Nicholas Biswas :
Bangladesh is one of the poorest countries in the world where the level of respect and awareness regarding social justice and human rights is still in bad situation. The condition is worse for the underprivileged mainly among the char, haor, indigenous groups, religious minorities, women, children and hardcore poor people. They are the victims of socio-economic and public injustice. According to article 27 of the Constitution of the People’s Republic of Bangladesh, “All citizens are equal before law and are entitled to equal protection of law”. Despite such legal provision, a great number of people in Bangladesh are deprived of their constitutional right of access to justice. The poor litigants are incapable of seeking justice due to their financial insolvency, destitution, helplessness and various socio-economic conditions. All these aspects have still kept them subjugated and ignorant of the basic human rights and amenities.
Our poor litigant people, most of whom pass more than half of the year through acute starving condition, cannot afford to reach the doors of law and derive any benefits of their services and as a result, they silently bear the agonies and burns of injustice done to them in various spheres of life without any legal relief. This is nothing but a negation to them of one of their fundamental rights of equality before law and the equal protection of law. In order to ensure access to justice to these poor people, the Government of Bangladesh enacted Legal Aid Services Act 2000 (LASA). Under this Act, the government has created opportunities for the public to provide legal aid supports at free of cost for ensuring social justice and human rights. But the poor litigants are incapable of seeking justice due to financial insolvency, destitution, helplessness and various socio-economic conditions. Government also initiated to observe April 28 each year as the National Legal Aid Day since 2013 in order to creating mass awareness on legal issues.
The concept of human security has contributed to a better understanding of the relationship between security and development. It is premised on the view that citizens will be best positioned to participate fully and equally in local or national economic and social development initiatives if they enjoy legal protection in the home, community, and workplace and can able to rely on the service providers to protect their rights. People from char and haor areas do not have access to justice due to hard to reach area and backwardness in terms of knowledge regarding rights and justice. Indigenous people have limited access and exposure to the existing justice systems due to their ignorance and non-friendly environment.
The politically and wealthy influential people very often influence the mediation process at different level thus deprive in access to justice of poor women, children, ethnic and religious minorities and marginalized communities and hardcore poor people and high risk population. To overcome this situation, we look again at our own indigenous form of dispute resolution: ‘Shalish’. Shalish means ‘mediation’ though with certain modifications of the process. The cardinal principles of this process require the participation of the parties to the dispute and decision making by themselves in their best interest. The role of the mediators is to facilitate the process of mediation so that disputants are able to reach a win-win solution. The mediators should not impose any decision on the disputants.
The other step we have taken to consolidate the achievements of Alternative Disputes Resolution (ADR) is to activate the Village Court (a quasi-judicial body to settle minor civil and criminal disputes) and Arbitration Council through proper training of the stakeholders on both Village Court procedures and mediation processes. This has provided the community with another forum for resolving local and minor disputes. It could take a vital role to reduce the huge pressure of the various courts in Bangladesh where now more than 2.4 million cases are falling pending. Although the statistics slightly differ, what is important is that the number of pending cases is significant and the need for not only exploring but also practicing alternative ways of resolving disputes has become indispensable.
In many cases, the disputes may very well get resolved through Mediation if those processes are duly facilitated and advocated. Unfortunately, a considerable number of those proceedings are vexatious and identifying a concocted one is not always the easiest task at the outset for the courts. Litigations although fraught with a lengthy, adversarial, complex and expensive process are seen as the proffered and preferred tool of seeking remedy at the best but wearing down the adversary with ulterior motives in other most cases. A significant majority of the lawyers earn their bread and butter through litigation and very few of them are advising their clients to try ADR over initiation of Court proceedings. Alternative disputes resolution is the most effective means of resolving disputes beyond the court. It is very much effective in reducing the bulk of cases pending in the courts. It is used to depict wide varieties of dispute resolving mechanisms. Besides, ADR also saves valuable time and cost involved in complex and lengthy litigation process. Alternative disputes resolution is a very effective tool for resolving petty civil, criminal and family matters. It became a ground breaking effort for us because of the fact that the grassroots population retained ownership both of the problem and its solution.
The purpose of ADR is not to inhibit access to justice but ensuring that a proper approach is followed, thereby reducing burden on courts. Although ADR is an old concept, it only became an integral part of English Civil Procedure in 1998 through the Reports of Lord Justice Woolf. With the courts of Bangladesh being flooded with overwhelming number of claims, it is perhaps about time that we appreciate the concept of Alternative Disputes Resolution (ADR) and take appropriate steps to facilitate Mediation and Arbitration not merely by bringing amendments in the laws but also enforcing them.
