world around them. At thispoint, we can further note that, Macaulay's Penal Code isstill the backbone of all civil laws of the whole Indiansubcontinent.


So, the problems which we are facing are of the load of anoppressive legal system which is grown on basis of romanutilitarian and totalitarian society and developed tooppress the nations under colony and divide them intoclasses. Moreover, this roman adversarial system of lawcreated a very high costly interpreter class of law (Lawyer)who are so far from the footing of the root level poor classof our society. Man does not get justice, but the chamber oflawyers and their cost is increasing in the society. Therising interest of students to study law is not for thesacred sense to ensure justice, but it is the interest inthe profession, which can make money more swiftly. Here, canbe referred to the comment of a scientific futurologistthat, in a society so far the amount of lawyers willincrease, the very society will be so very apt to break.We have mentioned before that, the modern ADR movementoriginated in the United States, and basically developed inUSA & UK, which are the heart of colonial (virtual colony,because, in this time to make a colony the god of powers neednot to go in the geography of any country with army, nowthey can complete the task of the interest by making hugediscourse likewise Fundamentalism, Humanity, woman’s rights, InfiniteJustice, nuclear power, United Nations, World Bank, War against Terrorismetc.) power and authority at this time. We further mentionedthat, the problems which we are facing are of the colonialcenotaph of a multi-colored imperialism and thereby the loadof an oppressive legal system. A notable fact is that, thesocieties of west are highly differentiated in nature, whichis quite dissimilar with our integrated social relations inAsia. Now we have found the ADR movement of this category asa counter part of that legal system and also we have recitedbefore the claim against ADR concept that it is designedbasically for business interest and the affluent class whichcould narrow the access of minorities and the poor to theformal judicial system. So, it is comprehensible that,jurisprudential politics of present ADR system is to reviveand patronize corporation structure of Capitalism.The fact is deeming to be as like to remove the conflicts ofa defeated tradition with establishing another such defeated


tradition. We think that the problem is in our inheritedlegal tradition from British, so the solution is notpossible by following the western method of resolution,either it is alternative or state based traditional justicesystem. The equilibrium is an aftermath of this algebra:x + y = abWhere x = our indigenous culture of dispute resolution, andy = British colonial oppressive legal system, which we haveinherited. So, ab = the fusion of both, where huge problemsarising, a bad combination.So, we have to find out a most effective way to resolutionof disputes. This paper proposes that we should re-discoverat first our indigenous cultural components for it. We canfind the equilibrium point of this algebra as in, x = ab-y. Thecore substance is, we should exclude all other dissimilarcomponents of this fusion and search for further creativity.

Bengal’s organic culture of dispute resolutionAt the early time of ancient Northern India and elsewhere inthe subcontinent, including Bengal, an aboriginal disputeresolution system of the land Panchayet was the lowest tierof local government. The nature of this system was highlyinformal, pursued by the practical situation established atthe grassroots level (Huq, Fazlul: 1998, Siddiqui, Kamal:1998, Alam, M. Shah: 2006).It also functioned somewhat as a court having jurisdictionover members of different castes and occupations belongingto the same village and township. The initial development ofthe pachanyets was a spontaneous phenomenon to meet thesocial needs, and they were quite independent in theirworking. Though the kings, or the rulers named otherwise,are reported to have some role in helping these panchayetsto get organized at the formative stage, the former seldominterfered with their working. The panchayet hadjurisdiction over almost every type of dispute arising inthe village community. They decided both civil and criminalcases and their powers were not ordinarily bound within any


financial limit. From the 13th to the 18th century A.D. theBuddhists, Hindus and later Muslims ruled Bengal. In thattime, the history of development of political philosophy andlegal thoughts is influenced and often represented andcharacterized by the role of the dominant rulers in Bengal.But after the victory of British East India Company in thissub-continent, they dominantly stood with complete colonialcharacter and sharply divided Hindus and Muslims to rule thesub-continent and used religious sentiment against eachother (Jahid, Delwar: 2004, see also The Indian Musalmans: W.W.Hunter). British rule in this sub-continent was founded onnaked power, and India continued to be ruled by the sword byBritish rulers. At this instant, during the period ofBritish rule in India, the jurisdiction and authority ofpanchayets suffered decline with the establishment of formalcourts of adversary character for adjudicating civil andcriminal cases. The new land system introduced by theBritish also harmfully affected the panchayet justicesystem. At this time some peoples fought for thepreservation of the indigenous customs and institutions; inthe belief that these were most appropriate for Indians attheir stage of development, and that any attempt to tamperwith indigenous customs and beliefs would be received withhostility (see Titumir and his followers: Ahmed, Muin-Ud-Din,Khan). In early time of Bengal and elsewhere in the subcontinent,Gram Panchayet functioned to resolve or to mediate disputesin the village among the members of the different religions,casts and occupations. The local mediation during the earlyBritish period in this part of the subcontinent seems tohave comprised adjudication of (i) petty disputes relatingto social matters mostly through neighborhood Shalish; and(ii) land related and inter-neighborhood or inter-villagedisputes through the zaminder or his agents (Siddiqui,Kamal: 1998). Later, as population increased andneighborhoods expanded from villages, there was bothneighborhood and village-based adjudication. Whateverexisted here was highly informal in nature, dictated by the


practical situation prevailing at the grassroots level ofthe land.

Shalish: a promising way within rural BangladeshBengal has preserved a historical social solidarity over thecentury. It has its own religious, cultural and ahistoricmoments, which maintained an organic quality, quantity anddifferentia. So, the adversarial justice system inBangladesh, which was inherited from the British legalsystem, could not bring significant changes to communitylevel law and order situation in Bangladesh society. It isthe mindset of the villagers in Bangladesh that, theynaturally dislike any kinds of filing suits to court- eithercivil or criminal. A villager, who habitually makes suitsagainst another villager, is called mamlabaj, a bad commentfor habituating with courts. They always desire to settleany dispute within village community Shalish out of court.Generally the word Shalish means mediation in Bangladeshsociety (Huq, Fazlul: 1998). The western mediation is akinto Shalish in conception but differs in concept andapplication from the latter. Shalish is informaladjudication of petty disputes (both civil and criminal innature, but particularly related to family laws) locally(neighbourhood/village based) by a group of notables i.e.matbars or shalishkars (Siddiqui, Kamal: 1998). The conceptof shalish refers to a method of dispute resolution, and isconsidered to be a customary practice of resolvingdifferences among community members.In order to resolve disputes between the contending parties,an impartial third party mediates Shalish. The concept hassignificant civil and legal importance as it helps torestore community harmony formally and informally. SinceShalish vivifies the dynamics of rural power structure ofBangladesh, it has enormous theoretical implications. First,it stabilizes socio-political livelihood and class-conflictin small community context. When social conflicts,disintegration, violence and terrorism, and chaos erupt incommunity; Shalish appears to supplement and substitute


immediate legal needs of the community. Second, Shalish is astrong means to establish community solidarity, socialbondage and reciprocal coexistence. As well, Shalish is atraditional democratic mode of conflict resolution.Two types of adjudication have been in place in ruralBangladesh from days of antiquity, these were Shalish andextension of the state’s judicial arm into the rural areasthrough specific legislation. Normally, the process of aparticular Shalish starts with interrogating the disputantsto ascertain the facts. Then the Shalishkars offer theirsolutions, and seek the opinions of disputants before;finally, they come to a decision (Ellickson: 1972).In the last few decades NGOs and para legal organizations inBangladesh have taken up the case of reviving andrejuvenating the age-old institution of mediation andarbitration i.e. Shalish in its true spirit to serve thepurpose of amicable settlement of dispute in order to sparethe people of the hazards of going to the courts (Alam, M.Shah: 2006). Ain O Shalish Kendra (ASK), Bangladesh LegalAid and Services Trust (BLAST) and Madaripur Legal AidAssociation (MLAA) are three pioneered NGO program workingon Shalish in Bangladesh. So, the impact of Shalish as a social order in our societyis very important. The establishing of a solid foundationfor Shalish as a social order would be helpful to the vastmajority of rural people. It would eliminate exploitationand secure equal opportunities for justice.