The benefit of Mediation is that a neutral third party mediator works as a ‘shuttle diplomat’ between the parties and explores the scopes of concession or compromise without directing or imposing on the parties as to what they should agree. Thus, unlike in court, the ultimate control of the mediation remains in the hands of the parties involved with. While incorporation of the provision regarding Arbitration in the form of section 89B in the CPC deserves its share of accolades in addition to the pre-existing provisions in the Arbitration (Salish Ain) Act 2001 (Act No. 1 of 2001), Mediation appears to be a more lucrative proposition over Arbitration in terms of both cost and time if the obstacles that had challenged the increased success of Arbitration in Bangladesh are duly addressed. Arbitration has been around in Bangladesh for a few years; however, its success has indeed been very restricted for a number of reasons.
Government has taken up various projects and programs in collaboration with different development agencies in the light of article 27 of the Constitution and Legal Aid Service Act (LASA) to speed up the implementation process of legal aid support to the poor, needy and the distressed people. Since 2013, UKAID has been implementing an innovative program namely Community Legal Services (CLS) through a consortium consisting of Maxwell Stamp PLC, British Council and Centre for Effective Dispute Resolution. CLS is working together with the National Legal Aid Service Organization (NLASO), a government entity under the Ministry of Law, Justice and Parliamentary Affairs and various local development partners to provide greater access to justice to the poor, marginalized and socially excluded communities in Bangladesh. CLS strongly encourages its partners to consider the path of mediation before going to the courts. Recently, some of the major donors including USAID, UKAID, AUSAID, CIDA, GIZ, SDC and UNDP are investing huge amount of funds in Bangladesh to create an enabling environment for legal aid and justice seeking poor people in the community. With the supports of these donor agencies, many NGOs including Light House are working together to protect and promote human rights and social justice in the society.
Working together on structuring Rules for Mediation and setting up the scene by preparing ADR professionals, the Courts and Lawyers now need to work towards making ADR a voluntary and favored choice of potential litigants over and above court proceedings. The government can also take a meaningful step to gear up the process of Mediation beyond the court proceedings. It is obvious that only the judiciary or any other single organization is not capable to ensure human rights and social justice in the society through providing legal aid supports but a comprehensive effort is essential for peace and prosperity in the country. Responsive media role is also important for achieving the goal in this regard.
Bangladesh is one of the poorest countries in the world where the level of respect and awareness regarding social justice and human rights is still in bad situation. The condition is worse for the underprivileged mainly among the char, haor, indigenous groups, religious minorities, women, children and hardcore poor people. They are the victims of socio-economic and public injustice. According to article 27 of the Constitution of the People’s Republic of Bangladesh, “All citizens are equal before law and are entitled to equal protection of law”. Despite such legal provision, a great number of people in Bangladesh are deprived of their constitutional right of access to justice. The poor litigants are incapable of seeking justice due to their financial insolvency, destitution, helplessness and various socio-economic conditions. All these aspects have still kept them subjugated and ignorant of the basic human rights and amenities.
Our poor litigant people, most of whom pass more than half of the year through acute starving condition, cannot afford to reach the doors of law and derive any benefits of their services and as a result, they silently bear the agonies and burns of injustice done to them in various spheres of life without any legal relief. This is nothing but a negation to them of one of their fundamental rights of equality before law and the equal protection of law. In order to ensure access to justice to these poor people, the Government of Bangladesh enacted Legal Aid Services Act 2000 (LASA). Under this Act, the government has created opportunities for the public to provide legal aid supports at free of cost for ensuring social justice and human rights. But the poor litigants are incapable of seeking justice due to financial insolvency, destitution, helplessness and various socio-economic conditions. Government also initiated to observe April 28 each year as the National Legal Aid Day since 2013 in order to creating mass awareness on legal issues.
The concept of human security has contributed to a better understanding of the relationship between security and development. It is premised on the view that citizens will be best positioned to participate fully and equally in local or national economic and social development initiatives if they enjoy legal protection in the home, community, and workplace and can able to rely on the service providers to protect their rights. People from char and haor areas do not have access to justice due to hard to reach area and backwardness in terms of knowledge regarding rights and justice. Indigenous people have limited access and exposure to the existing justice systems due to their ignorance and non-friendly environment.
The politically and wealthy influential people very often influence the mediation process at different level thus deprive in access to justice of poor women, children, ethnic and religious minorities and marginalized communities and hardcore poor people and high risk population. To overcome this situation, we look again at our own indigenous form of dispute resolution: ‘Shalish’. Shalish means ‘mediation’ though with certain modifications of the process. The cardinal principles of this process require the participation of the parties to the dispute and decision making by themselves in their best interest. The role of the mediators is to facilitate the process of mediation so that disputants are able to reach a win-win solution. The mediators should not impose any decision on the disputants.