A given criticism and reassessment of the condemnationThere is a given criticism that, presently Shalish inBangladesh is entangled in a vicious circle ofcomplications. Fazlul Huq (1998) referred to studies onUnion Parishad-led rural informal Shalish as a means ofwidespread corruption of its administrators. Orthodoxreligious views, money, nepotism, political domination andsocial status of upper-class people often influence theverdict of most Shalish operations. Tania Amir (2002)claims, ‘almost always persecution and fatwas have been


given against women, subjecting them to inhuman, cruel, anddegrading treatment in the name of Islam by way of a‘Shalish’. ‘The traditional Shalish is therefore not only‘anti-women’ but also ‘anti-development’. It has been usedas a systematic tool of violence and repression againstwomen and development by Fatwabaj’.In a birds eye view, these criticisms of traditional Shalishsystem in rural Bangladesh are seemed to be true and common.But a reassessment of those criticisms from horizontalscrutiny is necessary now. There are basically threeconcepts given by maximum critics. First is Fatwa(declaration of punishment according to Islamic shari’a),second is Nari nigraha (anti woman, oppressed woman), andthird is Unnayan (development). These are very crucialissues of today Bangladesh, as well as the whole world. Butthere are some other statements likely to make strongdisagreement with those criticisms. Referring to the conceptof Fatwa and oppressed woman, Snigdha Ali (2005), aresearcher in the field of Developmental Sociology from USAwrites after a research criteria on Fatwa, Shalish and thirdworld feminism in Bangladesh perspective that; ‘I am in noposition to criticize the circumstances of Shalish from theoutside. This is what I learnt from Third World feminism -not to analyze the incident out of its context’. A crucialfact is that, even though the villagers felt that sometimesthe punishment following a Fatwa was too harsh for womenthey still supported the system of Fatwa as it was afunctional mean of social control. Even if those same womenhad the generosity at heart to accept the adultery committedby a woman and at the same time were anxious that if therewas no social control what would their children learn. Beingdeeply involved with those confrontations Snigdha Ali says,‘who was I to think I was more enlightened than they were? When I was very clearly told by village women that whatwomen did in Dhaka or on TV was not acceptable to them, whowas I to censure? I can only share my views with them, Icannot impose on them. I can understand their positions intheir context, I cannot label them ‘oppressed’ waiting to berescued. I can present alternatives, I cannot force them’.


So, if any kind of social change has to be made we have towork both at the macro and the micro level. A change can notbe addressed separately from politics or isolated from otherinterconnected factors like culture and religion.The accusations found condemning traditional Shalish with‘Fatwa’, ‘Anti-woman’, and ‘Anti-development’ are based onthe analysis of NGOs, and there is an allegation that,rather than Fatwa; the main fact is ‘development’ whichcreates a power and entrance for them in rural level ofBangladesh. We have got the idea of Fatwa and oppressedwoman from Snigdha Ali, and to realize another word‘development’ we can study Brigitte Erler, who has worked asconsultant of economic ministry of Germany from 1974 to1983, and during this time, made a government tour inBangladesh to look after the developmental works of theGerman government in rural Bangladesh. In present world, wesee, powerful part of world gives huge discourse againstmarginal others to create virtual colonies (Michel Foucault:1966). According to Brigitte Erler, ‘Development’ is such adiscourse to abolish the marginal worlds. Foucault gives usthe concept of power, knowledge and politics of thesediscourses. According to him, we should study all westerndiscourses with the very meaning of its politics and power.So, the assumptions of Fatwa, Nari nigraha and Unnayan arequestionable from its unclean political approach.So, we can only share our views with rural Bangladesh, butcannot impose. We should understand their positions intheir context, but cannot label them ‘oppressed’ waiting tobe rescued (Ali, Snigdha: 2005). After all, we can presentalternatives, not by generating discourses, but withcreative infinity.

Beginning of an endThe word Justice; Muin-ud-Din Ahmed Khan explains the meaningof it to give everybody his due, although the present practice ofthe word is to give every body his right, according to law. There is afar difference between the concept of due and right. Whereverany wrong is given immunity by law, to do the very wrong


seems to be the right of every citizen of such country. Inthe other hand, a natural due of man may be banned by law.This is a complex question in present concept of law in ourcivilization. According to Khan, as a rule nobody wantsinjustice for himself or herself though all are not generousenough to extend justice equally to others. In a word, inthe ordinary transaction of human beings justice iseverybody’s expectation though may not be everyone'sgenerosity.He says; all problems in human life arise out of the gapbetween the give and take of justice. Because human natureis generally tendentious and akin to injustice andselfishness. Only by dint of moral restraint, self-discipline and patience, a man or woman attains to arighteous state of giving justice to others as he or sheexpects it for his or her own self. Rather, by the expansionof western capitalism, afterward imperialism, colonialismand new colonialism divided the man of whole world in twoclasses with a striking contest to each other: exhauster andexhausted class and thereby, affluent and poor class. In thecontrary of western capitalism, western communism is alsofailed to amend this division. As a result, the classconflict and contradiction in society is shaping to diverseand polymorphic forms day after day. (Ahmed, Muin-ud-Din,Khan:1985 & 2006)So, the question is to fill the gap of the society byensuring equal justice with its true meaning. In the abovestudy of our adversarial legal system, maximum critics’opinion is that, it has been failed to redress our legalneed from metropolis to rural level Bangladesh. The mostfoundation of the ADR concept starts from this verysensation. All scholars pronounced the word ‘reformation’ ofthe judicial system firstly in introducing their dialogue.It is very sensitive to talk with legal system and securitysystem of any state, because it is deemed culturally as todraw towards the cloths of the government. But to maintainthe society in an animated flow we should discuss this topicwith more fluent creativity. We saw that, in every givenstructure have its own components. In rural Bangladesh, the


residence of one religious community is separated from otherreligious community. But in urban community there ismaintained a multicultural pluralistic approach of residencein society. This is why the villagers of Bangladesh led by areligious tradition of Shalish, but in urban community itpracticed with pluralistic mode. But it is true that, thereis a known tradition of community Shalish in ruralBangladesh as well as urban society.A change and reformation is the solicited wish of our legalsystem in this time. But it cannot be changed with a plan ofshort time. There is some basic questions arise at theintroducing period. That is, i) either a civil disobediencewould be considered as legal or political problem; ii) Aresolution of disputes of civil or criminal character wouldbe settled either by rigid methodological approach or bycreativity on experience; iii) Either law would be developedon the basis of what should be ones’ due or on the basis oftraditional dogma by codification; iv) Either law wouldpursue the cultural components of the land or not; v) Wouldthe philosophy of punishment for a crime be based onobjective of revision of the offender or on the goal ofretribution; our legal system should face such a variety ofquestions in its way for change and reformation. To make a sudden change in a judicial system may createhaphazard situation in the whole country. As the preparationand homework of a basic change in judicial system ADR canplay a fruitful role in this regard. It can also minimizethe disorder which may create at the time of changing thejudicial system. At this context; we may proceed with somepreliminary tasks as follows:

1. We can create some legal arbitration cell in differentplaces. Such as, a metropolitan city can be dividedinto different arbitration cells considering the commoncharacteristics of those places.

2. Every legal arbitration cell will consist of a juristbody, where will be laid down all the civil disputes ora particular class of civil or quasi criminal disputesprimarily.


3. The decisions of every such legal arbitration cell willbe considered as precedent for a further time indeciding and settling the disputes.

4. For this regards, there may publish a journal in everyweek or month consisting of every such cells decisionsand critical discussion over those decisions.

5. There may be some jurisprudential principle forresolution of the disputes, such as; the objective ofevery such resolution would run to settle the disputes,not to make confrontation between the parties to thedispute; and thereby it will make a position of a win-win result to the parties to the dispute.

6. There will get priority the cultural and customarycomponents of the very area in making a decision.

7. With an experience of a reasonable period, the plan oflegal arbitration cell may be extended to the ruralarea, as a richest figure of grameen Shalish.

This entire criterion will be considered as homework of amajor change in legal system, from which we can ascertain anappropriate mode for our legal system. This will specify thejurisprudential philosophy of the country, on the basis ofwhich the law will play its role. We can develop then stepby step our own legal system which will not be foreign innature, because it will be an output of a regional homeworkand experience, thereby nearest to the personality andculture of the society.

Last developed on 08 May, 2006


R e f e r e n c e s:Siddiqui, Kamal (1998): ‘In Quest of Justice at the Grass Roots’, Journal of Asiatic Society of Bangladesh, Humanities, Vol. 43, no.1, Dhaka.Huq, Fazlul (1998): ‘Towards to a Local Justice System forthe Poor’, Grameen poverty research, vol. 4, No. 1, Dhaka.Alam, M Shah (2000): ‘Alternative Dispute resolution byearly Judicial Intervention: A Possible Way out of delay andBacklog in our Judiciary’, Daily Star, Dhaka, April 16. Inthis paper he dictates the violent position of legal systemin Bangladesh as caused by huge backlogs of cases, judicialcorruption and adversarial nature of legal system.Ahmed, Muin-ud-Din, Khan (1985): ‘Justice: a PhilologicalAnalysis’, Published in Bangladesh Darshan Patrika, 1stpart, November, 1985, pp. 44-45. Last developed edition ofthe paper is ‘Dispensation of justice in the east and thewest: a simple Comparison’; published on ‘the Souvenir ofLaw Club’, Edited by Mohammed Yasin, May 2006, Chittagong.