The other step we have taken to consolidate the achievements of Alternative Disputes Resolution (ADR) is to activate the Village Court (a quasi-judicial body to settle minor civil and criminal disputes) and Arbitration Council through proper training of the stakeholders on both Village Court procedures and mediation processes. This has provided the community with another forum for resolving local and minor disputes. It could take a vital role to reduce the huge pressure of the various courts in Bangladesh where now more than 2.4 million cases are falling pending. Although the statistics slightly differ, what is important is that the number of pending cases is significant and the need for not only exploring but also practicing alternative ways of resolving disputes has become indispensable.
In many cases, the disputes may very well get resolved through Mediation if those processes are duly facilitated and advocated. Unfortunately, a considerable number of those proceedings are vexatious and identifying a concocted one is not always the easiest task at the outset for the courts. Litigations although fraught with a lengthy, adversarial, complex and expensive process are seen as the proffered and preferred tool of seeking remedy at the best but wearing down the adversary with ulterior motives in other most cases. A significant majority of the lawyers earn their bread and butter through litigation and very few of them are advising their clients to try ADR over initiation of Court proceedings. Alternative disputes resolution is the most effective means of resolving disputes beyond the court. It is very much effective in reducing the bulk of cases pending in the courts. It is used to depict wide varieties of dispute resolving mechanisms. Besides, ADR also saves valuable time and cost involved in complex and lengthy litigation process. Alternative disputes resolution is a very effective tool for resolving petty civil, criminal and family matters. It became a ground breaking effort for us because of the fact that the grassroots population retained ownership both of the problem and its solution.
The purpose of ADR is not to inhibit access to justice but ensuring that a proper approach is followed, thereby reducing burden on courts. Although ADR is an old concept, it only became an integral part of English Civil Procedure in 1998 through the Reports of Lord Justice Woolf. With the courts of Bangladesh being flooded with overwhelming number of claims, it is perhaps about time that we appreciate the concept of Alternative Disputes Resolution (ADR) and take appropriate steps to facilitate Mediation and Arbitration not merely by bringing amendments in the laws but also enforcing them.
The benefit of Mediation is that a neutral third party mediator works as a ‘shuttle diplomat’ between the parties and explores the scopes of concession or compromise without directing or imposing on the parties as to what they should agree. Thus, unlike in court, the ultimate control of the mediation remains in the hands of the parties involved with. While incorporation of the provision regarding Arbitration in the form of section 89B in the CPC deserves its share of accolades in addition to the pre-existing provisions in the Arbitration (Salish Ain) Act 2001 (Act No. 1 of 2001), Mediation appears to be a more lucrative proposition over Arbitration in terms of both cost and time if the obstacles that had challenged the increased success of Arbitration in Bangladesh are duly addressed. Arbitration has been around in Bangladesh for a few years; however, its success has indeed been very restricted for a number of reasons.
Government has taken up various projects and programs in collaboration with different development agencies in the light of article 27 of the Constitution and Legal Aid Service Act (LASA) to speed up the implementation process of legal aid support to the poor, needy and the distressed people. Since 2013, UKAID has been implementing an innovative program namely Community Legal Services (CLS) through a consortium consisting of Maxwell Stamp PLC, British Council and Centre for Effective Dispute Resolution. CLS is working together with the National Legal Aid Service Organization (NLASO), a government entity under the Ministry of Law, Justice and Parliamentary Affairs and various local development partners to provide greater access to justice to the poor, marginalized and socially excluded communities in Bangladesh. CLS strongly encourages its partners to consider the path of mediation before going to the courts. Recently, some of the major donors including USAID, UKAID, AUSAID, CIDA, GIZ, SDC and UNDP are investing huge amount of funds in Bangladesh to create an enabling environment for legal aid and justice seeking poor people in the community. With the supports of these donor agencies, many NGOs including Light House are working together to protect and promote human rights and social justice in the society.
Working together on structuring Rules for Mediation and setting up the scene by preparing ADR professionals, the Courts and Lawyers now need to work towards making ADR a voluntary and favored choice of potential litigants over and above court proceedings. The government can also take a meaningful step to gear up the process of Mediation beyond the court proceedings. It is obvious that only the judiciary or any other single organization is not capable to ensure human rights and social justice in the society through providing legal aid supports but a comprehensive effort is essential for peace and prosperity in the country. Responsive media role is also important for achieving the goal in this regard.