In this paper professor khan initiates the philologicalconsideration of Justice in a very historical and constructiveway. It also reflects the nature and scope of concepts i.e.due and right with a criticism of praxis.Islam, Farmanul (2000): ‘Towards a brief history ofalternative dispute resolution in rural Bangladesh’,Bangladesh Journal of Law, Vol. 4, Nos. 1&2, June & December2000, Dhaka.Foucault, Michel (1966): The Order of Things, one of hismost influential studies of intellectual history. Foucault’swork is concerned with the historical expressions of powerin civilizations and how power is related to knowledge andthe individual. In all his philosophical inquiries, Foucaultwill attempt to challenge established values by showing howbasic assumptions of knowledge are tied to systems of socialcontrol. Erler, Brigitte (1995): Shahajya Na Maronastra? (Aid orWeapon of destruction?), Published by the University PressLimited, Dhaka. Brigitte Erler has worked as consultant ofeconomic ministry of Germany from 1974 to 1983, and duringthis time, made a government tour in Bangladesh to lookafter the developmental works of the German government inrural Bangladesh. In this very book she has showed that,every developmental plan of German government in ruralBangladesh weakened the economy of Bangladesh more promptly.Rivero, Oswldo, De (2001): The Myth of Development (the non-viable economics of the 21st century), Published by theUniversity press limited, Dhaka.Ure, Nevile, Perely (1951): Justiniun and his age, Pelican.Reference from Ahmed, Muin-Ud-Din, Khan (1985)Engels, Friedrich (1884): Origin of the Family, PrivateProperty and the State (trans. 1902)Hoque, Kazi Emdadul, J. (1998): Bichar Babasthar Bibartan,Published by Bangla Academy, January, Dhaka.Karim, Abdul (1985): Social History of the Muslims in Bengal(down to A.D. 1538), Baitush Sharaf Islamic ResearchInstitute, Chittagong.


Chowdhury, Hasanuzzaman (2005): Somaj O Unnayan: TulanamulakSangbikkhan; revised edition, Taj Traders (pvt) Limited,Chittagong.Genn, Hazel (1999): Mediation in Action: resolving CourtDisputes without Trial, Calouste Gulbenkian Foundation,London. Reference from Mahbub, SK. Golam (2005).Dhavan, Rajeev (1989): Law and Society in Modern India,Oxford University Press, Delhi.Kamal, Mustafa, J. (2002): ‘Introducing ADR in Bangladesh’paper read in the national workshop on ‘Alternative disputeresolution: In quest of a new dimension in civil JusticeDelivery system in Bangladesh’, organized by the ministry ofLaw, Justice & Parliamentary Affairs, 31 October.Husain, Syed JR Mudassir, J. (2004): speech given in theconcluding session of South Asian Regional workshop on ADRorganized by the British Council, Bangladesh on 7th and 8th

March.Hasan, K.M. J. (2001): ‘A report on Mediation in the FamilyCourts: Bangladesh experience’, presented in the 25th

Anniversary Conference of the Family Courts of Australia,Sydney, 26-29 July.Mahbub, SK. Golam (2005): Alternative Dispute resolution(ADR) in Commercial Disputes: The UK & BangladeshPerspectives, published by SK. Golam Mahbub, DhakaTania, Amir (2002): ‘Violence against Women and Children asTools of Systematic Political Persecution’, NationalConvention on Crime against Humanity, Engineers’Institution, Dhaka, held on 14-15 February.Uddin, Nasir (2001): Informal Judicial practice in ruralBangladesh: A few case studies of Salish, The ChittagongUniversity Journal of Law, Vol. VI, University ofChittagong.Jahid, Delwar (2004): ‘Shalish’-Mediation in Rural Bangladesh,Research Fellow, St. Paul’s College, University of Manitoba,Canada.


Ali, Snigdha (2005): Do We Need a ‘Third World’ Feminism? She doesresearch in the field of Developmental Sociology, Atlanta,USA.

Conflict Management Group of USAID (2000): AlternativeDispute Resolution Workshop, NW Washington, DC. Referencefrom Jahid, Delwar (2004).


ALTERNATIVE DISPUTE RESOLUTION: BANGLADESH PERSPECTIVE1

Documents

Transcript of ALTERNATIVE DISPUTE RESOLUTION: BANGLADESH PERSPECTIVE1